Crown immunity: a blot on the landscape of the English legal system
Crown immunity: a blot on the landscape of the English legal system The shadowy issue of Crown immunity is an ancient, obscure and complex area of law with significant practical implications. The “Crown” applies to the collective structure of central government in the United Kingdom. It 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. Criminal proceedings cannot be brought against the Crown. 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. Recent examples include the following: In June 2018 prison officers were taking part in a petrol bomb training exercise. This was part of an eight-day commanders course at the National Tactical Response Group training facility. Completion of the course meant that officers would be qualified to take a leadership role in prison disorders. The weather on the day of the exercise was very hot, with temperatures exceeding 30 degrees. There was no breeze. A water fountain was provided near to the exercise space, so that officers wearing protective kit could cool down. All trainees had completed petrol bomb training twice while leading groups of six officers. They used shields for protection and navigated a petrol bomb at their feet and another to the side. There were no issues with this training. The trainees were then told to form a group of 18 in three rows of six. They were then subjected to between four and ten petrol bombs thrown at them. They were engulfed in flames which burned through their protective clothing. They broke ranks and tried to extinguish the flames at the water fountain. Nine officers suffered burns ranging from minor burns to third degree burns. Officers are reported to have commented that their clothes were burning, their helmets bubbled up and their body armour was charred. One commented that one of the petrol bombs hit him on the head an he was overcome with fire. The flames were twelve feet high. Her Majesty’s Prison and Probation Service (HMPPS), which organised the exercise, did not call an ambulance. Officers were taken to hospital in a minibus. The injuries were not reported to the Health and Safety Executive until four months after the incident. The practice of petrol bombing the whole group of trainee commanders was not part of official training. There was no reference to it in any documentation or training manual. The officers had a total of approximately 270 years of service and had never been petrol bombed in any disorder. There was a failure to provide adequate risk assessments for the handling of petrol and for the training exercise. The person who made the petrol bombs had no training in the handling of petrol or instruction as to how much petrol each bomb should contain. He had made 48 bombs with two-thirds of a pint of petrol in each bottle. The incident had long-term consequences. Some of the officers continued to suffer physical injuries and others suffered from post-traumatic stress disorder. An HSE inspector commented that HMPPS was using practical training to prepare officers to deal with high risk situations of serious disorder in prisons. It was accepted that this type of training came with an additional level of risk but this did not mean that risks should be uncontrolled. HMPPS, like any other employer, had a duty to make sure that where work or training was to be done which causes danger, that danger or risk was controlled as far as was reasonably possible. Unfortunately, those risks were not adequately controlled, resulting in nine prison officers suffering burn injuries. HMPPS accepted a Crown Censure and acknowledged that there was sufficient evidence to provide a realistic prospect of conviction under section 2 and 3 of the Health and Safety at Work, etc., Act 1974 (HSWA). 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 HSE served two Crown Improvement Notices on the Ministry of Defence. 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 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. 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. An HSE inspector commented after the case that the MOD had a responsibility like any other employer to reduce dangers to its personnel as far as they possibly could. The scenario of a diver running out of air was a very real risk which needed to be managed. 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.