Date 6 September 2007 Paper reference HTA (32/07)
Agenda item 8 Author Peter Lemmey
Criminal Prosecution Policy
1. Purpose of paper
At the July meeting of the Authority, Members discussed a paper setting out a
process for pursuing criminal prosecutions under the Human Tissue Act. It was
agreed that a robust mechanism should be set up, able to face legal challenge and
complaint as required – and that this process should be supported by Members’
involvement and legal advice as appropriate. It was further agreed that we should
report back at the September meeting about the most appropriate form of group or
panel to consider whether to pursue prosecution in particular instances.
Members also agreed that legal advice should be taken about whether the Standing
Orders needed to be amended to enable a group set up by the Authority to make
decisions about pursuing prosecutions.
This paper reports on the outcome of this work.
2. Decision making within the Authority.
We have taken legal advice, and looked at how other executive non-departmental
public bodies make decisions in similar circumstances. The advice we have
received builds on the approaches suggested by Members at the last meeting:
these decisions will require careful thought and will need to demonstrate openness
together with consistency and proportionality of decision-making. Ideally they
should be made by the same people (or a percentage of them) and according to a
written process or policy. This could be a group, committee or panel and could work
via e-mail. Our Act allows such decisions to be taken by Members or the executive
or a mixture of both. However the decisions of such a group should be recorded
and made available to the Authority as a whole.
At the last meeting, the Authority did not come to a decision about who might be
involved in such a group; in my July paper I had suggested that the
group/committee might be a mixture of SMT and members, who could be consulted
and deliberate virtually. Procedure in other bodies appears to vary - from entirely
Member involvement to decisions at Director level. However we have now received
legal advice that Members of the Authority (perhaps one or two) should be involved
- anyway to begin with - because of the reputational risks to the HTA which attach
to such decisions. My proposal would therefore be that the Chair nominates two or
more other Members to join her and the senior management team of the Authority
as a virtual group to consider suspected offences under the Act and whether
prosecution in individual cases should be pursued. Cases would be brought to the
group’s attention by the executive as described in my earlier paper. The Chair
should ensure that decisions are recorded, and reported to the full Authority. The
membership of the group should be reviewed after one year.
Our legal adviser has examined the Authority’s Standing Orders and does not
consider they would need revision in the light of the approach outlined above
(unless a formal standing committee is to be set up to consider prosecutions).
The Authority is invited to:
agree to set up a group to consider whether to pursue criminal prosecution in
individual cases, to be chaired by the Chair of the Authority and to include
two or more other members, the senior management team and a legal
agree that the Chair nominate the other Authority Members of the group.
Criminal Prosecution Policy 2