Crown Censure and the rule of law
The “rule of law” has been defined to mean that no man is above the law. This principle is critically undermined by the concept of Crown immunity and the Crown Censure procedure.
The case of John Wynne and the Royal Mint
The case of John Wynne, employed by the Royal Mint at Llantrisant, South Wales, has highlighted the legal rules and procedures surrounding Crown immunity as a clear example of class justice. The facts, so far as reported in the national press, were that in 2001 Mr Wynne (W), suffered fatal crushing injuries when a six-tonne furnace fell from a crane. W, aged 50, had worked in the metal rolling department of the Mint for 21 years.
The Health and Safety Executive (HSE) found itself unable to prosecute the Mint for breaches of health and safety legislation. Instead, it brought Crown Censure proceedings. At the hearing of these proceedings it was stated that the Mint had failed to follow safety procedures. The hearing was not open to the public. A report of the hearing was sent to the government, the Royal Mint and the HSE. W’s widow was not entitled to a copy of the report.
W’s widow is reported to have commented that she was shown pictures at the hearing which showed the furnace hanging from a crane, but not sitting on the hook properly. The furnace was balancing on the top and it fell. It had fallen once before, and no-one was hurt. The Mint’s management had not carried out safety checks. If they had done so, they would have realised that it was faulty and the accident could never have happened.
An HSE inspector is reported to have made the following points to the hearing:
W’s death was an accident waiting to happen.
There was sufficient evidence to bring a criminal prosecution against the Mint.
Although Crown property, including the Mint, has to comply with health and safety regulations, it cannot be prosecuted because the Crown cannot prosecute itself.
The shadowy issue of Crown immunity arises in the context of both criminal and civil proceedings. Crown immunity is an ancient, obscure and complex area of law with significant practical implications. The concept is inextricably bound up with the development of the unwritten British Constitution and the relationship between the monarch, central government, legislation and the enforcement of criminal law.
The following points may help with an understanding of Crown immunity:
The literal meaning of “Crown” is “an ornamental badge of regal power worn on the head of sovereign princes”. In general terms, it means the monarch. This involves a consideration of the constitutional position of the monarchy as the head of state.
In strict legal and constitutional theory, legislation cannot come into force until it has received the Royal Assent, that is, consent by the monarch.
The “Crown” now applies to the collective structure of central government in the United Kingdom.
The monarch is personally immune from prosecution or criminal proceedings. This is one reason why the execution of Charles I was deemed to be illegal after the restoration of the monarchy.
In constitutional law, the King (or Queen) can do no wrong. He/she is never a minor and never dies.
Crown immunity also applies, by implication, to the ruling sovereigns of other states. This does not extend to deposed or exiled sovereigns who happen to be within the jurisdiction. The authority for this is cited by Archbold (the barristers’ bible) as R v Mary, Queen of Scots (1586).
Criminal prosecutions are conducted on behalf of the Crown and generally brought in the name of the Queen. Criminal cases are cited as “R v …” which is an abbreviation of “Regina v…”.
The general principle is that the Crown is not bound by any statute. This principle may be displaced where there is an intention stated in the statute that the Crown should be bound.
The principle extends to Crown servants acting in the course of their official duties, Crown property and property occupied by the Crown for public purposes. It covers, for example, the Ministry of Defence, the Prison Service and the Royal Mint.
Section 48 of the Health and Safety at Work, etc., Act 1974 states, in summary, that sections 1 to 54 of the Act, except for sections 21 to 25 and 33 to 42, shall bind the Crown. But this does not mean that criminal proceedings may be brought against the Crown. It should also be noted that liability under the 1974 Act cannot, in itself, give rise to civil liability.
It is also significant that the Working Time Regulations 1998, regulation 37, states in summary that the regulations have effect in relation to Crown employment. No act or omission by the Crown shall make the Crown criminally liable, but the High Court or the Court of Session in Scotland may make a declaration that such act or omission is unlawful. There appear to be no reported examples of such declarations.
Crown Censure proceedings are brought by the Health and Safety Executive as an alternative to criminal prosecutions. These proceedings have no formal legal basis and it is difficult to find information about them through standard sources. It is thought that the HSE has reached agreement with the government that the proceedings will be used in appropriate circumstances. The proceedings have been used in a number of reported cases, mostly involving the prison service and the Ministry of Defence.
The proceedings are not open to the public. Trade union representatives may be invited to attend. The procedure is not a trial and it is chaired by a senior HSE inspector. The procedure has no statutory basis but is set out in a Cabinet Office Personnel Information Note. The aim of a Crown Censure hearing is to seek acknowledgment of the problem and to improve standards of health and safety. The absence of an agreed and documented procedure led to “some difficulties”. This resulted to the issue of the Cabinet Office note.
Two recent Crown Censures with very similar facts have illustrated the application of the procedure
Crown Censure issued on Ministry of Defence (2020) September 29
In November 2018 a 26-year old marine diver was undergoing a maritime training exercise in Portland Harbour. He became separated from other divers and when he was brought back to the surface was found to have died.
The Health and Safety Executive served two Crown Improvement Notices on the MOD. These related to the failure to conduct suitable and sufficient risk assessments for the training exercise.
The MOD accepted that if it were not for Crown Immunity, there was sufficient evidence to provide a realistic prospect of conviction for breaching s.2 of the Health and Safety at Work etc., Act 1974 (HSWA).
An HSE inspector is reported to have commented after the case that, just like any other employer, the MOD had a responsibility to reduce dangers to its personnel as far as it properly could. The scenario of a diver becoming separated was a very real risk which needed to be managed.
Crown Censure issued to Ministry of Defence (2020) September 2
In March 2018 an army diver was undergoing a training course at the National Diving and Activity Centre in Chepstow, South Wales. He was attaching a line to the underwater wreck of a helicopter at a depth of 27 metres. He stopped responding to lifeline signals when he was underwater. He was brought back to the surface and was pronounced dead. His air cylinders were found to be empty.
The HSE served two Crown Improvement Notices on the MOD related to the failure to train army divers how to undertake air endurance calculations and to assess the risk of divers running out of air. The Crown Censure related to s.2 of the HSWA.
The MOD cannot be prosecuted. A Crown Censure is the maximum sanction for a government body. There is no financial penalty but the Censure is an official record of a failure to meet legal standards.