Examination of Witnesses (Question Numbers
QC AND PETER
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
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
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
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
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
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.