Prosecution by Government Agencies

Publication Date01 Mar 1996
AuthorRichard Harwood
SubjectAccounting & finance
Prosecution by Government Agencies
Richard Harwood
Journal of Financial Crime Vol. 4 No. 1 Corruption
The Scott Report1 provides guidance on the role of
Government agencies in bringing prosecutions.
The inquiry was triggered by the collapse of the
prosecution of three directors of an engineering
company for exporting machine tools to Iraq in
breach of export controls. Export control licensing
is the responsibility of the Department of Trade
and Industry ('the DTI'). The prosecution, along
with a number of others considered by the
inquiry, was brought by Customs and Excise.
The Report considers the criteria that should be
applied in bringing prosecutions and the role of
different agencies.
The most comprehensive guidance on prosecu-
tions is contained in the Code for Crown Prose-
cutors. This is issued by the Director of Public
Prosecutions to give general principles to the
Crown Prosecution Service ('the CPS') in their
bringing of prosecutions.2 While the Scott Report
says that it is based on principles endorsed by the
Attorney General for all those who prosecute on
behalf of the public, no principles have been pub-
lished by the Attorney General. However the Code
should be considered by Government departments
and agencies, local authorities and, arguably, pri-
vate bodies with a regulatory and prosecutory role,
such as the Securities and Investments Board.
Two criteria must be satisfied before a prosecu-
tion is brought:
(a) Evidential sufficiency that there is suffi-
cient, admissible and reliable evidence that a
criminal offence has been committed by an
identifiable person. The test is whether there is
a reasonable prospect of a conviction against
each defendant on each charge.3
(b) Public interest once there is sufficient
evidence, the prosecutor must consider
whether it is in the public interest to prose-
In a planning context the factors include
harm caused in planning terms and whether
the offence is continuing when the prosecu-
tion is brought.4
Even if the evidential sufficiency test is satisfied it
must still be in the public interest to prosecute.
The public interest factors listed in the Code
include the seriousness of the offence, the degree
of culpability involved and the health of the
defendant. Harm to sources of information, inter-
national relations and national security by a public
trial are also relevant.
The application of the two criteria was consid-
ered in the 'Supergun' prosecution. In 1990 large
tubes were seized by Customs and Excise at Tees
Dock, Middlesborough before their shipment to
Iraq. They were discovered to be sections of barrel
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