Local Authority prosecutions: key elements of an investigation
13 August 2024
Local Authorities are afforded with certain powers to be able to commence criminal and regulatory proceedings. This article provides as a brief reminder of key elements of the investigation process, putting you in the best place to consider and initiate proceedings.
Investigation record
If an investigation may lead to criminal proceedings, it is imperative to document the process of the investigation thoroughly and clearly. You should keep a record of all the material relevant to the case, including that which will not be used in any prosecution. Having an accurate record and plan of the investigation is also useful as it can act as a catalyst for further evidence, can assist in putting together a case summary, and can serve as a reminder to the officer when providing a witness statement, particularly in relation to the timeline of events. You should record everything you do connected to the investigation, even if not in detail, including discussions with colleagues which impact the progress of an investigation.
Interviewing suspects
Any questioning of an individual suspected of involvement in a criminal offence must be carried out under caution. When a caution has been given, this must be recorded. Once a caution has been given the suspect has rights including access to legal advice and the right to consult the Codes of Practice.
Usually interviews and statements will be electronically recorded or recorded on an official form in accordance with the Police and Criminal Evidence Act 1984 (PACE). In exceptional circumstances, such as when someone is interviewed on site, it may be recorded in a pocket notebook, but certain steps will need to be followed to ensure the evidence is accepted as a statement provided by the suspect, rather than simply officer notes of the site visit.
If a company is suspected of offending it is important to understand the legal distinction between the body corporate and those that are directors or managers of the organisation.
The witness statement
At the point of issue, we would ideally have sight of all the evidence available. Witness statements do not have to be finalised at this point; however, a first draft, or a meeting with the witness, can be useful.
Witness statements are drafted on the version of events and information provided by the relevant officer. It is extremely important that anyone making a statement knows that it could be used in proceedings at which they may have to give evidence. When making a statement a witness should carefully read it through to ensure it speaks to their knowledge. If it is not first-hand knowledge, it should clearly reference the source of the information.
Decision to prosecute
When taking a decision to issue proceedings, the Code of Conduct for Crown Prosecutors (the Code) requires prosecutors to consider 1) the evidential test, and 2) the public interest test. When considering the tests prosecutors need to consider the admissibility, reliability and credibility of any evidence obtained.
Local Authorities should have an enforcement policy that should be relevant for the types of matters that they prosecute. This will provide further guidance on the decision to prosecute. In the unlikely event that there is no such policy in place, one should be instituted.
Disclosure
In the event that criminal proceedings are commenced you must be aware of, and comply with, the duties of disclosure, including on-going disclosure, as set out in the CPIA 1996.
Our services
Birketts can provide training on recording investigations, conducting interviews and on court processes and procedures. We can also provide advice on the prospects of prosecuting a case and in doing so we will consider the Code and any relevant internal policy. If you would like our advice on whether to initiate proceedings and/or would like us to conduct proceedings, please do get in touch with our Regulatory and Corporate Defence Team.
Our team has experience in conducting Local Authority prosecutions including health and safety matters, environmental breaches and housing regulation breaches. The Team also has a broad range of experience in both prosecution and defence in regulatory and criminal matters.
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Julie Gowland
Services
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at August 2024.