Clause 16

Corporate Manslaughter and Corporate Homicide Bill – in a Public Bill Committee at 11:30 am on 31st October 2006.

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DPP’s consent required for proceedings

Question proposed, That the clause stand part ofthe Bill.

Photo of Edward Davey Edward Davey Shadow Secretary of State (Trade and Industry), Liberal Democrat Spokesperson (Trade and Industry)

Good morning, Mr. Gale.

There is a serious policy issue to be debated under the clause. The recommendations in the Government’s consultation paper in 2000 and in the Law Commission’s original proposals were that a private individual could bring a case for the new offence without needing the Director of Public Prosecutions’ agreement. There has been a change about which there has been a big debate and the Committee should debate it.

I need to be convinced that the Government have got it right. There is a strong case for individuals to be allowed to press ahead with a prosecution without the Government, in the form of the DPP, interfering. The Government and others are concerned that, without the extra hurdle, individuals and bereaved families might bring vexatious private prosecutions without good cause, even though they may not have any real evidence and a prosecution might not be in the public interest. That is unlikely, because such people would presumably get good legal advice. Such cases cost a lot of money and people would not pursue them without being relatively confident that they have a strong case. Denying victims and their bereaved families the possibility of a prosecution by setting up the extra hurdle could be another source of injustice—a problem that I thought that the new offence and new structure were designed to address.

Some people have questioned whether the DPP might have a conflict of interests. Hon. Members know that the DPP is an independent person operating under clear rules, like the Crown Prosecution Service, in respect of ensuring that there is sufficient evidence for there to be a chance for a prosecution to succeed and that a prosecution would be in the public interest. Those are the tests. However wonderful a human being any DPP is, if cases are brought against the Crown, the DPP might have political considerations at the back of his or her mind that have the appearance of a conflict of interest.

I am not the only one considering the matter. When they examined the draft Bill, the Joint Committees were very worried about it and recommended that that particular Government proposal should not appear, as did the Law Commission in its original findings.

Photo of Ian Stewart Ian Stewart Labour, Eccles

To save me making a speech, I shall put a question to the hon. Gentleman to see whether he agrees with me and my colleagues and so that the Minister can address it when he sums up. Do the hon. Gentleman and the Committee feel that if the clause stands part, it will preclude families bringing private prosecutions? That would be a matter of deep concern to me and my colleagues. Does he feel the same concern?

Photo of Edward Davey Edward Davey Shadow Secretary of State (Trade and Industry), Liberal Democrat Spokesperson (Trade and Industry)

Indeed I do. It certainly could preclude individual families bringing prosecutions. Of course, one would imagine that if the DPP felt that there was sufficient evidence and a public interest, he or she might allow the private prosecution anyway. It is not a complete barrier, one hopes.

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department

Perhaps I can help the hon. Gentleman. I do not see the conflict of interest he mentions, but will not such cases be high profile  anyway because of the serious nature of corporate manslaughter? It would be difficult for the DPP not to go along with the prosecution. The seriousness of such cases should allay the hon. Gentleman’s fears. They are very much in the public eye.

Photo of Edward Davey Edward Davey Shadow Secretary of State (Trade and Industry), Liberal Democrat Spokesperson (Trade and Industry)

The Minister is, of course, right that such cases will have a high profile. One might say that the DPP would therefore have political considerations that tended against refusing leave, but that is an argument for not involving the DPP in the process and for allowing individual families to decide whether a private prosecution is appropriate.

The Law Commission said clearly that it is quite a serious matter to remove a bereaved individual’s right to bring a private prosecution. That is what the Committee is being asked to do. It is being asked to put the DPP in the way of a bereaved family or community seeking justice. Let us be absolutely clear that what we are being asked to do today is not normal. Therefore, one must ask some searching questions. One would think that having a loved one taken away would be a strong case for being allowed to go ahead, not for having an extra obstacle put in the way.

There is a burden on the Minister to prove his case. I would have thought that the opposite conclusion to the one that reached in the Bill would be the common-sense one. Such cases might be high profile, but it is the individual family’s right to pursue justice unfettered by some lawyer, however wonderful that lawyer is. The Committee is being asked to put something in the way of that search for redress. If he can persuade us, we might not vote on the clause today but consider it for Report. We are certainly prepared to consider what he says, but he must make a pretty strong case.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I listened carefully to the hon. Gentleman. To some extent, I share his view that, on the whole, private individuals should be able to bring private prosecutions if they wish. However, we must face up to the reality that a corporate manslaughter charge is likely by its very nature to be a pretty complex piece of litigation. I would think that unless he or she is very wealthy—a millionaire—with a great deal of money to spend on the preparatory work required to support the necessary investigation, it would be difficult for a private individual to mount a prosecution.

Quite apart from anything else, an accident that causes death and is clearly due to a corporate entity’s activities will be investigated by the Health and Safety Executive or other enforcement agency first. I hate to think how a private individual bringing a prosecution would be able to manage the necessary co-ordination with the HSE and with the experts who would probably be needed to help, unless the case involved the HSE, which would therefore have to give broad support. I am left with the feeling that at the end of day this debate is slightly academic. I find it hard to see how, in reality, there will ever be a prosecution that is not both backed by the enforcement agencies and brought by the Crown Prosecution Service, with its full panoply of monetary and other resources.

Photo of Edward Davey Edward Davey Shadow Secretary of State (Trade and Industry), Liberal Democrat Spokesperson (Trade and Industry)

The hon. Gentleman paints a picture of a helpless individual trying to bring a case by themselves, but he does his former profession a great disservice. I would have thought that in a former life he would have helped that poor person.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I would have endeavoured to help them. In my former professional life I was approached on one or two occasions by individuals who sought advice on whether to bring private prosecutions. On the whole, I tended to be discouraging, although on one occasion I considered bringing a private prosecution against a person who had burgled my house, but whom the police had not seen fit to prosecute. I thought better of it, although I was tempted, because it would have been an easy matter. I would just have had to lay the information before the court, one result of which could have been to shame the CPS into taking the case over, but I was dissuaded from that course of action by a meeting with the chief superintendent at my local police station. There are problems associated with the issue, but the best thing is to listen to the Minister’s response.

Photo of Ian Stewart Ian Stewart Labour, Eccles

I rise to say that it is gratifying to hear that the hon. Gentleman can change his mind after hearing good argument.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I can be persuaded on many things if cogent argument is applied. To that extent, I remain open to persuasion by the hon. Member for Kingston and Surbiton (Mr. Davey), but I happen to think that the nature of such prosecutions and the complexity attendant upon them make it not unreasonable to ask for the Director of Public Prosecutions’ consent. The other reason is that it is undesirable to encourage people to embark on courses of action that are going to lead to hitting the buffers. That applies both ways—to the individual and to the corporation at the receiving end of the initial summons bringing it to court. For those reasons, the seriousness of the offence is perhaps of such an order that the DPP’s consent is appropriate.

I do not share the hon. Gentleman’s view about the DPP being subject to political pressure. Never in my professional experience have I seen a hint of it. The DPP is a civil servant, but once he holds his office he cannot be removed other than for misfeasance or personal misconduct. For those reasons, I do not think that that is a live issue.

Photo of Ann McKechin Ann McKechin Labour, Glasgow North 11:45 pm, 31st October 2006

Will the Minister point out tothe hon. Member for Kingston and Surbiton that the reason why Scotland is not mentioned at all in the clause is that case law has established in Scotland that a case of such severity cannot be taken as a private prosecution without the consent of the Crown. I understand that that was a ruling from around 1982 or 1983 in the infamous Carol X case, in which somebody tried to bring a private prosecution for the crime of rape. Private prosecutions are rare in Scots law and one had not been brought for many years until that case was heard. I understand that it was the opinion of the court that the consent of the Crown Office would be required for such a prosecution. Clause 16 would make the law consistent across the whole United Kingdom, which is another argument in favour of the Government’s position.

I agree with the hon. Member for Beaconsfield. I have no evidence to suggest that the Crown Office would be under any political pressure in respect of  prosecutions. Given the complexities of the cases and the public interest involved in them, it is important that the Crown Office in Scotland or the Director of Public Prosecutions in England, Wales and Northern Ireland are involved because, as has been pointed out today, the complexities are such that, in practice, their involvement is required.

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department

I am grateful to my hon. Friend the Member for Glasgow, North. She is right about Scotland, where all proceedings on indictment are instigated by the Lord Advocate. She is right to say that the clause will bring consistency.

I am grateful for the comments of the hon. Member for Beaconsfield about the independence of the DPP. The hon. Member for Kingston and Surbiton attacked the motivation behind the clause as a barrier to prevent individuals taking private prosecutions. The clause is not about that, but about making sure that the serious offence of corporate manslaughter is dealt with properly. I hope that I shall persuade the him to reflect on what he said. The clause certainly does not rule out private prosecutions; all we are saying is that the DPP should first review the case.

The two factors in gaining the DPP’s consent arethe public interest in bringing the case to court and the likelihood of securing a conviction. Given the seriousness of cases in question, there will already be considerable public interest in bringing prosecutions. If there is sufficient evidence to ensure a reasonable prospect of conviction, there would have to be compelling reasons for no prosecution being brought. However, if there were insufficient evidence to support a prosecution, I am not sure what benefit there would be in bringing one.

As the hon. Member for Beaconsfield said, evidence in corporate manslaughter cases is unlikely to be straightforward. By their nature, such cases involve complex evidence about company structures and industry standards. Private individuals are unlikely to have the same ability as the CPS to assess whether there is sufficient evidence. The families of victims, desperately distressed at having lost their loved ones, are not necessarily going to be able to make that assessment objectively.

In addition, as hon. Members will be aware, the creation of the offence has caused concern among potential defendants that every work-related death will result in a charge of corporate manslaughter and that even the reputations of companies that manage health and safety well, but tragically have a fatal accident, will be damaged through manslaughter charges. Part of our reassurance that only the worst cases of health and safety failures will proceed to court is to ensure that the DPP will be satisfied that in every case the evidence supports a reasonable prospect of conviction.

Bringing cases with no realistic prospect of a conviction to court is in the interests of neither the organisations, whose reputations may unfairly be damaged, nor the families, whose expectations will have been raised unrealistically and who will bear the financial burden of bringing the case. For those reasons, it is right that private prosecutions should require the consent of the DPP. If the DPP does not consent to a prosecution, that decision can be  challenged by way of judicial review. With that safeguard in mind, I hope that Committee members will support clause 16.

Question put and agreed to.

Clause 16 ordered to stand part of the Bill.