Certain regulatory bodies have been given statutory authority to prosecute. For example, the Care Quality Commission (CQC) has a range of criminal enforcement powers including the power to prosecute several offences set out in the Health and Social Care Act 2008 and the related regulations. Similarly, many other regulatory bodies have the power to prosecute, including for example the Health and Safety Executive and the Environment Agency.
The way these public bodies approach prosecutions can be described in many ways – but let’s go with a fairly neutral ‘disappointing’. The approach appears to be one of seeking to ‘win’, rather than acting objectively by assisting the court to reach a fair and just decision on the basis of all the evidence (whether it helps or hinders) before it.
Whilst judicial review proceedings play out in the civil courts, the principles established in that jurisdiction are analogous and should be considered by public prosecutors as they make enforcement decisions. In judicial review proceedings, case law has established that public authorities have a duty of candour and co-operation to assist the court in understanding its decision-making process and deal with the issues fairly. Public authorities should conduct cases with “all the cards face upwards on the table”. This is based on the concept that public authorities act in the public interest, and not merely to protect a private, commercial interest.
Indeed, the courts have made clear that the courts and public bodies have a relationship that is " ... one of partnership based on a common aim, namely the maintenance of the highest standards of public administration." (R v Lancashire County Council, ex parte Huddleston [1986] 2 All ER 941)
There does not, however, appear to be any clear adoption of this type of approach when these public bodies bring prosecutions. Given the seriousness of criminal prosecution and the impact on defendants, this type of approach is even more important than it is in judicial review. This has been well demonstrated by the devastating impacts of the Post Office Horizon scandal on sub-postmasters when individual and corporate objectives play too great a role.
CQC’s prosecution of Tees, Esk and Wear Valleys NHS Foundation Trust
Public prosecutors should have no personal motivation or “skin in the game” as it were. Unfortunately, this does not appear to be the case in many prosecutions by public bodies.
Indeed, the CQC (which has, since 2009, prosecuted healthcare related harm events and has been using its criminal enforcement powers with increasing appetite), recently prosecuted Tees, Esk and Wear Valleys NHS Foundation Trust for failure to provide safe care and treatment to three patients. The Trust pleaded guilty in relation to the care provided to two patients, but maintained it had not failed to provide safe care and treatment in the third case. The CQC persisted with the third charge and the case therefore proceeded to a court hearing.
In March 2024, the court found the Trust not guilty. This is perhaps not entirely surprising considering the Trust accepted its failings and pleaded guilty in relation to the other two patients, suggesting it had insight into what had gone wrong – and in the third case, what had not.
Interestingly, following the court outcome, a CQC spokesperson said, “We are very disappointed with this outcome, however I hope this prosecution reminds other health and social care organisations they must provide care and treatment in a safe way that meets people’s needs.”
The CQC as a public body should not be “disappointed” by such an outcome. Whilst the CQC of course has the power to investigate incidents and decide whether the threshold for prosecution is met, once a prosecution is brought it should assist the court in reaching a decision as to whether an offence has in fact been committed. Once the court has done that, the CQC should accept that outcome. By publicly stating its disappointment with the outcome, this demonstrates the approach that can be taken to these prosecutions – a litigious one with the aim of ‘winning’ rather than a collaborative one of assisting the court to reach the right outcome. Further, it indicates that perhaps the CQC does not accept the court’s findings and verdict.
Interestingly, the CQC has since removed this statement from its press release about the outcome of this case, which shows some belated insight into its role.
Other regulators with a much longer history of bringing prosecutions may have a more deferential approach to the court, but they are still overly invested in the outcome. Far from presenting a fair analysis of conduct to the court in their statement of case, even where there has been a guilty plea, they will pick and choose facts to support their ‘case’ as to which sentencing guideline ‘categories’ of culpability and harm should apply. If they were acting with “all the cards face upwards on the table” they would be presenting a far more balanced picture.
Looking ahead
Whilst there are many commentators calling for curbs on ‘private’ prosecutors, the focus of any reforms should have wider applicability and apply to all prosecutor bodies. An important first step would be an update to the Code for Crown Prosecutors that is routinely cross-referenced by such bodies in their own enforcement policies. The CPS document is drafted largely with individual criminal defendants in mind (where issues such as coercion, mental ill health and prejudice are relevant) and does not even begin to consider the wider issues at play when looking at prosecuting a corporate entity. They will often be operating in a highly regulated sector where events are often the result of a complex factual matrix involving both corporate policy and procedures and individual conduct. Relevant national guidance for regulators to reference would be a start.
It would also be good to consider widening the role of the His Majesty’s Chief Inspector of the Crown Prosecution Service to look at all prosecuting authorities to provide some consistent oversight. Given the sheer volume of criminal offences introduced by successive governments over the past 30 years (in its first 11 years in government, New Labour created more than 3,600 new criminal offences – almost one for every day it had been in office. Read more here.) we could all find ourselves faced with an overzealous prosecutor and limited means to defend ourselves. Add in the ‘bribe’ inherent in the criminal justice system to those pleading guilty at the earliest opportunity (the hopes of avoiding a prison sentence led many sub-postmasters to plead guilty despite knowing the charges to be false) and there is currently little confidence that justice will be done or that prosecutors are focused on achieving the highest standards of public administration.
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