8.1 It is recognised that the institution of a prosecution is a serious and important part of enforcement that should only be taken after full consideration of the implications and consequences. Decisions about prosecution will take account of Council policies and procedures and the Code for Crown Prosecutors.
8.2 A prosecution will not be commenced or continued unless there is sufficient, admissible and reliable evidence that the offence has been committed and that there is a realistic prospect of conviction. A bare prima facie case is not enough. If the case does not pass this evidential test, it will not go ahead, no matter how important or serious it may be. The issue of a formal caution will not be used as an alternative in such circumstances.
8.3 The circumstances which are likely to warrant prosecution may be characterised by one or more of the following: -
- there has been a blatant disregard for the law, particularly where the economic advantages of breaking the law are substantial and the law-abiding are placed at a disadvantage to those who disregard it;
- the gravity of the offence taken with the general record and approach of the offender warrants a strong legal sanction, for example, a reckless disregard for standards, repeated breaches or persistent poor standards;
- where the offence and or the circumstances leading to it are reasonably foreseeable;
- it is considered to be an appropriate way of drawing attention to the need for compliance with the law and the maintenance of standards, especially where there would be a normal expectation that a prosecution would be taken;
- the offender and particularly others may be deterred from similar failures through the conviction;
- evidence of wilful intent of the offender, individually and/or corporately;
- there has been a previous history of offending, poor standards or lack of co-operation;
- the attitude of the offender, particularly in respect of any explanations offered and any remedial action taken, is not helpful;
- the likelihood of the offender re-offending if firm action is not taken;
- if the prosecution is successful, a significant penalty is likely to result;
- the particular contravention or circumstances have caused serious public concern or alarm;
- prosecution would serve the public interest;
- East Devon District Council, as opposed to another authority or agency, is the most appropriate body to institute proceedings.
8.5 These factors are not exhaustive and those which apply will depend on the particular circumstances of each case. The importance of each factor will be determined in the circumstances of each case and will be used to make an overall assessment.
8.6 Where necessary, criminal proceedings will be taken against those persons responsible for the offence. Where a Company is involved, it will be usual practice to prosecute the Company where the offence resulted from the Company's activities. However, any part played in the offence by the officers of the Company, including Business Proprietors, Directors, Managers and the Company Secretary or employees of the Company will also be considered. Action may also be taken against such officers (as well as the Company) where it can be shown that the offence was committed with their consent, was due to their neglect or they 'turned a blind eye' to the offence or the circumstances leading to it. In appropriate cases, consideration will be given to seeking the prohibition of the business proprietor under the appropriate specific statutes.
8.7 Enforcement action against employees will receive special consideration. Where appropriate, a warning letter will be preferred unless the matter is serious or the employee had received a prior warning from either his employer or the Council.