Lawyers will always find new and inventive ways to argue their clients’ causes. Sometimes they will win. That said, for a prosecution to fail because of an unforced error on the part of the prosecutor is wholly unfortunate.
The cost of mistakes in regulatory prosecutions is potentially very high; many of these offences are summary only and issues are only litigated after the time limits for prosecution have expired and it is impossible or difficult to remedy them by starting afresh. The cases which are defended most vigorously are often those in which the prosecution have invested the most resources.
Technical legal points and abuse of process arguments, having fallen largely out of vogue for the best part of a decade, appear to be coming back into fashion. In the past few years there have been some interesting decisions which have given local authority prosecutors cause to expend considerable hours dealing with defence legal arguments or reviewing their own schemes for investigating and prosecuting regulatory offences.
The particular technical loophole arising from FSA v Bakers of Nailsea Ltd  EWHC 3632 (Admin) requiring an application for a summons expressly to demonstrate that it was made in time ought now to be closed, given prosecutors’ awareness of the point with the passage of time, the decision in Barking & Dagenham LBC v Argos Ltd  1 WLR 77 and clarifications to Part 7 of the Criminal Procedure Rules in consequence of that decision.
The AUH litigation, culminating in two judgments from the Court of Appeal, in benches both led by the Lord Chief Justice, was concerned with the extent of local authorities’ statutory powers to prosecute consumer protection and related offences; see (R (City of York Council) v AUH and Others  EWCA Crim 1113 and R (City of York Council) v AUH and Others (No. 2)  EWCA Crim 6. The Court held, inter alia: that local authority Trading Standards departments do have power under the Consumer Rights Act 2015 (CRA 2015) to prosecute consumer offences outside of their areas; that this is a separate power to that under section 222 of the Local Government Act 1972 (LGA 1972), which requires a test of expediency to be met; and the offences which can be prosecuted under the CRA 2015 are not limited to offences created by consumer protection legislation but include connected offences such as fraud and money laundering originating from the investigation into consumer offences.
Whilst the judgments are helpful to regulators, there is nevertheless still scope for argument as to whether a particular offence ‘originates’ from the consumer offences under investigation and whether, in prosecutions commenced under section 222 LHA 1972, the expediency test is met.
As to abuse of process, Mansfield v DPP  QB 33 has lowered the stakes for defendants by confirming that almost all abuse of process applications can and should be dealt with by the Magistrates’ Courts. Previously there were apparently conflicting authorities as to whether the magistrates’ courts had jurisdiction to hear those abuse of process applications where it was alleged that if would be unfair for a defendant to be tried, in contrast to those where it was alleged that a defendant could not have a fair trial. The consequence was that any defendant who wanted to take such a point would first have to persuade the Magistrates’ Court that they were entitled to hear the application, and if they could not, make an application to the High Court, both of which significantly increased the time and cost of the running the point.
There are, however, some basic things that prosecutors can do to minimise the risk of a prosecution failing, or a conviction being quashed on appeal, due to a technicality. These points, discussed below, may seem obvious – but in the vast majority of cases lost on a technicality, it is the basics that have gone wrong. Care in relation to these points will also maximise the chances that proceedings will not, ultimately, be contested or appealed.
Go back to first principles
Consider, what do you need to prove and can you prove it? Even at the investigation stage, officers should have at the forefront of their minds the elements of relevant offences, and any defences. This will provide a framework to help ensure that nothing is missed, that the right questions are asked, and to identify potential issues or gaps in the evidence from an early stage (the point where they might be remedied, if it is possible to do so, most easily and at the least expense).
This includes, for example: making sure you have identified the correct dutyholder and defendant (and can prove it); if you are investigating a director for potential consent connivance and neglect offences, giving some thought to whether, and how, the relevant elements might be proved (consent, connivance and neglect are different states of mind with different legal tests) and what evidence you may need; anticipating likely defences; and considering whether, and what, evidence might be available by way of advance rebuttal. It is becoming more and more common for defendants to decline to attend interviews or answer written questions under caution and investigators cannot assume that apparently uncontentious facts will be admitted or that they will be able to close gaps in the evidence by these means.
Consider admissibility issues early
This is really part of the previous point. You cannot rely on evidence if the court will not admit it. In particular: think early about who might be a suspect and who might be a witness; obtain statements from witnesses (including contemporaneously where appropriate); make sure significant statements made by, or on behalf of the defendant, are made, or confirmed, under caution, and that the relevant PACE Codes are followed; think about whether, and how, facts in potentially inadmissible hearsay evidence might be confirmed by other evidence; get continuity right.
Get the procedure and charges right
It is never ideal to start a prosecution on the back foot. Offences must be charged correctly from the outset, with reference to the right legislation. In more complex cases it may be sensible to seek counsel’s advice (or approval) on the precise wording of charges prior before proceedings are commenced. Investigators and lawyers must also be up to date with changes in the Criminal Procedure Rules and recent authorities, for example on time limits, see e.g. R (Chesterfield Poultry Limited) v Sheffield Magistrates’ Court (DC)  EWHC 2953 (Admin).
If you are going to argue a novel legal point, choose the right case: sometimes the law will be genuinely unclear. In those cases, it is wise to start on the front foot by picking the right case to prosecute (or challenge on appeal).
Don’t forget about disclosure
There have been a number of prosecutions in recent years which have come unstuck due to disclosure issues: see, e.g. the recent SFO case of R v Akle  EWCA Crim 1879. Investigators and prosecutors must be well familiar with the provisions of the CPIA 1996, the CPIA Code of Practice and the Attorney General’s Guidelines on Disclosure (revised last year). Careful attention to disclosure obligations from the outset will save time, money, and resources later, and minimise the chances of something going wrong. The importance of this, particularly in large or complex investigations, cannot be overstated.
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