Chapter 5: Hampshire Constabulary and the Crown Prosecution Service

The Panel notes that, during the course of all three investigations, the need to look into corporate liability and health and safety offences was brought to the attention of senior police personnel and the CPS. Hampshire Constabulary sought legal advice on these issues but the documents suggest that neither the case for corporate prosecutions nor the case for bringing prosecutions under health and safety legislation was fully or properly considered.

As early as 15 October 1998, the police had identified that the death of a person in a hospital might be the result of corporate and/or systemic failings and, therefore, that the corporate entity and persons in position of responsibility might be culpable for any crime that had been committed (CPS001657).

Throughout the three police investigations, a variety of evidence was obtained which, in the Panel’s view, indicated that offences under the Health and Safety at Work Act 1974, and/or corporate manslaughter, might have been committed. Among other matters, Professor Livesley had raised the possibility that any wrongdoing might be wider than one patient and one doctor. The police had interviewed numerous members of staff at the hospital, including Nurse Beed and Dr Lord, both of whom had confirmed their understanding and knowledge of the diamorphine and syringe driver practices in use at the hospital. The nursing auxiliary Pauline Spilka had provided a statement in which she alleged that a practice of euthanasia existed at the hospital (HCO000905, pp3–11). Professor Ford and Dr Mundy had each raised concerns about the general systems and practices at the hospital. All of which gave rise to lines of enquiry in relation to the question of clinical governance and corporate liability. Thereafter, in July 2002, CHI published its report, which concluded that there had been a failure of Trust systems in the provision of care at the hospital (CPS001567).

By late November 2002, the police had met with the CPS which provided advice in relation to the cases of Gladys Richards, Arthur Cunningham, Alice Wilkie, Robert Wilson and Eva Page.

Specifically, Mr Close advised that “there is no prospect of a prosecution on the papers now in the possession of the CPS” and “in the absence of further evidence generated as a result of the additional information presented on 19/9/02, there are no additional avenues to follow in respect of criminal offences, but HSE offences may arise” (CPS001008, p1). In December 2002, the police met with the management of Hampshire and Isle of Wight SHA, including Dr Tanner and Mr Richard Samuel, Assistant CEO, to discuss the proposed Trust investigation. Det Insp Niven’s record of the meeting confirms that he informed the Trust:

The police then turned back to the CPS for advice on the issue of corporate liability. Mr Close advised that the investigation should focus on Dr Barton and not the Trust and that any interviews of corporate personnel would likely be irrelevant until a case against Dr Barton had been established. The Panel notes the restrictive interpretation of corporate liability used by Det Insp Niven. To prove corporate manslaughter at that time, the law required there to be an identifiable individual who had committed the offence. However, to prove a health and safety offence, there did not have to be causation, only a risk of injury.

On 3 October 2003, Sir Liam Donaldson provided Professor Baker’s audit report to Hampshire Constabulary. On 6 July 2004, the police met once again with the CPS (HCO000640, p83). The issue of corporate liability was discussed but with no firm conclusion.

By 13 May 2005, the police wrote to the CPS in these terms:

In September 2005, the police met with Mr Perry and the CPS. Mr Perry provided a provisional view on the cases he had reviewed thus far and indicated that they did not meet the threshold for prosecution in relation to the offence of gross negligence manslaughter. The note of the meeting records:

The 2008 Memorandum by the Health and Safety Executive (HSE) highlighted a number of prosecutions of NHS Trusts for health and safety offences occurring between 1998 and 2008.¹ By way of example, in 2004, Southampton NHS Trust was prosecuted for an offence contrary to section 3 of the Health and Safety at Work Act 1974. This followed the successful prosecution of two doctors for gross negligence manslaughter arising out of the same incident. The police and HSE had worked together in what was a joint investigation.

The document Work-related Deaths: A protocol for liaison was published in 1998 and was agreed between the HSE, the Association of Chief Police Officers (ACPO) and the CPS.² It sets out the principles for effective liaison between those organisations. It allows for transition of a police investigation into a health and safety investigation (paragraph 1.1), for a police investigation to be assisted by the HSE (paragraph 2.1), or for an HSE investigation to be assisted by the police (paragraph 2.5). Where an investigation into suspicious deaths by the police focuses on murder and/or manslaughter, the HSE can investigate or consider health and safety offences alongside them, particularly if individuals were not criminally culpable, but systems had failed.

This demonstrates that for offences investigated from 1998 onwards the police and HSE could, if necessary, work together, and that clinical staff and the hospital could be prosecuted for separate types of offences.

The potential need to liaise with the HSE was variously noted, including within a Hampshire Situation Report dated 29 June 2004, when Detective Sergeant Owen Kenny wrote: