homeThursday 26th November 2020

Ten mistakes to avoid when litigating

Julie Barratt13/08/2014 - 14:00

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Make sure you use the powers available to you
Make sure you use the powers available to you

An important part of an EHO’s job is to undertake legal action when necessary. Julie Barratt, director of CIEH in Wales, outlines where things commonly get in the way of successfully concluding a case.

1. Not getting the technicalities right

The boring stuff matters. Making sure that all of the officers in the case are authorised and have the appropriate level of authorisation, that delegated powers are exercised by those to whom they have been properly delegated and that all of the necessary legal ducks are in a row before the investigation starts rather than hastily arranged when it is too late.

2. Not investigating with an open mind

Officers look at the scene and decide on what they see what must have happened then look for evidence to prove their theory, rather adopting a neutral stance, gathering evidence and working out what actually happened.

3. Not using all the powers available

Local authority officers have considerable powers, and they have been given for a reason. Criminal activity is not nice, the investigation of it needn’t be polite. If the case demands and the power is available seek a warrant. Force entry. Seize and detain goods. Use all the powers available to fight fire with fire.

4. Not reading the legislation

Even though something looks like an offence and sounds like an offence it isn’t one unless the legislation says it is. However morally outrageous a particular action may be it isn’t an offence unless a specific piece of legislation says that it is.

5. Doing too much

All that is required is to prove every element of the offence beyond reasonable doubt. Not every element of the offence beyond any conceivable doubt with 200 photographs of every element, just to be on the safe side. Just enough is enough.

6. Not doing enough

The alternative to 5 above. What is required is to prove every element of the offence beyond reasonable doubt. Not most of the elements beyond reasonable doubt and one or two just about or not at all and hope that the defendant won’t notice and will offer a plea. Winging it is not good practice and is asking for trouble.

7. Not maintaining the evidential chain

Evidence wins cases, but to do so it needs to be admissible. Items of real evidence that are not kept according to a proper evidence maintenance regime can be challenged and may be ruled inadmissible. If the evidence is critical to the case the case is fatally weakened.

8. Being incomprehensible

Some of the evidence produced by EHOs is highly technical. It is also case critical. If no one understands it is it worthless. Evidence has to be understandable. Not necessarily dumbed down but explained in everyday language that everyone understands.

9. Not knowing the case

As in, not knowing the detail of the case and having to resort to notes and reports while during examination in chief. Nothing breaks up the flow of compelling evidence more than some random paper shuffling and ferreting about in files. Witnesses need to have the facts at their fingertips.

10. Not following it up

Often winning the case is just a step in achieving a remedy for the complainant, and often it is a pyrrhic one if nothing gets done as a consequence. If a Notice still remains to be complied with after the prosecution, follow it up. If the defendant is likely to reoffend, get on his case. Prosecution may prove something but it rarely solves anything.

A book by Julie Barratt, Investigation and Prosecution: practical guidance for local authority enforcement officers, will be published later this year.

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