TUESDAY 23 NOVEMBER 1999

MR BILL CALLAGHAN, MS JENNY BACON AND MR DAVID EVES

  280. How many actually have them?
  (Mr Eves) I have one! I do not know the precise answer.

  281. You are leading by example!
  (Mr Eves) Yes, it is leading by example.

  282. I can imagine someone carting a PC around with them in a very difficult situation and still having to do the transcription anyway! Could you tell me if you think there is a case for undertaking prosecutions in magistrates' courts? How do you separate, if you are going to prosecution, what you do in a magistrates' court and what happens in a crown court?
  (Mr Eves) You will know the choice of going to the crown court has to be made in the magistrates' court. We can propose such a thing and the magistrates themselves can refer a case to the crown court. Most of the cases taken by inspectors in the magistrates' court are dealt with there and then by the magistrates relatively straightforwardly. If we anticipate we want to take a case into the crown court (and the numbers have increased year on year—maybe about 60 cases a year now go to the crown courts) that is going to be a trial by jury; the case is likely to be contested heavily; and we will put a lot of effort into preparing that, briefing solicitor agents or counsel. Inspectors cannot prosecute in a crown court.

  283. Is that influenced by the size of the punishment you think will be applied?
  (Mr Eves) It is, because in the crown court the possible penalty, in terms of financial penalty, is unlimited; magistrates' courts have a limit of £20,000 for an individual offence. We would like them to use that maximum penalty in the magistrates' court, because the current average penalty is only about £5,000. In the crown court we have had fines of over £1 million in the recent past for a major prosecution. For example, against the contractors where the Heathrow tunnel collapse occurred, that case took many, many months of preparation, many weeks of hearing, so it was an extremely expensive case, but it did get the result we required. It sent a very powerful message across the civil engineering industry.

  284. You could do quite a bit of work in the magistrates' court in terms of prosecutions, and the penalties going to the crown court, so you are not wasting too much time and resources in a crown court case?
  (Mr Eves) That is perfectly true and we do do that. The magistrates themselves can refer cases upwards.

  285. Do you think there is a possible conflict of interest between the same inspector visiting, advising, maybe offering a warning or giving prohibition notices, and doing prosecution cases? Are you happy with the current regime where a single inspector may do all of this?
  (Mr Eves) Yes, the individual inspector carrying out an inspection may have been to those premises two or three times, and will have seen whether or not the company is improving and whether the advice being given is actually being taken any notice of. He or she can use improvement or prohibition notices to gain that. The time can come, and it may be after an accident (but not necessarily after an accident), when an inspector will decide that prosecution is appropriate. As Jenny said earlier, he or she cannot take that decision in isolation; it has to be within the framework of the Commission's enforcement policy; it has to be actually taken at a higher level; the inspector will propose and a more senior inspector will actually agree and take the decision to prosecute. In that way I think we avoid this potential (and I will not say "conflict of interest")—but I think the point you are making is that the inspectors could arrive in a situation where they are judge and jury in their own cause. If there is an accident which occurs and we consider it is inappropriate for that inspector to investigate, because in a way the inspector may be thought to be part of the problem and may not have given advice, may not have noticed, may not have taken the appropriate enforcement action to prevent the thing that occurred—

  286. Surely in those circumstances the case is going to fall anyway, if you are culpable to an extent?
  (Mr Eves) No, I am saying where there is any suspicion of that. I am not saying it actually occurred.

  287. Do you not think there could be a positive advantage in an inspector seeing the whole process through, inspecting as well as prosecuting—unless it is a very big and serious affair?
  (Mr Eves) Personally I do see that as an advantage. I have done that on many an occasion. I think it gives the inspector authority when he or she returns to the company. They know there cannot be any nonsense with that particular individual, that the inspector's advice is there to be observed. I think it gives confidence to the safety representatives, if there are any, the trade union representatives, that the inspector is doing a proper job and seeing it through to a conclusion.

  288. We took evidence last week which suggests it is just the opposite. Once the inspector says, "Yes, you ought to be prosecuted" it has that many tiers of bureaucracy to go through that it rarely happens, which reduces the effectiveness of the inspectors?
  (Mr Eves) I would not agree that the prosecution process is actually bureaucratic.

  289. How many tiers are there?
  (Mr Eves) Only one tier above the inspector who will be taking the case, unless it is a case which is likely to involve the briefing of counsel when, as was said earlier, the solicitors office may well be involved.

  290. The inspector goes to a premises and decides the owners ought to be prosecuted; he reports that to his immediate line manager and then the prosecution takes place?
  (Mr Eves) Could I just elaborate a little bit.

  291. So it is a little bit more complicated?
  (Mr Eves) No, I want you to understand, if I may. First of all, the inspector has to gather the evidence. No case can succeed without evidence. The inspector's first task is to gather evidence. He must then propose a case under a particular legal requirement (there may be several actually) so he has to be sure of the law; and a more senior inspector has to be satisfied that the proposal is going to stand up in court. That more senior inspector will take the decision to prosecute. There is only one tier, if you like. You describe it as "bureaucracy" but I think it is proper process to ensure that the inspector is taking the right kind of decision. Ultimately, that inspector may conduct the case.

  292. You would not agree with the evidence given to us last week?
  (Mr Eves) I do not know who gave this evidence to you last week. I can only describe to you what I have done in the past and what I believe our inspectors are doing now.

  293. Is there a London weighting in salaries for your staff or inspectors?
  (Ms Bacon) Yes.

  294. Do you find any significant difference in recruitment and retention within London?
  (Ms Bacon) Not in recruitment. The main difficulty we have in London is that we also have our headquarters in London so when we need operational experience to come and inform policy and standard setting we are likely to borrow inspectors from our London and south east region. That is the main thing that leads to shortages in London from time to time. We obviously reverse that when it has got too acute.

  295. That must encourage the people in the outer offices, must it not? You only ever take practical evidence, support and advice from people in the south east?
  (Ms Bacon) No, we will take it from anybody who is prepared to come and work in the policy division. On the whole, a lot of people prefer not to leave home and do that; they prefer to stay inspecting.

  296. Very unimaginative they are outside London!
  (Ms Bacon) They have families.

  297. Do you analyse your prosecutions and investigations by region?
  (Ms Bacon) We have certain data on that certainly. We do not take it as being a major determinant of policy to look at the regional variation rates; because we would expect a certain amount of regional variation, because of industry mix, for example, or sector plans, or because we are conducting a particular blitz in one area.

  298. You would not say there is any significant regional variation, percentage-wise not in terms of individual cases?
  (Ms Bacon) Not statistically significant taken over a period. I am aware you have had data presented as evidence which looks at two years; though even then when you adjust for industry mix and so on I think the variation does not suggest inconsistency of application of policy. We are quite likely to have a blitz on farming, for example, in the south west in one particular year which may skew the figures; if you take that over ten years it will not skew the figures. It is targeting resource in a way which makes an impact.

  299. There is very much a regional allocation of resources?
  (Ms Bacon) There is a regional allocation of resources.