Building standards enforcement handbook: first edition

12  Prosecution

12.1 Public interest

Where an offence under the Act has been committed the LA may consider initiating proceedings to prosecute the person. Advice should be sought from the LA legal services team and to establish such action is supported by them.

A key aspect of action being taken forward by the Crown Office & Procurators Fiscal Service (COPFS) is where it is considered the prosecution is in the Public Interest. The Prosecution Code is a COPFS publication that aims to provide a general explanation of the various factors which may influence decisions regarding prosecution or alternative action. It includes advice on factors that will influence such a public interest test, for example, the nature and gravity of the offence.

The nature of the offence will be a major consideration in the assessment of the public interest. In general, the more serious the offence the more likely it is that the public interest will require a prosecution. On the other hand, in the case of less serious offences the prosecutor may consider that the public interest would be best served other than by prosecution. In some circumstances the prosecution of a relatively minor offence, at least without first offering an alternative to prosecution, may be regarded as a disproportionate response to the circumstances of the case. It is likely consideration of whether the prosecution should be actioned will also be a consideration of the LA legal team.

12.2 Statutory time bar

Where an offence is created by statute, and the legislation provides that it can only be prosecuted on summary level (i.e. before a sheriff alone) any prosecution must be commenced within six months of the date of the offence unless the statute creating the offence makes a different provision on time. It is worth re-iterating that it is six months from the offence and not six months from the time LAs become aware of the offence.

It is also recognised that in many cases a negotiated solution to ensure compliance will be explored before an enforcement notice is served. Whilst this all takes time it is still a condition that any report to the Procurator Fiscal must be submitted well before the expiry of any six-month time-bar for the case to be fully considered.

Although negotiations may cause delays, any difficulties about reporting in any particular case should be discussed with the Procurator Fiscal at the earliest opportunity and the reason for any delay in reporting should be specified in the report.

Where an offence can be prosecuted on indictment (i.e., before a Jury), it will not be subject to the statutory time-bar. However, timeous action is still necessary to reduce the risk of challenge due to the accused right to a fair trial within a reasonable time under Article 6 of the European Convention on Human Rights and the Human Rights Act 1998.

12.3 Evidence

Scots Law requires corroboration; this means that an accused cannot be convicted of a crime unless the crucial facts of the crime are established by evidence from at least two independent sources. The crucial facts are (1) that the crime was committed and (2) that the accused was the perpetrator of the crime.

The type of evidence to be gathered will depend on the nature of the case being considered. For example, where action is being taken under section 8 - Building Warrants, it will be to demonstrate work has been carried out that requires a building warrant and that no such warrant has been granted.

Evidence can take many forms from direct evidence such as that of an eyewitness, to admissions, and evidence of facts and circumstances known as circumstantial evidence.

At its most simple, corroborated evidence may come from two eyewitnesses who can both speak to having seen the crime being committed and can identify the accused as the perpetrator.

Alternatively, one strong, clear source of evidence may be corroborated by evidence of facts and circumstances pointing to the guilt of the accused.

At the other end of the scale, a corroborated case can come from entirely circumstantial evidence from two or more sources. Each fact or circumstance may, on its own, be of little significance but the strength of the case is based on their combination giving rise to an inference that the accused committed the crime. Only one witness need speak to each fact or circumstance.

Examples of the evidence that may be presented include, detailed chronological site survey notes, photographic/video images, documentation (such as extracts from the building standards register), and witness statements.

An unequivocal admission freely made by an accused is only one source of evidence and requires to be corroborated. The exception to that is where the admission contains "special knowledge" which is knowledge which could only be known to the perpetrator of the crime, such as an accused confessing to murder and telling the police where the victim's body has been concealed.

Prosecutors can only take prosecutorial action where there is sufficient corroborated evidence.

It can be seen, therefore, that keeping a detailed record of all steps taken in advance of a decision being taken to prosecute the person should be maintained. This is to ensure that, should steps to find a negotiated solution fail to secure compliance and a report to the Procurator Fiscal becomes necessary, it will be possible for LAs to rely upon properly maintained records of their actions and to report to the Procurator Fiscal a full picture of the steps taken by them short of reporting to the Procurator Fiscal, and the response or lack thereof by the suspect.

12.4 Requirement to obtain 'S' number

It is necessary that all accused details are accompanied by a unique 'S' number to enable information to be exchanged between different agencies, tracked throughout the justice process and recorded on the Scottish Criminal History System (CHS) of pending and previous cases. The effect of this is that all cases being reported to the Procurator Fiscal, by the local authority, require an 'S' number before they can be reported.

12.5 Submitting a crime report

Once the LA has determined a case merits presentation to the Procurator Fiscal a crime report must be submitted to COPFS.

Such reports can only be submitted by a Specialist Reporting Agency (SRA) which is approved by the Crown Office. It is understood that all 32 LAs are appointed as SRAs and LAs should establish the principal contact within their organisation for submitting crime reports.

All crime reports must be submitted digitally through either a secure email system or via the COPFS secure website, SRAWEB.

To assist SRAs in following best practice in investigating and reporting cases to Procurator Fiscal A Guide for Specialist Reporting Agencies has been published by COPFS. The aim of this publication is to provide advice for specialist reporting agencies which will enable them to contribute effectively to achieving an outcome in reported cases which best serves the public interest. It is strongly recommended LAs take account of the guidance within that publication. It not only provides information on reporting cases to the Procurator Fiscal, such as the key information to be provided in the report, but also other helpful information such as preparation for a trial and court procedures.