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Crime and anti-social behaviour ruins lives and damages communities. Councillors will be very familiar with the types of offence that occur sometimes against their residents, whether it is violence, damage to property, minor public disorder (such as verbal abuse or threats in the street) theft, fraud, drug dealing, road traffic offences or many more.
A frustrating reality that many councillors will have encountered is when police are unwilling to investigate, or they do investigate and the public prosecutor (the CPS) is unwilling to take the case to court. Often, these decisions are resource driven. Police are often tasked to prioritise certain types of offence and that leads to other offences being given less attention.
The CPS has no monopoly on bringing court action against people who have committed criminal offences. District and Unitary councils frequently do so, usually against council tax or benefit fraud or people who have committed offences under planning law. Quangos like the Environment Agency and Health & Safety Executive bring prosecutions in their respective fields. Charities like the RSPCA bring prosecutions, usually for animal cruelty offences that the police could act on, but for understandable reasons do not generally prioritise. Broadly speaking, any person in England & Wales can bring a prosecution in court.
Town and parish councils with the power of general competence can bring a criminal complaint, a prosecution, too.
Why would a council do so? If a council felt an offence had been committed and other authorities won’t take action they may wish to do so. Getting an offender convicted and fined or otherwise sentenced can send a powerful message to deters others
A prosecution starts by laying an information in the Magistrates’ Court. Most cases are dealt with by the magistrates. Only the most serious cases go the Crown Court. Before commencing a prosecution a council would want to take legal advice on what needs to be proved to establish that an offence has been committed by a particular person and whether the evidence available is likely to meet the standard required.
What evidence is necessary will depend on the case. Many cases will be based on good quality eye witness evidence or CCTV. Documents or computer records are generally allowable evidence too. Courts can also make reasonable inferences. A council can, if they wish, hire someone to gather evidence and a number of retired police officers will do so professionally. Some will help for free or little cost for the community where they live.
In many cases where an offence has taken place, it will be possible to take a civil action instead, such as seeking damages in the County Court.
However, prosecutions can have advantages in addition to the deterrent value of someone getting a criminal penalty. Where a defendant has caused loss, they can be ordered to pay compensation or if they have benefitted financially from their crime the court can order confiscation of their assets. A Confiscation Order is enforced by the court which can direct the proceeds are paid to the victims of their offence.
Prosecutions brought by councils can be used to address matters that are not understood or prioritised by the local police, for whatever reason. Sadly, a common example of this is fraud. Any dishonest false representation or abuse of position to make a financial gain or cause a loss is prosecutable as fraud. But too often when a council, local business or charity makes a complaint of fraud, police will incorrectly say “it’s just a civil matter.” Many people who have tried using the Action Fraud service have found it leads to frustration and not any helpful action.
Prosecutions can be quicker and cheaper than civil court action. The results can be publicised and are easily understood by the public. A council bringing its own case can control the proceedings rather than rely on a CPS prosecutor outside your control. Sometimes bringing your own case will prompt the CPS to take over the case and run it, as they should have done to begin with.
If the defendant is convicted the court can order them to pay back the prosecutor’s costs in bringing the case. But what if the defendant has no money to pay? If the case is brought by an individual resident or local charity or business (i.e. not a public authority such as a council) then in certain prosecutions it is possible to recover the costs of bringing the case from central government funds, which would not be possible in a civil action.
The possibility to recover costs from central funds is one reason why it may be attractive for a council to assist a named person or business who brings the case rather than be the prosecutor themselves.
Whether the council assists someone else or brings the case itself, a solicitor or barrister with appropriate expertise and experience should be involved. The court has discretion to allow a person bringing their own prosecution to represent themselves but this case be refused and court advocacy is worth entrusting to a professional. Barristers can now be instructed directly without going through a solicitor.
Before action is commenced the quality evidence must be carefully considered as well as any reasons the CPS (who can intervene and stop a private prosecution) gave for not pursuing the matter. There is a risk of having to pay the defendant’s costs if he is acquitted and that risk should be balanced against the prospects of success on the evidence available and the benefit to the community in bringing a case.
If crime has affected your community and you would like to discuss options for your town or parish council to take action, please do not hesitate to contact me.