Regulatory Services Enforcement Policy

7.1 There are two stages in the decision to take formal enforcement action:

• Stage 1: the evidential test
• Stage 2: the public interest test

7.2 SBC will only start, and continue, with formal enforcement action when the case has passed both tests. Paragraphs 7.5 to 7.8.1 below, detail how this Policy applies to the consideration of taking a prosecution. The principles outlined apply equally to the other types of formal enforcement action that are available.

7.3 Decisions about what formal enforcement action to take will normally involve consultation between the Investigating Officer(s), the relevant Service Manager and the Legal Section.

7.4 The final decision to institute legal proceedings through the courts will be taken by an appropriate senior officer with the relevant delegated authority.

7.5 The Evidential Test

7.5.1 There must be enough evidence to provide a 'realistic prospect of conviction' against each offender on each charge. 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 offender 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 it is sure of an offender's guilt.

7.5.2 When deciding whether there is enough evidence to prosecute, consideration must be given as to whether the evidence is admissible, reliable and credible and whether there is any other material that might affect the sufficiency of the evidence, including any examined and as yet unexamined material and material that may be obtained through further reasonable lines of enquiry. Account should also be taken of whether the offender is able to satisfy any applicable statutory defence, such as a due diligence defence. If the case does not pass the evidential test, it should not proceed, no matter how important or serious it may be.

7.6 The Public Interest Test

7.6.1 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 go ahead 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.

7.6.2 Factors for and against prosecution must be balanced carefully and fairly. Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence and the circumstances of the case. Some factors may increase the need to prosecute but others may suggest that another course of action would be better.

7.6.3 Deciding on the public interest is not simply a matter of adding up the number of factors on each side. Officers must decide how important each factor is given the circumstances of each case and go on to make an overall assessment.

7.6.4 Some common public interest factors are listed below, both for and against prosecution. The list is not exhaustive and the factors that apply will depend on the circumstances in each case.

7.7 Some Common Public Interest Factors in Favour of Prosecution

7.7.1 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 conviction is likely to result in a significant sentence.
• The evidence shows that the offender was a ringleader or an organiser of the offence.
• The offender has benefitted significantly from the criminal conduct.
• There is evidence that the offence was premeditated.
• The victim of the offence was vulnerable, has been put in considerable fear, or suffered personal trauma, damage or disturbance.
• The offence was motivated by any form of discrimination, including against the victim's ethnic or national origin, gender, sex, religious beliefs, political views or sexual orientation, or the offender has demonstrated hostility towards the victim based on any of those characteristics.
• There is a marked difference between the actual or mental ages of the offender and the victim, or if there is any element of corruption.
• The offender's previous convictions or cautions are relevant to the present offence.
• There are grounds for believing that the offence is likely to be continued or repeated, for example, by a history of recurring conduct and ignoring previous warnings.
• The offence has endangered or posed a risk to the health, safety or wellbeing of people, animals or the environment.
• The offence has caused, or has the potential to cause, significant consumer or trade detriment.

7.8 Some Common Public Interest Factors Against Prosecution

7.8.1 A prosecution is less likely to be needed if:

• The court is likely to impose a nominal penalty.
• The offender 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.
• The offence was committed as a result of a genuine mistake or misunderstanding (these factors must be balanced against the seriousness of the offence).
• The loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgement.
• 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 offender.
  • The offence has only recently come to light.
  • The complexity of the offence has meant that there has been a long investigation.
• A prosecution is likely to have a detrimental effect on the victim's physical or mental health, always bearing in mind the seriousness of the offence.
• The offender 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.
• There is likely to be a much lower level of culpability if the offender has been compelled, coerced or exploited, especially when this is linked to their offending. The interests of a youth offender must be considered when deciding whether it is in the public interest to prosecute. The stigma of a conviction can cause very serious harm to the prospects of a youth offender or young adult. Young offenders can sometimes be dealt with without going to court, for example, by issuing a cautionary letter to the youth and their parents/guardians. However, a prosecution will not be avoided simply because of the offender's age. The seriousness of the offence or the offender's past behaviour may make prosecution necessary.

7.9 Charging

7.9.1 Where taking a prosecution is felt to be the most appropriate course of action, it is important that offences are selected which:

• Reflect the seriousness and extent of the offending
• Give the court adequate powers to sentence and impose appropriate post-conviction orders
• Allow a confiscation order to be made in appropriate cases, where a defendant has benefitted from criminal conduct
• Enable the case to be presented in a clear and simple way

7.9.2 Where there is another prosecuting authority involved, officers will liaise with the other authority to ensure that the most appropriate charges are laid.

7.9.3 SBC will take account of any relevant change in circumstances as the case progresses after charge.

7.10 Companies and Individuals

7.10.1 Criminal proceedings will be taken against those persons responsible for the offence. Where a body corporate is involved, it will be usual practice to prosecute the company where the offence resulted from its activities.

7.10.2 SBC will also consider any part played in the commission of the offence by directors, managers, company secretary and employees of the company. Action may also be taken against a manager, director or other officer of the company where it can be shown that the offence was committed with their consent, involvement, was due to their neglect or they 'turned a blind eye' to the offence or the circumstances leading to it. The attitude, personal awareness and motive of the company officer will be taken into account.

7.11 Considering the Views of Those Affected by Offences

7.11.1 SBC undertakes enforcement on behalf of the public at large and not just in the interests of any particular individual or group. However, when considering the public interest test (see paragraphs 7.6 to 7.8.1 above) the consequences for, and views of, those affected by the offence, including any victim, injured party or relevant person, will be taken into account in determining how to deal with the matter.

7.11.2 In particular, SBC enforcement activity will, where practicable, take account of local circumstances to minimise any adverse effects on legitimate businesses and individuals.

7.11.3 Those people affected by the offence will be told about any decision that makes a significant difference to the case in which they are involved, subject to any applicable data protection and disclosure rules.

7.12 Re-starting a Prosecution

7.12.1 People should be able to rely on enforcement decisions taken on behalf of SBC. Normally, if an offender is advised that there will not be a prosecution or that the enforcement action has been stopped, that is the end of the matter and the case will not start again. However, occasionally there are special reasons why enforcement action will re-start, particularly if the case is serious. These reasons include:

• Rare cases where a new look at the original decision shows that it was clearly wrong and should not be allowed to stand
• Cases that 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 offender will be told that the enforcement action may well start again
• Cases which are stopped because of a lack of evidence but where more significant evidence is discovered at a later date

7.13 Accepting Guilty Pleas

7.13.1 Offenders may want to plead guilty to some, but not all, of the charges. Alternatively, they may want to plead guilty to a different, possibly less serious, charge because they are admitting only part of the offence. An offender's plea will only be accepted if:

• The court is able to pass a sentence that matches the seriousness of the offending, particularly where there are aggravating factors
• It enables the court to make a confiscation order in appropriate cases where a defendant has benefitted from criminal conduct
• It provides the court with adequate powers to impose other ancillary orders, bearing in mind that these can be made with some offences but not with others

7.13.2 SBC will never accept a guilty plea just because it is convenient.

7.13.3 In considering whether the pleas offered are acceptable, SBC will aim to ensure that the interests, and where possible the views, of the victim, or in appropriate cases the views of the victim's family, are taken into account when deciding whether it is in the public interest to accept the plea. However, the decision on whether a basis of plea is acceptable rests with SBC.

7.13.4 In cases where an offender pleads guilty to the charges but on the basis of facts that are different from the prosecution case, and where this may significantly affect sentence, the court should be invited to hear evidence to determine what happened and then sentence on that basis.