Issue 5 March 2007
Contents
FUNDING AT INQUESTS – EXCEPTIONAL INJUSTICE?
A Brief History of the Officer of Coroner.
Unfair relationships under The Consumer Credit Act 2006 What will the new regime mean for lenders?
Should Humpty Dumpty have used a ladder?!
The Better Regulation Executive
Enforcement Concordat and Compliance Code.
Risk Responsibility, Regulation
Regultion:Whose Risk is it Anyway?
Conclusion :Simplifying Regulation?
Financial Services and Market Tribunal
FUNDING AT INQUESTS – EXCEPTIONAL INJUSTICE?
Article by James Lake ST Pauls Chambers
Legal representation at inquests is
absolutely vital and necessary within the current system. So why is it that
the‘exceptional cases’ funding provisions for legal representation have a
perception of exceptional injustice to those whoencounter our inquisitorial
system?
Our system is designed to determine who the deceased was, where and when they
died and how they actually died.
Representation is only afforded to
those families whose case may have a significant wider public interest. A
complete contradiction when you consider that it is only when the death has
been investigated and scrutinised at the inquest, that issues of wider public
concern come to light. Families who don’t have legal representation may never
achieve this and therefore it must follow that representation is, in itself, in
the wider public interest.
Climbing the government’s hurdle of public interest may prove difficult as families of the victims of Dr Harold Shipman found out. Protecting members of the public from harm by medical practitioners had no significant wider publicinterest according to the Panel at the Legal Services Commission. Issues which have arisen at inquests become matters of public interest because they have been thoroughly explored during the process. The hurdle needs to be removed or, at the very least, lowered. Passing that hurdle may then result in bereaved families being told that they have sufficient finances to pay forrepresentation themselves, notwithstanding that any public body will be legally represented by the public purse. One cannot help but sympathise with any family who comes across this visible injustice.
Therefore means testing for legal
representation at inquests must be abolished in its entirety as it has the
potential to create an inequality between interested parties. Families of the
bereaved will sometimes have no choice but to become involved in the process
and their therefore must be equal access to funding. The funding given must
also include preparation for the hearing and not just representation at the
hearing itself. Important issues relating to disclosure, expert evidence and
witness requirements need to be thoroughly prepared and investigated with the
Coroner and the family of the bereaved. Disclosure can be notoriously difficult
to obtain from public and private institutions and therefore families who have
to battle with these organisations to obtain the relevant documents without
proper legal representations are again enormously disadvantaged. Adequate
representation at an inquest is all very well providing the advocate has the information
at his/her fingertips once the inquest has started. Therefore public funding
needs to be extended to thorough preparation of the case so that the
circumstances surrounding the death are fully investigated.
There have been certain elements of the government who have stated that interested parties at the inquest can adequately represent themselves. This defies common sense and creates a number of difficulties. Despite the role of the Coroner, the searching questions that need to be asked will only be done by the party who is legally represented. Many inquests involve controversial questions of forensic science and to place the burden on a family to ask the required questions is unacceptable.
Families quite rightly will point out that other interested
parties, like corporate bodies, will be represented by the most able of legal
minds. Equality of arms needs to be an important consideration in granting
funding.
The government has made means tested public funding
available automatically for deaths in custody. This is a step in the right
direction but it is not enough. It needs to be retrospective and extended to
include deaths at work and deaths which have potentially occurred due to the
failure of a corporate body. A recent application was refused by the Legal
Services Commission for a family seeking representation at the inquest of their
young children who was killed on a railway line. The Commission perversely
concluded that the safety of the railway was not of wider public interest. Why
should the test be only limited to public interest. The relevant railway
company would be represented by the best legal team money could buy so how can
that be fair to the interested parties.
What hope of justice can be achieved when there is clear inequality of arms? Of course, the railway company would be protecting their interests for any potential civil claim and making sure the outcome favoured their position. The inquest and the civil claim are not mutually exclusive, far from it. So why do bereaved families start the legal process at a clear disadvantage? This ‘exceptional test’ is exceptional injustice.
A Brief
History of the Officer of Coroner. Article by Alun Jones St Pauls Chambers
The office of the Coroner office was formally established in 1194. He (as it
was only open to men) gathered ‘taxes’, but alsoinvestigated the circumstances
of sudden, suspicious or unnatural deaths which included deaths in prison.
One of the main purposes of the Coroner investigating death, especially by
suicide, was to enhance the income for the Crown. In medieval times, the estate
of those who committed suicide would not be inherited in the usual manner but
would be forfeited to the Crown.
The Coroner’s role regarding assets passing to the Crown remains today in
the form ‘treasure trove’, though it is anticipated that this function will
eventually move away from the Coroner.
Following the Norman Conquest, the Coroner’s investigation of sudden deaths had
a distinctly financial motive. In order to prevent the killing of Normans, if a
dead body was discovered in a parish or community, a heavy fine was enforced if
the village could not prove that the deceased was English. The presumption that
the dead body was Norman was extremely lucrative for the ‘Crown’. The fine that
was enforced was known as “murdrum”, from which the word murder is derived
today.
The role of Coroner continued throughout the centuries but it was not until
1836 that significant changes were made to the role of the Coroner. In that
year, the Births, and Deaths Registration Act was enacted. This Act
concentrated on the Coroner investigating causes of death rather than the
previous fiscal responsibilities. Those financial duties were reduced further
by legislation passed in 1887. It was in the 19th Century that the role of
today’s Coroner started to take shape. Much of the earlier legislation was
repealed and the determination of the cause of death became the significant
issue. How the Coroner’s role will change in the future is yet to be seen.
Since the enactment of the Coroners Act 1988 (as amended), there has been a
plethora of inquiries, discussion documents and parliamentary debate about the
modern day role. Most notable amongst that debate are the findings of the
Harold Shipman Inquiry which published its final report on 27th January 2005.
It is clearly beyond the scope of this short article to look at the findings of
an Inquiry that took 4 years to complete but phase 2 of the Report was directed
specifically to the arrangements for death certification and the role of the
Coroner. The Shipman Inquiry website contains the full reports published under
the Chairmanship of Dame Janet Smith. In the 2005-2006 Parliamentary session,
the Coroner’s Reform Bill was not mentioned in the Queen’s speech and, not
unsurprisingly, did not even reach the first reading stage. In the 2006-2007
Parliamentary session, there are no Government Bills concerning the role of the
Coroner. The purpose of the Coroner’s Reform Bill was “to produce an effective
and accountable service to ensure the efficient and comprehensive reporting and
recording of all deaths and their causes”. In pursuit of that goal, the Bill
aimed to “provide greater transparency in death certification and registration
and increase public confidence in the (Coroner’s) system”.
In light of the Parliamentary legislative timetable, one will have to wait to see if the aims of the Bill will ever be achieved in the near future.
Unfair relationships under The Consumer Credit Act 2006 What will the new regime mean for lenders?
Article
by James Harwood Walker Morris
One of the most controversial elements of the latest Consumer Credit Act, which
comes into force on 6th April 2007, is the new concept of the ‘unfair credit
transaction, which allows consumers to challenge a wide range of contract terms
and lender practices as unfair. Agreements may be found to be unfair because
the terms or other a wide number of other factors. The new test is now broad –
the court can take into account all matters it considers relevant at any stage
during the relationship. There are also a wide range of new remedies. Actions
can now be brought by consumers or the OFT excercisng powers under Part 8 of
the Enterprise Act 2002. The recent House of Lords decision of The Director
General of Fair Trading v First National Bank [2001] UKHL 52 gave extensive
consideration to the meaning of unfair, including new factors such as ‘fair and
open dealings’ and ‘not taking advantage of consumers lack of experience etc’.
Also from 6th April 2007, the Financial Ombudsman Service jurisdiction is
extended to encompass all consumer credit lending. A new free ADR service is
established for consumers. The FOS wields enormous power, its decision is final
and refusal to comply with decisions can bring about enforcement action.
The Act has certain provisions which allow retrospective action. The burden of
proof rests on the creditor as the government felt that lenders are better
placed to show that their conduct is not unfair. In practical terms this
obligation imposes a massive obligation on creditors to keep accurate records.
Lenders will be well advised to record and document meetings, telephone calls
and emails. The OFT also has the power to take into account ‘irresponsible
lending’ in determining fitness to hold a licence under the Act. Lenders may
need to demonstrate that the borrower had the overall means to repay the loan.
RECENT LEGISLATION
Article by Alun Jones St
Pauls Chambers
The “smoking ban” in public places is due to come in to force in England on 1st
July 2007. In support of the Part 1, Chapter 1, of the Health Act 2006 (c.28),
a number of draft regulations have been drafted.
The Smoke-free
(Exemptions and Vehicles) Regulations 2007
The exemptions in the regulations apply only to premises that would be
smoke-free under section 2 of the Health Act 2006 if those exemptions had not
been made.
Private Dwelling
A private dwelling is not smoke-free except for any part of it which is used
solely as a place of work by more than one person who does not live in the
dwelling;
Accommodation for
guests and club members.
A designated bedroom in a hotel, guest house, inn, hostel or members’ club is
not smoke-free. Bedroom is defined.
Other residential
accommodation
A designated (smoking) room that is used as
accommodation for persons aged 18 years being a care home, hospice or prison is
not smoke-free. A designated room is defined.
Performers
Where the artistic integrity of a performance makes it appropriate for a person
who is taking part in that performance to smoke, the part of the premises in
which that person performs is not smoke-free in relation to that person during
his performance.
Specialist tobacconists
The shop of a specialist tobacconist that is being used by persons who are
sampling cigars and pipe tobacco is not smoke-free for the duration of that
sampling
Offshore installations
A designated smoking room in an offshore installation is not smoke-free.
Research and testing
facilities
A designated (smoking) room in a research or testing facility is not smoke-free
whilst it is being used for any specified research or tests
Temporary exemption for
mental health units
A designated (smoking) room for the use of patients aged 18 years or over in
residential accommodation in a mental health unit is not smoke-free.
Enclosed vehicles
An enclosed vehicle and any enclosed part of a vehicle is smoke-free if it is
used by members of the public whether or not for reward or hire or in the
course of paid or voluntary work by more than one person even if those persons
use the vehicle at different times, or only intermittently). A vehicle with a
sun-roof is enclosed for the purposes of the regulations but a convertible with
a fully retractable roof would not appear to be enclosed!
The Smoke-free
(Penalties and Discounted Amounts) Regulations 2007
The Draft Regulations specify details on exemptions, vehicles and
penalties for the purposes of smoke-free requirements that will come into force
on 1st July 2007.
These draft instruments rely on the powers in and define requirements under
smoke-free legislation by:
• setting levels of penalties for offences under
smoke-free legislation
• setting out exemptions from smoke-free legislation
• setting out the vehicles required to be smoke-free
The smoke-free legislation will mean that virtually all enclosed public places
and workplaces will become smoke-free. This means that in England all enclosed
or substantially enclosed parts of all pubs, clubs, membership clubs, cafés,
restaurants, shopping centres, offices, and all public and work transport, will
become smoke-free.
Penalties and
discounted amounts
Section 6(8) no-smoking sign offences – maximum penalty £1,000
on conviction or by way of a fixed penalty of £200 (or a discounted amount of
£150).
Section 7(6) offence of smoking in a smoke-free place -
maximum penalty of £200 on conviction or by way of a fixed penalty of (or a
discounted amount of £30).
Section 8(7) offence of failing to prevent smoking in a
smoke-free place provides a maximum fine on conviction of £2500.
RISK Management Article by Mark Jenner Bentley
Jennison
The Cadbury Committee Report was followed by a series of other committees and
reports into corporate governance inintroducing modern Risk Management
principles to both the public and private sectors. The NHS introduced ‘Controls
Assurance’ in the mid 1990s, and other public sector regulators and funders
have followed suit. RM requires the definition of objectives and then
identification of risks, divided into strategic risks ( for the Board) and
operational risk ( for the managers). Critical risks need to be identified with
risk register, operational frameworks and action plans. Finally risks should be
‘owned’ and managed by identified indivuals with regular appraisal and review.
The use of computerised risk assessment tools, such as 4Risk, a web based tool
allows updating of strategic and operational risks by all risk owners. RM must
become a natural part of the day to day management of the organisation and seen
as a critical tool in the delivery of success.
Should Humpty Dumpty have used a ladder?!
Article By Denise Breen-Lawton St Pauls Chambers
• In 2003/04 falls from height accounted for 67 fatal accidents at work and
nearly 4000 major injuries.
• In 2004/05 53 people died and nearly 3800 suffered a serious injury as a
result of a fall from height in the
workplace.
• In 2005/06 the number of deaths due to falls from height at work reduced to
46. The number of people who
suffered major injury as a result of a fall also reduced, to 3351 in that year.
Apparently this is the lowest number on record, but falls from height remain
the most common type of accident causing fatal injuries at work and the second
most common cause of major injury to employees, accounting for around 15% of
all such injuries.
The Work at Height Regulations 2005 (SI 2005 No. 735) came into force on the
6th April 2005. They place duties on employers, the self-employed, and any
person that controls the work of others (for example facilities managers or
building owners who may contract others to work at height). The Regulations are
far-reaching and widely drafted. They impose duties regarding planning of work,
supervision of employees, steps to be taken to avoid risks, selection of
equipment, and to the inspection of certain equipment. They apply to “all work
at height where there is a risk of a fall liable to cause personal injury”.
However, they do in fact go further when one looks at the detail in terms of
assessing the risk, and prevention of falling objects, which may cause injury.
The aim of these Regulations was to prevent the deaths and injuries caused each
year by falls at work. They replace and consolidate all previous Legislation
and Directives on working at height. It appears to have worked to some extent
when one looks at the statistics and this may well be due to the various
publications and leaflets available on the subject, in short: Education of
employers and workers. When reading through them one imagines that all window
cleaners, office managers and retailers will be running scared! Certainly on a
strict reading of the Regulations it appears that there is no definition of
‘Height’, so this could be anything from two feet to two hundred feet.
Regulation 2 states: A place is ‘at height’ if (unless these Regulations are
followed) a person could be injured falling from it, even if it is at or below
ground level. This is obviously
incredibly wide in its application.‘Work’ has an equally wide definition and
would include for example an employee working on a stepladder. This would mean
that all retailers, warehouse companies and offices where there are shelves to
be accessed by a stepladder are caught by the Regulations. There does not
appear to be a restriction on size of company to which this applies and
therefore small retailers and offices would be caught too, not just the big
fish. However there are limitations on closer scrutiny. For example where there
is a low-risk and the work is to be of short duration then a normal ladder may
be used (if done so sensibly and taking all the normal safety precautions of
course). ‘Short duration’ is taken to be between 15 and 30 minutes depending
upon the task. One may think that the simple ladder is no threat and that the
government are simply being over zealous in their approach to control our
working environments. However, on average 13 people a year die at work falling
from ladders and nearly 1200 suffer major injuries. More than a quarter of
falls happen from ladders so the problem is a great deal more serious than one
might have thought. Like many of the Regulations designed to protect our health
and safety at work, it requires a Risk Assessment. The familiar test of what
is‘reasonably practicable’ applies. As part of the Regulations,
‘duty holders’ must ensure:
• all work at height is properly planned and organised;
• those involved in work at height are competent;
• the risks from work at height are assessed and
appropriate work equipment is selected and used;
• the risks from fragile surfaces are properly controlled;
and
• equipment for work at height is properly inspected and
maintained.
There is a hierarchy for managing and selecting equipment
for work at height. The Regulations state that ‘Duty holders’ must:
• avoid work at height where they can;
• use work equipment or other measures to prevent falls where
they cannot avoid working at height; and
• where they cannot eliminate the risk of a fall, use work
equipment or other measures to minimise the distance and consequences of a fall
should one occur.
In their attempt to comply a manager at a company that was visited by
inspectors thought it would be a good idea to limit the height that workers
could climb by cutting the top four rungs off the ladder. Seemingly a good idea
but it made the ladder completely unsafe as result!
It is clear that the Health and Safety Executive are keen to offer advice and
guidance on these Regulations. All companies and businesses would be well
advised to take such advice and assess the risks in their working environment.
In not doing so, they run the risk of being liable for injury or death. The
Regulations are cumbersome and detailed, but the risks of non-compliance are
perhaps more serious than just a slap on the wrist from the HSE. What about
Humpty Dumpty? Maybe he would have been better off using a ladder, or indeed a
safety net, but he could have argued he was only up on the wall for a short
time and he wasn’t ‘working’ anyway!. [Note: all statistics are taken
from the HSE website]
The Better Regulation Executive Article By Jeremy Barnett St Pauls Chambers
The Better Regulation Executive has been tasked by the Prime Minister with cutting red tape so that businesses can be more productive and public services more efficient, by legislating only where necessary and deregulating and simplifying existing legislation wherever possible. Activity is presenty being conducted in 8 core areas:
Enforcement Concordat and
Compliance Code.
This was released in 1998 by the Cabinet Office and sets out what businesses
and others being regulated can expect from enforcement officers. Although
adoption is voluntary, to date 96% of all central and local government
organisations with an enforcement function have adopted the Concordat. The
emphasis is on ‘prevention rather than cure’ by
working with small and medium size businesses to advise on and assist with
compliance. An essential commitment is to minimise the costs of compliance for
business by ensuring that any action taken is proportiaionate. Any remedial
action will be put simply and clearly. Discussions will be held prior to
enforcement action, and explanations given where immediate action is required.
Implementing Hampton:
from enforcement to compliance.
On 28th November 2006, the Treasury
released a document setting out progress that has been made on implemention of
the principles set out in the report by Philip Hampton, in March 2005. A key
pillar of the approach is removing the burden of unnecessary regulation and old
style routine inspection and enforcement.Regulations need to be ‘fit for
purpose’ and enforcement ‘risk based’, to ensure efficient use of resources.
Legislative and
Regulatory Reform Act.
The Act received Royal Assent on 8th November 2006 and contains powers to
enable the Hampton principles to be establised through a Regulators Compliance
Code which should be in force by 1st April 2008, based on the following
principles
• Use of risk assessment by regulators
• No inspection should take place without a reason
• The few businesses that persistently break
regulations should be identified quickly
• Regulators should provide authoritive accessible advice, easily and cheaply.
Section 1 confers powers on a Minister to remove a burden or partial burden
[financial or administrative] imposed by direct or indirect legislation. Other
powers include the power to promote regulatory provision by order. Measures
already adopted such as the Department of Transport guidance for road haulage
operators and the Retail Enforcement Pilot, which has seen a 33% reduction in
enforcement visits by co ordinating inspections. Hampton recommended the merger
of 31 regulators into 7 ‘thematic’ bodies by 2009. Work has already begun by
the merger of 12 bodies into 7, with work being conducted such as the merger of
the Insolvency Service Agency and the DTI Company Investigations Branch on 3rd
April 2006.
Local Better Regulation
Office
In the Pre-Budget Report of December 2005, the Chancellor
announced the creation of a local better regulation office (LBRO). This should
now be up and running by the end of 2007, owned by the Cabinet office, with an
independent Chair and and board. Measures will include the establishment of an
arbitration procedure for disputes concerning enforcement by different local
authorities. [see Reg Breach Issue 3 ‘where the Home Authority disagree with a
Prosecution]. On 29th November 2006, the Government announced the appointment
of Peter Rogers, Chief Executive of Westminster City Council, to lead an
independent review of Local Authority Regulatory Priorities. It is considering
60 areas of policy and will recommend 5 high – risk national priorities by
Spring 2007.
Private Inspection
Mergers
The Hampton Review recommended a number of regulatory mergers, which all
together will reduce 31 regulators to 7 by April 2009. The relevant Departments
have the lead in the detailed planning of mergers, but the BRE is overseeing
their work.
The immediate goals of the merger project are to:
• ensure that Departments are on track with their merger planning, and that the
mergers envisaged fully meet the Hampton Review’s recommendation;
• ensure that consultation documents, on the new Consumer and Trading Standards
Agency, and on the mergers within the DEFRA family, meet the Hampton
recommendations, and give the new organisations remits and functions that are
in
accordance with the BRTF and Hampton principles;
• explore legislative options through the Better Regulation Bill, for
Government to reconfigure regulators’ structures and guidance;
• produce, by September 2006, a document containing detailed plans for all
mergers.
Regulatory Reform
Orders
Regulatory Reform Orders (RROs) are a powerful tool which enable the reform of
primary legislation. RROs can iron out
inconsistencies and amend problems in already enacted legislation without the
need for a bill slot:
• RROs must always remove or reduce some burdens, but
• they can also apply new burdens, reapply existing burdens and remove
inconsistencies and anomalies.
Regulatory Reform Orders that have been scrutinised and approved by Parliament
include, Fire Safety, Sunday Trading and Vaccine Damage payments (often used by
Gulf War Veterans to obtain redress for illness received during service in
1991). For example the Fire Safety order 2005 consolidated a number of orders
involving the inspection of premises and
appointed inspectors to monitor fire and rescue authorities.
Risk Responsibility,
Regulation
The Government has also published its response to the Better Regulation
Comission’s report ‘ Risk Responsibilty
Regultion:Whose Risk is it
Anyway?
It has plans to implement a number of new initiatives including the publication
of Departmental Simplification Plans in December 2006, with new targets, a web
site, training Ministers and other senior civil servants on risk assessments
and other measures set out above. Despite all of the above measures, buried
deep in the consultative material is this phrase, ‘However the Government does
not accept that the Cabinet Office better regulation minister should be made
accountable for ensuring overall that regulation takes appropriate account of
risk’ This begs the question, is anyone actualy responsible in goverrnment for
this new onslaught of regulation?
Conclusion :Simplifying Regulation?
The simplification plans include, Deregulation, Consolidation, Rationalisation,
and Reducing administrative burdens. The Simplification plan released in
December 2006 introduces with some new concepts including Regulatory Irritants
such as butchers licences, which overlap with other food safety regulation. The
definition of simplification containes 13 elements. Fantastic new tools such as
the Standard Cost Model for measuring administrative burden are recommended.
The cynical amongst us may conclude that the administrative burden of
understanding and complying with the new regulation is itself so complex, that
the employment of those civil servants responsible for ensuring such reduction
of red tape will be guaranteed for many a year. External reaction to the
initiative has been limited thus far. The CBI in their response are concerned
that the Penalties Review is putting the cart before the horse by looking at
adding to the present penalties regime, rather than
correcting present inconsistencies. The CBI also warns against the dangers of a
public naming and shaming policy, as
damage to repuation can be critical. Other comments include those from the
Equal Opportunities Commission, who said in their response,‘The EOC supports
the BRE’s objectives and agrees with the analysis of the current approach, but
we think that what is proposed fails to recognise that the social and economic
impacts of any new regulation may differ as between women and men, including
transsexual men and women’ No doubt, a whole new industry will grow in and
around the ‘science’ of deregulation. An example is the Better Regulation
Executive Conference, Delivering Better Regulation dated 21st February held by
LACORS, an opportunity to hear from the minister, Hilary Armstrong MP and
others for only £405 +vat!
RECENT CASE LAW Article By Alun Jones and Jo Murray St Pauls Chambers
Application of Peter
Dennis v DPP [2006] EWCA 3211 (Admin)
This was an application for judicial review by the Claimant Mr Peter Dennis in
respect of the decision of the CPS not to bring
prosecutions for gross negligence manslaughter arising out of the death of the
Claimant’s son Daniel, in an industrial accident on 8th April 2003. Daniel was
17 years old on 1st April 2003 when he began working as a labourer for Roy
Clarke, who was sub-contracted to complete work on a retail park in Gwent,
South Wales. He was in the second week of his job when he informed a co-worker
he was going onto the roof to find a short piece of timber. The co-worker had
replied ‘don’t bother’, but Daniel went onto the roof and fell through a roof
light to his death. The Claimant maintains that this was his son’s first job
working at heights or on roofs, he had no experience of doing so, nor had he
received any proper training. He went on to say that no steps had been taken to
comply with statutory obligations including those relating to designated safe
walkways, fencing off vulnerable points and the provision of suitable safety
equipment.
An inquest was held in March 2005 before the Coroner for Gwent and a jury. He
permitted the jury to consider a verdict of unlawful killing on the basis of
gross negligence manslaughter, and directed them that there was sufficient
evidence to conclude that Mr Clarke owed Daniel a duty of care. They returned a
unanimous verdict of unlawful killing. Even before the inquest, the Claimant
had raised with the Defendant the possibility of criminal charges being brought.
After the inquest, solicitors for the Claimant made further submissions to the
Defendant, stating that there was an abundance of evidence to support
manslaughter charges against Mr Clarke. In August 2005, a solicitor from the
CPS informed the Claimant that the case failed to satisfy the evidential test
of the Code for Crown Prosecutors. He accepted that the Defendant owed a duty
of care to Daniel however, he could not be satisfied that the degree of
negligence displayed was so severe that it would amount to criminal negligence.
On that basis, he had advised the police that there was no realistic prospect
of a successful conviction and that he had not gone on to consider the public
interest test under the applicable code. In March 2006, the Prosecutor carried
out a further review of the case and detailed key factors which had influenced
his decision not to prosecute:
(a) The suggestion that the deceased had some experience in the building trade
(b) Two witnesses had indicated that the deceased had been
specifically told not to go near the skylights
(c) There was no reason for the deceased to have gone onto the roof
(d) The deceased was specifically told by a co-worker not to go on the roof
It was after these reasons were given that the Claimant sought to re-open the
decision by way of judicial review. Permission was given and the case was heard
on 30th November 2006.
At the hearing, a statement was received from the CPS, providing reasons as to justify why a prosecution would not be brought against Mr Clarke. Firstly, he drew attention to the test set out in R v Adomoko [1995] 1AC 171, namely that for a prosecution to be brought, the conduct of the Defendant “was so bad in all the circumstances as to amount in their judgment to a criminal act or omission”. Secondly, the statement accepted that even if the case was remitted back to the CPS for consideration, then the case still had a high hurdle to surmount. Thirdly, it accepted that the fact an inquest jury had returned a verdict of unlawful killing was not determinative, although it may well be a presumption. Counsel for the Claimant submitted that he could demonstrate that the CPS had failed to follow their own procedures and had failed to consider important evidence or had clearly wrongly analysed important evidence. Counsel for the Defendant then referred to sections 5.2 – 5.4 of the Code of Crown Prosecutors; that the CPS must be satisfied that they have enough evidence to provide a ‘realistic prospect of a conviction’, that this is an objective test, and whether or not the evidence that they have is reliable. The judges concluded that the Defendant had not provided clear reasons as to why the verdict of the inquest should not have led to a prosecution. Therefore, the matter ought to be referred back to the CPS, on the basis that it was seriously arguable that a different decision might be made. However, they made it very clear that the final decision remains very firmly in the hands of the CPS.
Financial Services and Market
Tribunal
(1) PS Mortgages Limited (2) Stanley Olutola v Financial Services Authority
This brief review concentrates on the burden of proof of applicants and
considers the factors which the Financial
Services Authority (“the Authority”) take into account when deciding if a
person is “fit and proper” to be undertaking
regulated activity.
The facts of the case are straight
forward. Mr. Olutola, who at one time ran a book keeping firm and was the
Director for the first applicant, had applied to the Authority to engage in
regulated activity in relation to mortgages and insurance.
Prior to the application to the Authority, Mr. Olutola had been disciplined by
the Association of Chartered Certified
Accountant. He had used the designation “Chartered Certified” during the course
of his business when not entitled to do so. The ACCA investigated the matter
and it transpired that, in fact, Mr. Olutola had only ever been a student
member of the ACCA. The ACCA disciplinary committee took action against Mr.
Olutola which resulted in him being removed from the membership list and being
ordered to pay costs. When applying to the Authority, Mr. Olutola neglected to
disclose this previous disciplinary finding. The Authority became aware of the
non-disclosure and wrote to Mr. Olutola requesting for an explanation. He
replied saying he had, in essence forgotten. The Authority refused the second
applicant on the principal grounds that he was not a “fit and proper person” to
engage in such regulated activity. He appealed to the tribunal.
The Tribunal heard evidence from Mr. Olutola who acted in person. The tribunal
reviewed the Authority’s guidance on what constituted a “fit and proper”
person. Some of the Authority’s guidance is reviewed below. The most important
considerations include the person’s honesty, integrity and reputation In
determining a person’s honesty, integrity and reputation, the matters to which
the FSA will have regard include, but are not limited to:
• any
existing or previous investigation or disciplinary proceedings, by the Authority
or by other regulatory authorities;
• any proceedings of a disciplinary or criminal nature;
• any contravention of any of the requirements and standards of the
regulatory system;
• has the person been refused the right to carry on a trade, business
or profession requiring a licence, regis tration or other authority;
• any investigation, disciplinary action, censure or suspension or
criticism by a regulatory or professional body, a court or Tribunal whether
publicly or privately;
• has the person been candid and truthful in all his deal ings with any
regulatory body;
• does the person demonstrate a readiness and willingness to comply
with the requirements and standards of the regulatory system and with other
legal, regulatory and professional requirements and standards?
If a matter comes to the FSA’s attention which suggests that the person might
not be fit and proper, the FSA will take into account how relevant and how
important that matter is It is for the Applicant to satisfy the Authority that
he is a fit and proper person having regard to all the circumstances which
include his connections, the nature of the regulated activity which he seeks to
carry on and the need to ensure that his affairs are conducted soundly and
prudently. The burden lies with the Applicant to satisfy the Tribunal that he
is a fit and proper person to carry out any of the functions which were the
subject of Application to the Authority. The tribunal endorsed the view of the
Authority about the seriousness of its duty to protect consumers. It will be
rare for someone who, in the face of clear warnings on the written application
form, shows a knowing or reckless want of truth or candour when making an
important Application, to be able to satisfy The Authority that he is a fit and
proper person.
The Tribunal dismissed the references and upheld decisions of the Authority.