1. There is a strict order in which the Approval Officer must apply the two stages which form the Full Code Test as required by the Code for Crown Prosecutors and the Enforcement Policy Statement. The Approval Officer must first consider the evidential stage. If the strength of evidence does not allow the case to pass this stage, the prosecution cannot go ahead, no matter how important the case or how strong the public interest is in favour of prosecution.
2. The Approval Officer must consider whether the evidence obtained is in a form which can be put before a criminal court, i.e. whether it is admissible. The courts may not allow information to be heard, even though it appears to be relevant to the case, if it does not comply with the rules of evidence. If it is likely that the court will exclude some of the evidence, the Approval Officer will need to satisfy him/herself that there remains sufficient admissible evidence to satisfy the evidential stage of the test.
3. In order to assist the Approval Officer to apply the evidential stage of the Code, you should also supply him/her with any information concerning the reliability and credibility of the evidence. The Approval Officer will need to know, for example:
- Can the evidence be used in court? For example what is the likelihood of that evidence being held as inadmissible by the court and what is the importance of that evidence in relation to the evidence as a whole?
- Is the evidence reliable? Are there any reasons to question the reliability of the evidence including its accuracy or integrity?
- Is the evidence credible? Are there any reasons to doubt the credibility of the evidence?
4. It is essential that you provide the Approval Officer with sufficient information to enable him/her to apply the evidential stage test.
5. In order for a case to pass the evidential stage, the Approval Officer must be satisfied that there is sufficient admissible evidence to provide a ‘realistic prospect of conviction’ against each defendant on each charge. The evidential stage is not simply a case of percentages; it will be met if a jury or bench of magistrates or judge hearing the case alone, properly directed and in accordance with the law, is more likely than not to convict the defendant of the alleged charge. This is a different test to the one that the criminal courts themselves must apply: a court may only convict if it is sure of the defendant’s guilt.
6. More evidence may be required to prove a failure to perform a duty ‘so far as is reasonably practicable’ than to prove breach of an absolute duty. Each case must be considered on its merits and the strength of admissible evidence. In applying the evidential stage in relation to alleged breaches of the general duties under sections 2, 3 and 4 HSWA, a relevant factor to be considered by the Approval Officer in section 2 and 3 cases will be the existence of a material risk (not trivial or fanciful) and the foreseeability of some danger or injury although the prosecution do not have to prove that an accident was foreseeable. Sections 2 and 3 are about exposure to risk with the possibility of danger not necessarily its eventuation1. See the sections The prosecution report and Proving the offence for further guidance on this.
1. R v Tangerine Confectionary Ltd (2) Veolia ES (UK) Ltd (2011).  EWCA Crim 2015. Back