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Waverley Borough Council Committee System - Committee Document

Meeting of the Council held on 11/12/2007
Prosecution Policy



ANNEXE 2



REVENUES AND BENEFITS SECTION

BENEFIT INVESTIGATIONS TEAM


PROSECUTION POLICY



INTRODUCTION

As outlined in its Anti-Fraud and Anti-Corruption Policy, Waverley Borough Council is committed to protecting the public purse through the investigation of suspected fraudulent claims for Housing Benefit and Council Tax Benefit. Council officers who detect a fraudulent claim may take the view that the circumstances of the case are such that consideration should be given to prosecuting the individual or individuals involved in making the fraudulent claim.

The purpose of this policy is to ensure that Waverley Borough Council officers and the general public are aware of the principles that Waverley Borough Council will apply when making a decision on whether to prosecute a case of benefit fraud. These principles will be applied consistently in each case in order to ensure that cases are treated fairly and effectively.

The decision to prosecute an individual for benefit fraud is a serious step. Fair and effective prosecution is essential to the maintenance of law and order. A prosecution can have serious implications for all involved in a case – victims, witnesses and defendants.

This policy also addresses Waverley Borough Council’s alternatives to prosecution. The principles that are used to assess cases for prosecution will be applied when considering any alternatives.

GENERAL PRINCIPLES

Each case is unique and must be considered on its own facts and merits. However, there are general principles that apply to the way that Waverley Borough Council approaches each case.

Waverley Borough Council officers must be fair, independent and objective. They must not let any personal views about ethnic or national origin, disability, sex, religious beliefs, political views or the sexual orientation of the suspect or witnesses influence their decisions. They must not be affected by improper or undue pressure from any source.

Waverley Borough Council must make sure that the right person is prosecuted for the right offence, and that in doing so they act in the interests of justice and not solely for the purpose of obtaining a conviction.

Waverley Borough Council is a public authority for the purposes of the Human Rights Act 1998, and must apply the principles of the European Convention on Human Rights, in accordance with the 1998 Act, when considering a prosecution or its alternatives.

Once the provisions of sections 46 and 47 of the Welfare Reform Act 2007 are brought into force, Waverley Borough Council may consider including other Social Security benefits in a prosecution, taking into account the value and impact on existing offences. Until those provisions are brought into force, cases investigated jointly by Waverley Borough Council and the Department for Work and Pensions (“the DWP”) will be prosecuted either:-

(a) by the DWP alone, with Waverley Borough Council authorising the DWP to prosecute the Housing and Council Tax Benefit elements on its behalf; or

(b) by Waverley Borough Council and the DWP individually prosecuting in respect of the Housing and Council Tax Benefit and Social Security benefits elements respectively.

THE DECISION TO PROSECUTE

The Revenues & Benefits Section’s Benefit Investigations Team will initiate proceedings, with the Investigations Manager making a recommendation to the Revenues & Benefits Manager. If he consider that the case is appropriate for prosecution, having applied the principles contained in this policy and ensured that the case meets the evidential and public interest tests (see “The Policy Tests” below), a recommendation to prosecute will be made to the Director of Finance, who will apply the same principles and tests before deciding whether to authorise the case for prosecution. The Director will complete an “Authority to Prosecute Certificate” whenever authorising a case for prosecution.

If the Revenues & Benefits Manager decides, having applied the same principles and tests, that an alternative to prosecution (see “Alternative Sanctions” below) is appropriate, it will be the Revenues & Benefits Manager who will authorise the taking of the appropriate alternative measure and the case will not be passed to the Director of Finance for authorisation.

Where the Director of Finance authorises a case for prosecution, the case will be passed to the Legal Services Section for further consideration. Legal Services will test the case against their own principles, which include the two-stage test set out below in “The Policy Tests”. This process will ensure that the necessary level of objectivity is applied to each case that is authorised for prosecution, and that it is right to proceed with a prosecution.

Throughout the whole of the process set out above, Legal Services will, where requested, provide guidance and advice to the Benefit Investigations Team on issues including, but not limited to, lines of inquiry, evidential requirements and statutory interpretation. This includes at any time before a case is considered for prosecution.


REVIEW

Review is a continuing process and Waverley Borough Council officers must take into account any change in circumstances in the case. Where any change arises, the Benefit Investigations Team should discuss the matter with Legal Services in order to decide whether the charges require changing, or whether the case should be stopped entirely. The Revenues & Benefits Section and Legal Services will work closely together in order to ensure that the correct decision is reached in each case. The final responsibility for the decision whether or not a charge or a case should go ahead rests with the Legal Services Section.

THE POLICY TESTS

The decision to prosecute is a two-stage test. The first stage is the Evidential Test. If the case does not pass the Evidential Test it must not go ahead no matter how important or serious it may be. If the case does pass the Evidential Test, Waverley Borough Council officers must proceed to the second stage and decide if a prosecution is needed in the public interest – the Public Interest Test. The Revenues & Benefits Section will only consider recommending a case for prosecution where the case has passed both the Evidential and Public Interest tests.

THE EVIDENTIAL TEST

The Revenues & Benefits Section must be satisfied that there is enough evidence to provide a ‘realistic prospect of conviction’ against each defendant on each charge. They must consider what the defence case may be, and how that is likely to affect the prosecution case.

‘A realistic prospect of conviction’ is an objective test. It means that a jury or bench of magistrates or judge hearing a case alone, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a separate test to the one that the criminal courts themselves must apply. A court should only convict if satisfied so that it is sure of a defendant’s guilt.

When deciding whether there is enough evidence to prosecute, the Revenues & Benefits Section must consider whether the evidence can be used and is reliable. There will be many cases in which the evidence does not give any cause for concern, but there will also be cases in which the evidence may not be as strong as it first appears.

The Revenues & Benefits Manager, and other officers involved in the case, must ask themselves the following questions:-

1. Can the evidence be used in Court?
2. Is it likely that evidence will be excluded by the Court because of the way in which it was gathered, or because of the rule against hearsay evidence? If so, is there enough other evidence to provide a realistic prospect of conviction?
3. Is the evidence reliable?
4. Is there evidence which might support or detract from the reliability of a confession, such as the defendant’s age, intelligence or level of understanding?
5. What explanation has the defendant given, and is the Court likely to find it credible in the light of the evidence as a whole, and does it support an innocent explanation?
6. If the identity of the defendant is likely to be questioned, is the evidence regarding this strong enough?
7. Is a witness's background likely to weaken the prosecution case?
8. Does the witness have any motive that may affect his or her attitude to the case, or a relevant previous conviction?
9. Are there concerns over the accuracy or credibility of a witness, and are these concerns based on evidence or simply information with nothing to support it?

Evidence should not be ignored because there is uncertainty that it can be used or is unreliable, but it should be looked at closely when deciding if there is a realistic prospect of conviction.

THE PUBLIC INTEREST TEST

In 1951 the Attorney General of the time, Lord Shawcross, made the classic statement on public interest that has been supported by Attorneys General ever since: “It has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution”. (House of Commons Debates, volume 483, column 681, 29 January 1951.)

The Public Interest Test must be considered in each case where there is enough evidence to provide a realistic prospect of conviction. 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 considered. A prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour, or it appears more appropriate in all the circumstances of the case to divert the person from prosecution (see “Alternative Sanctions” below).

Public interest 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 or the circumstances of the defendant.

There follows a list of some common public interest factors both for and against prosecution. The list is not exhaustive and the factors that apply will depend on the facts of the case.

Some common public interest factors in favour of prosecution

The defendant was in a position of authority or trust;
The evidence shows that the defendant was a ringleader or an organizer of the offence;
There is evidence that the offence was premeditated;
There is evidence that the offence was carried out by a group;
A conviction is likely to result in a significant sentence;
The defendant has previous convictions or cautions that are relevant to the current offence;
There are grounds for believing that the offence is likely to be continued or repeated;
The offence, although not serious in itself, is widespread in the area where it was committed;
A prosecution would have a significant positive impact on maintaining community confidence;
The level of the fraud is above the general threshold set by Waverley Borough Council, and if not the circumstances are so serious that they warrant a prosecution of a below-threshold fraud (see “Prosecution Thresholds” below).

Some common public interest factors against prosecution

The Court is likely to impose only a nominal penalty;
The offence was committed as a result of a genuine mistake or misunderstanding (this factor must be balanced against the seriousness of the offence);
There has been a long delay between the offence taking place and the date of the trial, unless:

o The offence is serious;
o The delay has been caused in part by the defendant;
o The offence has only recently come to light; or
o The complexity of the offence has led to a long investigation.

A prosecution is likely to have a bad effect on the victim’s physical or mental health, always bearing in mind the seriousness of the offence;
The defendant 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;
The defendant has put right the loss or harm caused (though defendants must not avoid prosecution solely because they have repaid, or have arranged to repay, the overpaid benefits);
The Council is likely to receive negative publicity for taking the case to Court;
A failure in benefit administration has contributed to the fraud, or Waverley Borough Council’s procedures have not been followed.

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

SELECTION OF CHARGES

The Revenues & Benefits Section will be responsible for the selection of both the charges and the legislation to be used when considering a case for prosecution. They should select charges which:

1. reflect the seriousness and extent of the offending;
2. give the Court adequate powers to sentence; and
3. enable the case to be presented in as clear and simple way.

This means that Waverley Borough Council officers may not always choose or continue with the most serious charge where there is a choice. Officers should never go ahead with more charges than are necessary just to encourage a defendant to plead guilty to a few. In the same way, they should never go ahead with a more serious charge just to encourage a defendant to plead guilty to a less serious one.

PROSECUTION THRESHOLDS

In general a case will not be recommended for prosecution unless the value of the overpayment is 1,500 or more. However, other factors in the case may lead the Revenues & Benefits Section to conclude that a case should be recommended for prosecution where the overpayment is under 1,500. Such factors may include:

The offence is not a first offence;
The offence(s) were planned or systematic;
Other people were involved in the fraud;
The duration of the offence;
The claim was false from its inception;
The fraud has involved an abuse of position or privilege;
The person has refused to accept a Simple Caution or Administrative Penalty;
There are grounds for believing that the offence is likely to have continued or been repeated;
There has been no significant financial gain, but there is evidence of a deliberate attempt to commit benefit fraud.

Usually a case will be recommended for prosecution under summary legislation (triable only in the Magistrates’ Court) where the overpayment is under 5,000. Cases involving overpayments of 5,000 or more will usually be recommended for prosecution under either-way legislation (triable in either the Magistrates’ Court or Crown Court). However, factors such as those listed above may mean that a case involving an overpayment of less than 5,000 is recommended for prosecution under either-way legislation, and a case involving an overpayment of 5,000 or more is recommended for prosecution under summary legislation.

Ultimately the level of criminality involved in committing an offence will determine whether a prosecution proceeds and the legislation that will be used.

ALTERNATIVE SANCTIONS

The Revenues & Benefits Section has the option of considering the following alternatives sanctions should they decide that a case is not suitable for prosecution having had regard to the “Prosecution Thresholds” set out above.

The case must still have met the Evidential and Public Interest tests for Council officers to consider offering an Administrative Penalty or Simple Caution.

NO FURTHER ACTION

Waverley Borough Council may consider closing the case without further action if:

To the Council’s knowledge the person has never previously offended;
The person has not made any false declaration;
There was no planning involved in the process;
There was no other person involved in the fraud;
The offence is minor;
The period over which the fraud has been committed is very short;
The overpayment is very low.

Where no further action is to be taken, the person will receive confirmation of the decision in writing from the Council.


ADMINISTRATIVE PENALTY

Under section 115A of the Social Security Administration Act 1992 (as inserted by the Social Security Administration (Fraud) Act 1997), an Administrative Penalty is an offer to a person to pay, in the manner specified by the Secretary of State, a financial penalty if the person, by an act or omission, has caused benefit to be overpaid to them.

The amount of the penalty is 30% of the gross overpayment figure, and is offered to the person as an alternative to a prosecution being brought against them.

Waverley Borough Council may consider offering an Administrative Penalty if:

The person has been interviewed under caution;
The person has not admitted the offence during the interview under caution;
The amount of the overpayment is below the 2,000 prosecution threshold;
The person has no relevant previous convictions;
There was no planning involved;
No other person is involved in the fraud.

This list is not exhaustive and the individual facts of each case must be taken into account. If the person refuses the Administrative Penalty, the case would usually then be recommended for prosecution.

SIMPLE CAUTION

A Simple Caution (formerly known as a Formal Caution, but now renamed to distinguish it from a Conditional Caution) is a non-statutory disposal for adult offenders. It may be used for cases involving first time, low-level offences where the public interest can be met by a Simple Caution.

A Simple Caution is administered instead of a prosecution where the person admits the offence, either in writing or while attending an interview under caution. They are informed that the Simple Caution may be cited if there is any subsequent convcition by a Court for a different benefit fraud offence. A record is kept of the caution and that the existence of a previous Simple Caution may affect the decision whether or not to prosecute if the person should reoffend.

Waverley Borough Council may consider offering a Simple Caution in the following circumstances:

The person has not offended before;
The person has admitted the offence in the interview under caution;
The amount of the overpayment is below the 2,000 prosecution threshold;
The person’s attitude (e.g. whether they express genuine regret);
There was no planning in the process;
No other person is involved in the fraud.

This list is not exhaustive and the individual facts of each case must be taken into account. If the person refuses a Simple Caution, the case would usually then be recommended for prosecution.

PUBLICITY

Waverley Borough Council’s aim, and statutory responsibility, is to prevent the waste, theft and fraud of public money. With that in mind the Council has in place a wide range of measures aimed at preventing benefits from being paid to those who are not entitled to them. These include measures to prevent and deter the commission of offences.

One such deterrent measure is the publication of details of convictions obtained by Waverley Borough Council. The publicity surrounding a conviction for benefit fraud has two positive effects. First, it deters others who may be seeking to claim benefit to which they are not entitled, and second it generates confidence in the general public that Waverley Borough Council takes a serious view of benefit fraud and is proactive in seeking to prevent it.

The Council will therefore consider publishing the name and address of each person convicted of benefit fraud, together with details of the offence(s) in question. In reaching a decision as to whether to publish the name(s) and address(es), the Council will take the following factors into consideration:

The specific details of the offence committed.
The public interest in disclosing personal information (for example, the deterrent effect referred to above).
Whether the publication would be proportionate.
The personal circumstances of the offender.
Whether any other person may be affected by the publication (for example, family members).

This list is not exhaustive and other factors may be relevant in the circumstances of each individual case.

When, having considered the above factors, it is considered appropriate to publish details of a conviction, the Benefit Investigations Team will record the reasons for the publication, and the Monitoring Officer will maintain a central register of the records.



THIS POLICY IS NOT EXHAUSTIVE AND MAY BE SUBJECT TO CHANGE

Comms/exec/2007-08/131