The Attorney General’s guidelines on criteria for prosecution endorsed the principle that suspected criminal offences should not automatically be the subject of prosecution.
The Council acknowledges that the decision to prosecute a business or an individual is serious. This policy is designed to ensure that the Council makes fair and consistent decisions about prosecutions. In doing so it will pay full regard to the criteria set out in The Code for Crown Prosecutors issued from time to time by the Director of Public Prosecutions.
The decision to prosecute will only be made by an officer not involved with the investigation, and authorised in such a capacity in line with the Council’s scheme of delegation (“the Authorised Officer”). Forms for use in dealing with prosecutions are contained at Annex 1.
Council officers charged with investigating alleged offences must give due regard to the provisions of this policy when making recommendations to the Authorised Officers.
Whilst each case is unique and will be considered on its own facts and merits, there are certain general principles that Authorised Officers will follow in their approach to every case.
They will be fair, independent and objective. They will not let any personal views about a suspect’s, victim’s or witness’s ethnic or national origin, disability, sex, religious beliefs, political views, or sexual orientation influence their decisions.
Authorised Officers have a responsibility to ensure that the right person is prosecuted for the right offence. They will always act in the interests of justice and not solely for the purpose of obtaining a conviction.
The Decision to Prosecute
In making a decision on a prosecution the Authorised Officer will apply two tests. Application of these tests will ensure that all relevant factors are considered and that fair consistent decisions are made about each potential prosecution.
The first test is consideration of the evidence. If the case does not pass the evidential test a prosecution must not go ahead no matter how serious the case is. If the evidential test is satisfied the authorised officer will then consider if it is in the public interest to prosecute. A prosecution will only be taken if both tests are satisfied.
(i) The Evidential Test
Authorised Officers must be satisfied that there is sufficient admissible reliable evidence to provide a realistic prospect of conviction.
There is only sufficient evidence to provide a realistic prospect of conviction if, when presented with that evidence, a jury or bench of Magistrates properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is an objective test and when applying it to the case the Authorised Officer will aim to be completely impartial. They will also have regard to any statutory defence that is available
There are legal rules which might not allow evidence that appears relevant to be given at a trial. If the Authorised Officer believes that some of the evidence falls within this category, he/she will satisfy him/herself that there is enough other evidence for a realistic prospect of conviction.
Evidence may be regarded as unreliable for a number of reasons. It may be affected by factors such as age, intelligence or level of understanding, by the background of the witness, for example, a motive that may affect his or her attitude to the case, or a relevant previous conviction, or a general concern over the accuracy or credibility of the evidence.
Where there are such concerns, Authorised Officers will not ignore the evidence, but will look at it closely in conjunction with the other evidence to decide whether there is a realistic prospect of conviction.
(ii) The Public Interest Test
The general principle of this policy is that a prosecution will usually take place unless the public interest factors against prosecution clearly outweigh those in favour of prosecution, or it appears more appropriate in the circumstances to divert the defendant from prosecution.
The public interest factors will vary from case to case. Not all factors will apply to each case and there is no obligation to restrict consideration just to the factors listed.
Public Interest Factors in Favour of Prosecution
The more serious the offence, the more likely it is that a prosecution will be needed in the public interest. While it may be appropriate to refer to the Code for Crown Prosecutors to identify and consider further factors, a prosecution is likely to be needed if:
a) Breaches amount to deliberate attempts to deceive or mislead
b) The risk presented to the public, trade or environment by the commission of the offence was serious or widespread
c) The safety or health of the public was put at risk unnecessarily
d) Harm was caused to human health, animal health or the environment
e) Persistent offending has taken place
f) Other methods of compliance have been explored but have failed
g) The defendant has been clearly negligent in their legal responsibilities to consumers or other businesses
h) The defendant has been unwilling to co-operate with the Council’s investigation into the matter or has failed to comply, in part or in full, with a statutory notice
i) A conviction is likely to result in a significant sentence;
j) A conviction is likely to result in a confiscation or any other order;
k) The defendant’s previous convictions or cautions are relevant to the present offence
l) a prosecution would have a significant positive impact on maintaining community confidence
m) the outcome of the prosecution might establish an important precedent or draw public attention to national or local campaigns or issues
Public Interest Factors against Prosecution
A prosecution is less likely to be needed if:
a) the alleged offence was committed as a result of a genuine mistake or misunderstanding of the circumstances or of the law;
b) the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgement;
c) the defendant has put right the loss or harm that was caused (but defendants must not avoid prosecution simply because they have offered redress);
d) there has been a long delay between the alleged offence taking place and the decision made to prosecute, unless:
i) the alleged offence has only recently come to light;
ii) the offence is serious;
iii) the complexity of the offence has meant that there has been a long investigation;
iv) the delay has been caused in part by the defendant;
e) the Court is likely to impose a very small or nominal penalty;
f) a prosecution is likely to have a bad effect on the victim’s physical or mental health, always bearing in mind the seriousness of the offence;
g) the defendant is elderly or is, or was at the time of the offence, suffering from significant mental or physical ill health;
h) details may be made public that could harm sources of information, international relations or national security.
Deciding on the public interest is not simply a matter of adding up the number of factors on each side as some factors will be more important than others. As such Authorised Officers will ‘weight’ factors in making an overall assessment.
A conviction can have wide ranging and long lasting effects, and particular care will be taken when deciding whether it is in the public interest to prosecute in cases involving a young person. For the purposes of this policy a young person is someone under the age of 18 years.
Diversion from Prosecution
When deciding whether a case should be prosecuted Authorised Officers will consider the alternatives to prosecution in pursuit of the aim to change inappropriate behaviour and to deter future non-compliance.