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Para
35 of HSC's Enforcement Policy Statement states that;
"In England and Wales the decision whether
to prosecute should take account of the evidential
test and the relevant public interest factors set
down by the Director of Public Prosecutions in the
Code for Crown Prosecutors. No prosecution may go
ahead unless the prosecutor finds there is sufficient
evidence to provide a realistic prospect of conviction,
and decides that prosecution would be in the public
interest.
Para
36 states that
"While
the primary purpose of the enforcing authorities
is to ensure that duty holders manage and control
risks effectively, thus preventing harm, prosecution
is an essential part of enforcement. HSC expects
that where in the course of an investigation an
enforcing authority has collected sufficient evidence
to provide a realistic prospect of conviction and
has decided, in accordance with this policy and
taking account of the Code for Crown Prosecutors,
that it is in the public interest to prosecute,
then that prosecution should go ahead. Where the
circumstances warrant it and the evidence to support
a case is available, enforcing authorities may prosecute
without prior warning or recourse to alternative
sanctions."
It
should be noted that because of the way the HSC applies
the public interst test, only the most serious offences
will result in a prosecution - serious either in terms
of the result that has resulted from the offences
(i.e death) or in terms of the level of failure.
| To
download the whole of the Enforcement Police Statement,
click here. |
The Evidential Test
The evidential test is set out at paragraphs 5.1 and
5.2 of the Code for Crown Prosecutors
"Crown
prosecutors must be satisfied that there is enough
evidence to provide a ‘realistic prospect of
a conviction’ against each defendant on each
charge. They must consider what the defence case
may be, and how that is likely to affect the prosecution
case.
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. This is a separate test from
the one that the criminal courts themselves must
apply. A jury or magistrates’ court should
only convict if satisfied so that it is sure of
a defendant’s guilt."
Para
5.3 goes on to state:
"When
deciding whether there is enough evidence to prosecute,
Crown Prosecutors must consider whether the evidence
can be used and is reliable. There will be many
cases in which the evidence does not give any cause
for concern. But there will also be cases in which
the evidence may not be as strong as it first appears.
Crown Prosecutors must ask themselves the following
questions:
| Can
the evidence be used in court? |
| a |
Is
it likely that the evidence will be excluded by
the court? There are certain legal rules which
might mean that evidence which seems relevant
cannot 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? |
| Is
the evidence reliable? |
| b |
Is
there evidence which might support or detract
from the reliability of a confession? Is the reliability
affected by factors such as the defendant’s
age, intelligence or level of understanding? |
| c |
What
explanation has the defendant given? Is a court
likely to find it credible in the light of the
evidence as a whole? Does it support an innocent
explanation? |
| d |
If
the identity of the defendant is likely to be
questioned, is the evidence about this strong
enough? |
| e |
Is
the witness’s background likely to weaken
the prosecution case? For example, does the witness
have any motive that may affect his or her attitude
to the case, or a relevant previous conviction? |
| f |
Are
there concerns over the accuracy or credibility
of a witness? Are these concerns based on evidence
or simply information with nothing to support
it? Is there further evidence which the police
should be asked to seek out which may support
or detract from the account of the witness? |
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