Is litigation the only remedy for dealing with offences? Julie Barratt explains why knee jerk reactions and standard responses are rarely appropriate

There are a few phrases that cause the legal heart to sink. Certain phrases, spoken by client to lawyer make you realise that as a lawyer you are largely wasting your time. "It is a matter of principle" is one of them, the broad translation being "never mind your advice, I am going to insist that we do what I want". Once I hear those words I know that we are on a hiding to nothing, and that nothing I can say will change that. The same is also true of clients who "want their day in court". That they will have their day in court is certain, that they will be compre-hensively defeated even more so, but not deterred by advice to that effect we will set off to court where the entirely predictable will duly come to pass. Mentioning that I had told them so after the unhappy event is rarely a way to ensure further business, which further compounds the frustration.

In a local government context, the words "it is an offence" have a strikingly similar effect on lawyers. So it might be indeed, but the question is just how serious an offence is it? So serious that litigation is the only resort, or could we consider an alternative remedy? The fact that the case is proved against the defendant beyond any shadow of a conceivable doubt still does not mean that litigation is the answer. While an easy ride is better than being horribly challenged in court, there are some matters that just do not warrant the full wig and gown routine.

Some will remember the good old days of food offences being matters of strict liability - the joys of the note in a milk bottle case, which allowed for high numbers of successful prosecution cases if doing nothing for food hygiene or safety standards. Those days, so far as food is concerned, have now been consigned to history by the due diligence defence, but they are still alive and well in the fields of health and safety and consumer safety. Some matters will always warrant prosecution, but some may not. My own favourite is the yellow metal screw case - where screws of something under 2cm had been passed off as brass when they were in fact yellow metal. My casual inquiry as to whether they were intended to hold up the Forth Road Bridge was met with the standard response - "it is an offence" etc. Indeed it was, and so it proved to be, but the fine of £50 rather suggested that it was not the most important matter ever to engage a bench.

Litigation is the place of last resort - when nothing else is appropriate. It may be that a Home Office caution is the best way to deal with a matter, it may be that its very discovery and the cost of remediating the matter are salutary enough and no further action is necessary. That decision will always be a judgement call for the officer in the case, and although a lawyer can advise as to legal issues, the merits of the case will always be a matter for the officer in the case.

The critical question is whether prosecution is in the public interest. The two pronged test of whether there is a prima facie offence, and if so whether it is in the public interest to litigate must always be satisfied. The first limb of the test is for the lawyer - legal advice as to whether a certain series of facts constitutes an offence is definitive, but the second limb is for the officer in the case. Sometimes there will be good reasons for prosecuting an apparently trite case, for instance the publicity generated by doing so may be disproportionate to the offence itself and may have a magical effect on others who are engaged in the same practice. It may be the case, however, that prosecution of such a case will provoke hostile comment, of the "has the council got nothing better to do type", which can have a detrimental effect on the way the council is viewed by the public.

Anything that has the appearance of being excessive in the circumstances will be difficult to justify, and hiding behind "it is an offence" will not help. In such cases, the well-loved legal phrase comes into play "my client's instructions etc etc" and the sound of legal hands being washed will be clearly discernable. Just because something is an offence does not mean that you have to go on the offensive - the issue is how best and most appropriately to deal with the offence. Knee jerk reaction and standard responses rarely fit the bill.

Julie Barratt is director of CIEH Wales