One of the questions SHP is most frequently asked in relation to our In Court stories is: why did it take so long for this case to come to court? Kevin McLoughlin and Siân Wall provide the answer, and suggest what the profession can do to improve the situation.
In May 2002, seven people died in the Potters Bar train derailment. Almost seven years after the tragedy, no prosecution has been commenced, nor has an inquest been held. While this is an extreme example, it is not unique. Regular readers of SHP’s In Court section will have noted delays measured in years in many of the cases reported.
Delays of this magnitude raise serious questions: How can the delay be reconciled with the purpose of prosecuting health and safety offences? What controls exist to combat the menace of delay?
The purpose of prosecutions is to call offenders to answer for their wrongdoing. Their public denunciation serves to deter others and reinforce the safety standards society expects us to achieve. The symbolic value of a prosecution is undermined, however, if the case has faded from the collective memory in the length of time it takes to arrive in court.
Emotional torture
The effect of delay is particularly pernicious on the family of someone killed in a workplace accident. Typically, they want to establish the truth of what occurred and see those responsible brought to account and apologise. Slow progress in the prosecution arena often has a knock-on effect on the compensation claims that follow in the slipstream. Delay may thus add financial hardship to the emotional torture of a situation in which the family’s interests seem not to matter.
Even for the defendants, delay is anathema. Individuals being prosecuted personally find their lives are on hold until the ordeal is concluded. They face the prospect of being cross-examined over material that inevitably decomposes in their memory like garden compost. Where the defendant is a limited company, changes in the management of the organisation, its ownership, or declining fortunes (for example, a business going into administrative receivership) can render the whole exercise futile. If a company has gone bust while an investigation is underway, should a prosecution proceed anyway as a gesture of condemnation, even though any fine is likely not to be paid, or should society take a commercial view and conclude it is pointless flogging a dead corporation?
Delay benefits no one. It tarnishes the reputation of the system that tolerates it, it robs the prosecution agency of their professional pride if the case is stale by the time it reaches court, and any thought of learning the harsh lessons from tragedy will become little more than an illusion after years have passed.
Control mechanisms
The need for control is axiomatic. How, then, can it be accomplished? Surprisingly, the initial presumption in English law is that there is no restriction on the time that can elapse between the commission of an offence and the commencement of a prosecution.
Some statutes limit the time available to a prosecutor to bring a case. Hence, cases that can only be dealt with in the magistrates’ courts,1 such as motoring offences, must be initiated within six months of the offence.2 The Trade Descriptions Act 1968,3 The Food Safety Act 1990,4 and the General Product Safety Regulations 20055 all contain provisions that limit the time in which proceedings can be commenced to three years from the offence, or 12 months from the discovery of an offence by the regulator, whichever is earlier.
There is, however, no corresponding provision in the Health & Safety at Work, etc. Act 1974, or the Corporate Manslaughter & Corporate Homicide Act 2007. As a result, the prosecutor is under no legal obligation to initiate proceedings swiftly, even if he/she has been in possession of evidence supporting a prima-facie case for a lengthy period. Hardly fair, is it?
Do the courts have any power to intervene? A distinction needs to be made here between intervention during the investigation stage and once proceedings have been launched. The courts have no power to take action in respect of delay during the investigation stage, until proceedings are actually commenced. The frustration for defendants under investigation, therefore, is that they must wait for a prosecution to commence before they can raise any complaint with the court.
Abuse of process
The Court has an inherent power to protect its process — what the Americans call “the purity of the temple” — from abuse once proceedings are brought before it. The discretion to halt proceedings, though, is qualified by the remarks of Lord Salmon, in a leading case in the House of Lords: “[A] judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene.”6
Once a prosecution has been commenced, the defendant can make an application to stay the proceedings as an abuse of process. If successful, the court would not permit the case to continue and hence no trial would take place.
There are two possible bases for an abuse-of-process application based on delay. First, the contention that the defendant could not receive a fair trial. This would be appropriate where the prosecutor had caused delay after the case had begun, which significantly prejudiced the defendant — for example, in delaying the service of a summons after commencing proceedings, if a key witness died during this period.
Secondly, where a significant delay had occurred between the incident and the commencement of a prosecution, the abuse-of-process application would allege that the defendant’s right to receive a fair trial within a reasonable time has been breached, in contravention of article 6 of the European Convention on Human Rights.7
It might be said that witnesses’ memories had faded to the point where they could not be relied upon. This is more likely to be relevant where the case concerns a dramatic and fleeting incident observed by witnesses, such as a road-traffic collision, or an assault. It is much less likely in a health and safety case that turns on an assessment of the adequacy of a method statement.
In both cases, the defendant must prove, on the balance of probabilities, that the delay had caused, or had the potential to cause, serious prejudice to him. Before it concludes whether a fair trial would be possible the Court will consider the length of any delay, the reason for the delay, the defendant’s attempts to assert his right to be heard within a reasonable time, and the defendant’s role in causing any delay.8
Even where serious prejudice can be proved, and an abuse of process has been established, the Court is not obliged to bring the case to an abrupt halt. If the trial judge considers that a fair trial could still take place by restricting specific evidence, or by directing the jury to evaluate the significance of the delay when considering their verdict, then the prosecution may be permitted to continue. This is because the test to be applied is not only whether an abuse has taken place but also whether the fairness of the trial has been jeopardised by that abuse of process.
The rationale for this rule is that the public interest requires wrongdoing to be punished; those responsible must not be allowed to escape justice merely because of inefficiencies in progressing the case. It is thus only in exceptional circumstances that proceedings will be stayed owing to delay, which means that defendants face an uphill struggle to succeed in such applications.
To protect against any prejudice arising from delays in the investigation or prosecution of safety offences, a defendant must be vigilant. Identifying lost or diminishing evidential sources — such as CCTV footage that has not been preserved, or changes in the workforce — could be crucial to the strength of a future abuse-of-process application. The defendant must not contribute to the delay, and should not allow a sleeping prosecutor to slumber undisturbed; rather, he should prod them repeatedly and point out the prejudice that is accruing by virtue of the delay.
Coroners’ inquests
The running order between prosecutions and coroners’ inquests can add to the overall delay in cases involving fatalities. Coroners are obliged to adjourn an inquest where a person has been charged with murder, manslaughter, or causing death by dangerous driving,9 or where a public inquiry is to be held.10
In circumstances where an enforcement agency is in the course of investigating possible health and safety offences, the situation is less clear. The Crown Prosecution Service can require an adjournment of the inquest, but only for 28 days, where “…a person may be charged with an offence…committed in circumstances connected with the death…”.11 Whether the inquest is further adjourned is at the discretion of the coroner.
In some respects it is logical for the inquest to be heard before a prosecution, as the former is a fact-finding tribunal, which makes a contribution by bringing facts to the attention of those who are responsible for directing prosecutions.12
The enforcement agencies often prefer the inquest to proceed first as a dress rehearsal of the evidence in cases where a regulatory prosecution is being actively considered, albeit not yet finalised.
Reform
How could the present defects be cured? An obvious solution would be to equip the prosecution agencies with sufficient manpower and financial resources to discharge their duty within an acceptable timescale.
The introduction of statutory time limits for the commencement of criminal proceedings in health and safety cases would afford the judiciary scope to supervise an arena that is currently not adequately controlled. If the prosecution were subject to, say, a two-year time limit in which to complete an investigation, decide whether to prosecute and issue proceedings, this would establish parameters from the outset, within which their work was to be completed.
To cater for cases where it is not practicable to comply with the time limit, the Court could be empowered to grant extensions of time upon the prosecutor’s application, if cogent reasons were put forward. In this way, a supervisory jurisdiction could be created to protect prospective defendants from being unduly prejudiced and any tendency for investigations to drift, controlled by the imposition of a stringent timetable.
Conclusions
Complacency is an insidious evil. Former US president Dwight D Eisenhower once said: “The uninspected inevitably deteriorates.” How right he was. In order to arrest any lax standards in areas of operation that are not currently subject to scrutiny, we need to draw attention to them, and be vocal in challenging them.13
The new offence of corporate manslaughter could well create a legal minefield due to the combination of legal complexity and the high stakes for those implicated. Investigations involving large organisations and technically difficult issues, conducted by the Police and Health and Safety Executive acting in tandem, with the Crown Prosecution Service having ultimate control over the prosecution, are liable to give rise to even more protracted delays, unless firm control is seized at an early stage. In short, the situation is likely to get worse unless reform is forthcoming.
Health and safety is an emerging profession. One of the hallmarks of a profession is that it takes responsibility for the matters within its domain. In 2009, let the voice of this profession make itself abundantly clear: if a case should be brought to court then this must be done within an acceptable timescale. If voluntary regulation does not work, then we should press for statutory control.
References
1 Known as ‘summary’ offences
2 Section 127, Magistrates’ Court Act 1980
3 Section 19(1), Trade Descriptions Act 1968
4 Section 34, Food Safety Act 1990
5 Regulation 41, General Product Safety Regulations 2005
6 DPP v Humphrys [1977] AC 1
7 This is now part of English law by virtue of the Human Rights Act 1998
8 In accordance with the guidance provided by the Privy Council in Bell v DPP of Jamaica [1985] AC 937
9 Section 16 (1), Coroners Act 1988
10 Section 17A, Coroners Act 1988
11 Rule 27(1), Coroners Rules 1984
12 A view expressed by Kerr J in Re Jordan’s Application 29 January 2002, High Court of N Ireland
13 To this end, from the March issue on, SHP’s In Court reports will — where the information is available — state the date court proceedings actually commenced, in addition to the date of the incident and the date the case concluded/was sentenced (which all our reports currently do)
Kevin McLoughlin is a barrister and Siân Wall a solicitor, both specialising in health and safety law.
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