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Independent
Legal Oversight
If you are interested to read in more details
about the issue of Independent Legal Oversight
and the way the HSE has dealt with it, click
here. This page sets out what the Prosecution
Review said about it.
In its conclusion, the review team specifically
considered whether the role of inspector as
both investigator and prosecutor should continue.
It stated.
| 4.3 |
A separation of the investigation/ prosecution
function was recommended by the Philips’
Royal Commission on Criminal Justice 1981.
The CPS was set up in 1986 to prosecute
cases investigated by the police, following
the Philips’ recommendations. This
split in functions, sometimes referred to
as ‘the Philips principle’ was
to promote independence of the prosecutor
- to ensure that police investigations were
assessed by an independent person. |
| 4.4 |
The
Philips’ Report sets out the characteristics
which a prosecution system should possess
at paragraph 6.8.
"Is
the system fair; first, in the sense
that it brings to trial only those against
whom there is an adequate and properly
prepared case and who it is in the public
interest should be prosecuted (that
is, tried by a court) rather than dealt
with in another way (by cautioning,
for example), and secondly, in that
it does not display arbitrary and inexplicable
differences in the way that individual
cases are treated locally or nationally?
Is it open and accountable in that those
who make the decision to prosecute or
not can be called publicly to explain
and justify their policies and actions
as far as that is consistent with protecting
the interests of the suspects and the
accused? Is it efficient in the sense
that it achieves the objectives that
are set for it with the minimum use
of resources and the minimum delay?
Each of these standards makes its own
contribution to what we see as being
the single overriding test of a successful
system. Is it of a kind to have and
does it in fact have the confidence
of the public it serves?"
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| 4.5 |
Philips
recognised that there is an interdependence
between the investigator and prosecutor,
with the need for close cooperation and
working arrangements. The recent Gower/Hammond
Review of Prosecutions endorsed the ‘Philips
principle’ and recommended that the
solicitor/client relationship between the
Solicitor and the Commissioners of Customs
and Excise should cease in relation to the
Solicitor’s prosecution functions.
‘The decision whether or not to prosecute
is a legal one and should be taken by a
lawyer after seeking the views of an administrator
on matters of policy and public interest.’
Gower/Hammond also endorsed the interdependence
between the investigator and the prosecutor
highlighted in Philips and recognised that
this need for investigators and prosecutors
to work closely together should be taken
into account in developing an efficient
and practical model. |
| 4.6 |
The
position in HSE is not directly analogous
to that in Customs and Excise. HSE cases
can be straightforward and not involve complex
matters of law, evidence and unused material
which can be present in the large scale
drug importation or VAT fraud cases brought
by Customs. But equally some HSE cases are
very specialist and highly technical, and
involve issues of major public interest.
Gower/Hammond made it plain that, while
the Philips criteria constitute the proper
objectives of a criminal justice system,
it would be wrong to regard them as ‘Shibboleth’,
that is a set of rules which must always
be followed to the letter if a criminal
justice system is to command the confidence
of the public. |
| 4.7 |
Although
Gower/Hammond recommended that Customs and
Excise investigating officers should not
have rights of audience in the magistrates’
court, the review recognised that this change
would take a significant period to implement.
The review suggested that in the transitional
period, it might be practicable for investigating
officers to present cases but to be answerable
and report to a lawyer in the Solicitor's
Office. |
| 4.8 |
We
therefore considered how the ‘Philips
principle’ should best be applied within
the context of HSE, building on the key
role of the inspector but at the same time
ensuring independent oversight of prosecutions,
in order to deliver the necessary elements
of fairness, accountability and efficiency
which a prosecution agency should demonstrate.
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