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Reforms to double jeopardy - the implications for health and safety offences

We discuss the effect of the reforms to double jeopardy, with particular consideration of their implications in corporate manslaughter and gross negligence manslaughter cases.

There is an assumption that once a suspect is informed of a decision not to prosecute, he is entitled to rely on that decision. There is also an assumption that a person will not be prosecuted twice for the same offence.

However the criminal law provides a prosecutor with latitude. In fatality cases, this is often driven by the inquest process. 

Any person suspected or charged with any health and safety offence should always take specialist legal advice to consider whether the prosecutor is following due process and correctly applying the law. 

Below are five points to consider when the inquest process is taking place:

1. Decisions not to prosecute are not always binding. 

Section 10 of the Code for Crown Prosecutors provides special reasons to overturn a decision not to prosecute or re-start a discontinued prosecution, including cases in which a review following an inquest concludes that a prosecution should be brought.  

An inquest is not an adversarial process in which a "prosecution" case is tested against a "defence" case; a verdict of unlawful killing does not in itself prove that the evidence justifies a prosecution for murder or manslaughter. Nevertheless, the inquest provides an opportunity for the prosecutor to see and hear witnesses give evidence and re-review whether there is a realistic prospect of conviction.

2. Where a suspect has not been advised that he will not be prosecuted, this does not mean that he is exonerated. 

It is more likely that the review process is ongoing and no decision has been made.

3. A decision not to prosecute a director does not exonerate the company, and vice versa.

A director and his company are separate legal entities which commit different offences. Each needs separate legal representation and the cases against them will be considered on their own merits.

4. An inquest does not exonerate an individual.

In an inquisitorial inquiry there are no litigants. The Coroners Rules provide that the jury's verdict at inquest has no impact on criminal or civil liability. There are simply witnesses who have knowledge of some of the matters under investigation. There may be damaging factual evidence, but a suspect is not answering a case against him.

It follows that no person can be ‘exonerated’ or convicted at an inquest. 

5. In some limited cases, an acquitted defendant can be re-investigated and re-tried. 

a) Section 75 to 81 of the Criminal Justice Act 2003 (CJA 2003) modified the rules on double jeopardy for Corporate Manslaughter and Gross Negligence Manslaughter. Should fresh evidence emerge that could not reasonably have been available for the first trial which strongly suggests that an acquitted defendant was guilty, the defendant can be re-investigated and re-prosecuted.

b) A person found guilty of a health and safety offence can be prosecuted for a second, more serious offence arising from the same facts in special circumstances. The Court of Appeal has previously ruled that public interest in a prosecution for manslaughter and for concern for the victim's family did not amount to such circumstances.

Implications

The complexity of the rules regarding decisions to prosecute, and the role that inquests play in undermining a suspect’s position underline the importance of early legal advice and specialist legal representation, including at inquest - even where criminal proceedings have been concluded.

Tactically, the best course during any investigation for a fatality is not always to press for a decision on charge and should be considered on its own merits. Where no decision on charge has yet been made, the inquest may provide an opportunity to set out a sound defence.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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