Slough Borough Council's Prosecution Policy
March 2002
ExitLaw
22 March 2005
1      General Principles
2 Review
3 The Policy Tests
4 The Evidential Test
5 The Public Interest Test
6 Charges
7 Mode of Trial
8 Accepting Guilty Pleas
9 Restarting a Prosecution
 - Council Footnote
   
1      General Principles
 
1.1 The decision to prosecute an individual or a company is a serious step. Fair and effective prosecution is essential to the maintenance of law and order. A prosecution has serious implications for all involved and Slough Borough Council has adopted this policy so that it can make fair, consistent and effective decisions about prosecutions.
   
1.2 Each case is unique and must be considered on its own merits, but there are general principles that apply in all cases.
   
1.3 The Council's duty is to make sure that the right person is prosecuted for the right offence and that all relevant facts are given to the court.
   
1.4 Council employees must be fair, independent and objective in all respects. For example, they must not let their personal views on the ethnic or national origin, sex, religious beliefs, disability, political views or sexual preference of the offender or witness influence their decisions. Furthermore they must not be affected by improper or undue pressure from any source
 
 
2 Review
 
2.1 Council employees must prepare cases in a standard format and send it to the Assistant Director (Legal & Valuation Services) where it will be reviewed to make sure that it meets the tests set out in this policy. The Assistant Director (Legal & Valuation Services) may decide to continue with the original offence alleged, to amend the offence, or sometimes to discontinue any proposed action.
   
2.2

Review, however is a continuing process, so the Assistant Director (Legal & Valuation Services) can take into account any change in circumstances.

Wherever possible, the Assistant Director (Legal & Valuation Services) will talk to the client department first, if he/she is thinking about changing the offence to be charged or stopping the proceedings. This gives the client department the chance to provide more information that may affect the decision. The Assistant Director (Legal & Valuation Services) and the client department work closely together to reach the right decision, but the final responsibility for the decision rests with the Assistant Director (Legal & Valuation Services).

 
 
3 The Policy Tests
 
3.1 There are two stages in any decision to prosecute. The first stage is the evidential test. If the case does not pass the evidential test, it must not go ahead, no matter how important or serious it may be. If the case does pass the evidential test, it will proceed to the second stage.
   
3.2 The second stage is the public interest test. The Assistant Director (Legal & Valuation Services) will only commence or continue a prosecution when the case has passed both tests. The evidential test is explained in Section 4 and the public interest test is explained in Section 5.
 
 
4 The Evidential Test
 
4.1 The Assistant Director (Legal & Valuation Services) must be satisfied that there is sufficient evidence to provide a "realistic prospect of conviction" against each defendant on each charge. He/she must consider what the defence case may be and how that is likely to affect the prosecution case.
   
4.2 A realistic prospect of conviction is an objective test. It means that 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.
   
4.3

When deciding whether there is enough evidence to prosecute, the Assistant Director (Legal & Valuation Services) must consider whether the evidence can be used, is reliable and covers each element of the offence. There will be many cases in which the evidence does not give any cause for concern. However, there will also be cases in which the evidence may not be as strong as it first appears. The Assistant Director (Legal & Valuation Services) must ask him/herself the following questions:-

(a) Can the evidence be used in court? Is it likely that the court will exclude the evidence? There are certain legal rules, which might mean that evidence, which seems relevant can not be given at a trial. For example, is it likely that the evidence will be excluded because of the way in which it was gathered or because of the rule against using hearsay as evidence? If so, is there enough other evidence for a realistic prospect of conviction?

(b) Is the evidence reliable? Is it likely that a confession is unreliable, for example, because of the defendant's age, intelligence or lack of understanding?

(c) Is the witness's background likely to weaken the prosecution case? For example, does the witness have any dubious motive that affects his or her attitude to the case or a relevant previous conviction?

(d) If the identity of the defendant is likely to be questioned, is the evidence about this strong enough?

   
4.4 The Assistant Director (Legal & Valuation Services) will not ignore evidence because he/she is not sure that it can be used or is reliable. However, he/she will look closely at it when deciding if there is a realistic prospect of conviction.
 
 
5 The Public Interest Test
 
5.1 The public interest must be considered in each case where there is enough evidence to provide a realistic prospect of conviction. In cases of any seriousness, a prosecution will usually take place, unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour. Although there may be public interest factors against prosecution in a particular case, often the prosecution should go ahead and the court will be able to take those factors into consideration when sentence is being passed.
   
5.2 The Assistant Director (Legal & Valuation Services) must balance factors for and against prosecution carefully and fairly. Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence or the circumstances of the offender. Some factors may increase the need to prosecute but others may suggest that another course of action would be preferable.

The following paragraph lists some of the common public interest factors, both for and against prosecution, but this list is not exhaustive. The factors that apply will depend on the facts in each case.
   
5.3

The more serious the offence, the more likely it is that a prosecution will be needed in the public interest. A prosecution is likely to be needed if:

(a) The Council has a duty to prosecute arising out of its statutory powers

(b) There is no civil remedy which would be a suitable alternative to prosecution

(c) There is a need to send a message to other potential offenders that the offence will be prosecuted.

(d) A conviction is likely to result in a significant sentence;

(e) The offence was committed against a person serving the public;

(f) The defendant was in a position of authority or trust;

(g) The evidence shows that the defendant was a ringleader or organiser of the offence;

(h) There was evidence that the offence was pre-meditated;

(i) There was evidence that the offence was carried out by a group;

(j) The defendant's previous convictions or cautions are relevant to the present offence;

(k) There are grounds for believing that the offence is likely to be continued or repeated, for example, by history of occurring conduct; or the offence, although not serious in itself, is wide spread in the area where it was committed.

   
5.4

The prosecution is less likely to be needed if:

(a) The offence was committed as a result of a genuine mistake or misunderstanding (these factors must be balanced against the seriousness of the offence);

(b) missing

(c) The loss or harm can be described as minor and was a result of a single incident, particularly if it was caused by misjudgement; but this must still be considered in the light of the seriousness of the offence.

(d) There has been a long delay between the offence taking place and the date of the trial unless;

     (i)   The offence is serious;
     (ii)  The delay has been caused in part by the defendant;
     (iii) The offence has only recently come to light;
     (iv) The complexity of the offence has meant that there has been a long investigation;

(e) The prosecution is likely to have a very bad effect on the witness's physical or mental health, (always bearing in mind the seriousness of the offence);

(f) The defendant is elderly or is, or was at the time of the offence, suffering from significant mental or physical ill health unless the offence is serious or there is a real possibility that it may be repeated. The Assistant Director (Legal & Valuation Services) must balance the desirability of prosecuting a defendant who is suffering from significant mental or physical ill health with the need to safeguard the general public;

(g) The defendant has put right the loss or harm that was caused and the offence is not sufficiently serious to continue the prosecution (defendants may not avoid prosecution simply because they can pay compensation);

   
5.5 Deciding on public interest is not simply a matter of adding up the factors on each side. The Assistant Director (Legal & Valuation Services) must decide how important each factor is in the circumstances of each case and go on to make an overall assessment.
   
5.6 The Council acts in the public interest of the whole community, not just in the interest of anyone individual. However the Assistant Director (Legal & Valuation Services) will always consider very carefully the interests of persons affected by the offence when deciding where the public interest lies.
 
 
6 Charges
 
6.1

The Assistant Director (Legal & Valuation Services) should select charges which;

(a) Reflect the seriousness of the offending;

(b) Give the court adequate sentencing powers;

(c) Enable the case to be presented in a clear and simple way.

This means that the Assistant Director (Legal & Valuation Services) may not always continue with the most serious charge where there is a choice. Further, the Assistant Director (Legal & Valuation Services) should not continue with more charges than are necessary.

   
6.2 The Assistant Director (Legal & Valuation Services) should never go ahead with more charges than are necessary just to encourage a defendant to plead guilty to a few. In the same way, he/she should never go ahead with a more serious charge just to encourage a defendant to plead guilty to a less serious one.
   
6.3 The Assistant Director (Legal & Valuation Services) should not change the charge simply because of the decision made by the Court or the defendant about where the case will be heard
 
 
7 Mode of Trial
 
7.1 The Assistant Director (Legal & Valuation Services) applies the current guidelines for Magistrates who have to decide whether cases should be tried in the Magistrates Court or the Crown Court where the offence gives the option i.e. is triable either way (See the "National Mode of Trial Guidelines" issued by the Lord Chief Justice). The Assistant Director (Legal & Valuation Services) should recommend Crown Court trial where he/she is satisfied that the guidelines require them to do so.
   
7.2 Speed must never be the only reason for asking for a case to stay in the Magistrates Court. The Assistant Director (Legal & Valuation Services) should consider the effect of any likely delay if they send a case to the Crown Court, and any possible stress on the witnesses if the case is delayed.
 
 
8 Accepting Guilty Pleas
 
8.1 Defendants may want to plead guilty to some, but not all, of the charges. Furthermore they may want to plead guilty to a different, possible less serious, charge because they are admitting only part of the crime. The Assistant Director (Legal & Valuation Services) should only accept the defendant's plea if they think the Court is able to pass a sentence that matches the seriousness of the offending. The views of the enforcing department will be sought wherever possible. The Assistant Director (Legal & Valuation Services) must never accept a guilty plea just because it is convenient.
 
 
9 Restarting a Prosecution
 
9.1 People should be able to rely on decisions taken by the Legal and Corporate Services Department. Normally, if the Assistant Director (Legal & Valuation Services) tells a suspect or a defendant that there will not be a prosecution, or that the prosecution has been stopped that is the end of the matter and the case will not start again. However, occasionally there are special reasons why the Assistant Director (Legal & Valuation Services) will restart the prosecution, particularly if the case is serious.
   
9.2

These reasons include:

(a) Rare cases, where a new look at the original decision shows that it was clearly wrong and should not be allowed to stand;

(b) Cases which are stopped so that more evidence which is likely to become available in the fairly near future can be collected and prepared. In these cases, the Assistant Director (Legal & Valuation Services) will tell the defendant that the prosecution may well start again;

(c) Cases which are stopped because of a lack of evidence but where more significant evidence is discovered later.

  

Council Footnote

"This policy is issued by Slough Borough Council and is a public document. Changes to the policy may be made from time to time and these will also be published.

The policy is designed to make sure that everyone knows the principles that the Legal Services Department applies when carrying out its work. Client departments should take account of the principles of the policy when they are deciding whether to recommend a prosecution. By applying the same principles, everyone involved will be helping to ensure that the decision to prosecute is made in a fair, consistent and effective manner.

March 2002"