The Home Office is proposing that the Health and Safety Executive and other regulatory agencies be given the power (along with the police and Crown Prosecution service) to investigate and prosecute both:

• the proposed new offence of corporate killing and
• the proposed new individual offences when they "arise from the context of the work being done.

It is our view that significant changes need to be made into the way in which deaths resulting from corporate activities are investigated and prosecuted. However, as we explain below, improvements will not be brought about by, effectively, removing the police and the crown prosecution service from involvement in these deaths. In fact, these changes would in our view:

• result in deaths being subject to less not more rigorous investigation
• result in even fewer prosecutions against company directors
• result in the offences - in the corporate setting - being perceived as "regulatory" offence

Most investigations into deaths resulting from corporate activities are work-related. The current procedures for their investigation are set out in a protocol(ii). This states that when there is a work-related death:

• A police detective of supervisory rank should "attend the scene" and "make an initial assessment about whether the circumstances might justify a charge of manslaughter" in which case the police will commence their "investigation". An "investigation" should take place when the police officer considers there to be "evidence or a suspicion of deliberate intent or gross negligence or recklessness on the part of an individual or company rather than human error or carelessness".
  
  
• If the police do initiate an investigation, the HSE will provide any "agreed technical support" to the police and will itself continue to investigate matters relating to any possible health and safety offences.
  
  
• if the police do not investigate, the "HSE will continue with its own investigation". The police will upon request provide "agreed local support" to the HSE.
  
  
• when during the HSE investigation "evidence indicates an offence of manslaughter may have been committed, HSE will refer the matter to the police without delay."

Problems with Current Practice
In our view, the protocol has been an important step forward in ensuring that deaths - that may be the result of "corporate" manslaughter - are subject to at least some level of police scrutiny. However, in our experience, there are many problems with the way the present system operates:

• the police who carry out the "initial assessment" may have never previously been involved in the investigation of a work-related death or any similar sort of incident, and will therefore not know what evidence they are looking for;
  
  
• there are no guidelines provided to the police about what evidence or what level of evidence actually justifies launching a police investigation;
  
  
• the "initial assessment" undertaken by the police - particularly when it concerns a death in a large company - will usually be insufficient to allow the police to have a proper understanding of whether the death was or wasn't the result of gross negligence at a director level;
  
  
• the police investigation, if it does take place, is likely to be undertaken by officers with no specialist training in the investigation of these kinds of deaths.
  
  
• once the HSE have been given charge of an investigation, its inspectors do not consider referring the cases back to the police. This is partly because of the nature of their investigation, and the fact that inspectors rarely spend time considering the conduct of directors and senior managers(iii).
  
  
• in practice, the collaboration between the police and the HSE is often inadequate.

Why The Home Office Proposals are Wrong
In our view, the way to respond to these inadequacies is not to pass the investigation into the sole hands of the Health and Safety Executive - as proposed by the Home Office. This is because:

• it is inappropriate for a regulatory agency to undertake the investigation of homicide offences. This is the job of professional crime investigators;
  
  
• the professional crime investigators in this country are the police. It is the police which investigates serious crimes of violence and have the resources and experience to undertake homicide investigations with the appropriate level of rigour.
  
  
• it is our experience that when the police do investigate the conduct of companies and their directors they are much more thorough than the regulatory agencies.
  
  
• it will result in a perception that there is a "two track system of justice". On the one hand there will be the deaths subject to police investigation and, on the other hand, there will be deaths resulting from corporate activities which will result in a lesser form of inquiry.
  
  
• it is inappropriate if only homicide offences involving "corporate" conduct are investigated by non-police bodies. It will tend to "de-criminalise" the conduct which is the subject of these offences. It will have the effect of decreasing the symbolism - an important part of the deterrent effect - that attaches to these criminal investigations and the prosecutions that follow.
  
  
• it will have a serious impact upon the way in which the offence of Corporate Killing itself is perceived. If prosecutions for this offence are the result of an investigation by regulatory agencies, the offence will inevitably be perceived as a "regulatory" not a "real" offence.
  
  
• the regulatory agencies simply do not have the experience or resources to undertake these investigations. The HSE has very limited resources; for example, it only investigates 10% of workplace major injuries. The HSE also has a very poor record in investigating the conduct of directors and managers for health and safety offences. Almost all the prosecutions it takes are against companies; only a handful are against directors. Between 1996 to 1998, it did not prosecute one director or manager in relation to any of the 500 deaths or 47,000 major injuries that it investigated

We are aware that there are many problems with the way in which the Crown Prosecution Service has carried out this role. This has been particularly indicated by the successful judicial review of the CPS's decision not to prosecute the managing director of Euromin Ltd over the death of Simon Jones. In our view there needs to be many improvements made to the CPS's procedures and practices; however, for all its faults, we believe that the Crown Prosecution Service is the appropriate prosecuting authority for all homicide offences. This is because:

• The Crown Prosecution Service is the body that is currently responsible for the prosecution of all crimes of violence.
  
  
• It is inappropriate that particular homicide prosecutions should be hived off to under-funded and less experienced regulatory agencies. It will result in these prosecutions being considered "less serious" than others.
  
  
• The HSE's prosecution policy is currently a "resource" based policy; it will not prosecute, if it can not afford to do so. No prosecution body with such a history should be given the responsibility for homicide prosecutions

The Centre's Proposals
It is our view, instead of the Home Office proposals, the following changes in investigation and prosecution practice need to be made:

• improve the police understanding of the offences in question and provide them with specialist training in the investigation of this sort of corporate crime. It is our view that each police authority should establish specialist units with the responsibility for the investigation of deaths resulting from corporate activities;
  
  
• improve the way in which the police and the HSE (and other regulatory agencies) work together in the investigation of these incidents. It is our view that the HSE has a great deal of expertise in both understanding the way in which companies should organise their safe systems of management, as well as assessing the appropriate role of company directors in relation to safety. This expertise needs to be incorporated in the investigation of work-related deaths. We have previously suggested that the HSE should establish specialist investigation units within each of its regional offices with inspectors solely involved in the investigation of death and serious injuries. It is our view that when a death results from corporate activities, these HSE units could work alongside the police units in the investigation. This would mean that the investigation would benefit from the investigative and forensic talent of the police on the one hand and the health and safety expertise of the HSE, on the other. We do not think that the current arrangements of referring cases backwards and forwards between the police and the HSE works well.
  
  
• improve the way in which the Crown Prosecution Service deals with cases involving deaths resulting from corporate activities. It is our view that this area of crime is reasonably specialist and requires lawyers provided with proper training. We think that the CPS should set up specialist teams to deal with these cases, who should be able to gain assistance - if any is required - from HSE lawyers.

The Home Office says that there are "strong practical reasons" for its proposal. Whilst, there may be some practical arguments for allowing regulatory agencies to monopolise the investigation/ prosecution, they are seriously overstated and any extra efficiency would be at the cost of ensuring that the deaths would be subject to proper and rigorous investigations, as well as appropriate prosecution decisions.

• The Home Office, for example, states that the corporate killing test reflects the test applied by the HSE and other regulatory bodies, in the prosecutions for which they are now responsible, and that as a result they are in the best position to assess this sort of test. However, the Crown Prosecution service is perfectly able to deal with these questions. Furthermore the HSE has never had to deal with assessing a test of "gross negligence" - as the CPS has had to do for years - or questions of "causation"(v) - which again the CPS does all the time. This is not to say that the CPS may well need, from time to time, guidance from the HSE.
  
  
• The Home Office also argues that regulatory agencies will discover in the coarse of their investigation, evidence pertinent to the question of "management failure". It argues that to require the police to conduct "what would in effect be a parallel investigation would lead to duplication of effort". However, though it is preferable to avoid duplication, it is preferable that there is some duplication if the alternative is poor investigations. In any case, the duplication argument is somewhat overstated since there will be no need for the HSE to investigate again if the initial Police/HSE joint investigation is thorough.
  
  
• The Home office argues that its proposals would avoid the complexity of current arrangements for liaison with the police and referral to the CPS. However, there is no need for there to be complexity. If procedures are set in place to ensure that deaths are investigated jointly by the police and HSE (with the police as leaders) then the evidence that is collected is them simply referred to the Crown Prosecution service to make a decision. If they decide not to prosecute for any of the homicide offences, the HSE can then take over, or indeed the CPS could itself then proceed to prosecute for health and safety offences.