Examination of Witnesses (Question Numbers
QC AND PETER
10 FEBRUARY 2009
Q200 Chairman: So they manage without
having a specialised prosecution agency presumably in either of
the fields for which you are responsible.
Peter McNaught: Yes; that is right.
In the Health and Safety Executive, once the report has been prepared
it is handed to the Procurator Fiscal who then prosecutes the
Q201 Chairman: Do you notice any
difference in either outcomes or ease of conduct of business between
the two systems?
Peter McNaught: Probably, to understand
the Health and Safety Executive you need to know a little bit
about how that operates in England and Wales because that is quite
different in the Health and Safety Executive from the way in which
RCPO or CPS operate in that the Health and Safety Executive is
primarily concerned with ensuring the health and safety of people
at work and those affected by work. So inspectors, who are effectively
investigators, are also the prosecutor and in many cases will
be the person who presents the case in the magistrates' court
and conducts the function of the prosecutor. In the more complicated
cases, we use outside solicitors to advise and in a very small
proportion of cases my team of lawyers present the case and prepare
the case. We ensure independence through other members of the
Health and Safety Executive approving prosecution decisions and
remaining at arm's length from the investigating inspector. Against
that background, the same system operates in Scotland inasmuch
as the inspector will investigate, his principal inspector will
approve that the case should go to the Fiscal and then the Fiscal
will decide whether to take that forward to court as part of his
function. The Procurator Fiscal has recently set up a new unit
to deal with Health and Safety prosecutions, which appears to
be an acceptance that it is a rather specialised area of the criminal
law which needs that expertise. That is a very welcome development
for the Health and Safety Executive.
Q202 Chairman: Just to add to the
sum of general understanding of what happens in Scotland, which
is always a good thing, especially if, like me, you live on the
border, but perhaps rather more to make the point that it is possible
to do all this without having the kind of specialist prosecution
role which you each have, in Mr Green's case as a separate organisation
for England and Wales and in Mr McNaught's case rather more like
Customs used to be as an inspecting and prosecuting body, you
did not tell me whether you thought it made much difference.
Peter McNaught: It is difficult
to know whether the outcomes are better in Scotland or in England
and Wales. What is probably missing in Scotland compared to England
and Wales is the connection between other action which takes place
as part of enforcement. A lot of work which is done by the inspector
is in terms of giving advice and guidance and enforcement notices
and they have therefore a very good knowledge of where the benchmark
is in terms of where action will bring about improvement in health
and safety without prosecution and where a prosecution is needed.
Effectively some of that will happen in any event before a case
goes forward to the Fiscal for a decision on prosecution.
David Green: May I make a couple
of points on that? First of all, it is right to say that the Attorney
has set up a strategic board, the idea of which is to ensure that
strategy is joined up across the law officers' departments. Part
of that board's work is just beginning now as a strategic programme
which is frankly designed, as you would expect, to achieve the
most efficient and effective prosecution services for the future.
That work includes looking at the structure of the prosecutors.
As I understand it, all options are very much open. It is right
to say that the current system works well, but that is not the
same as saying that it is not capable of improvement. There are
arguments on both sides, with which I am sure you will be familiar,
but perhaps I might take a few points in favour of the specialist
prosecutor. One might think that if prosecutors were all merged
into one monolithic organisation, specialism and expertise in
certain key areas such as, in our case, fiscal and tax law, customs
and smuggling law, would quickly be diluted and lost. That was
certainly the view of the Gow/Hammond report in 2000 and Mr Justice
Butterfield's report in 2003 which led to the establishment of
RCPO. Secondly, it might be right to say that in a large single
monolithic organisation there will always be competing and emerging
priorities at different times, therefore a pressure to shift resources
within that large organisation to that new and emerging priority.
If you have a specialist prosecutor, then of course you have a
dedicated ring-fenced resource within that small area of specialism.
I have to say, as I am sure you will readily agree, fiscal and
tax law and customs law are not for the fainthearted.
Q203 Mr Heath: You have partly answered
my question in what you were saying about the coordinating arrangements.
There are times when you prosecute and there are times when you
use other means to achieve your objectives. I wonder whether you
both believe there is consistency between the various prosecuting
authorities on when to prosecute and when not to prosecute or
whether there is a possibility that it is pure happenstance if
a particular case which might be in the overlap area is taken
up by one prosecutor or another as to what the disposal is likely
to be in that sense and to what degree there is any coordination.
David Green: I would say first
of all that certainly we follow the code for crown prosecutors;
RCPO follows them by statute, so does the Serious Fraud Office,
so does the Crown Prosecution Service and the DPP has ownership
of that code. As I pointed out, we do of course prosecute a very
distinct group of offences.
The Committee suspended from 4.32 pm to 4.47
pm for a division in the House.
Q204 Mr Heath: Do you remember my question?
David Green: The purport of your
question was that having lots of prosecutors in different organisations
might produce inconsistent results.
Q205 Mr Heath: Yes and all those
areas which do not lead to prosecution. Taking it beyond the convention
of whether the evidence is sufficient and whether it is in the
public interest, it is clear that some of the organisations have
alternative means to ensure a result other than prosecution. I
am wondering whether there is a degree of consistency or not.
David Green: With respect, it
is probably horses for courses, is it not? From HMRC we can only
consider a prosecution which they refer to us and of course HMRC
is a tax collector primarily and has all sorts of other mechanisms
available to it but once it has referred to us, I would say our
decisions within the organisation are entirely consistent, just
as consistent, for instance, as a prosecutor in Southend working
for the CPS would make a decision consistent with a prosecutor
working in Scunthorpe for the CPS. There is no difference in principle.
Q206 Mr Heath: The Health and Safety
Executive is slightly different perhaps.
Peter McNaught: Slightly different
and different because other agencies prosecute health and safety
breaches in particular local authorities. What we do to try to
ensure consistency in addition to applying the code for crown
prosecutors is that we have our own enforcement policy statement
which has some flesh in the context of health and safety enforcement
to the areas which are important in relation to that enforcement.
That is a document to which local authorities have access and
they will apply consistently in the same way as the Health and
Safety Executive will seek to do. In terms of other penalties
and other ways of dealing with things rather than simply going
to court, as I mentioned earlier the Health and Safety Executive
and local authorities will use enforcement action in terms of
notices, improvement notices and prohibition notices, as a very
useful tool to ensure compliance with health and safety law and
ensure safety at work. In fact we will issue many, many more improvement
notices and prohibition notices than we will take prosecutions
to court because that will achieve the aims of the Health and
Safety at Work Act.
Q207 Mr Heath: Do you have a clear
and set out policy in respect of deaths which may have been occasioned
by a failure to ensure health and safety? Do you have clear lines
of communication both with coroners and with the police authorities
where they may be involved?
Peter McNaught: In relation to
work-related deaths there is the work-related death protocol which
is a protocol signed by the HSE, police, CPS and other agencies
who become involved in such investigations and prosecutions. That
helps in relation to joint working, initially with the police,
because that would be the first contact after a death at work.
The police will be informed, the Health and Safety Executive or
the local authority will be informed and the protocol helps us
to work out from that point onwards who should lead in the investigation,
which parts of the investigation should be dealt with by which
agency and as the investigation then progresses it is then that
the CPS will become involved and decisions will then be made as
to whether this is a case where there is a case of manslaughter,
either against an individual, or corporate manslaughter against
a company. As part of that process, depending upon who has the
lead of the investigation, the coroner will be kept informed of
the progress of the investigation and of course the families of
the deceased, very important in any such investigation, will be
kept informed, depending upon who is the lead agency, by the police
or by the Health and Safety Executive.
Q208 Mr Heath: I do not want to labour
this point. Do you think that has improved significantly recently?
I have a long-standing case which I have been pursuingI
do not want to go into the detailswhere it is clear there
was not that degree of coordination.
Peter McNaught: There are certainly
cases that I am aware of where there has not been successful coordination.
It is improving, has improved over the recent couple of years.
We are doing a lot with the CPS and with the police to try to
improve that coordination. There are regional liaison committees
in each of the regions of England and Wales and Scotland to discuss
particular cases and particular issues which arise from those
cases to try to work out, if things do go wrong, where they went
wrong, to improve in the future and if things have worked well,
how they worked well and to disseminate good practice and a national
committee which then tries to pull that all together. Whilst I
would not say that in every case it always works perfectly or
sometimes very well, it is an improving situation and one which
certainly we, the police and CPS are working to improve further.
Q209 Mr Heath: May I return to you,
Mr Green, on a different matter? You may say this is a matter
for HMRC rather than yourself. May I give you an example which
has cropped up in my work where a different disposal appears to
be being used in regard to carousel fraud? It is a big issue and
there is political determination to sort it out. The mobile phone
trading industry has effectively been brought to a halt without
there being a significant number of successful prosecutions by
a mechanism of withholding VAT returns. I do not want to defend
anyone who is acting fraudulently but equally I feel that this
is a diversion away from due process to assume that these companies,
simply because they are trading in the sector, are probably guilty
of the fraud. It worries me that there is something going on there
which is not due process. Does it worry you?
David Green: First of all, obviously
we only consider for prosecution things which are referred to
us for a decision as to prosecution by HMRC. In relation to what
you have said, I am aware of similar circumstances. I am afraid
that is something HMRC would have to answer for but I would also
say that anyone who has had their VAT withheld is perfectly able
to appeal to a tribunal for its return.
Q210 Mr Heath: Eventually.
David Green: Yes.
Q211 Mr Heath: But it is a large
sum of money which HMRC then withhold the next year. It is not
something you have discussed with HMRC?
David Green: No, that would be
a matter for HMRC.
Q212 Chairman: So you do not have
any influence on what the policy is for the use of alternative
mechanisms to deal with infringement?
David Green: To say we have no
influence is not quite right. We make strong submissions to HMRC
and they listen to them.
Q213 Mr Heath: Have you on this?
David Green: We are in regular
discussion on MTIC fraud and how to prosecute it.
Q214 Mr Heath: What have you said?
David Green: Investigating MTIC
fraud is largely a matter of course for HMRC. They have to decide
what sort of resource they want to put into investigating it.
Once they have done that we are perfectly happy to consider anything
they report to us for prosecution. They are the tax collectors
and as I have said three times now, we can only consider for prosecution
cases which are referred to us.
Q215 Mr Tyrie: They are referred
to you for consideration?
David Green: Yes.
Q216 Mr Tyrie: HMRC's primary concern
is to get the money in. It is as simple as that really, is it
David Green: Yes.
Q217 Mr Tyrie: Therefore, when they
consider what to refer to you, they are thinking about putting
before you cases which can help them get the money in?
David Green: It is a question
again which is better put to HMRC but obviously they have their
investigative priorities; we have some influence in what their
priorities might be. Obviously priorities change but we are a
prosecution authority quite separate from HMRC.
Q218 Mr Tyrie: What are their priorities
at the moment?
David Green: Generally speaking
safeguarding the revenue.
Q219 Mr Tyrie: Yes; getting the money
David Green: Protecting the revenue
and that may touch on all sorts of things. It may be alcohol diversion
fraud, it might be the same sort of fraud in relation to tobacco,
it might be missing trader intra-community fraud to which you
have referred and it may be frauds on income tax or other sorts