Examination of Witnesses (Questions 20-39)
19 MAY 2004
MR KEN
MACDONALD QC, MR
PHILIP GEERING
AND MR
CHRIS NEWELL
Q20 Chairman: Mr Macdonald?
Mr Macdonald: Could I just return
to the answer I gave to Lord Campbell because I think I may have
misunderstood him. If the suggestion is that we would welcome
a recommendation from the IPPC in the sense that they have expressed
what their view is of a situation, of course we would be delighted
to receive that, and indeed we already receive views from people
during the course of investigations. I should also make clear
that where there has been a criminal offence, where we feel that
the code tests are passed, the evidential test and the public
interest test, we use our best people and we use the best barristers
because we do recognise the importance of this litigation, and
once the code tests are passed we are absolutely and will be absolutely
resolute in prosecuting those cases. I am sorry, I am speaking
rather than answering questions but we also are very much planning
to expand the pool of counsel which we use both to advise and
to prosecute these cases, and I think that may make a difference.
Q21 Chairman: Can I just follow up with
a couple of supplementary points. You referred just now to protocol
between you and the IPPC. Is it possible for us to see that protocol?
Mr Macdonald: It has not been
signed yet.
Mr Newell: It will be signed very
shortly. I do not think there will be any problem whatsoever with
letting you have a copy, with that caveat, that it has not yet
been signed. I sincerely believe that any amendments made to it
at this stage will be quite peripheral.
Mr Macdonald: We will send you
a copy.
Q22 Chairman: Thank you very much. The
other thing is do you as the DPP personally review every death
in custody case?
Mr Macdonald: I have an idea what
the practice was before but now I get notification of every decision
and a file containing the material which the decision-maker thinks
I need to see in order to satisfy myself that the review has been
appropriately conducted, and there is a right for me to call for
any additional material so I can satisfy myself as to that. On
that basis I have reviewed four or five cases since November and
I have been satisfied that they have been conducted appropriately.
It is not possible for the DPP to review every case in terms of
all the evidence in every case because, as I said at the outset,
unhappily there are so many of them.
Q23 Lord Judd: We of course are committed
to the European Convention on Human Rights. It is absolutely specific
on this point that the state has a responsibility and a duty to
ensure adequate investigation of deaths in custody. What do you
see as the obligations this places upon your office and your staff?
Mr Macdonald: I think we need
to recognise that amongst the most important obligations the state
has is that of protecting those in its custody, and when people
die in the custody of the state that is something that needs the
most thorough investigation. Our duty is to give all the advice
that we can to the police to ensure that they have the benefit
of the best legal advice in conducting investigations. Our enhanced
role in advising police and selecting appropriate charges and
determining who should be charged and who should not has a role
to play in this. We do work closely with the police now in these
investigations and our responsibility is to play a part in seeing
that those investigations are properly serviced legally. We do
not carry out the investigations and we do not have the power
to direct the police but we do have the ability to advise them
and we do have the power now to decide whether someone should
be charged and if they are charged what the charge should be.
Q24 Lord Judd: In effect are you saying
that it is not just a matter of the outcome in terms of if there
is a court case people are proved guilty or innocent but it is
a cultural process which means that in the course of your work
alongside the police hopefully you are strengthening their commitment
to that obligation?
Mr Macdonald: You cannot investigate
these cases properly without proper legal advice. These are complicated
cases involving issues of causation, which is one of the most
complicated issues in criminal law, and issues of complex medical
evidence. You cannot expect the police to conduct these investigations
without the clearest legal advice and comprehensive legal advice
so our role in this—and I suppose we are part of the state
although we are independent in many ways, we are a semi-detached
department—is to ensure that the state's investigators have
all the legal assistance and advice which they require and then
our duty is to make the appropriate decisions according to the
code as to who should be charged, if anyone, and what the charges
would be. So it is obviously an important role.
Q25 Lord Judd: What if you came to the
conclusion that the police investigation or inquest investigation
was unsatisfactory or inadequate; how would you respond to that
and how would you follow it up? What would you do?
Mr Macdonald: Again I have to
stress that we do not carry out investigations and we do not have
the power to direct the police, but as the lawyers involved in
advising the police I dare say the reality of the situation is
that if a prosecutor felt that something had not been done that
should have been done he or she would say to the police, "This
is the reality of it on the ground, perhaps you should do this
or you should do that," but that is, if you like, somewhat
ultra vires to our function. Our function is to provide
legal advice. Sometimes the omission might be an omission which
has a legal impact and therefore one would say as a lawyer advising
the police, "This evidence is not going to work without that
evidence," or, "This case is not going to proceed adequately
without that evidence," or, "In law you are going to
require this if you want to prove that, or if we are to prove
that." So there obviously are occasions where although we
do not direct the police we offer them the strongest advice about
what they should do. I cannot imagine a case of the gravity that
these cases represent where if the prosecutor felt there was an
omission that had some legal implications he or she would not
point it out. In fact, they would be under a duty to point it
out and would do so.
Q26 Lord Judd: You say you cannot imagine
a case in which, if the prosecutor came to that conclusion, advice
would not be offered. I find your words interesting. You say you
"cannot imagine" that; is there a policy in that respect?
Mr Macdonald: The policy is when
we give charging advice to the police and when we advise the police
on the building of cases, we give them all the advice they need
to build a case strong enough first of all to prosecute and secondly
to achieve conviction. It is incumbent in the role of the prosecutor
to provide the police with that sort of advice. That is the job.
Q27 Lord Campbell of Alloway: Is not
the essence of the problem being raised, and we have had evidence—I
put it very shortly—that what happens when somebody dies
is that the drill, the investigation is wholly unsatisfactory
and that even with the material provided to the coroner we have
had evidence that that was unsatisfactory and when you ask what
should be done we have never had, not that I have been sitting
here, a really satisfactory answer. What on earth can the CPS
do if fundamentally the source of information is unsatisfactory?
That is a matter for the Home Office, is it not?
Mr Macdonald: It is a matter for
the Home Office and of course if we are confronted with evidence
which is unsatisfactory we cannot prosecute a case, we cannot
make up evidence. Obviously that the investigation acquires that
evidence which is probative to guilt is fundamental. We have to
have a system which enables probative evidence to be secured at
the earliest opportunity.
Q28 Lord Campbell of Alloway: Look what
has happened to your best cases. It was the best you could do
and it did not go. This is no criticism of your remit; it is a
fundamental criticism really of the way in which evidence is initially
gathered when it is fresh.
Mr Macdonald: I think Mr Newell
wants to add something.
Mr Newell: I just wanted to add
this. Mr Macdonald has stressed the importance of us giving appropriate
advice to investigators. It is equally important that not only
we give the right advice but we give it as early as possible,
and the protocol that we are about to sign places very great emphasis
on that. You will find when you have a copy that it is quite mechanical
in terms of describing the stages at which we should be involved
and should be offering advice, and the IPPC believe they are going
to be able to investigate independently about 30 cases a year.
One would assume that that number would include the majority of
deaths in custody, certainly any death in custody which looked
remotely as if it was going to found criminal proceedings, and
so we would be looking to liaise with them at a very early stage
to ensure they were not only getting the right advice but getting
it as soon as possible.
Q29 Mr McNamara: Mr Macdonald, I want
to raise with you the questions of offences applicable after death
in custody and basically there are two: gross negligence manslaughter
and misconduct in public office. It is that latter one to which
I wish to refer. You will probably recall the case of Christopher
Alder, which occurred in the city part of which I represent, when
his death occurred in the presence of police officers after he
had been placed face down on the ground in a police cell for 11
minutes and the inquest verdict was unlawful killing. The court
held that a charge of misconduct in public office should not routinely
be added to a charge of gross negligence manslaughter. Obviously
I am not seeking for a moment to challenge what the court has
said, but I am concerned about the narrowness of what has been
involved in that sort of decision. My question therefore to you
is: are prosecutions now or in the future going to be inhibited
by the terms of the criminal law itself, for example by a very
narrow construction of the offence of misconduct in public office,
because certainly in terms of public perception within the city
I represent they just could not understand how, given the circumstances
which they knew about long before the TV presentation of it, there
was no successful prosecution of what seemed to be gross negligence,
and people just do not understand this whole question of it not
being misconduct in public office?
Mr Macdonald: I think five defendants
were acquitted on the direction of the judge before the case even
got to the jury. We can only prosecute cases according to the
law as it stands. Gross negligence manslaughter requires the elements
which I set out and you are right in saying that the Court
of Appeal has given a particular interpretation of the offence
of misconduct in public office. We as prosecutors have to live
with those legislative and judicial restrictions, I am afraid.
Q30 Mr McNamara: Is this in fact going
to narrow your opportunity to prosecute?
Mr Macdonald: We can only bring
prosecutions which are in accordance with the law as set up by
Parliament and the courts.
Q31 Mr McNamara: Looking at the three
tests put down by the Court of Appeal—I am not seeking to
argue that case.
Mr Macdonald: You are asking me
to say whether or not I agree with the Court of Appeal.
Q32 Mr McNamara: No, what I am asking
you is how difficult or otherwise, if you had a future case where
somebody died in similar circumstances, you would feel it was
to meet those three criteria laid down by the Court of Appeal.
Mr Macdonald: We would have to
bring the case in accordance with those criteria. We would have
to look at those criteria and see how the facts of the case fitted
within them. If they did we would bring the case; if they did
not, we could not. You have to draw your own conclusions, I am
afraid.
Q33 Mr McNamara: That is very much a
subjective test then?
Mr Macdonald: It is an analysis
which the prosecutor has to make. The prosecutor has to look at
the evidence in the case. He or she has to consider what the law
is. He or she has to apply the law to the evidence and make a
decision as to whether the code tests are passed. The law in that
case would be what the Court of Appeal said and the terms of the
statute.
Q34 Lord Lester of Herne Hill: Could
I ask the question in a slightly different way: are you satisfied
that the range of criminal sanctions available is sufficient,
whether it is gross negligence manslaughter or misconduct in public
office, to enable you to address the serious social evils of unjustifiable
deaths in custody or do you think law reform should be considering
changes in the definition of offences?
Mr Macdonald: I think one could
imagine offences in which it would be easier for us to prosecute
successfully.
Q35 Lord Lester of Herne Hill: For example?
Mr Macdonald: I do not want to
go into too much detail on that but one can imagine offences of
misconduct in public office which were couched in broader terms.
That is a matter for Parliament. If Parliament brings in a law
to that effect we will quite happily use it I am sure.
Q36 Baroness Prashar: I want to come
to internal procedures because last year the Attorney General
conducted a review of deaths in custody and some changes were
recommended. How many of these changes have been implemented?
Mr Macdonald: All of them have
either been implemented or are in the process of implementation.
There were 12 recommendations. What I can do is either read them
out now, which might take some time, or we can send you a note
of the recommendations and their state of implementation. As I
say, all 12 have either been implemented or are in the active
process of implementation. I am very happy to go through them
if the Committee want me to.
Q37 Baroness Prashar: In view of time
I think it would be helpful if you can send them to us. Are you
satisfied that these will ensure public confidence? What is your
assessment?
Mr Macdonald: I think one of the
keys to confidence is that the public trust that the investigations
are comprehensive and effective and that the prosecutor's decision-making
is transparent, and for us the emphasis is upon transparency.
We need to be absolutely transparent about the decisions that
we take and the way in which we take them. Sometimes there are
legal reasons why some things cannot be disclosed but I think
we always have to in the prosecuting authority have a strong presumption
in favour of transparency. We now meet families from the early
stages. We ask them for their views about what we should take
into account before we come to decisions. We need to maintain
a relationship with them and we even talk to them about the counsel
we propose to instruct, although of course the final decision
has to be ours. One of the keys of public confidence for us in
an area where I am afraid there never are going to be a huge percentage
of prosecutions because, as I have said, most cases do not evidence
crime, is that transparency is absolutely essential because unless
people can see what we are doing we are not going to acquire the
level of public confidence that we need in this area. So our watch
word will have to be, in future, transparency.
Q38 Baroness Prashar: My next question
really is the relationship that you have with the Prison and Probation
Ombudsman because, as you know, Stephen Shaw has been made responsible
for conducting investigations and inquiries without any statutory
basis. Will that in any way have any effect on your ability to
bring prosecutions in these cases?
Mr Macdonald: I do not think it
will. I do not think the terms of reference of the Ombudsman would
be particularly relevant to the work that we would be doing in
a case of this sort. Obviously in prosecuting these cases and
working with the police, we are always going to be happy to talk
to anyone who can shed light on what happened and I would not
say we would not talk to individuals but I think the view that
we took when we looked at this—because we had notice of
this question—is we could not see particularly how the work
of the Ombudsman would be assisting us. It might be of assistance
in context-setting and there might be some assistance that could
be given in terms of the culture of particular prisons, for example,
but I think the terms of reference of the Ombudsman and the sort
of work we are undertaking when we are looking to prosecute deaths
in custody are reasonably far apart.
Q39 Baroness Prashar: Have you had a
meeting with him in the way you have met the IPPC?
Mr Macdonald: No, I do not think
we have.
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