Jonathan Grimes, partner and health and safety expert, Kingsley Napley
Police don’t fit the bill
16 April 2012
Choice of lawyer critical in health and safety investigations — further clarification now provided by the European court
12 June 2014
30 October 2013
13 January 2014
21 February 2014
10 April 2014
The police lack the powers enabling them to launch effective corporate killing investigations
The fourth anniversary of the Corporate Manslaughter and Corporate Homicide Act (CMCHA) coming into force was marked on 6 April.
Although it was always understood that there would be a delay in cases reaching the courts, it has been somewhat perplexing that there have been so few prosecutions under the new legislation to date. Only one company has been convicted of corporate manslaughter so far (Cotswold Geotechnical Holdings in February 2011) with another due to stand trial this summer (Lion Steel).
This may be due to the relative complexity of the act and that it is intended for only the very worst cases; but a more significant problem may be the fundamental unsuitability of police powers for investigating suspected corporate offending.
The corporate manslaughter offence is one of the few corporate offences investigated by police. Other agencies, such as the Health and Safety Executive (HSE), investigate companies routinely and as a consequence have been afforded powers better suited to that task. This reveals itself in a number of ways.
The ’interview under caution’ is an investigative tool used in almost every police investigation. Its use is heavily prescribed by the Police and Criminal Evidence Act 1984 (Pace) and associated codes of practice, but exclusively in anticipation of a human rather than corporate suspect. A person suspected of criminal wrongdoing can be arrested and compelled to attend an interview under caution. They can be questioned and the answers given, or not given, can be used against them in a subsequent trial. A corporate suspect can only be invited to put forward a representative of the company to answer questions under caution. Given the evidential risks involved in doing so, few companies are advised to accept that invitation. This method of obtaining evidence is therefore frequently unavailable to the police.
By contrast, other agencies have the power to compel individuals to attend an interview and to answer questions. An inspector of the HSE, for example, is given this power under the Health and Safety at Work Act 1974, section 20(2)(j). A safeguard is afforded to the interviewee that nothing said can be used against them, but the evidence obtained can be used against other individuals and, frequently, against a company.
Similarly, an HSE inspector has the power to enter premises, as well as to require the production of books or documents. Little is required beyond the inspector’s belief that the exercise of the power is necessary and any obstruction of these powers is a criminal offence. To achieve the same result the police have to go to court to obtain a search warrant, which will only be granted if the court is satisfied that there are reasonable grounds for believing that an offence has been committed and that there is likely to be material on the premises that is relevant evidence.
In many ways the corporate manslaughter offence would lend itself far better to investigation by an agency such as the HSE. The CMCHA passed into law on a wave of expectation that it could bring about greater corporate accountability. This has not been achieved so far. Until the challenges facing those tasked with investigating the offence are recognised, it is likely that corporate manslaughter prosecutions will remain few in number.