Prosecution Policy

Our prosecution policy establishes a structured approach for all prosecution activity the Ministry of Social Development undertakes.

Prosecution is one of several responses we use to protect the integrity of the benefit systems we administer. It is an enforcement activity used to improve compliance. It also reassures the majority who receive assistance and meet their obligations that we will detect cases of fraud and abuse and take appropriate action against it.

You can download the signed Prosecution Policy, or see the text from it, below.

Principles

The decision to prosecute (or not) depends on sound, objective judgement to ensure that justice is served. The fullest assessment of all relevant factors must be considered to ensure that decisions to prosecute are appropriately identified and are able to withstand public scrutiny.

There is no automatic presumption that any welfare fraud matter will always proceed to prosecution. This means that the decision–making process cannot be reduced to a mathematical equation or the simplistic mechanical “ticking off” of various criteria.

An overarching principle is that the Ministry will endeavour to exercise consistency in its decisions to prosecute offenders. All welfare fraud offenders must be treated equitably and fairly. There cannot be any bias or favour shown, or any irrelevant determinants in arriving at the decision to prosecute (or not to prosecute).

All prosecutions will be conducted in accordance with the Solicitor-General’s Prosecution Guidelines (Prosecution Guidelines). The Ministry’s prosecution policy is to be read together with the Prosecution Guidelines. For the avoidance of doubt, if there is any conflict between the Ministry’s Prosecution Policy and the Prosecution Guidelines, the Prosecution Guidelines are paramount.

Purpose

A key purpose of the Prosecution Guidelines is to assist all those persons whose function it is to enforce the criminal law by instituting and conducting a criminal prosecution. Specifically the Prosecution Guidelines are intended to assist in determining:

1.2.1 Whether criminal proceedings should be commenced;

1.2.2 What charges should be filed

1.2.3 Whether, if commenced, criminal proceedings should be continued or discontinued.

And to:

1.2.4 Provide guidance for the conduct of criminal prosecutions; and,

1.2.5 Establish standards of conduct and practice that the Law Officers expect from those whose duties include conducting prosecutions.

The purpose of the Ministry’s Prosecution Policy is to set out principles and guidelines which the Ministry will follow in making the decision to initiate criminal proceedings and when considering appeals against Court decisions arising from the Ministry’s prosecutions.

Decision Maker

Where an Investigator believes there is evidence to support a prosecution and that prosecution is in the public interest, they may submit this to their Manager for consideration. Where the manager agrees, the case is forwarded to MSD Legal to assess whether the case meets the Evidential Sufficiency Test. If the lawyer considers that the evidence is sufficient to meet that test, the case may be referred to the Fraud Prosecution Review Panel to consider the Public Interest Test and make the final decision on whether to refer the case to MSD Legal for prosecution or not.

It is accepted as a universally central tenant of the prosecution system that the role of the prosecutor is independent from persons or agencies that are not properly part of the prosecution decision-making process.

After receiving cases from the Ministry’s fraud investigation officers, MSD Legal will independently review the evidence and make their determination on all the facts. The Ministry’s lawyers are officers of the Court and must maintain independence in considering the prosecution decision and act in accordance with the Solicitor-General’s Prosecution Guidelines.

Conflicts of Interest

All staff with duties or accountabilities under this policy must act fairly, promptly, without any actual or potential conflict of interest, and in accordance with the law.

Any person involved in the investigation, preparation or conduct of a prosecution who may have any actual or potential conflict of interest whatsoever must disclose the matter of concern immediately to the Chief Legal Advisor.

The Decision to Prosecute

The Test for Prosecution

The test for prosecution is set out in section 5 of the Prosecution Guidelines, which provide as follows:

5.1 Prosecutions ought to be initiated or continued only where the prosecutor is satisfied that the Test for Prosecution is met. The Test for Prosecution is met if:

5.1.1 The evidence which can be adduced in Court is sufficient to provide a reasonable prospect of conviction – the Evidential Test; and

5.1.2 Prosecution is required in the public interest – the Public Interest Test.

5.2 Each aspect of the test must be separately considered and satisfied before a decision to prosecute can be taken. The Evidential Test must be satisfied before the Public Interest Test is considered. The prosecutor must analyse and evaluate all of the evidence and information in a thorough and critical manner.

The Evidential Test

5.3 A reasonable prospect of conviction exists if, in relation to an identifiable individual, there is credible evidence which the prosecution can adduce before a court and upon which evidence an impartial jury (or Judge), properly directed in accordance with the law, could reasonably be expected to be satisfied beyond reasonable doubt that the individual who is prosecuted has committed a criminal offence.

5.4 It is necessary that each element of this definition be fully examined when considering the evidential test in each particular case.

Element	Description
Identifiable individual	There will often be cases where it is clear that an offence has been committed but there is difficulty identifying who has committed it. A prosecution can only take place where the evidence sufficiently identifies that a particular person is responsible. Where no such person can be identified, and the case cannot be presented as joint liability there can be no prosecution.
Credible evidence	This means evidence which is capable of belief. It may be necessary to question a witness before coming to a decision as to whether the evidence of that witness could be accepted as credible. It may be that a witness is plainly at risk of being so discredited that no Court could safely rely on his/her evidence. In such a case it may be concluded that there is, having regard to all the evidence, no reasonable prospect of obtaining a conviction. If, however, it is judged that a Court in all the circumstances of the case could reasonably rely on the evidence of a witness, notwithstanding any particular difficulties, then such evidence is credible and must be taken into account. Prosecutors may be required to make an assessment of the quality of the evidence. Where there are substantial concerns as to the creditability of essential evidence, criminal proceedings may not be appropriate as the evidential test may not be capable of being met. Where there are credibility issues, prosecutors must look closely at the evidence when deciding if there is a reasonable prospect of conviction.
Evidence which the prosecution can adduce	Only evidence which is or reliably will be available, and legally admissible can be taken into account in reaching a decision to prosecute. Prosecutors should seek to anticipate even without pre-trial matters being raised whether it is likely that evidence will be admitted or excluded by the Court. For example, is it foreseeable that the evidence will be excluded because of the way it was obtained? If so, prosecutors must consider whether there is sufficient other evidence for a reasonable prospect of conviction.
Could reasonably be expected to be satisfied	What is required by the evidential test is that there is an objectively reasonable prospect of a conviction on the evidence. The apparent cogency and creditability of evidence is not a mathematical science, but rather a matter of judgment for the prosecutor. In forming his or her judgment the prosecutor shall endeavour to anticipate and evaluate likely defences.
Beyond reasonable doubt	The evidence available to the prosecutor must be capable of reaching the high standard of proof required by the criminal law.
Commission of a criminal offence	This requires that careful analysis is made of the law in order to identify what offence or offences may have been committed and to consider the evidence against each of the ingredients which establish the particular offence.

The Public Interest Test

5.5 Once a prosecutor is satisfied that there is sufficient evidence to provide a reasonable prospect of conviction, the next consideration is whether the public interest requires a prosecution. It is not the rule that all offences for which there are sufficient evidence must be prosecuted. Prosecutors must exercise their discretion as to whether a prosecution is required in the public interest.

5.6 In a time honoured statement made in 1951 Sir Hartley Shawcross QC MP, the then United Kingdom Attorney-General, made the following statement to Parliament in relation to prosecutorial discretion: “It has never been the rule in this country … that suspected criminal offences must automatically be subject of prosecution.”

5.7 Broadly, the presumption is that the public interest requires prosecution where there has been a contravention of the criminal law. This presumption provides the starting point for consideration of each individual case. In some instances the serious nature of the case will make the presumption a very strong one. However, prosecution resources are not limitless. There will be circumstances in which, although the evidence is sufficient to provide a reasonable prospect of conviction, the offence is not serious and prosecution is not required in the public interest. Prosecutors for instance should positively consider the appropriateness of any diversionary option (particularly if the defendant is a youth).

5.8 The following section lists some public interest considerations for prosecution which may be relevant and require consideration by a prosecutor when determining where the public interest lies in any particular case. The following list is illustrative only.

Public interest considerations for prosecution

5.8.1 The predominant consideration is the seriousness of the offence. The gravity of the anticipated penalty is likely to be a strong factor in determining the seriousness of the offence;

5.8.2 Where the offence involved serious or significant violence;

5.8.3 Where there are grounds for believing that the offence is likely to be continued or repeated, for example, where there is a history of recurring conduct;

5.8.4 Where the defendant has relevant previous convictions, diversions or cautions;

5.8.5 Where the defendant is alleged to have committed an offence whilst on bail or subject to a sentence, or otherwise subject to a Court order;

5.8.6 Where the offence is prevalent;

5.8.7 Where the defendant was a ringleader or an organiser of the offence;

5.8.8 Where the offence was premeditated;

5.8.9 Where the offence was carried out by a group;

5.8.10 Where the offence was an incident of organised crime;

5.8.11 Where the victim of the offence, or their family, has been put in fear, or suffered personal attack, damage or disturbance. The more vulnerable the victim, the greater the aggravation;

5.8.12 Where the offence has resulted in serious financial loss to an individual, corporation, trust person or society;

5.8.13 Where the defendant was in a position of authority or trust and the offence is an abuse of that position;

5.8.14 Where the offence was committed against a person serving the public, for example a doctor, nurse, member of the ambulance service, member of the fire service or a member of the police;

5.8.15 Where the defendant took advantage of a marked difference between the actual or developmental ages of the defendant and the victim;

5.8.16 Where the offence was motivated by hostility against a person because of their race, ethnicity, sexual orientation, disability, religion, political beliefs, age, the office they hold, or similar factors;

5.8.17 Where there is any element of corruption.

5.9 The following section lists some public interest considerations against prosecution which may be relevant and require consideration by a prosecutor when determining where the public interest lies in any particular case. The following list is illustrative only.

Public interest considerations against prosecution

5.9.1 Where the Court is likely to impose a very small or nominal penalty;

5.9.2 Where the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by an error of judgement or a genuine mistake;

5.9.3 Where the offence is not on any test of a serious nature, and is unlikely to be repeated;

5.9.4 Where there has been a long passage of time between an offence taking place and the likely date of trial such as to give rise to undue delay or an abuse of process unless:

• the offence is serious; or
• delay has been caused in part by the defendant; or
• the offence has only recently come to light; or
• the complexity of the offence has resulted in a lengthy investigation.

5.9.5 Where a prosecution is likely to have a detrimental effect on the physical or mental health of a victim or witness;

5.9.6 Where the defendant is elderly;

5.9.7 Where the defendant is a youth;

5.9.8 Where the defendant has no previous convictions;

5.9.9 Where the defendant was at the time of the offence or trial suffering from significant mental or physical ill-health;

5.9.10 Where the victim accepts that the defendant has rectified the loss or harm that was caused (although defendants must not be able to avoid prosecution simply because they pay compensation);

5.9.11 Where the recovery of the proceeds of crime can more effectively be pursued by civil action;

5.9.12 Where information may be made public that could disproportionately harm sources of information, international relations or national security;

5.9.13 Where any proper alternatives to prosecution are available.

5.10 These considerations are not comprehensive or exhaustive. The public interest considerations which may properly be taken into account when deciding whether the public interest requires prosecution will vary from case to case. Cost is a relevant factor when making an overall assessment of the public interest. In each case where the evidential test has been met, the prosecutor will weigh the relevant public interest factors that are applicable. The prosecutor will then determine whether or not the public interest requires prosecution.

Summary

When considering a case for prosecution, the Ministry’s officer must weigh up all the factors in terms of both evidential sufficiency and public interest. A case will only be considered appropriate for prosecution if the various factors, unique to that particular case, indicate that there is both evidential sufficiency and public interest in prosecution.

The evidential sufficiency test is to be determined firstly. If that is satisfied then the officer must proceed to consider the public interest test. The weight of factors is not based on the number of factors, rather it is on how various factors relate to a specific unique offender and all the circumstances relating to that offender.

The decision maker has a duty to ensure that the exercising of the discretion to decide which cases will or will not be referred for prosecution is consistent. The public and offenders have a right to know under what circumstances they can expect to be prosecuted for welfare fraud.

The decision maker must be mindful that a criminal prosecution may risk injustice. A crime may well have been committed, but in weighing the overall circumstances of the facts and the human being involved, referral to the criminal courts may not be warranted.

The decision maker must be equally mindful that a decision not to prosecute may well invite criticism and condemnation from the public. The exercising of discretion must therefore be open to analysis and satisfy the scrutiny of all stakeholders.

Prosecution Procedure

Where a decision is made to commence a prosecution:

• The charges to be laid will fairly reflect the gravity of the alleged offending having regard to the public interest
• Disclosure to the person charge is made in accordance with the requirements of the Criminal Disclosure Act 2008. Responsibility for meeting these requirements lies with the Ministry’s investigation officer assigned to the case.
• The Ministry may sometimes wish to appeal a ruling made in the course of the proceedings. All such appeals will require consent of the Solicitor-General and the decision as to whether to seek such consent will be made by the Ministry’s Chief Legal Advisor.

Amendments/Review

This Policy may be amended from time to time by the Chief Legal Advisor in consultation with the General Manager Integrity and Debt.

This Policy will be reviewed jointly by the Chief Legal Advisor and the General Manager Integrity and Debt when it has been in place for a period of 24 months.

Approved:

Chief Legal Advisor