Section 9.3 - Guide to prosecutions

Any legal court action should be governed by the procedure below and be carried out in conjunction with the County Secretary's Department as appropriate. The solicitor and the Rights of Way officer should evaluate the case using these guidelines. The County Council will normally only take legal action where there is a realistic prospect of a conviction and such action can be shown to be in the public interest. The guidance below has been put together by Hertfordshire County Council solicitors and is based on the code for the Crown Prosecution Service. It should apply to all prosecutions instituted by or on behalf of the County Council as highway authority, to ensure that decisions are fair, effective and consistent.

Follow this link for a generic checklist. Procedures relating to S134, S137 and S137A are summarised in further checklist.

9.3.1. Procedure for prosecutions

This procedure is a two stage test:

The evidential test

Is there sufficient reliable admissible evidence that an offence known to law has been committed by an identifiable person so as to provide a realistic prospect of conviction against this defendant on this charge?

  1. Can this evidence be used at Court?
  2. Is the evidence reliable?

The public interest test

Is it in the public interest to proceed ? In cases of any seriousness there is an assumption that prosecution will take place unless there are public interest factors against prosecution which clearly outweigh those in favour.

Both tests must be met. If they are, prepare the case and proceed with court action.

When might a Caution be more appropriate? Only where there is sufficient evidence to prosecute and an offence is admitted. Ensure a caution can be cited in future proceedings. The offender should sign a form acknowledging that they agree to the caution and they admit the offence for which it is given. If the caution is cited in future proceedings it should be on a separate form from any previous convictions.

9.3.2. Obtaining the evidence

Rights of Way Officers investigating offences must have regard for relevant Codes of Practice relating to investigations by police officers [Police and Criminal Evidence Act 1984 s67]. This also applies to the extent of cautioning persons suspected of an offence. In general terms it is only necessary to apply the caution where an officer believes an offence has been committed and that the person they are talking to is responsible. Simple questioning and information gathering to establish general circumstances i.e. Do you own this land? Are you aware of your requirements under ....? does not constitute an interview and does not require cautioning. For more information about interviews and cautioning contact the County Secretary's Department.

Statements

The Rights of Way officer will need to make a statement, as will the complainant if they are willing to act as a witness. If the complainant is willing to give a statement, they will need to revisit the path and make a statement covering all their visits. If the complainant is not willing to make a statement consider asking the user groups to provide at least one witness. If a witness is not forthcoming, review the case as to whether court action is appropriate.

The requirement for contemporaneity

A document, in order to be used for the purposes of refreshing a witness's memory, must have been made or verified contemporaneously, with the events to which it relates. Contemporaneity is a question of fact and degree.

Officer notes

Notes should be written at the time or shortly after the event referred to, normally within 24 hours.

If someone else makes the notes, it is acceptable for another officer to refer to them, so long as they are verified within the times set out above, i.e. contemporaneously.

Witnesses will not be able to refer to their statements when giving evidence, but can refer to contemporaneous notes. Therefore it is vital that a full note is taken:

  1. to avoid suggestions of recent fabrication and/or collusion.
  2. to assist the witness in giving evidence - time, dates, places, weather, persons present, measurements, photographs etc., otherwise these facts must all be remembered.

DO NOT destroy original notes. If notes are typed up, retain the originals. Include in a notebook any records of interviews. A note should be made of any comments made by a person suspected of an offence, whether the comments are made in response to a question or not.

Notes should be chronological.

Joint notes (where more than one officer witnesses an incident or conversation) are acceptable. One officer can make the notes, and the other officer should sign that part of the note concerning what they saw or heard. Notes should record the time and place the notes were made and who else was present.

Avoid hearsay. Witnesses should give evidence in statement of facts within that witness's recollection.

Witness statements from members of the public

The same points apply to witness statements from members of the public. Statements should tell a story. Think of the offence and what is needed to prove it has occurred. If a witness has made any notes, e.g. index number of vehicle or photographs, take possession of them and refer to photographs as exhibit(s) in the statement. (Remember to ask witnesses of any inconvenient dates for the next 6 months when you take their statements in order to have the information necessary to fix a date for a hearing, should one be needed.)

Exhibits

Includes all items obtained by a witness which they wish to produce. When producing an exhibit it must be referred to in the witness statement of the witness producing it.

Exhibits should be exhibited by the first person finding or taking them. If that person finds more than one exhibit then it is simply given the next sequential number, AB 1, AB 2 etc. The letters come from the initials of the person exhibiting it. If another witness refers to the same exhibit they simply refer to it as what it is, with its unique reference number, e.g. copy of plan exhibit number AB 1.

Best evidence rule

Original exhibits must always be retained for Court. The originals must be kept in a safe place.

Plans and photographs

Exhibits may be copied, but if it is necessary to indicate something on a plan make sure the correct person marks it. That is the person with first hand knowledge of what it is that is being recorded. Ensure that person refers to that exhibit in their statement.
Always check for continuity in photographs. A photograph is, in effect, a statement made by a person in a document, it is evidence of what that witness saw.
Problems may arise where film is sent for developing by an organisation where it is not possible to check the movements of the film. The best practice is to hand film over for developing personally to the person who will develop it and obtain a receipt.
A statement should then be obtained from this person recording the fact that they received the film and developed it and that the film was in their possession throughout. This avoids later suggestion by the defence that film was tampered with.

Interviews

The case solicitor will advise on the type of interview and the procedure where one is deemed necessary.

Other evidence

  1. Section 16 Notice - Local Government (Miscellaneous Provisions) Act 1976.
  2. Land Registry searches.
  3. Company searches.
  4. Replies to DVLA enquiries.

9.3.3. Hearsay

What is hearsay?

'An assertion other than one made by a person giving evidence in the proceedings is inadmissible as evidence of any fact asserted'.

A witness cannot give the evidence of another e.g. 'Mr Brown told me that he had fallen over the guard rail'. This is second hand evidence. Mr Brown must be present to give the evidence himself. The rationale being that the witness whose evidence it is should be available in Court for the Court to establish their credibility (i.e. whether they are to be believed), and to afford the defence the opportunity for cross-examination. If Mr Brown was injured then another witness could record his injuries and any other relevant matter (i.e. was Mr Brown distressed, the scene - weather, traffic flow, persons present, etc.). But the facts given in a witness's statement must be facts within their perception.

Exceptions to hearsay rule

Evidence adduced not to the truth of the words, but that the words were said at all is not hearsay. It is not a problem per se to introduce hearsay in a statement. If unsure, put the words in. The statement can always be edited for Court. The important point is that the witness with first hand knowledge must be available to attend. Words said by the accused are not hearsay (but remember, this evidence may be inadmissible if the Code of Practice is not complied with).

9.3.4. The awkward defendant

What if defendant will not talk to you ?

Depending on circumstances you could ask the police to help. A defendant does not have to answer questions about an offence, whether or not they are under arrest. The caution may be used: "You have the right to remain silent, but it may harm your defence if you fail to mention now something you later seek to rely on in court. Anything you do say will be written down and given in evidence." However, it should be noted that the right to silence is just that.

A defendant does, however, have to provide their name and an address for summons [Section 25 Police and Criminal Evidence Act 1984]. Only the police can arrest for failure to provide this.
There is also a power of arrest the police can exercise for obstruction of the highway, together with the common law power of arrest for breach of the peace. Again, only the police can do this. If you have a situation where problems are anticipated it may be a good idea to seek the assistance of the police in advance.

9.3.5. Disclosure of unused material

The Common Law position

Criminal Procedure and Investigations Act 1996

  1. Investigator
  2. Disclosure officer
  3. Officer in charge of investigation

Examples of unused material

9.3.6. Procedure

Offences are either:

  1. summary only,
  2. 'either-way' i.e. triable in either the Magistrates Court or the Crown Court, or
  3. indictable only.

Most of the offences associated with public rights of way are triable or summary only. They are usually dealt with in the Magistrates Court.

Time limits

For offences triable or summary only, information must be laid within 6 months of the date of commission of the offence. Failure to lay the information within this time limit means that the offence is statute barred (i.e. the case cannot proceed). It is possible to amend a summons at a later date, for example if it shows the wrong date for an offence or mentions the wrong section of the Highways Act. This can even be done at the trial, so long as the defence are not misled. The most they can ask for is an adjournment and costs. What cannot be done is to amend details of the defendant, for example where the information is laid against the wrong offender or company. If it is more than 6 months from the date of the offence the Court must dismiss the case. Therefore it is vitally important to ensure that the correct defendant is named on the summons.

At court

If it is an either-way offence, the Court first decides where case will be heard. The defendant appears and pleads guilty or not guilty.

Guilty plea - Prosecutor outlines the facts, makes any claim for compensation and claims costs. Ensure a proper record of time spent on a file is kept.

Not guilty plea - Case is set down for trial (ensure that details of all witness availability is to hand so a convenient date can be set). Witnesses will then give live evidence, or statements will be read in accordance with Section 9 of the Criminal Justice Act 1967. Statements will only be read if the prosecutor does not require witness to give live evidence and if the defence agree. If evidence likely to be contentious a witness must appear. When the trial date is set, all witnesses are alerted for Court but some may be taken off alert if their evidence is served and accepted as above.

At the trial

The prosecutor opens the case, addresses the Court on the law, says what s/he hopes to prove and calls witness or reads their statements. If there is an interview it will be read. The defence will cross-examine witnesses in turn. Then it is the defence's turn. The defence calls their witnesses and prosecutor cross-examines in turn. The defence then addresses the Court, and the Magistrates decide on the verdict.

If the defendant is found guilty, the prosecutor makes a claim for compensation and costs as for a guilty plea (above) but including the extra costs of the trial. If the defendant is found not guilty, that is, of course, subject to any right of appeal.