Agenda item

The Chair welcomed Elaine Kale, the City Council’s Licensing Solicitor, to provide information on the Council’s procedures.

Elaine advised that she had been a prosecuting solicitor for 18 years, and had been an Assistant Clerk to the Justices, and also a defence solicitor.

She advised that she will be providing information on the Council’s procedures as to whether to prosecute under the Caravan Sites Act.

An investigation would be carried out by the client services department, eg environmental health.  There is an enforcement policy to follow before it is passed to Legal Services, and they would bring forward their concerns over the alleged breach of condition.  Legal Services adopt the Code of Crown Prosecutors and there are certain requirements relating to matters to bring forward to present to the court.

Summary offences are triable only in the Magistrates Court.  These are considered to be less serious offences and are heard by a district judge or a panel of three magistrates.  The Council is able to prove the matter in the absence of the defendant.

The following procedures are taken as to the decision to prosecute:

Once the matter is cleared by the Assistant Director/Director it is referred to Legal Services to prosecute.

The first stage of this is the evidential stage.  There needs to be a reasonable prospect of conviction on the evidence provided.  This has to be an objective assessment by the prosecutor.

An evidential test is undertaken:

• Can it be used in court?  Witness statements to the alleged offence needs to have an endorsement that they can be prosecuted, and this needs to be signed and dated.
• Timing is also a factor for summary offences – prosecution must take place within six months of the alleged breach.
• The quality of evidence – good factual evidence is needed.  There is a new Code for Crown prosecutors out today, which decides if evidence is reliable, how strong it is and whether it will stand up in court.
• Credibility of evidence – if there is any reason to doubt it.

If sufficient evidence is provided, they would move onto the public interest stage where they would weigh up the factors for and against prosecuting:

• How serious the offences is.
• Level of culpability of the suspect.
• How much harm there is to the victim.
• The circumstances of harm caused – how it affects people.
• Age of suspect.
• Impact on community.  This is not restricted to communities defined by location.
• Is prosecution a proportional response?  The cost to the Council and the wider justice system, weighted against any likely penalty needs to be considered. Generally speaking, site owners have been fined in the region of £1,000.  The new Bill gives a greater penalty of up to £5,000.  Consideration also needs to be given as to how efficiently the case can be managed as public resources are being used.
• The requirement to consider sources of information requiring protection.

The decision as to whether to prosecute then needs to consider:

• Whether the matter can be proved in the absence of the defendant.  The Magistrates need to be satisfied that it is proved beyond reasonable doubt.
• Fines.  These go into central funds in the Magistrates Court.  Costs can be recovered, but in the past only a contribution of this has been awarded from site owners.
• Ancillary order for the third conviction.  An application can be made to the Court for the licence to be revoked.  The third conviction, however, needs to be for the same site and the same licence holder.  There is no certainty of this, and it is at the Court’s discretion.  Elaine added that licences are unlikely to be revoked for minor offences.  If licences are revoked, it is simple for an accomplice of the previous site owner to apply for the licence, so it can have little affect.

As reported at the last meeting, the Residential Property Tribunals which has been established to deal with the majority of disputes formerly considered by the Courts, would become more useful.

The Mobile Homes Bill would enable notices to be drafted with a view to prosecution.  As reported earlier, the second reading of the Bill would take place in the Lords on 1 February, and it was expected that the third reading would take place within the next couple of months.

Responding to a Member who queried why the mobile homes licences do not go through the Council’s committees, Elaine advised that this is not delegated to the Licensing Committee, and is a housing function and therefore delegated to the Assistant Director.

In relation to the display of the site licence raised earlier in the meeting, it would depend if this was a deliberate failure to display, or whether it had, for instance, blown away or the owners had just omitted to display it.

If the alleged breaches are continuing, this can still be carried forward.  However, if the breach was a one-off, then it is six months from that day to make a prosecution.

Any breaches should be reported to Keith Williams.  This would then be dealt with at Assistant Director level to decide to whether to authorise it to go forward to Legal Services.

In response to a question as to what enforcements can take place if the owners are fined, Elaine advised that the prosecution is expected to be the sanction in itself.  The fines are collected by the Court office, which also collect the Council’s costs.

The Chair thanked Elaine for attending.