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VCA Prosecution Policy Document

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					                 VCA Prosecution Policy Document




                                            Vehicle Certification Agency
                                            1, The Eastgate Centre
                                            Eastgate Road
                                            Bristol BS5 6XX
                                            Telephone: 0117 951 5151
                                            E-mail: enquiries@vca.gov.uk
                                            Website: www.vca.gov.uk




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           VCA Prosecution Policy Document

           Please note that this Policy primarily addresses procedural
           processes for England and Wales. Regional changes are
           considered for Scotland and Northern Ireland.

           Enforcement Activities
           The VCA is empowered to enforce elements of the following Regulations:

              •   The Waste Electrical and Electronic Equipment (WEEE) Regulations 2006. Statutory
                  Instrument 2006/3289.
              •   Waste Batteries and Accumulators Regulations 2009

              •   Road Vehicles (Construction and Use) (Amendment) Regulations 2010 and Motor
                  Vehicles (Designation of Approval Marks) (Amendment) Regulations 2010

              •   The Motor Vehicles Regulations 2009 Statutory Instrument 2009/1899 (Replacement of
                  Catalytic Converters and Diesel Particulate Filters)
              •   The Motor Cycle Regulations 2009 Statutory Instrument 2009/1896 (Replacement of
                  Catalytic Converters and Diesel Particulate Filters)
              •   Non-Road Mobile Machinery (Emission of Gaseous and Particulate Pollutants)
                  Regulations 1999 Statutory Instrument 1999/1053.
              •   Noise Emission in the Environment by Equipment for use outdoors Regulations 2001.
                  Statutory Instrument 2001/1701.
              •   The End-of-Life Vehicles Regulations 2003 Statutory Instrument 2003/2635.
              •   Passenger Car (Fuel Consumption and CO2 Emissions Information) Regulations 2001


           1.0 The Decision to Prosecute and the Alternatives to
           Prosecution
           1.1 The decision to prosecute an individual is a serious step. Fair and effective prosecution is
           essential to the maintenance of law and order. Even in a small case, a prosecution has serious
           implications for all involved — victims, witnesses and defendants. The VCA and its solicitor(s) will
           apply the Code for Crown Prosecutors so that it can make fair and consistent decisions about
           prosecutions.

           1.2 The Code helps the VCA and its solicitor(s) make sure that justice is done. It contains
           information that is important to enforcement officers, others who work in the criminal justice
           system and the public. Enforcement officers should apply the provisions of this Code whenever
           they are responsible for deciding whether to summons a person with an offence.

           1.3 The Code is also designed to make sure that everyone knows the principles that are applied.
           By applying the same principles, everyone involved in the system is helping to treat victims,
           witnesses and defendants fairly, while prosecuting cases effectively. Similar processes will apply
           for cases to be prosecuted in Scotland or Northern Ireland.




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           1.4 Prosecution action must be in accordance with VCA regulatory principles and should use the
           minimum level of enforcement to gain the required results.

           You must consider whether a prosecution is in the public interest and whether any action
           other than a prosecution would be sufficient. A “VCA board member” usually takes the
           decision.

           1.5 There are four alternatives to consider:
           1.5.1 Prosecution
           1.5.2 Formal caution.
           1.5.3 Seize and detention of equipment (for appropriate Regulations).
           1.5.4 Suspension of sales (for appropriate Regulations).
           1.5.5 Regulation Notices (for appropriate Regulations).


           2.0 General Principles
           2.1 Each case is unique and must be considered on its own facts and merits. However, there
           are general principles that apply to the way in which the VCA and its solicitor(s) must
           approach every case, subject to the legal peculiarities of England, Wales Scotland and
           Northern Ireland.

           2.2 The VCA believes in fair but firm regulation. Underlying the policy of firm but fair
           regulation are the principles of: proportionality in the application of the law and in ensuring
           compliance; consistency of approach, transparency about how the VCA operates and what
           those regulated may expect from the VCA, and targeting of enforcement action.

           2.3 Proportionality. In general, the concept of proportionality is included in much of the
           regulatory system through the balance of action to protect the environment against risks and
           costs.

           2.4 Some incidents or breaches of regulatory requirements cause or have the potential to cause
           serious environmental damage. Others may interfere with people’s enjoyment or rights.

           2.5 It is the duty of VCA to make sure that the right person is prosecuted for the right offence. In
           doing so, VCA must always act in the interests of justice and not solely for obtaining a conviction.

           2.6 Consistency. Consistency means taking a similar approach in similar circumstances to
           achieve similar ends. The VCA aims to achieve consistency in, advice tendered, the use of
           powers and decisions on whether to prosecute.

           2.7 VCA 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, victim or witness influence their decisions. They must not be affected by improper
           or undue pressure from any source.

           2.8 The VCA and its solicitor(s) should provide guidance and advice to investigators throughout
           the investigative and prosecuting process. This may include lines of inquiry, evidential
           requirements and assistance in any pre-charge procedures.
           The VCA and its solicitor(s) will be proactive in identifying and, where possible, rectifying
           evidential deficiencies and in bringing to an early conclusion those cases that cannot be
           strengthened by further investigation.

           2.9 It is the duty of the VCA and its solicitor(s) to review, advise on and prosecute cases,
           ensuring that the law is properly applied, that all relevant evidence is put before the court and


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           that obligations of disclosure are complied with, in accordance with the principles set out in this
           Code.

           2.10 The VCA and its solicitor(s) should ensure that the Human Rights Act 1998 is followed and
           must apply the principles of the European Convention on Human Rights in accordance with the
           Act.

           2.11 Transparency. Transparency is important in maintaining public confidence in the VCA’s
           ability to regulate. It means helping those regulated, and others, to understand what is expected
           of them and what they should expect from the VCA. It also means making clear why an officer
           intends to, or has taken, enforcement action.

           2.12 Transparency is an integral part of the role of VCA officers and the VCA continues to train
           its staff and to develop its procedures to ensure that:

               •   Where remedial action is required, it is clearly explained (in writing) why the action is
                   necessary and when it must be carried out; a distinction being made between best
                   practice advice and legal requirements.
               •   Opportunity is provided to discuss what is required to comply with the law before formal
                   enforcement action is taken.
               •   Where urgent action is required, a written explanation of the reasons is provided as soon
                   as practicable after the initial meeting.
               •   Written explanation is given of any rights of appeal against formal enforcement action at
                   the time the action is taken.

           2.13 Targeting. Targeting means making sure that regulatory effort is directed primarily towards
           those whose activities give rise to, or risk, environmental damage. Where the risks are least well
           controlled or against deliberate or organised crime, action will be primarily focused on
           lawbreakers or those directly responsible for the risk and who are best placed to control it.

           2.14 The VCA has systems for prioritising regulatory effort. They include the response to
           complaints from the public about regulated activities, the assessment of the risks posed by a
           breach of regulation and the gathering and acting on intelligence about illegal activity.


           3.0 The Decision to Prosecute
           3.1 In most cases, the VCA Head of Branch is responsible for deciding whether a person should
           be summonsed with an offence, and if so, what that offence should be. This decision must be
           made in accordance with this Code.


           4.0 Review
           4.1 Each case the VCA solicitor(s) receives from the VCA is reviewed to make sure that it is right
           to proceed with a prosecution. Unless the Threshold Test applies, the VCA solicitor(s) will only
           start or continue with a prosecution when the case has passed both stages of the Full Code Test.

           4.2 Review is a continuing process and the VCA and its solicitor(s) must take account of any
           change in circumstances and if additional evidence may effect the decision.

           4.3 Decision. The VCA solicitor(s) and the VCA work closely together, but the final responsibility
           for the decision whether or not a summons or a case should go ahead rests with the VCA Head
           of Branch.



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           5.0 The Full Code Test
           5.1 The Full Code Test has two stages. The first stage is consideration of the evidence. If the
           case does not pass the evidential stage it must not go ahead no matter how important or serious
           it may be. If the case does pass the evidential stage it must only proceed to the second stage if a
           prosecution is needed in the public interest. The evidential and public interest stages are
           explained below.


           6.0 The Evidential Stage
           6.1 The VCA 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.

           6.2 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
           defendant of the charge alleged. This is a different judgment than that the courts apply. A court
           should only convict if satisfied so that it is sure of a defendant’s guilt.
           (* or the appropriate UK Court System)

           6.3 When deciding whether there is enough evidence to prosecute, the VCA must consider
           whether the evidence can be used and is reliable.

           There may be many cases where 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 VCA must
           ask the following questions:

           6.4 Can the evidence be used in court and is the evidence reliable?

           6.4.1 Is it likely that the court will exclude the evidence? There are certain legal rules, which
           might mean that evidence, which seems relevant, cannot be given at a trial. For example, is it
           likely that the evidence will be excluded because of the way in which it was gathered? If so, is
           there enough other evidence for a realistic prospect of conviction?

           6.4.2 Is there evidence, which might support or detract from the reliability of a confession? Is the
           reliability affected by factors such as the defendant’s age, intelligence or level of understanding?

           6.4.3 What explanation has the defendant given? Is a court likely to find it credible in the light of
           the evidence as a whole? Does it support an innocent explanation?


           6.4.4 If the identity of the defendant is likely to be questioned, is the evidence about this strong
           enough?

           6.4.4.1 Is the witness’s background likely to weaken the prosecution case? For example, does
           the witness have any motive that may affect his or her attitude to the case, or a relevant previous
           conviction?

           6.4.5 Are there concerns over the accuracy or credibility of a witness? Are these concerns based
           on evidence or simply information with nothing to support it?

           6.4.6 Is there further evidence which the VCA should seek out which may support or detract from
           the account of the witness?



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           6.5 VCA should not ignore evidence because they are not sure that it can be used or is reliable.
           But they should look closely at it when deciding if there is a realistic prospect of conviction.


           7.0 The Public Interest Stage
           7.1 In 1951, Lord Shawcross, who was Attorney General, made the classic statement on public
           interest, which 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)

           7.2 The public interest 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 passed. 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 change prosecution to caution or suspension. Are these concerns based on evidence or
           simply information with nothing to support it? Is there further evidence which the VCA should
           seek out which may support or detract from the evidence.

           7.3 The VCA must balance factors for and against prosecution 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 suspect. Some factors may increase the need to prosecute but
           others may suggest that another course of action would be better.


           8.0 The Threshold Test
           8.1 The Threshold Test requires the VCA Head of Branch to decide whether there is at least a
           reasonable suspicion that the suspect has committed an offence, and if there is, whether it is in
           the public interest to instigate prosecution proceedings.

           8.2 The Threshold Test is applied to those cases in which the evidence to apply the Full
           Code Test is not yet available.

           8.3 The evidential decision in each case will require consideration of a number of factors
           including: -
           8.3.1 the evidence available at the time;
           8.3.2 the likelihood and nature of further evidence being obtained;
           8.3.3 the reasonableness for believing that evidence will become available;
           8.3.4 the time it will take to gather that evidence and the steps being taken to do so;
           8.3.5 the impact the expected evidence will have on the case;
           8.3.6 the charges that the evidence will support.

           8.4 The public interest means the same as under the Full Code Test, but will be based on the
           information available at the time of charge, which will often be limited.

           8.5 The evidence gathered must be regularly assessed to ensure the charge is still appropriate.
           The Full Code Test must be applied as soon as reasonably practicable.




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           9.0 Alternatives to Prosecution.
           9.1 When deciding whether a case should be prosecuted in the courts, the VCA Head of Branch
           should consider the alternatives to prosecution.
           See paragraph 1.5.-


           10. Formal Cautions
           10.1 Simple caution: - A simple caution should only be given if the public interest justifies it and
           in accordance with Home Office guidelines. Where it is felt that such a caution is appropriate
           VCA will caution the suspect. If the caution is not administered, because the suspect refuses to
           accept it, the VCA may review the case again.

           10.2 Formal cautions are a quick and simple method of enforcement. They keep offenders out
           of the court and reduce the chance of their re-offending. The questions to be asked in each case
           are;

           10.3 Whether the circumstances are such that the caution is likely to be effective, and whether
           the caution is appropriate to the offence.

           10.4 No caution should be issued where there is not a reasonable expectation that it will curb the
           offender’s activities. Second cautions should only be issued where the subsequent offence is
           trivial or sufficient time has elapsed since the first caution to indicate it had some effect.

           10.5 The offender must admit the offence

           10.6 The offender must understand the significance of a caution and give informed consent of
           being cautioned.

           10.7 Formal cautions should only be used in respect of absolute offences.

           10.8 Life of caution – in accordance with the guidance issued by ACPO Crime Committee to
           Police forces in February 1995, cautions are citable for case disposal decision making purposes
           for five years from the date of caution.
           After that period the caution shall considered “spent”. The same time scale should be applied
           when considering whether a previous caution is relevant to a current offence.


           11. Conditional caution
           11.1 A conditional caution may be appropriate where the VCA Head of Branch considers that
           while the public interest justifies a prosecution, the suspect complying with suitable conditions
           may better serve the interests of the suspect, any victim and community.

           11.2 The VCA Head of Branch must be satisfied that there is sufficient evidence for a realistic
           prospect of conviction and that the public interest would justify a prosecution should the offer of a
           conditional caution be refused or the offender fail to comply with the agreed conditions of the
           caution.

           11.3 In reaching their decision, the enforcement officer should follow the Conditional Cautions
           Code of Practice and any guidance on conditional cautioning issued or approved by the Director
           of Public Prosecutions.




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           11.4 Warning Letters – Warning letters while not carrying the weight of formal cautions will
           continue to have an important part to play. The circumstances of their use will be as described in
           the individual Enforcement Guidelines.


           12. Summary
           For further guidance or clarification on these issues please refer to
           http://www.vca.gov.uk/enforcement/index.asp and then go to the appropriate sub site.




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