Page 914 - Week 04 - Tuesday, 27 March 1990
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the Crown, the Director of Public Prosecutions Act gives the Director powers to take over a prosecution, among other things. In those circumstances, if a private person were to take a vexatious action against someone, particularly a public servant, it would be proper for the Director to exercise his or her powers under section 9 of the Director of Public Prosecutions Act 1983 to take on board that prosecution and, in effect, nullify it or proceed with it. That is a provision in the Director of Public Prosecutions Act, and that should answer the matter raised by Mr Berry.
As I said before, this Opposition needs some legal advice. There is eminent authority - I do not wish to detain the house with that authority - as I said, as far back as 1946, accepted by a very strong High Court bench, that this provision is consistent with, and acceptable to, our statutory regime. There is an eminent text on the subject of liability of the Crown by Mr Hogg who, at page 180 of his text, says in part:
It is hardly necessary to point out that a Crown servant may commit a criminal offence in the course of his employment -
this was written when sexist language was used; they are not my words -
and be personally liable for it, just as he may commit a tort and be personally liable for it. If, however, a Crown servant "commits" a crime for which the Crown itself could not be liable, the question will arise whether the servant shares his master's immunity. The answer to this question will depend upon whether the Crown is immune from the statute as a whole or merely from the penal provisions. If the Crown is immune from the statute as a whole, then a Crown servant acting in the course of his employment will generally be immune also; in that case he will not have broken any statutory duty and will therefore not have committed any offence. If on the other hand the Crown is immune only from the penal provisions of the statute and is bound by the rest of the statute, then a Crown servant would be obliged to comply with the statutory duties. If he does not do so, and if the penal provisions are so drawn that ... they are apt to include a servant, then the servant will have committed an offence and will be criminally liable.
Clearly, there has to be a proper rule in society when we are speaking of the environment. If we are to have wilful acts performed by a Crown servant, that Crown servant should be as liable to prosecution as the rest of us in our private wilful acts were we to commit any - some of us in this chamber have been tempted, and I am sure Mr Duby agrees.
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