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Prosecution policy

This policy sets out the factors we will consider before deciding to bring such a prosecution, and how we will make a decision whether to prosecute.

Prosecution policy

Last updated: 9 December 2020


Introduction

Social Work England has the power to bring private prosecutions for a number of offences set out in the Social Workers Regulations 2018 (‘the regulations’).
This policy sets out the factors we will consider before deciding to bring such a prosecution, and how we will make a decision whether to prosecute.

The offences

The regulations provide for a series of criminal offences that may be committed in relation to our work as the regulator:

  • Section 30: fraudulent procurement of registration
  • Section 31: misuse of the title ‘social worker’
  • Section 32: failure to provide information without reasonable excuse

These offences are set out in full in annex A to this policy.

Each of these offences are summary only and therefore can only be heard in the Magistrates’ Court. Each offence has a maximum penalty of a fine of a potentially unlimited amount.

Alternatives to conviction

A criminal conviction is a serious matter for all involved and will have long term implications for the defendant. As a result, it should only be considered when all our other enforcement options have been excluded or attempted but without effect.

These other options may include:

  • Informing those involved of the offences set out in our legislation
  • Providing opportunities to discuss the situation
  • Signposting them to sources of advice
  • Informing others, such as their managers or employers of the situation
  • Fitness to practise proceedings
  • Warning letters
  • Liaising with other regulators
  • Identifying local issues that it may be more appropriate to raise with employers through our regional engagement leads

However, the offences in the regulations can only be heard in the Magistrates’ Court, and as such proceedings must begin within 6 months of the offence.

As a result, enforcement of potential criminal offences should be pursued as quickly as possible so that if prosecution is necessary, it can be considered within the 6 months.

Decision making procedure for prosecutions

Given the serious impact of a criminal conviction, both on the defendant and those who will be involved in the proceedings, the decision to pursue a conviction should not be taken lightly.

Where an officer in our investigation or registration team considers that a prosecution may be appropriate, this should be discussed carefully within their own team, and initial consideration and approval should be sought by their manager and the head of team.

Approval should only be given in the following circumstances:

  • All other options for enforcement have been exhausted or are inappropriate;
  • The head of team believes that a prosecution is necessary for the protection of the public; and
  • It is less than 6 months since the date of the alleged offence (section 127(1) Magistrates Court Act 1980).

Where these 3 criteria have been met and approval is given, the head of the team in question should refer the matter to the legal team for advice. This should be done no later than 5 months after the alleged offence, to allow for the necessary steps to be taken before the 6-month time limit.

Our legal team will then consider the merits of a prosecution, considering this policy, the CPS Code for Crown Prosecutors, and the public interest.

This advice will then be provided to either the executive director of registration, quality assurance and legal, or the executive director of fitness to practise, depending on the case.

The final decision on whether to prosecute can only be made by an executive director. When making such a decision, the executive director must aim to be fair, impartial and objective, and must seek to act in the interests of justice.

The executive director must make their decision in writing, providing detailed reasons as to why they have or have not decided to proceed to prosecution. These reasons should include:

  • How the evidential test and public interest test from the CPS Code for Crown Prosecutors are met;
  • How the decision is compliant with the Equality Act 2010 and Human Rights Acts 1998;
  • Why our other methods of ensuring compliance are not appropriate; and
  • Why the decision is an effective use of our public resources, particularly in light of the prospects of success.

If a decision is taken to prosecute, the legal team will normally instruct external solicitors to conduct the prosecution.

Factors to be considered in a decision to prosecute

The CPS Code for Crown Prosecutors

The CPS Code is the guidance followed by the Crown Prosecution Service when deciding to prosecute most cases heard in the criminal courts of England and Wales.
While it is designed for use by the CPS, the Full Code Test it sets out should be considered by Social Work England when deciding whether to prosecute.

The Full Code Test is made up of the evidential test and the public interest test. When applying the Full Code Test, the decision maker should ensure that all reasonable lines of inquiry have been followed or, if not, that any further enquiries are unlikely to result in evidence that may change the decision whether to prosecute.

The evidence test is that the decision maker must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge.

When applying this test, the decision maker should consider:

  • Can the evidence be used in court?
  • Is the evidence reliable?
  • Is the evidence credible?
  • Is there any other material that might affect the sufficiency of evidence?

If the evidence test is met, the decision maker should go on to consider the public interest test, that is whether to continue with a prosecution would be in the public interest test.

While the fitness to practise team will be accustomed to considering the public interest test in regulatory proceedings, here the questions to be considered as part of the public interest will include:

  • a) How serious is the offence committed?
  • b) What is the level of culpability of the suspect?
  • c) What are the circumstances and the harm caused to the victim?
  • d) What was the suspect’s age and maturity at the time of the offence?
  • e) What is the impact on the community?
  • f) Is prosecution a proportionate response?
  • g) Do sources of information require protecting?

More detail on these tests is included in the CPS Code.

The broader public interest

In addition to the public interest test in the CPS Code for Crown Prosecutors, as a public body we must consider other aspects of working in the public interest. These are set out below:

The overarching objective to protect the public

As with all of our regulatory functions, a decision to prosecute should be taken considering our overarching objective to protect the public (section 37 of the Children and Social Work Act 2017).

This is broken down into the following objectives:

  • to protect, promote and maintain the health, safety and well-being of the public
  • to promote and maintain public confidence in social workers in England
  • to promote and maintain proper professional standards for social workers in England.

Those involved in a prosecution decision should consider whether a prosecution would advance these objectives. This might involve considering:

  • Whether someone claiming to be a social worker is a risk to public health, safety and well-being.
  • Whether there is evidence that this specific case has led to harm to a service user or other;
  • Whether the actions of the potential defendant might undermine public confidence in the profession;
  • Whether the information asked for is required to maintain professional standards.
The principle of right-touch regulation

In 2010, the Professional Standards Authority for Health and Social Care, as it is now known, published the first version of Right-Touch Regulation, setting out its view on how regulators should use their statutory powers.

The principle of right-touch regulation has now been adopted across the health and social care professional regulators. In summary, it requires that decision making by regulators should be:

  • Proportionate
  • Consistent
  • Targeted
  • Transparent
  • Accountable
  • Agile

The offences in the regulations are designed to be part of our statutory processes, and as a professional regulator we should seek to meet these principles when deciding whether to prosecute.

In considering these principles, questions to be asked might include:

  • Why does this case in particular require prosecution?
  • Have we made the same decision in cases with similar facts previously?
  • Would we be able to explain to the public why we decided to prosecute this particular case?
  • Is there another way we could meet our regulatory objectives without a prosecution?

The Human Rights Act 1998 and the Equality Act 2010

As a public body, Social Work England must act in a way that is compatible with the European Convention on Human Rights (section 6 of the Human Rights Act 1998).

While these rights are not always absolute, decision makers should be particularly cautious when considering prosecutions that may be perceived to interfere in these rights.

The relevant rights might include:

  • Right to respect for private and family life, for example, does the information requested relate to the individual’s private life?
  • Prohibition of discrimination, for example, is the suspect being treated differently because of their sex, race, age or religion?

With regard to discrimination, we are also required to comply with the Equality Act 2010. This involves not discriminating against, harassing or victimising anyone on account of any protected characteristic, as well as complying with the Public sector equality duty.

The duty and the protected characteristics are set out in annex B.

The use of public finances

As a public sector body, our budget comes from the public, either through social worker registration fees or through grant in ad from the government. When deciding how to use this budget, we must consider whether it is achieving value for money.

A prosecution will entail considerable expense, both in terms of legal representation and resources across the organisation in preparing for a prosecution.
Because the offences which we may prosecute are only heard in the Magistrates’ Court, it is unlikely that we will be able to have our costs recouped out of central funds, and even if we are successful the costs order made against the defendant is highly unlikely to cover our costs. In addition, we may need to pay the costs of the defendant if the prosecution is unsuccessful.

As a result, the decision maker must consider that the prosecution, including the potential risk of costs, is an appropriate to use of our budget.

Annex A: Extracts from the Social Workers Regulations 2018

30. Offences in connection with registration

A person commits an offence if they fraudulently procure, or attempt to procure, the making, amendment, removal or restoration of an entry in the register.

31.— Offences in connection with restrictions on practice and protected titles

(1) A person commits an offence if, with intent to deceive (whether expressly or by implication), they—

(a) use the title of “social worker” in breach of regulation 28(2),

(b) falsely represent themselves, in breach of regulation 29(1)—

(i) to be registered, or to be the subject of an entry in the register, or

(ii) to possess a qualification in relation to social work.

(2) A person (”A”) commits an offence if—

(a) with intent that any person is deceived (whether expressly or by implication) they cause or permit another person (”B”) to make any representation about A which, if made by A with intent to deceive, would be an offence under paragraph (1), or

(b) with intent to deceive they make any representation with regard to another person (”B”) which—

(i) A knows to be false, and

(ii) if made by B with that intent would be an offence by B under paragraph (1).

32.— Offences in connection with the provision of information

(1) A person commits an offence if they fail, without reasonable excuse to—

(a) attend and give evidence or produce documents when required to do so by the regulator in accordance with regulation 14(3) (in connection with the removal of an entry under regulation 14(1)(a) on the grounds it was fraudulently procured or incorrectly made),

(b) attend and give evidence or produce documents when required to do so by adjudicators in accordance with regulation 15(5)(b) (in connection with an application for restoration by a person who was the subject of a removal order),

(c) attend and give evidence or produce documents when required to do so by the regulator, or adjudicators, in accordance with regulation 19(4) (in connection with a registration appeal),

(d) provide information when required to do so by the regulator under paragraph 1(3)(a), or by investigators under paragraph 4(1)(b), of Schedule 2 (in connection with fitness to practise proceedings), or

(e) attend and give evidence or produce documents when required to do so by investigators in accordance with paragraph 5(1) of Schedule 2 (in connection with fitness to practise proceedings).

33. Offences under this Part
A person guilty of an offence under this Part is liable on summary conviction to a fine.

Annex B: Extracts from the Equality Act 2010

4 The protected characteristics

The following characteristics are protected characteristics—

  • age;
  • disability;
  • gender reassignment;
  • marriage and civil partnership;
  • pregnancy and maternity;
  • race;
  • religion or belief;
  • sex;
  • sexual orientation.

5 Age

(1) In relation to the protected characteristic of age—

(a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group;

(b) a reference to persons who share a protected characteristic is a reference to persons of the same age group.

(2) A reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.

6 Disability

(1) A person (P) has a disability if—

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.

(2) A reference to a disabled person is a reference to a person who has a disability.

(3) In relation to the protected characteristic of disability—

(a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability;

(b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.

(4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)—

(a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and

(b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability.

7 Gender reassignment

(1) A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

(2) A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.

(3) In relation to the protected characteristic of gender reassignment—

(a) a reference to a person who has a particular protected characteristic is a reference to a transsexual person;

(b) a reference to persons who share a protected characteristic is a reference to transsexual persons.

8 Marriage and civil partnership

(1) A person has the protected characteristic of marriage and civil partnership if the person is married or is a civil partner.

(2) In relation to the protected characteristic of marriage and civil partnership—

(a) a reference to a person who has a particular protected characteristic is a reference to a person who is married or is a civil partner;

(b) a reference to persons who share a protected characteristic is a reference to persons who are married or are civil partners.

9 Race

(1) Race includes—

(a) colour;

(b) nationality;

(c) ethnic or national origins.

(2) In relation to the protected characteristic of race—

(a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular racial group;

(b) a reference to persons who share a protected characteristic is a reference to persons of the same racial group.

(3) A racial group is a group of persons defined by reference to race; and a reference to a person’s racial group is a reference to a racial group into which the person falls.

(4) The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group.

10 Religion or belief

(1) Religion means any religion and a reference to religion includes a reference to a lack of religion.

(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

(3) In relation to the protected characteristic of religion or belief—

(a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular religion or belief;

(b) a reference to persons who share a protected characteristic is a reference to persons who are of the same religion or belief.

11 Sex

In relation to the protected characteristic of sex—

(a) a reference to a person who has a particular protected characteristic is a reference to a man or to a woman;

(b) a reference to persons who share a protected characteristic is a reference to persons of the same sex.

12 Sexual orientation

(1) Sexual orientation means a person’s sexual orientation towards—

(a) persons of the same sex,

(b) persons of the opposite sex, or

(c) persons of either sex.

(2) In relation to the protected characteristic of sexual orientation—

(a) a reference to a person who has a particular protected characteristic is a reference to a person who is of a particular sexual orientation;

(b) a reference to persons who share a protected characteristic is a reference to persons who are of the same sexual orientation.

149 Public sector equality duty

(1) A public authority must, in the exercise of its functions, have due regard to the need to—

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).

(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities.

(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a) tackle prejudice, and

(b) promote understanding.

(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.

(7) The relevant protected characteristics are—

  • age;
  • disability;
  • gender reassignment;
  • pregnancy and maternity;
  • race;
  • religion or belief;
  • sex;
  • sexual orientation.

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