Examination of Witnesses (Questions 1-19)
19 MAY 2004
MR KEN
MACDONALD QC, MR
PHILIP GEERING
AND MR
CHRIS NEWELL
Q1 Chairman: Mr Macdonald, welcome. I
am pleased to see that you are accompanied by Mr Philip Geering
who is the Director of Policy at the CPS and Chris Newell who
is the Director of Casework at the CPS. Thank you for coming to
appear before the Joint Committee on Human Rights today as part
of several of our inquiries: first of all in relation to the defence
of "reasonable chastisement", where we are currently
looking at issues in relation to the Children Bill; deaths in
custody, which is one of the inquiries we are currently conducting;
and also the Committee's response to the Home Office consultation
on counter-terrorism powers, particularly in relation to difficulties
encountered in prosecuting such cases. If I may start with the
issue of the possible abolition of the defence of reasonable chastisement,
you must be aware that this is likely to surface in connection
with the Children Bill which is currently going through Parliament
and, as I have just said, we ourselves will be reporting on this
Bill in the near future. We would be very interested to know from
your perspective, from a prosecuting perspective, what difficulties
there might be if the current defence of reasonable chastisement
were to be abolished. I focus particularly on problems in relation
to the evidential test and the public interest test because I
think the last thing most people would want would be a situation
where adults were going to be prosecuted for mild smacking of
their children.
Mr Macdonald: I have seen a proposed
amendment which I think was drafted by Peter Carter which abolishes
the defence of reasonable chastisement and, quite clearly, this
outlaws batteries and assaults in all but very exceptional circumstances—to
prevent crime, for safety reasons and so on and so forth. My view
is that that amendment criminalises all batteries against children
except those which are excluded within the terms of the amendment.
What we are being asked to say is whether if that were the situation
we would develop a policy which meant that adults who simply smacked
children in the way that you describe would not be prosecuted.
Our response is that Parliament needs to frame its legislation
to achieve the result it wants to achieve and it needs to understand
that if it approves that amendment it will be criminalising battery
against children, that will be the reality. We have some difficulty
with Parliament expecting us to determine through our Code for
Crown Prosecutors what public policy ought to be. We think the
legislation should be sufficiently certain. The reality is that
we would have to have some sort of policy about this but I think
it would be inconceivable for us to draft a policy that would
be so wide as to say that minor assaults on children would never
be prosecuted because there clearly could be circumstances where
they would be. One might posit an example of a child who was mentally
handicapped or a child who was subjected to sexual abuse or other
forms of assault. So we would not and could not draft guidance
which would absolve all minor acts of battery against children
from criminal prosecution. That said, the reality is that, just
as most minor assaults against adults are not prosecuted, I suspect
most minor assaults against children would not be either, although
it is not an entirely accurate analogy because children are much
more vulnerable than adults so the fact that adults are not regularly
prosecuted for minor assaults where the victim is an adult does
not mean there would not be prosecution more frequently when the
victim is a child. So far as the tests are concerned removing
the defence of reasonable chastisement clearly means that the
evidential test can be passed more easily because one of the things
Crown prosecutors have to factor in when considering whether the
evidential test is met is possible defences and how compelling
they are likely to be. If that defence goes, then the evidential
test so far as minor assaults is concerned might be passed more
easily and prosecution in appropriate circumstances could be more
likely. So far as the public interest test is concerned, I think
we are hesitant about a proposal which would invite us to say
that the public interest test can do this job for Parliament rather
than Parliament doing the job itself. One solution to this, of
course, would be to abolish the defence of reasonable chastisement
in all offences except common assaults. That is a possibility
and that would have the merit, it seems to us, of the legislation
being more certain. I do not want to repeat myself but I think
we are a little uneasy at the idea that Parliament can fudge this
issue and expect us to sort it out.
Q2 Chairman: What you are saying is if
there is to be some public interest test, it is for Parliament
to determine what the parameters of it are?
Mr Macdonald: It is for Parliament
to determine whether minor slaps to children are criminal assaults
or not. That is the bottom line and if the Peter Carter amendment
is adopted it does that; it says that even minor assaults against
children—although we can allow for de minimus smacking—are
criminal acts by that amendment. We cannot say now before the
legislation is even passed that we would never prosecute those
kind of assaults. There clearly would be circumstances in which
we would although, as I said earlier, they would probably be very
rare.
Q3 Chairman: You seem to be saying that
assaults on adults can be dealt with in terms of severity because,
as you said, there are many occasions when an adult would effectively
assault another and it would not result in a prosecution and it
is possible for the CPS to deal with those kind of issues but
not to deal with them when they relate to children because children
are more likely to be smacked. Is that what you are saying?
Mr Macdonald: No, you can have
a situation where one adult smacks another and there is clearly
no public interest in prosecution, there is no injury, the person
who is slapped is not really bothered about it, and there is no
public interest in taking a case like that through the courts.
That might often be the case with children but it equally might
not be because children are much more vulnerable and there are
all sorts of situations in which children who are smacked might
be damaged by it (psychologically if not physically) and there
might be cases of that sort where Crown prosecutors will say,
"This was just a smack but I am going to prosecute because
there is public interest in prosecuting." What I am saying
to you is that we could not devise a policy which would mean that
minor slaps were never prosecuted; we simply could not do it.
Q4 Lord Lester of Herne Hill: As I understand
what you are saying, Mr Macdonald, what you are saying is if the
amendments were made more sophisticated in the way that you have
suggested, and in fairness it was available for common assaults,
that in your view would achieve reasonable legal certainty and
in terms of policy it would go a long way to meet the objectives
of Mr Carter?
Mr Macdonald: That is right. Can
I explain why I say that? So far as we have been able to discover
through a trawl, in the year ending May 2003, there were nine
cases of assault on children in which the defence of reasonable
chastisement was raised and there were four acquittals. These
are cases where the violence was, in our view, strong enough to
require a prosecution, in some cases quite bad violence. If a
Crown prosecutor was looking at a minor slap or smack of the sort
we are talking about and there was available to the defendant
the defence of reasonable chastisement, because it was permitted
still by the amendment, the chance of that case being prosecuted
once that defence had been factored in would be very, very low
indeed because the overwhelming likelihood is in the light of
that defence and in the light of the minor nature of the assault
there would an acquittal, so you would not get past the evidential
test because there would be no realistic prospect of conviction.
If you take away reasonable chastisement there is a slightly stronger
bias in favour of prosecution or a slightly stronger likelihood
that the evidential test is passed.
Q5 Lord Campbell of Alloway: Mr Macdonald,
you are saying, are you not really, that you retain the discretion
that you always had in all cases on a de minimus affair?
That is a question of discretion and that must always remain with
the prosecuting authorities; it always has done.
Mr Macdonald: Yes.
Q6 Lord Campbell of Alloway: But if you
retain that discretion there is no reasonable cause to do away
with what they call reasonable chastisement?
Mr Macdonald: That is a matter
for Parliament; it is not a matter for us.
Q7 Lord Campbell of Alloway: And that
is for Parliament to decide.
Mr Macdonald: I am being asked
what I think the effect would be in terms of prosecution practice
if the defence were abolished. I am not expressing any view about
whether it should be or not.
Q8 Chairman: Do you find the least bit
persuasive the Scottish Parliament solution which I gather specifies
particular implements or body parts or age thresholds in determining
these issues?
Mr Macdonald: We already have
guidance from the Court of Appeal in the case of H about the circumstances
in which reasonable chastisement could work. I think it is a mistake
to be overly prescriptive actually. It is quite difficult to think
of circumstances in which a weapon is used against a child and
the appropriate offence would be common assault. I suppose you
could strike a child with a weapon and cause no injury at all,
but I think all of our experiences would be that where an adult
uses a weapon against a child that is conduct which most people
believe should be criminal under all circumstances.
Q9 Chairman: How do you define a weapon?
Mr Macdonald: I am thinking in
terms of a piece of wood or a bar and that it is a matter for
people's judgment, it is a matter for Parliament's judgment as
to whether it wants to criminalise that.
Q10 Lord Judd: I always say at this point
I am not a lawyer, I am just a layman who looks to the law for
protection and the rest. If the law is to work well does it not
necessitate that there is a culture which the law is supporting,
and whether or not appropriate wording was found in whatever form,
if it were envisaged that in certain circumstances parents could
slap a child, this sends a confusing message to the public? It
is not saying that slapping or hitting children is wrong; it is
saying there are certain circumstances in which it is permissible.
Does that not, whatever the wording, make your task more difficult
because of the knock-on effects?
Mr Macdonald: I think there are
always uncertainties. Except in the most open and shut cases,
whenever you try to apply the code test, the public interest test,
there are often considerations and arguments on both sides. I
really cannot express an opinion here about what I think Parliament
should do. All I can say to you is that although I suspect prosecutions
would be very rare, if the question is: could you issue guidance
saying slaps are not to be prosecuted? the answer is we could
not do that. Indeed, it would be fairly meaningless guidance and
difficult for prosecutors individually to interpret exactly what
was meant by it because it would have of course subsidiary questions.
Q11 Chairman: It might be helpful if
for those of us who are not lawyers you could clarify the difference
between common assault and battery.
Mr Macdonald: Assault is putting
someone in fear of violence; battery is actually causing them
violence. The technical legal definition of a common assault if
it is battery is the laying of hands on someone without leaving
an injury, so it is an application of force. Assault does not
have to be an application of force; assault can simply be a threat
of force. I hope that is clear.
Chairman: We move on now to the issue
of deaths in custody.
Q12 Mr Stinchcombe: I just wonder how
concerned you are as the Director of Public Prosecutions that
there have been so few prosecutions following deaths in custody
even after coroners' verdicts of unlawful killing?
Mr Macdonald: Well, it is clear
this is a litmus public confidence issue for us and for the state
itself, it seems to me, and I understand why you ask the question.
I want to try and contextualise this if I can and tell you something
about my experience since I have been in this post, and I took
up post at the beginning of November. It is clear that a disturbingly
high number of people die in custody every year, there is no doubt
about that and there is no doubt there are many and varied causes
of death. Some people die from drug ingestion or alcohol poisoning,
some die of natural causes, some commit suicide. The reality is
that in a very significant number of cases the medical experts
cannot agree about cause of death and that is a source of perennial
problems for the prosecuting authorities. Undoubtedly, some people
die in custody following a period of physical restraint by police
officers. This is a particular issue of difficulty and it is particularly
difficult because experts never seem to be able to agree on the
terms of "restraint asphyxia" or what is called I believe
"excited delirium" as to whether these syndromes exist
or whether they apply in a given case. Sometimes it is possible
to point to weaknesses in the system and to mistakes that were
made and things not done as they should have been done, but that
does not mean a criminal offence has been committed. It is the
experience of the prosecuting authorities that it is very rare
to discover evidence in these cases that a criminal offence has
been committed. Sometimes it is possible to find evidence that
a criminal offence might have been committed and then there are
often very great difficulties of causation. The law presents a
difficulty as well. Gross negligence manslaughter requires us
to prove the defendant owed a duty of care, which is usually quite
easy, that that duty was breached, which is usually quite easy,
that the breach was more than a minimal cause of death, which
can be quite difficult, particularly if the experts disagree,
and the breach was so bad that it was grossly negligent such that
it should be a crime, and that is always likely to be difficult
when you are talking about the sort of individuals who are defendants
in these cases. We do prosecute people for manslaughter, but the
truth is we do not prosecute very many. From January 2002 to May
2004 there were 97 cases assembled by the prosecution authorities
in which potential prosecutions were thought to be on the cards.
Five of these were prosecuted. These were our strongest and best
cases and every single one resulted in an acquittal. Since 1999
there have been four other defendants prosecuted by the prosecuting
authorities following deaths in custody—three police officers
and one doctor—all acquitted. I think when Judge Butler
looked at decision-making in the CPS since 1994 he looked at 11
or 12 cases and he found in all bar two, I think, he was satisfied
that the right decision had been made. I think he thought that
one should have been prosecuted. It was and resulted in an acquittal.
I absolutely understand the anxiety which this question expresses,
which is how can so many people die without there being crime
somewhere in the system, but we have to as prosecutors look at
what the evidence is, apply the code tests, and prosecute where
we think it is appropriate. The fact that we lose even our strongest
cases suggests to me that there are some serious questions to
be asked about whether there are as many criminal offences in
these situations as people think.
Q13 Mr Stinchcombe: You have just mentioned
the evidence upon which you have to make these decisions. Are
there any particular inhibitions to the gathering of evidence
when there is a death in custody? If so, what are those inhibitions
and what might be done to remove them?
Mr Macdonald: We work closely
with the police; and when we are discussing terrorism I would
like to say something about the charging initiative which means
us taking over responsibility from the police for selecting charges
in criminal cases and indeed working with them and advising them
at the early stages. Of course we are not in at the beginning
of these investigations and it is in the nature of them that when
the incident occurs the scene is not always immediately secured.
There is a concept in criminal investigation of a "golden
hour", which is the first hour after the incident, when evidence
is most easily and effectively gathered. So far as investigations
are concerned, I think we welcome very much the setting up of
the IPPC and, as you know, the IPPC will have within its ranks
a body of investigators so that it will be conducting investigations
itself into these sorts of incidents, and we welcome that and
we have already negotiated and virtually signed a protocol with
them about our initiative. I have met with Nick Hardwick and John
Wadham on two or three occasions, as has Chris Newell, to discuss
this initiative. That is an advantage. If you are asking me about
how we see investigations at the moment I think we are broadly
satisfied with the way in which investigations are carried out.
That is not to say investigations carried out by one police force
on another will necessarily command as much public confidence
as investigations carried out by the IPPC, and I have no doubt
that was what informed public policy and guidance.
Q14 Mr Stinchcombe: Are you satisfied
with the willingness of officers to give evidence as to what has
happened?
Mr Macdonald: Since I have been
in post I have reviewed four or five cases of death in custody
in which the decision has been taken not to prosecute (and there
are a number pending which I have not reviewed) and I have seen
no signs in those that there was any reluctance on the part of
the police officers to give evidence. Indeed, these were cases
that were pretty clear-cut. I do not know if Mr Newell has something
he would like to add to that?
Mr Newell: Can I just add to that,
Chairman, if the question is aimed at the reluctance of officers
who are under suspicion being interviewed, then I am sure that
it is our regular experience that they would decline to answer
questions, which of course is their right, and that may mean we
are unable to get one side of the story, but of course that is
a right which is afforded to any suspect being questioned in relation
to any offence and if that frustrates or is thought to frustrate
or is seen to frustrate an investigation that is a logical consequence
of the right to silence.
Chairman: It is the only side of the
story because the other side of the story is dead.
Q15 Mr Stinchcombe: Just one final matter
for my part, you have mentioned already problems in securing public
confidence given the failure to prosecute in so many of these
cases and you have also mentioned the closeness of the working
between the Crown Prosecution Service and the police. Do you think
that there is a problem with that closeness of the relationship
whereby people do not have confidence that it is completely independent?
Mr Macdonald: No I do not and
the fact that the Prosecution Service has been given by Parliament
in the Criminal Justice Act the responsibility (taken over from
the police) for selecting charges in criminal cases and is required
to work more and more closely with the police is a sign that Parliament
has confidence in us to act independently. I would like to say
this: the independence of the prosecution service is absolutely
fundamental to public confidence in it. The prosecution service
has to be an independent prosecuting service and certainly so
long as I am DPP it will be; it will be fiercely independent.
The fact that we work with the police and advise them on investigations
does not mean that we direct them, it does not mean we control
investigations, and it does not mean they control us, and I stress
over and over again to my prosecutors that the advice they give
the police will be firm and independent advice. If it is advice
that is unpopular to the police then so be it. I accept the thrust
of what you are saying, which is if we are not independent we
will not command public confidence, so that is why we are going
to be independent.
Q16 Lord Campbell of Alloway: Could I
take this a little further, Mr Macdonald. Rightly, you are stressing
the independence of the IPPC in this context to seize documents
or enter premises. They will have, no doubt, the confidence of
the public but would it be acceptable to you that they should
be given responsibilities for making recommendations as to whether
to prosecute or not? Not the decision, the decision being of course
elsewhere, but that they should, having collected documents and
having assessed the position to make a recommendation?
Mr Macdonald: I do not think that
would work because of the nature of the relationship between us
which is going to be determined by the protocol. We are going
to be working with the IPPC in the closest way from the start
of these investigations. We are going to be a team working together
and I think it is inimical to that team concept if one side makes
an independent recommendation of its beliefs to another.
Parliament has decided that the prosecuting authority should acquire
this new power and it is important that it is prosecuting lawyers
who determine what charges should be in the criminal justice system,
and that is going to bring enormous process benefits. It has already
shown in the pilot areas in which we run it an increase in convictions
of 15%, an increase in guilty pleas of 30%, and a decrease in
discontinuances of some 59%. The reason is we select the right
charges, they are professionally selected, and those cases are
more professionally progressed. I think it would send out quite
the wrong signal to say that in the case of a particular type
of offence that system should not apply, and indeed this was a
matter which was considered by the Attorney General in his review
and firmly rejected. I do not think it is something Liberty wants
to progress either.
Q17 Lord Campbell of Alloway: Could one
not turn it the other way round, Mr Macdonald? It would be very
unlikely, would it not, that the CPS would prosecute unless the
IPPC were in agreement with them?
Mr Macdonald: I think it is almost
inconceivable that we would be prosecuting in a situation where
the IPPC thought that we should not.
Q18 Lord Campbell of Alloway: That is
what I am saying.
Mr Macdonald: I think it is going
to be a close working relationship and I have spoken at length
with the Chairman and Deputy Chairman of the IPPC and I am quite
sure we are going to have a very close working relationship.
Q19 Lord Campbell of Alloway: Could consideration
be given to what I am suggesting? I need not repeat it, but I
think it could be formalised and if you were to formalise it,
it could only attract even more respect from the public.
Mr Macdonald: Of course.
Chairman: I am sorry to have to say to
you, Mr Macdonald, if you could just hold the answer to Lord Campbell's
question in your head, there is a division in the Commons and
I shall have to suspend the Committee for ten minutes to enable
us to vote.
The Committee suspended from 5.01 pm to
5.10 pm for a division in the House.
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