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After
it has been determined that there sufficient evidence
exists to provide a 'realistic prospect of conviction',
it is then necessary to assess
whether it is in the public interest to do so.
Paragraphs
6.2 and 6.3 of the Code of Crown Prosecutors states
the following:
The
public interest must be considered in each case
where there is enough evidence to provide a realistic
prospect of conviction. 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
those factors should be put to the court for consideration
when sentence is being passed.
Crown Prosecutors 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 suspect. Some factors
may increase the need to prosecute but others may
suggest that another course of action would be better.
The
Code states that "the more serious the offence,
the more likely it is that a prosecution will be needed
in the public interest". It then lists some common
public interest factors that would favour prosecution.
| a |
a
conviction is likely to result in a significant
sentence; |
| b |
a
weapon was used or violence was threatened during
the commission of the offence; |
| c |
the
offence was committed against a person serving
the public (for example, a police or prison officer,
or a nurse); |
| d |
the
defendant was in a position of authority or trust; |
| e |
the
evidence shows that the defendant was a ringleader
or an organiser of the offence; |
| f |
there
is evidence that the offence was premeditated; |
| g |
there
is evidence that the offence was carried out by
a group; |
| h |
the
victim of the offence was vulnerable, has been
put in considerable fear, or suffered personal
attack, damage or disturbance; |
| i |
the
offence was motivated by any form of discrimination
against the victim’s ethnic or national origin,
sex, religious beliefs, political views or sexual
orientation, or the suspect demonstrated hostility
towards the victim based on any of those characteristics; |
| j |
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; |
| k |
the defendant’s previous convictions or cautions
are relevant to the present offence; |
| l |
the defendant is alleged to have committed the
offence whilst under an order of the court; |
| m |
there
are grounds for believing that the offence is
likely to be continued or repeated, for example,
by a history of recurring conduct; or |
| n |
the
offence, although not serious in itself, is widespread
in the area where it was committed. |
The
Code then sets out some common public interest factors
that tend against prosecution
| a |
the
court is likely to impose a nominal penalty; |
| b |
the
defendant has already been made the subject of
a sentence and any further conviction would be
unlikely to result in the imposition of an additional
sentence or order, unless the nature of the particular
offence requires a prosecution; |
| c |
the
offence was committed as a result of a genuine
mistake or misunderstanding (these factors must
be balanced against the seriousness of the offence); |
| d |
the
loss or harm can be described as minor and was
the result of a single incident, particularly
if it was caused by a misjudgment; |
| e |
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 part by the defendant; |
| • |
the
offence has only recently come to light;
or |
| • |
the
complexity of the offence has meant that
there has been a long investigation; |
|
| 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, unless the offence is
serious or there is a real possibility that it
may be repeated. The Crown Prosecution Service,
where necessary, applies Home Office guidelines
about how to deal with mentally disordered offenders.
Crown Prosecutors must balance the desirability
of diverting a defendant who is suffering from
significant mental or physical ill health with
the need to safeguard the general public; |
| h |
the
defendant has put right the loss or harm that
was caused (but defendants must not avoid prosecution
solely because they pay compensation); or |
| i |
details
may be made public that could harm sources of
information, international relations or national
security; |
The
Code states that
"Deciding on the public interest is not simply
a matter of adding up the number of factors on each
side. Crown Prosecutors must decide how important
each factor is in the circumstances of each case
and go on to make an overall assessment."
Para
6.7 of the Code states that
"when considering the public interest test
Crown Prosecutors should always take into account
the consequences for the victim of the decision
whether or not to prosecute, and any views expressed
by the victim or the victim’s family."
HSC's
Enforcement Statement and the Public Interest
HSC Enforcement Policy Statement sets out two sets
of criteria to assist inspectors in determining whether
it in the public interest to prosecute or not.
Para
39 states that:
"The
HSC expects that, in the public interest, enforcing
authorities should normally prosecute, or recommend
prosecution, where, following an investigation
or other regulatory contact, one or more of the
following circumstances apply. Where
| • |
death
was a result of a breach of the legislation; |
| • |
the
gravity of an alleged offence, taken together
with the seriousness
of any actual or potential harm, or the
general record and approach
of the offender warrants it; |
| • |
there
has been reckless disregard of health and
safety requirements; |
| • |
there
have been repeated breaches which give rise
to significant risk,or persistent and significant
poor compliance; |
| • |
work
has been carried out without or in serious
noncompliance
with an appropriate license or safety case; |
| • |
a
duty holder’s standard of managing
health and safety is found to
be far below what is required by health
and safety law and to be
giving rise to significant risk; |
| • |
there
has been a failure to comply with an improvement
or
prohibition notice; or there has been a
repetition of a breach that
was subject to a formal caution; |
| • |
false
information has been supplied willfully,
or there has been an
intent to deceive, in relation to a matter
which gives rise to
significant risk; |
| • |
inspectors
have been intentionally obstructed in the
lawful course of their duties." |
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In
relation to 'deaths, the EPS notes that: "However,
there will be occasions where the public interest
does not require a prosecution, depending on the nature
of the breach and the surrounding circumstances of
the death." This may for example be the case
in relation to family businesses where conduct on
the part of one member of a family has resulted in
the death of another."
Para
40 states that "in the public interest"
it expects prosecutions to be 'considered' where:
"following
an investigation or other regulatory contact,
one or more of the following circumstances apply:
| • |
it
is appropriate in the circumstances as a
way to draw general attention to the need
for compliance with the law and the maintenance
of standards required by law, and conviction
may deter others from similar failures to
comply with the law; |
| • |
a
breach which gives rise to significant risk
has continued despite relevant warnings
from employees, or their representatives,
or from others affected by a work activity." |
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