The Solicitor-General has recently issued revised Prosecution Guidelines. This is a good opportunity to consider how local authorities should decide whether to prosecute, or not. Although the Solicitor-General’s Guidelines do not apply to local authorities, they are very useful and relevant.
There are two main tests:
The Evidential Test: This seems obvious, but not always. There may well be an offence, but who is the offender (eg was the effluent discharged by the farm owning company or its lessee?) Is the evidence credible, admissible, and is it beyond reasonable doubt? Has the most appropriate offence been identified (eg was the act inadvertent or wilful)? If there are any doubts, then legal advice at this early point is usually cost-effective.
The Public Interest Test: Not all the Solicitor-General Guidelines are relevant. For example, local authorities will rarely (if ever) prosecute offences involving violence, or organised crime.On the other hand, local authorities are often "closer to the action" than those prosecuting offences on behalf of the Crown. The local authority may well have had, and have to continue to have, on-going dealings with the alleged offender who will often be a member of its community, and a ratepayer.
The local authority may have incurred significant costs in relation to the offending conduct, and in some cases a conviction may be a prerequisite to a compensation order.
However, many of the Solicitor-General's suggested considerations are relevant; repeat offending by this offender or others, premeditation (perhaps even calculated to obtain advantage, or to save money), serious risk of harm to persons, property or the environment, or hostile motivation.
Relevant considerations against prosecuting include; nominal penalty likely, little harm and the conduct a mistake unlikely to be repeated, time delay (unless caused by the defendant or a necessary investigation), undue prosecution stress on the defendant or witnesses, and whether the costs arising from the alleged offending can be recovered voluntarily or by civil action.
Cost of prosecution is now an explicitly relevant factor; something that has recently been highlighted by complaints about funding cuts to the Crown Prosecution Service administered through warranted Crown Solicitors in private firms.
The application of the "for and against" considerations will vary according to the kind of offence involved.
A challenge to a parking infringement offence can lead to a prosecution that will likely not be cost effective, pose no identifiable harm, and a nominal penalty might be all that results; but as a matter of policy the matter may have to proceed "pour encourager les autres".
On the other hand, a prosecution for discharging effluent into a waterway might tick all the boxes for prosecution; but what if the defendant seeks to avoid conviction by paying all the costs, retraining its staff, and contributing more than any likely fine to a local environmental project?
Should offending CCOs, other local authorities, Government agencies, or SOEs be treated any differently?
Plea bargaining initiated by the prosecution is now officially out of the closet, and representative charges now have official recognition under the Criminal Procedures Act.
Rather than making ad hoc decisions, there is a compelling case for every local authority to have some basic policy guidelines; and the Solicitor-General's Guidelines are a good start.
Regardless of what one thinks the State policy on speeding enforcement may be, local authorities have their own cocktail party discussion topics in this area, including:
- Are we incentivising issuing of infringement offences, and prosecutions, by the structure of our contracts with enforcement companies?
- Should we have a zero tolerance policy of prosecuting for all environmental offences that result in identifiable harm? Are there other enforcement options, especially in RMA, that might be more effective?
- What if a morally blameless elderly consent holder has been let down by negligent professional advisers or contractors?
- Is it right to have elected members approve bylaws, then let staff (or even those members) grant amnesties, or announce that the bylaw will not be enforced until after an education programme has been conducted? On what basis do elected members create offences and then they or their CEO or other Council staff suspend them?
- Should elected members have any say in whether specific prosecutions proceed, or are dropped?
- Are there some offences for which a policy of a warning for a first offence is always appropriate?
- To what extent is "It's the putting right that counts" relevant to a decision on whether or not to prosecute? Can a defendant avoid prosecution by making amends?
- How much is too much? What level of unrecoverable costs should be incurred if an alleged infringer disputes a fine for an unregistered dog or vehicle?
Rather than suggest answers here, we believe that the appropriate course is for each local authority to devise an appropriate policy for its community and circumstances; and the best time to do that is when there are no cases occupying the local headlines.
The Solicitor-General has also helpfully released a Media Protocol for Prosecutors.
Much of it is not relevant to local authorities unless they have their own prosecutors on staff, but some are important generally to prosecuting authorities:
- Public identification of victims who have not identified themselves to the media is no business of the local authority.
- On the defendant's side, be wary that there may be suppression orders (even if only temporary) though these will be rare.
- Be careful about defamation. The defendant has not offended and is not guilty unless there is a guilty plea, or the Court makes finding of guilt.
- Previous convictions can be tricky. Previous convictions may well have influenced the decision to prosecute in this case, and likely will be relevant to sentencing. However, they are not relevant to the defendant's guilt or innocence in the particular case before the Courts. Be wary of committing contempt, no matter how tempting it may be to give an explanation for the Council's actions or to respond to inaccurate public statements like "The Council is picking on my farm or business unfairly".
- Similarly, once the decision to prosecute has been made, keep the evidence (including the number of warnings the defendant may have had), and those incriminating photos of the discharges or the snarling dog, on your file until the prosecution is over. The defendant is being tried in Court, not the local newspaper.
Model litigant behaviour
Like the Crown, a local authority should be a model litigant. This includes prosecuting on a principled basis (not out of malice or frustration) and not using greater resources to put defendants to unnecessary proof. If, at any stage, it becomes apparent that a prosecution should not have been commenced, then it should be abandoned; that is a sign of justice, not a sign of weakness.
Legal advice sooner rather than later is a good idea as soon as the going gets tricky (to use a well-known legal term again).
You will likely have fewer tricky situations to face, and less need to call in the lawyers, if you are operating within a prosecution policy that has been constructed calmly away from the excitement of particular cases, approved by councillors, and communicated clearly to councillors, enforcement staff, and contractors.
If you are a local authority prosecutor (whether practising as a barrister and solicitor or not) this is just a starter. You need to be fully familiar with both the publications by the Solicitor General, and brush up on what it means to be a model litigant.