Cross-border criminal justice post-Brexit – Operation Yellowhammer
Greater Manchester Police charged over fatal shooting
It was widely reported recently that Greater Manchester Police (GMP) is to be prosecuted for health and safety offences over the shooting of Anthony Grainger in March 2012.
Although formally the prosecution of the force is achieved through the prosecution of its Chief Constable, Sir Peter Fahy, this is purely due to the legal constitution of GMP. As the CPS press release makes clear, “Criminal liability falls on chief officers of police as corporations sole. A corporation sole is a distinct legal entity and the person holding the office concerned does not share the criminal liability or have to personally appear in court.” It is therefore the alleged failure of GMP that is the subject of this prosecution.
The purpose of this article is to look at the selection of the charge and to provide some commentary. Given the stage of the proceedings it would be inappropriate to comment on the facts of the case.
The single charge relates to the alleged breach of a duty under The Health and Safety at Work Act 1974 (HSWA) section 3(1). This states that:
It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.
Importantly, there is no requirement for the prosecution to prove a causal link between a breach of this duty and the eventuation of a particular risk, such as a fatal shooting. The fact of the shooting is undoubtedly a significant aspect of the case, but the case could theoretically proceed even if that had not occurred. Although those who it is alleged were exposed to risk may include the deceased, they could also include (or indeed be limited to) other members of the public.
Section 33(1)(a) of HSWA makes breach of this duty an offence for which an organisation, if convicted, may receive an unlimited fine. Although the level of fines vary considerably between cases and can therefore be hard to predict, in circumstances where a death has occurred and an organisation convicted that has substantial means, financial penalties routinely exceed £100,000. In a previous case GMP was ordered to pay a fine and costs of £250,000 following the fatal shooting of an officer in a firearms training session in June 2008. By contrast, Thames Valley Police was ordered to pay fines and costs of only £65,000 following the non-fatal shooting of a civilian 999 control room operator shot by a police instructor during a safety demonstration in May 2007. The Sentencing Guidelines Council produced guidelines in 2010 that suggested that £100,000 should represent the starting point for health and safety offences causing death. The same guidelines suggest that in the case of an organisation providing a public service, such as a police force, the effect upon the provision of services to the public will be relevant, and this might result in some discount to the fine should GMP be convicted.
The first appearance is due to take place in February and at some point thereafter it will become clear whether the case will go to trial or be disposed of by way of a guilty plea. Any trial will take place before a jury.
The case is, unusually, being prosecuted by the Crown Prosecution Service (CPS) rather than the Health and Safety Executive (HSE) which prosecutes the vast majority of cases involving alleged health and safety breaches (though local authorities also prosecute a number). The reason for this is doubtless the fatal nature of the incident, combined with the fact that it was investigated by the Independent Police Complaints Commission (IPCC), which always passes its completed investigations to the CPS for decisions on charge. In most fatal accident cases the process is governed by a written agreement between investigatory authorities, Work Related Deaths: A Protocol for Liaison. Typically, the police have primacy in such an investigation unless and until a decision is made that no manslaughter charges (both as against individuals and organisations) should be brought, and at that stage primacy passes to the HSE who continue the investigation and make decisions about possible health and safety charges. In this case it would appear that the HSE are not involved at all.
The CPS press release makes clear that murder and gross negligence manslaughter charges against the officer who fired the fatal shots were considered but that it was concluded that there was insufficient evidence. The offence of murder requires both proof that the person who caused the death intended to kill or cause really serious harm, as well as sufficient proof to defeat a defence of self-defence. In the context of a fatal police shooting it is invariably the second element that is critical. Self-defence is only a defence where a person, genuinely believing he is, or is about to be, under attack, has acted reasonably in the circumstances, both in terms of the use of force and the degree of force used. Whether a person is acting reasonably is decided by reference to the person’s belief about the circumstances in which the force is used. The offence of gross negligence manslaughter requires the breach of a person’s duty of care to another which results in their death in circumstances of such gross negligence that the behaviour should therefore be deemed to be a crime. Whether negligence is to be considered “gross” is determined having regard to the risk of death involved. Fatal police shootings have resulted in prosecutions of officers for gross negligence manslaughter in the past.
The press release also indicates that the offence of corporate manslaughter against GMP was considered but ruled out “as GMP had no relevant duty of care towards Mr Grainger, which is an essential part of this offence”. The statutory offence of corporate manslaughter was created by the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA). An organisation is guilty if the way in which its activities are managed or organised by its senior management (persons who play a significant role in making decisions about or managing whole or substantial part of activity of organisation) is a substantial element in causing a death and amounts to a gross breach of a duty of care owed by the organisation to the deceased (meaning the breach falls far below what can reasonably be expected of the organisation in the circumstances). “Relevant” duties of care are defined in section 2 with further clarification relating specifically to police forces set out in section 5. In summary, CMCHA will only apply to police forces in respect of its duties as an employer, an occupier of premises, or with respect to the custody of individuals. In relation to most operational policing situations (including armed incidents like this one) CMCHA does not apply in respect of any duty of care owed to the target of the operation. This creates an anomaly whereby an individual officer could be prosecuted for gross negligence manslaughter arising out of a police shooting, and the force could be sued for damages, but it could not be prosecuted for corporate manslaughter arising out of the same incident and the same alleged negligence.
It is too soon to draw any conclusions from this case. It is already well established that police forces have to adhere to the same health and safety framework as other organisations despite the extremely difficult circumstances in which they are frequently expected to operate. As the facts emerge it may become clearer why the CPS has thought it appropriate to prosecute GMP in the particular circumstances of this case.
This article was first published in Police Professional.
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