The Crown Prosecution Service: Gatekeeper of the Criminal Justice System - Justice Committee Contents

Examination of Witnesses (Question Numbers 240-253)


10 FEBRUARY 2009

  Q240  Chairman: I am just going to check whether Mr McNaught is involved in that board.

  Peter McNaught: No, we are not one of the official superintended prosecuting agencies. We are part, as indeed are RCPO, of the Whitehall prosecutors' group who, in a similar way, share their good practice, develop good guidance and work together on a number of issues which affect us all and share that learning and good practice.

  Q241  Alun Michael: To return to Mr Green on the situation where multiple agencies have an interest in pursuing prosecution, I suppose the best way of putting it is that they share a bit of the public interest; they may have specific issues which are primary to them in a complex case where there are several elements. How do you deal with those?

  David Green: There is the prosecutors' convention which does what it says on the tin essentially; it is a mechanism.

  Q242  Chairman: It sounds like something held in a very grand hotel.

  David Green: It is a slim document designed to ensure exactly this, that the most appropriate prosecutor with the right expertise in the right place takes the case forward. You could imagine you could get a prosecution which might have a tax angle, it might have a drug importation angle, it might have a violence angle and obviously in those cases there is an established mechanism which works to enable the best placed prosecutor to take that forward.

  Q243  Alun Michael: With respect, even if prosecutors are these wonderful, cooperative people who never disagree but always coordinate efficiently amongst themselves, agencies do tend to be a little narrower sometimes in their focus. In those rare circumstances, perhaps the one in a thousand where there is a different view between a couple of agencies about who should go first, how does that get resolved?

  David Green: I can give you an example. I explained to you earlier that work for the Serious Organised Crime Agency is divided between the CPS and RCPO on the basis of expertise and so forth and who is available and capacity, et cetera. There is a procedure agreed between us that if it simply cannot be agreed who should do the case then the directors, DPP and I, should discuss it. That escalation mechanism has never been used; it has never had to be used.

  Q244  Alun Michael: The threat is enough.

  David Green: There is genuine cooperation and it works.

  Peter McNaught: The same applies in relation to Health and Safety Executive in terms of the Environment Agency. We often become involved in prosecutions where there is firstly the cause of an incident which interests us very much, but then the consequence of the incident may well involve the Environment Agency and interest them very much. What is important is that there is discussion to be clear as to what each agency regards as their important aspect of the case, how the cooperation is going to take place, but at the end of the day the Environment Agency have rights in relation to their prosecution and the Health and Safety Executive in relation to ours. As long as that is discussed and agreed at an early stage, then the misunderstandings you have mentioned will not arise.

  Q245  Alun Michael: You did mention earlier that local authorities prosecute and therefore it is not an agency in the same sense. Do complications arise as far as liaison with local authorities is concerned on who takes the lead?

  Peter McNaught: With the Environment Agency there could be similar issues but, again, they would operate in a similar way. We work very closely with local authorities to consider in particular cases and particular premises whether there may be a need for us to take some enforcement action which would not normally be the case if there are reasons why a local authority feels there are difficulties in it enforcing that particular aspect of the law.

  Q246  Dr Whitehead: The HSE is what you might call a vertically integrated organisation as far as investigating and making decisions about prosecutions are concerned, notwithstanding other agencies it may work with. You therefore may have circumstances where perhaps an inspector is investigating and may decide on a course of action which does not involve prosecution. On the other hand there may be a decision about prosecution. How does that work internally to your organisation? Are there, for example, circumstances where you may say "Actually we are rather snowed under with prosecutions as far as the organisation is concerned so perhaps when you are inspecting could you please make sure that you bring about outcomes which do not relate to prosecutions?". On other occasions you may take a different view. How does that actually function?

  Peter McNaught: One of the aspects of our enforcement policy statement is to make quite openly the statement that we do target enforcement action in relation to those where the risk is greatest. That does not mean necessarily in particular circumstances there will or will not be action and in another there will not. It has to be realised that we have to use our resources where they are most needed and that is where there is the most risk of injury being caused in the workplace. We have systems in place to ensure that decisions of the type you have mentioned are made as consistently as possible, consistent with that targeting. For instance, there is a process which an inspector will go through to refer a decision to somebody else's principal inspector who will then make the decision in relation to a prosecution, having kept himself at arm's length from the investigation. The criticism which is often made of the investigator being the prosecutor is that the investigator cannot take an objective view. The way in which we deal with that suggestion is to have the line manager, the principal inspector overviewing. He may have some involvement in the investigation in terms of ensuring it is carried out properly but as a day-to-day way he will not involve himself in how that is carried out. So that person can then apply objectivity, impartiality and a degree of independence to that decision to make sure it is consistent with other decisions that are being taken. The issue in terms of the inspector taking other enforcement action is that sometimes he needs to do that there and then because if an inspector goes into a particular premise and there is something happening that is a considerable risk to the health and safety of those at work, he has to take action and that cannot mean him referring to somebody else to do so necessarily. Through systems which are internal, albeit there is this vertical structure of being the investigator and the prosecutor, we aim to bring in the sort of independent approach that exists in the Crown Prosecution Service and RCPO.

  Q247  Dr Whitehead: Is that a matter of policy and universal practice or is it done when it is appropriate?

  Peter McNaught: No, that is universal practice. It is done in slightly different ways in different cases. The model I have explained to you is the normal model in the most routine cases. In more complex cases then my unit will become involved and we will effectively act as the prosecutor, independent of the inspector and where we can make all the decisions in relation to a prosecution once it has been approved and referred to us for prosecution in a very similar way to that described by the RCPO.

  Q248  Dr Whitehead: On that basis how would you be able to demonstrate within the organisation that, if a complaint had perhaps been received, there was undue collusion between an inspector, say, deciding either to prosecute or not to prosecute and the person who had done the investigation and had made a recommendation? How would you demonstrate that the process you described really did function in the way it did as far as the Executive was concerned?

  Peter McNaught: I would be able to demonstrate it by the fact that the person who has taken the decision, the approval officer, has not been involved in relation to the investigation. It will have been the inspector and perhaps other inspectors who had been doing the day-to-day investigation, dealing with witnesses, speaking to witnesses, gathering evidence and somebody quite separate from that not coming to it completely isolated, because that would be impossible in the organisation we have, but great care is taken that that person does not become so involved in that investigation that they cannot bring that element of impartiality to the decision that is necessary to be able to demonstrate to people that this is an impartial decision.

  Q249  Julie Morgan: I want to ask you about victims. Mr Green, you do not have individual victims in the sense of actual individuals but you say society as a whole?

  David Green: We think of our victims generally speaking as society as a whole or taxpayers. That is not to say that some of our work does not touch upon individual victims and where that happens we do get involved. By way of example, you will know tobacco smuggling has caused considerable damage to the local economies of Folkestone, Dover and Kent. Obviously we therefore have a voice on the Kent Criminal Justice Board. To that extent, yes, we are involved with individual victims but generally speaking it is as you say.

  Q250  Julie Morgan: How does the fact that your victims generally are the taxpayers influence how you operate?

  David Green: I am trying to think. I suppose it is an element of the public interest that one applies in the test. It is something which is always in the background. When you are thinking about losses to the public purse, as has been said earlier, it is a factor, a major factor and often a very important one in the decision whether or not to bring a prosecution.

  Q251  Julie Morgan: Could I ask Mr McNaught quickly about your experience with victims?

  Peter McNaught: We do have victims of course because we deal with over 200 work-related deaths every year. The families of the bereaved are very important in part of the process. We have a policy which applies all the main principles of the victims' code and the victims' charter and the prosecutors' pledge. Our investigations and the proceedings can be very lengthy in terms of the time they take, for some of the reasons Mr Heath mentioned in terms of the need to have the CPS involved, the need to have an inquest. The important thing for us to do is to manage the expectations of victims and to be able to explain. Whilst I am sure they always want to have an early resolution, we must be able to give information to explain why in any particular case a case is taking a long time to come to a conclusion. We do that by giving them information, by giving them regular updates and in conjunction with the police ensuring that they are kept informed about the proceedings.

  Q252  Julie Morgan: Do they understand the whole range of organisations involved and what your actual role is?

  Peter McNaught: It is difficult for them to understand. It is difficult for them to understand why the case has to go from one agency to another to the coroner and then back to court. All that we can do is to try to explain that.

  Q253  Julie Morgan: So you spend a considerable amount of time explaining?

  Peter McNaught: Yes and it is the responsibility of the inspector who is investigating to ensure that the victim is kept informed and as much as possible to give as much information as possible, because in the early stage of an investigation it can be very difficult to give information, as much as we can we do, so that the bereaved families and the victims understand where the investigation is going and why it is taking a long time and why that is.

  Chairman: Thank you very much Mr Green, Mr McNaught; we are very grateful to you.

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