| 5.1 |
The
Review Team propose a model of prosecution
teams which we believe would meet HSE’s
needs and deliver these principles.
The teams would be made up of lawyers, inspectors
and administrators. Such teams would provide
independent legal oversight of prosecutions,
strengthen the legal support to inspectors
and provide ready access to early legal
advice. These teams would need to be geographically
based. |
| 5.2 |
In Scotland, there is already independent
legal oversight of prosecutions. All HSE
prosecutions are conducted by the Procurator
Fiscal. Inspectors do not take prosecutions
themselves. The system works well in those
areas where the Fiscal has the time to develop
the specialist knowledge which health and
safety law requires, but less well in busy
city areas with a large mixed crime caseload.
We believe our proposed model will reflect
the desirable characteristics of the Scottish
system while avoiding the disadvantages. |
| 5.3 |
A move to a prosecution team model will
mean a fundamental change in approach by
HSE with significant resource issues. Nevertheless
we believe the proposed new system is both
necessary to raise the quality and efficiency
of HSE prosecutions, and to ensure the independence
and accountability properly expected of
a prosecution authority. |
| 5.4 |
The team would work in the following way:
| - |
Give
advice to inspectors on possible prosecutions; |
| - |
Review
cases for prosecution, once accepted
for prosecution by the inspector and
the Principal Inspector, to ensure
that the right defendants are prosecuted
for the right charges; |
| - |
Prepare
cases for court; |
| - |
Draft and lay informations; |
| |
Prosecute
cases at the magistrates’ court
(subject to paragraph 5.7 below) and
instruct counsel to prosecute in the
Crown Court and the higher courts. |
|
| 5.5 |
Under our proposals, all cases for potential
prosecution would be referred to the prosecution
team. The investigating inspector would
submit a case to the PI for approval in
the usual way. If approved, the case would
then be referred to the prosecution team
where it will be reviewed in accordance
with the Enforcement Policy Statement and
the tests set out in the Code for Crown
Prosecutors. The evidential part of the
review decision would be undertaken by the
lawyer and the public interest decision
would be taken jointly by the lawyer and
inspector in the team. Advice will be given
to the referring inspector if extra evidence
is required. If, after review, the case
is accepted for prosecution the team will
draft and lay informations. |
| 5.6 |
The inspector in the prosecution team will
develop specialist knowledge, particularly
in relation to criminal law and procedure,
so that he or she would be able to liaise
with the referring inspector on technical
and evidential issues. Administrative staff
would develop paralegal skills so that they
would be expected to be able to draft informations
as requested by the inspector/lawyer, prepare
cases and bundles for court, draft simple
instructions to counsel, monitor fees, sit
behind counsel in straightforward Crown
Court cases and undertake witness care. |
| 5.7 |
If the case were:
| |
straightforward;
|
| |
suitable
for summary trial; and |
| |
a
guilty plea was anticipated, |
then
it could be referred back to the investigating
inspector to prosecute in the magistrates’
court, if that inspector indicated a wish
to take the case and it was operationally
efficient to do so. The detail of this arrangement
will need further work. |
| 5.8 |
In
all other cases the team would ensure legal
representation. This could be undertaken
in the magistrates’ court by an inspector
or lawyer from the team, or solicitor agent
or counsel as necessary. In due course,
HSE should review whether administrators
in the team could deal with guilty pleas,
as in the designated caseworker system in
the CPS (although primary legislation would
be required to put such a system in place).
|
| 5.9 |
The
team would also be available to give early
legal advice to inspectors about to embark
on a complex investigation. This should
save the inspector time by enabling him
or her to focus on fruitful lines of inquiry
which should yield admissible evidence.
The team will deal with all the administrative
work associated with prosecutions, instruct
counsel in the Crown Court and deal with
appeals. |
| 5.10 |
Sub teams could be set up to deal with particular
high profile cases, such as Ladbroke Grove,
which require the secondment of specialist
inspectors. |
| 5.11 |
The
teams would provide a service for all HSE’s
operational Directorates. |
| 5.12 |
A
clear line management chain would be necessary.
We believe that the senior lawyer on the
team should be the overall line manager
locally, with the lawyers reporting then
to the Assistant Solicitor in charge of
Litigation. We are aware that the Chief
Prosecutor for the Environment Agency does
not have line management responsibility
for their lawyers who are managed within
their region by non lawyers and this causes
management problems in ensuring a consistent
approach on legal issues. There would be
a case for the core maintenance responsibilities
to rest with the SCS manager with existing
management responsibilities for activities
in the region/ Wales. These issues should
be resolved through internal discussion. |
| 5.13 |
HSE
would require geographically based teams
to conduct all its prosecution business
in this way. We are conscious that teams
need to have a ‘critical mass’
to work efficiently and to gain economies
of scale. For this reason, although HSE
does not prosecute a large number of cases
at present (some 1400 cases per year) there
would be insufficient business to justify
one team per area. We believe that it is
more likely that 4 teams to cover England
and Wales would be the appropriate number
(covering London and the South East, one
for the North, one for the Midlands and
one for Wales and the West). Even if there
were four such teams, there would still
be geography issues which would need to
be addressed. We anticipate with developments
in electronic prosecution files and use
of new technology generally that these issues
could be less important in the future. |
| 5.14 |
HSE’s
prosecution service, if set up in this way,
would also provide general legal guidance
to lawyers and inspectors about changes
to statute and case law and prosecuting
procedures. |
| 5.15 |
Once
this new system is in operation, it will
be possible to assess the quality of HSE’s
prosecutions and promote best practice.
This could be done by good management and
audit systems internally but, to provide
an authoritative independent assessment,
an external inspectorate such as the CPS
Inspectorate could be invited in to carry
out inspections. An extension of the role
of the CPS Inspectorate would require primary
legislation.
Recommendation: HSE should put
in place a system of prosecutions which
permits independent legal oversight of the
decision to prosecute; this model should
separate prosecution from investigation,
in order to ensure a fair trial and to promote
best practice, ensure consistency and transparency.
We recommend a system of multidisciplinary
prosecution teams comprising lawyers, inspectors
and paralegal staff. These teams would be
supported and managed through Solicitor’s
office although they would need to be geographically
based.
Recommendation: Once the system is
in operation, HSE should propose inspection
of its prosecutions by an external inspectorate,
such as the CPS Inspectorate. |
