Crown Counsel Stuart Walker told a court this week that the prosecution service does not in fact operate a zero-tolerance policy on drugs offences.
Mr Walker said that he had noted recently that Falklands residents had been using the phrase, but said that it suggests prosecutions are brought regardless of the public interest.
This is not the case, Mr Walker said.
The Royal Falkland Islands Police position is different. On August 9, Chief of Police Jeff McMahon told Penguin News: "We remain vigilant in ensuring the Islands' zero-tolerance approach to drugs is maintained."
After the court case, reported on page 3, Stuart Walker spoke to Penguin News about that variance in the policies of the police and the prosecution service.
"The police force and the prosecution service are two completely different entities. And although the services have to work closely together, the prosecution is solely responsible for criminal proceedings in court, and the police are solely responsible for how they go about detecting, investigating alleged crime."
Mr Walker laid out the way the prosecution decides on whether or not to make charges. Once the prosecution has decided there's sufficient evidence to provide a realistic prospect of a conviction, often referred to as the 51% test, then it moves to the 'public interest test'.
"The main types of factors are: How serious is the alleged offending? The more serious the offending the more likely it is that prosecution is going to be the only proportionate response to it. What is the culpability of the person who’s alleged to have committed the offence? The harm that’s caused to any victim of the offence is a relevant factor and others depending on the specific circumstances of the case. So that’s why in some instances, two cases that perhaps look similar result in different charging decisions in respect of the public interest.
"And in relation specifically to offences of controlled drugs there’s no extra gloss on that, there’s no additional policy that says that offences relating to controlled drugs will always be prosecuted. But when looking at whether to prosecute offences in relation to controlled drugs, if the evidential test is met, if there’s sufficient evidence for it to move to the public interest stage, one of the public interest factors is prevalence. Is it a prevalent type of offending, is there a need for prosecution to deter that type of offending? So where it’s not a prevalent offence, then that may be a factor which influences whether it’s in the public interest to prosecute."
Penguin News asked Mr Walker how the theory works out in practice. Given that this week there was the prosecution of a man with two cannabis plants in his wardrobe, has there occurred a situation where Mr Walker had found anything drug-related but then decided not to move on? The prevalence argument seemed to enforce an effective zero-tolerance policy.
"Speaking in general terms," said Mr Walker, "if you express the public interest factor, or prevalence in the form of saying there’s a zero-tolerance policy that tends to suggest that that matter trumps all other considerations, and the point I’m trying to make is it’s but one factor amongst many ... that will all be competing, and the prosecutors have to decide ultimately where the public interest lies."
PN asked if that scenario had ever occurred in the Islands. "I would have to look back at cases to see whether or not there was ever an instance where you had an allegation of possession of controlled drugs that hadn’t resulted in a prosecution, so I wouldn’t be able to answer that.
PN asked if Mr Walker knew of any. "No, but that doesn’t mean there aren’t any. That’s more akin to a Freedom of Information request."
Finally, is there a tension between the attitude the police take and the one you take?
There is no conflict of policy between the police and the prosecution because the two services are separate ... So there isn’t an overlap there whereby the prosecution are saying ‘we don’t want to see files necessarily relating to this type of offence because our policy is not focused on that type of offending.’ ... The prosecution are not involved in directing police operations."