Crown Bodies and Criminal Immunity
This third edition of Corporate Crime update focuses on the immunity that prevents crown bodies from being prosecuted for health and safety and manslaughter offences. It looks at what is a crown body, how the Health and Safety Executive goes about enforcing the law in Crown bodies, what reforms the government are proposing and how adequate they are.

Investigations up, Inspections down
Work-Related Inquests
The Reality of Crown Immunity
Crown Bodies and the Enforcement of Health and Safety Law
Crown Censures
Recent Crown Censures
Crown Servants
Government Reforms?
What is A crown Body
"To be or not to be a Crown Body"
Moves on Manslaughter Reform?
Workers who have died between June to September 2002
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Investigations Up, Inspections Down
A detailed statistical audit of the enforcement activities of the Health and Safety Executive (HSE) shows that in the last five years (April 1996 to March 2001) the HSE has significantly increased the numbers of reported incidents it investigates. The audit, ‘Safety Last? The Under Enforcement of Health and Safety law’ published jointly by the CCA and the trade union UNISON, however shows that there has been significant decreases in the number of HSE workplace contacts involving inspections.

The report shows that over the five year period the HSE’s Field Operations Directorate investigated 8% more major injuries to workers; 5% more major injuries to the public; and 5% more reports of dangerous occurrences. However despite these increases, the report shows in 2000/01 over 80% of major injuries to workers and 70% of dangerous occurrences were not investigated by the HSE. This included a failure to investigate 41% of amputations, 44% of asphyxiations and 57% of burns in the major injury category, and a failure to investigate 73 out of 128 ‘building collapses’ and 146 out of 224 ‘plant fire and explosions’ amongst dangerous occurrences.

The audit also shows that prosecution levels following investigated incidents have increased over the five year period. Despite this, 10% of major injuries to workers and 5% of dangerous occurences have resulted in a prosecution.

However the audit shows that the only way the HSE could increase the levels of investigations and prosecutions was by reducing the number of preventative inspections – a 41% decrease in inspection contacts in the five year period. This reduction ranged from 52% in the construction industry to 24% in manufacturing.

The other major finding of the report was an apparent lack of consistent enforcement practices from one part of the country to another and in relation to different industries. For example in 2000/01 investigation levels into major injuries to workers ranged from 41% in the Agricultural sector to 10% in the Service sector and 26% in the Marches to 11% in Greater London.

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Work-Related Inquests
In August, the Coroners Review Team, set up by the Home office to undertake a fundamental review of the coroners court system published a consultation document suggesting the end to inquests into work-related deaths.

Under current law all work-related deaths that are notifiable to the Health and Safety Executive or Local Authorities must not only have an inquest but must have one in front of a jury. The Review Team is, however, proposing to remove the automatic right to have a public inquest – with or without a jury - and that any inquest into a work-related death would only take place at the discretion of the coroner.
The inquest provides the only opportunity for bereaved families to hear live evidence from witnesses about how their relative died and provides families the only opportunity to intervene in the inquiry process by asking questions of witnesses. Inquests also serve a more general public interest of ensuring that the circumstances of a work-related deaths death are considered and discussed in public.
In October, in response to the consultation document, a 30 strong delegation of families bereaved from a work-related death met up with the Coroners Review Team to tell them about their own experiences of inquests and their view that significant improvements need to be made to the system of inquiry. There was also a unanimous view that inquests into work-related deaths should be mandatory.

The consultation period ends on 22nd November.

Click here for the consultation document and a briefing on the issue [PDF doc].

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The Reality of Crown Immunity
The Death of John Wynne
In June 2001, John Wynne was killed when a six-tonne furnace fell on him at the Royal Mint in South Wales. The Health and Safety Executive undertook an investigation and would have prosecuted the Royal Mint but for the fact that it is a Crown Body and has immunity.

Mr Wynne's family said the Royal Mint was using the ancient and outdated law to sweep his death under the carpet. His widow Tina Wynne said she was told the details of what had happened and she was shocked. "There was an incident in [previous] September and if maintenance had checked it, [John’s death] would never have happened, they would have realised it was faulty. This was an accident waiting to happen and my husband lost his life over it."

Mrs Wynne said the ancient laws protecting the Royal Mint from prosecution were "stupid". She said: "I am bitter and angry and it is so frustrating that you cannot do anything and I just wanted somebody held responsible. This law means they have gotten away with it."

Mr Wynne had worked at the Mint for more than 21 years when was killed by the furnace falling from a crane.
A hearing of Crown Censure Proceedings by the Health and Safety Executive was told his death was "an accident waiting to happen".

Management at the Royal Mint accepted responsibility for Mr Wynne's death but were spared a public hearing at Thursday's proceedings in Cardiff which were behind closed doors.

A confidential report will be issued to the Health and Safety Executive, the Royal Mint and the government – but not to the Wynne family.

All references to Cabinet Office Memo in this newsletter is to Cabinet Office memo, PIN 45, published in June 2001, click here [PDF doc.].

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Crown Bodies and the Enforcement of Health and Safety Law
Thousands of workers are employed by Crown bodies and many more thousands are affected by their activities. How does the HSE make sure that these organisations comply with health and safety law?

The Health and Safety at Work Act 1974 states that the sections of the Act that impose duties upon employers and others "bind the crown" but that those sections of the Act that allow for notices to be imposed or for employers to be prosecuted, do not.

Therefore, whilst Crown Bodies are under a legal duty to abide by health and safety law, the Health and Safety Executive (HSE) does not have the legal power to (a) use improvement or prohibition notices to obtain compliance or to (b) prosecute to obtain criminal accountability.

Inspectors from the HSE have the same legal right to enter Crown bodies, inspect the premises and investigate reported incidents as they do in relation to non-crown bodies. Indeed, according to a Cabinet Office memo "decisions on the inspection of Crown bodies" should be made using the "same criteria as for non-Crown employers." According to this memo, "HSE inspectors seek to ensure that the law is complied with and that Crown employers meet the standards of good practice found elsewhere."

However without the power to impose improvement or prohibition notices, how do HSE inspectors force compliance? The HSE has developed an administrative, and non-binding, procedure of imposing what it calls ‘Crown notices’. These have no legally binding effect and simply mimic the normal enforcement notices.

The Cabinet memo states that:

If a HSE inspector intends to issue an improvement notice, the inspector will discuss the notice and, if possible, resolve points of difference before serving it. The notice will say what needs to be done, why, and by when. Prohibition notices include an explanation of why remedial action is necessary. … If a Crown body considers that it has grounds to challenge the basis on which an enforcement notice has been issued, it may appeal to the inspector’s line manager and, finally, to the Director General of the HSE."

The Memo goes on:

"The instructions to HSE inspectors require them to give the same priority to a health and safety problem found in a Crown body as they would to one found in a private sector organisation. Allowances of time to do remedial work in a Crown body will be no more generous than they would be for a private employer and the same sense of urgency will be expected in making improvements which are required."

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Crown Censures
The HSE has established a procedure to deal with situations where a Crown body, but for Crown immunity, would be prosecuted. In ‘Crown Censure’ proceedings:

• there is no trial;
  
• no witnesses are called;
  
• the public can not attend;
  
• There is no a judge or magistrate
  
• the aim of the hearing is not accountability, but to "seek acknow-ledgement of the problem and to obtain an undertaking to improve standards of health and safety."

A Cabinet memo sets out the procedure by which this takes place:

Notification of Crown Censure
"Where HSE considers that a failure to comply with health and safety law would normally justify prosecution, HSE will first notify the Crown body concerned at a senior level that it intends to begin the censure procedure. The HSE investigating inspector will then initiate a formal meeting (‘hearing’) between a senior HSE inspector and a member of the senior management of the Crown body involved by writing to the Crown body."

Information of the allegation
"Although a censure is not in any sense a trial, HSE will give the Crown body advance information setting out its ‘case’ in the same way as to a non-Crown body which was to be prosecuted in a magistrates’ court."

Response by Crown Body
"The Crown body has the opportunity to provide a written response in advance of the hearing though HSE will not enter into any further correspondence prior to the hearing. No witnesses are called."

Private Hearing
"HSE is responsible for inviting the relevant trade union or other safety representative(s) to observe the hearing, and will either do so direct or agree that the Crown body concerned should extend the invitation. ...No persons other than officials and trade union or other safety representatives may be allowed to attend a censure hearing except at the discretion of the Crown body: every effort is made during a hearing to ensure fair consideration of the matters at issue, but it is not possible for a censure hearing to have all the checks and balances of a court and wider public attendance is not generally appropriate."

Hearing Chaired by the HSE
"The hearing will be chaired by a senior HSE inspector. HSE will minute the meeting and, on its completion, produce an agreed note of the meeting that will be copied to the relevant trade union or other safety representatives. The agreed minute can be distributed more widely subject to the restrictions on the disclosure of information."

Procedure of the Hearing
"The hearing is ... commenced by the HSE investigating inspector explaining the circumstances of the case and why it would justify prosecution, but for Crown immunity. The Crown body is then given the opportunity to make any representations or arguments in defence or mitigation.

If in the course of the formal hearing the Crown body agrees with HSE’s view that the evidence would be sufficient to provide a realistic prospect of conviction in the courts, HSE will notify the headquarters of the Department. The Department will subsequently advise the relevant Minister having first consulted HSE on their submission, and copying to HSE their
final submission."

Non-acceptance of Censure
"If, after considering the HSE inspector’s response to any representations, the Crown body’s officials do not accept there is sufficient evidence to have provided a realistic prospect of conviction, HSE will invite them to make further representations to the head of the appropriate HSE operating directorate or division who will review the case. … If the Crown body decides not to make such representations, HSE will record the censure without further discussion.

Where, despite representations, HSE remains confident that a decision to prosecute would have been justified, HSE’s Director General will write as appropriate to the Permanent Secretary responsible for the Crown body to seek agreement to recording the censure." Individual Crown servants.

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Recent Crown Censures
Defence Evaluation and Research Agency, 06/05/1999
Research worker potentially exposed to hazard group 3 pathogen following centrifuge incident. Risks not properly controlled. Failure to adequately instruct and train laboratory staff.

MOD Army, 7/10/1999
Failure to ensure safety of employee engaged in slinging of large containers.

MOD Army 6/7/2000
Cadet fatally injured when she was run over by a vehicle during a night exercise. Poor planning and risks were not properly identified and controlled.

MOD (Navy) 28/11/2000
Failure to ensure that spin driers, exposed to conditions causing deterioration liable to result in danger, were inspected at suitable intervals.

HM Prison Service, 26/7/2001
Failure to provide employees with such instruction and training as was necessary for them to know precautions required to prevent or adequately control exposure to asbestos fibres.

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Crown Servants
Individuals who work for crown bodies (known as, Crown Servants) do not have Crown Immunity. However the Cabinet Office procedures impose obstacles – beyond those that exist in relation to managers and employees of non-crown bodies – to the possibility of prosecution. This is because, apparently, the HSE gave assurances in 1975 that Crown servants would only be prosecuted where there was "wilful or reckless disregard" of health and safety - a higher threshold of proof than required for the prosecution of ordinary managers and employees.

The Cabinet memo states:

"Under Section 48(2) of the HSW Act, persons in the service of the Crown may be prosecuted for health and safety offences, and, if convicted, fined, or for certain offences imprisoned. Managers, as well as other employees who are personally culpable, should not escape prosecution simply because they are Crown servants. However, the HSE gave assurances in 1975 that an individual Crown servant would be prosecuted only in the same circumstances as an individual in non-Crown employment, for example where there was wilful or reckless disregard of health and safety requirements. There is no question of individuals being prosecuted in substitution for the Crown body, or for honest mistakes, or because of defects in management organisation. It is therefore highly unlikely that civil servants would be prosecuted except, for example, through a deliberate act or omission by them which imperiled their own safety, or the safety of others. "

The CCA has recently written to the HSE asking why Crown Servants are treated differently to ordinary employees.

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Government Reforms?
Health and Safety Offences: In its strategy statement, ‘Revitalising Health and Safety’ published in June 2000, the government stated that it intended to "remove Crown Immunity". Action Point 15 states that: "The Government will seek a legislative opportunity, when Parliamentary time allows, to remove Crown immunity from statutory health and safety enforcement. Until immunity is removed, the relevant Minister will be advised whenever Crown censures are made."

However, the Government is not actually suggesting that Crown Immunity be removed. The strategy statement says that the "Health and Safety Commission will advise Ministers on the range of options for introducing statutory health and safety enforcement against Crown bodies. The Food Safety Act 1990 offers a possible model. This provides for statutory improvement and prohibition notices against Crown bodies and, in lieu of prosecution, the power to seek a High Court ) declaration of non-compliance."

The Food Safety Act model would not remove Crown Immunity. It would simply place the Crown Censure process on a formal footing. The process does not take place in a criminal court, the Crown body is not prosecuted and a ‘declaration of non-compliance’ does not result in a sentence.

Manslaughter: In its consultation document proposing reform to the law of manslaughter and enactment of a new offence of ‘corporate killing’, the Home Office is proposing that the new offence would not apply to Crown Bodies. Instead, it is saying that the same ‘Food Safety’ model, set out above, would apply to Crown Bodies accused of Corporate Killing.

This would mean that in effect two crown bodies, one ‘guilty’ of health and safety offences and the other ‘guilty’ of the far more serious offence of Corporate Killing would be dealt with in exactly the same way with exactly the same outcome. If the Food Safety Model is not appropriate for dealing with health and safety offences, it certainly is not appropriate for dealing with Corporate Killing.

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What is a Crown Body?
A Crown body is an organisation whose acts are deemed to be those of ‘the Crown’. An organisation is a Crown body in three situations;

• if it is a Government Department, like the Home Office;
  
• if a statute states that it is a Crown Body. For instance the Building Societies Act 1986 states that the Building Societies Commission performs it functions "on behalf of the Crown." The general trend is for enabling statutes to state that a new organisation is not a crown body. For example the National Health Service and Community Care Act 1990 states that "no health service body shall be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown".
  
• if it is controlled by a Minister. "The question of whether an organisation can claim crown immunity depends upon the degree of control which the Crown through its ministers, can exercise over the performance of its duties. The fact that a Minister of the Crown appoints the members of such a body, is entitled to require them to give him information and is entitled to give them direction of a general nature does not make the corporation his agent. The inference that a corporation acts on behalf of the Crown will be more readily drawn where its functions are not commercial but are connected with matters, such as the defence of the realm, which are essentially the province of Government." (from Home Office Manslaughter Consultation Document)
  

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"To be or not to be a Crown Body"
It is often difficult to understand why one organisation is a Crown body but another is not. Why, for example, are the MOD police and the HSE Crown bodies, but the ordinary police and the Environment Agency are not?

Examples of Crown Bodies
Royal Parks
Ministry of Defence
Defence Animal Centre
Defence Dental Agency
Forestry Commission
Met Office
Ministry of Defence Police
Medicines Control Aggency
Criminal Records Agency
Ordnance Survey
Health and Safety Executive
Highways Agency
Pesticides Safety Directorate
Queen Victoria School
Ship Support Agency
Vehicle Inspectorate
Child Support Agency
Youth treatment Serrvicce

Examples of Non-Crown Bodies
BBC
British Libbrary
Countryside Agency
Environment Agency
Hospitals
Imperial War Museum
Local Authorities
Police
Royal Armouriees
Royal Botanic Gardens

To see full list of Crown bodies, click here.

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Moves on Manslaughter reform?
On 10 September, Valerie Keating, Head of Policy in the Home Office’s "Violent offences, Sentencing and Offences Unit" wrote to representative organisations of selected industries, with a higher than average number of deaths and serious injuries, asking for their assessment of the potential effect of the introduction of a new offence of Corporate Killing. The new offence would increase the accountability of companies/organisations, not ind-ividuals. The letter states that

• "the proposed new law requires nothing more of organisations than compliance with existing health and safety law and regulation. However, as is the case for all proposals which might have an impact, whether directly or indirectly, we need to conduct an assessment of the potential effects on the private sector. We will be conducting a similar exercise in respect of public services and of voluntary and charitable activities."

The questionnaire asks employer organisations the following questions:

• what would be the additional costs that companies would incur if the new offence was enacted?
  
• did they think that companies would "become more cautious in making decisions about high-risk activities, changing some of the services offered, or even decide against certain activities as a result of the proposed legislation?"
  
• If so, what roughly would be the amount of "lost revenue to the firms and the losses to the customer?"
  
• whether individuals would "be unwilling to take positions of responsibility because of the increased liability" and whether it firms would find it "significantly more difficult to recruit and retain high calibre managers?"
  
• what they thought would be the "effect of a conviction for corporate manslaughter in terms of the effect on the firm’s reputation and the impacts of that and in terms of fine payments."

In the process of seeking comments on the likely impact of a new offence, the letter provides an insight into the Government’s current thinking on manslaughter reform. The following is of significance:

• the government continues to hold the view that crown bodies should not be able to be prosecuted for the proposed offence of corporate killing (see section on Crown Bodies).
  
• the Government has concluded that the reforms should not include an extra level of sanction against a director or manager who has contributed to the company committing the offence of corporate killing. It is consultation document, it had suggested that such a director could be disqualified from continuing to perform a management role or prosecuted for a new offence.
  

Although this may be a disappointment to those concerned about the conduct of directors, it is important to note that directors would still be able to be prosecuted as an individual for either manslaughter or for an offence under section 37 of the Health and Safety at Work Act 1974.

Perhaps the most significant aspect of the letter is at the end where it is stated that: "we need to complete this exercise as quickly as possible preferably before the next parliamentary session begins. Could I therefore have your returns by Friday 1 November?"
Does this mean that the proposals could be in the next queen’s speech in November?

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Workers who have died between June to September 2002 Click here for details

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