EHJ May 2005, pages 28-29

To prosecute or not to prosecute is a question all EHPs face at some time or other. Julie Barratt looks at new guidance on commencing proceedings

Should we prosecute? A question occasionally debated in environ-mental health departments. I have previously drawn attention to the two limbed prosecutors test, being, is there a prima facie case to answer and is it in the public interest to prosecute? These questions should be asked of all potential proceedings to ensure that their commencement is justified. The test, however, is basic, and 2004 saw the publication of a code for crown prosecutors, which contains the full code test, a more sophisticated test, with guidance, as to whether it is appropriate to commence proceedings in a particular case.

The full code has two stages, the evidential stage and the public interest stage. So far, so similar. The tests are cumulative - if the case does not pass the evidential stage, it cannot proceed to the public interest stage, irrespective of how serious it may be.

The evidential stage is an objective test. The prosecutor must be satisfied that there is enough evidence to provide a "realistic chance of conviction". He should consider what the defence case may be and how that is likely to affect the prosecution case. He must consider whether the evidence collected is admissible and whether it is reliable.

THE EVIDENTIAL STAGE

The following questions should be considered:

1. Is it likely that the evidence will be excluded at court? Was it gathered in such a way as to make it inadmissible? If so, is there a realistic chance of conviction if the suspect evidence is severed?
2. If there is confession evidence, are there any factors, which may detract from it being reliable, eg the defendant's age, intelligence or level of understanding?
3. What explanation has the defendant given? Is it credible?
4. If the identity of the defendant is in issue, is the supporting evidence strong enough?
5. Does the witness have any background that may affect his or her attitude to the case, like a previous history of complaints?
6. Are there any concerns over the credibility or accuracy of the witnesses?

Prosecutors are instructed not to ignore evidence just because they have concerns about its use or reliability, but to look closely at all of the evidence when deciding if there is a realistic prospect of conviction.

THE PUBLIC INTEREST STAGE

If the proposed case passes the evidential stage, it proceeds for consideration under the public interest stage. It has long been recognised that it is not always in the public interest that proceedings should be commenced even though a criminal offence may have been committed1.

Definitions of public interest range from "the well being of the public"2 to '(a) the general welfare and rights of the public that are to be recognised, protected and advanced,(b) a specific public benefit or stake in something (eg the public interest in controlling crime)3.

Neither helps the EHP trying to decide whether to commence proceedings much. The full code is of some practical value, because it provides a non-exhaustive list of public interest factors, which should be considered and suggests that a prosecution should generally go ahead unless there are public interest factors tending against it, which clearly outweigh those tending in favour.

PUBLIC INTEREST FACTORS IN FAVOUR OF PROSECUTION

The code is clear that the more serious the offence the more likely it is that prosecution will be needed in the public interest. It suggest that prosecution will be appropriate if:

1. A conviction is likely to result in a significant sentence.
2. A conviction is likely to result in a confiscation or other order.
3. A weapon was used, or violence was threatened during the commission of the offence.
4. The offence was committed against a person serving the public, eg police officer, nurse or (presumably) local authority officer.
5. The defendant was in a position of authority or trust.
6. The evidence shows that the defendant was the ringleader or offence organiser.
7. There is evidence that the offence was pre-meditated.
8. There is evidence the offence was carried out by a group.
9. The victim of the offence is vulnerable, has been put in fear, or suffered personal attack, damage or disturbance.
10. The offence was committed in the presence of or in close proximity to a child.
11. The offence was motivated by any sort of discrimination against the victim.
12. There is a marked difference between the actual or mental ages of the defendant and the victim, or if there is any element of corruption.
13. The defendant's previous convictions are relevant to the instant offence.
14. The defendant has committed the instant offence while under an order of the court.
15. There are grounds for believing that the offence is likely to be continued or repeated.
16. The offence, though not serious in itself, is widespread in the area where it was committed, or
17. A prosecution would have a positive impact on maintaining community confidence.

A prosecution is less likely to be appropriate if:

1. The court is likely to impose a nominal penalty.
2. The defendant has already been made the subject of a sentence and a further conviction would be unlikely to result in the imposition of a further sentence, unless the nature of the particular offence requires prosecution or the defendant withdraws consent to have an offence taken into consideration.
3. The offence has been committed as the result of a genuine mistake or misunderstanding, (to be balanced against the seriousness of the offence).
4. The loss or harm can be described as minor, particularly if it was caused through misunderstanding.
5. There has been a long delay between the offence taking place and the date of the trial, unless:
   • the offence is serious,
   • the delay has been caused in some part by the defendant,
   • the offence has only recently come to light,
   • the complexity of the case meant that there was a long investigation.
6. The prosecution is likely to have a bad effect on the victim's mental or physical health, always bearing in mind the seriousness of the offence.
7. The defendant is elderly, or was at the time suffering from significant mental or physical health issues.
8. The defendant put right the loss or harm caused, but the guidance notes that a defendant should not avoid prosecution solely because they have remediated or paid compensation.
9. Details may be made public that could harm sources of information, international relations or national security.

How then does an EHP decide whether proceedings are appropriate? It is not simply a matter of adding up the numbers of factors on each side and going with the winner. Prosecutors are required to judge the importance of each factor in the circumstances of the case and make an overall judgement.

Is this the end for the £50 fine case? The demise of the shooting fish in a barrel, strict liability, fail to do XYZ case? Probably not, there will always be a case to be made for protecting the public, however trite the facts may appear to be, but there is certainly a requirement on the prosecutor to show that there has been real and meaningful consideration of the factors elucidated above, and that proper regard was given as whether it was in the public interest to bring the case

Find the code online at http://www.cps.gov.uk/publications/docs/code2004english.pdf

1. See Lord Shawcross, House of Commons debates vol 483, col 681 Jan 1951
2. The American Heritage Dictionary of the English Language 4th Ed.2004
3. Merriam-Webster's Dictionary of Law 1996

Julie Barratt is director of CIEH Wales