Enforcement Policy

We recognise that most businesses and the public wish to comply with the law. We will endeavour to help people to meet their legal obligations without unnecessary expense. When a business or individual does break the law, we will consider all the surrounding circumstances before deciding whether formal action is appropriate.

Formal action is more likely to be pursued in instances where the offender has:

• Acted fraudulently;
• Put the safety or health of consumers, neighbours or others at risk;
• Put the environment or amenity at risk;
• Acted irresponsibly and negligently;
• Failed to heed advice or previous warning; or
• Failed to take reasonable steps to avoid offences being committed.

Our approach to enforcement action will aim to:

• Change the behaviour of the offender;
• Eliminate any damage, risk or harm caused as a result of any offences;
• Eliminate any financial gain or benefit from non-compliance;
• Be responsive and appropriate for the particular offender and regulatory / enforcement issue;
• Be proportionate to the nature of the offence and the harm caused;
• Restore the harm caused by non-compliance, where appropriate; and
• Aim to deter future non-compliance.

We will take into account the views of any victim, injured party or relevant person to establish the nature and extent of any harm or loss. This will include potential harm and loss and its significance in making the decision to take formal action. Our approach will be based on risk and expediency.

In respect of action under health and safety laws we will adopt the Enforcement Management Model (EMM) developed by the Health and Safety Executive.

There are a range of enforcement options available to us through the legislation we enforce. These vary depending on the particular circumstances and legislation and one or more options may be relevant in each case. The level of the action taken varies from 'no action' through to proceedings in Court. Examples of the main types of action that can be considered are:

1. No action;
2. Compliance advice, guidance, and support;
3. Voluntary undertakings;
4. Statutory (Legal) notices (including Direct Action);
5. Financial penalties;
6. Injunctive actions, enforcement orders and notices, etc;
7. Simple Caution;
8. Anti-social Behaviour notices, order;
9. Prosecution; and
10. Refusal/suspension/revocation of licence or registration.

1. No Action

There will be circumstances where a contravention may not warrant action, or it may be inappropriate o not in the wider public interest. Many minor contraventions can most appropriately be dealt with via advice and guidance.

2. Compliance Advice, Guidance, and Support

For minor breaches of the law we will give advice on how to put matters right, including a deadline by which this must be done. The time allowed to put things right will be reasonable, and take into account the seriousness of the breach and the implications of the non-compliance.

Advice is usually provided in the form of a 'warning letter.'

This is to assist individuals and businesses in rectifying breaches as quickly and efficiently as possible, avoiding the need for further enforcement action.

A warning letter (sometimes called an 'informal notice') will set out what should be done to rectify the breach and to prevent recurrence. Failure to comply could result in an escalation of enforcement action.

If a similar breach is identified in the future, this letter will be persuasive in considering the most appropriate enforcement action to take on that occasion. Such a letter cannot be cited in court as a previous conviction, but it may be presented in evidence.

Wherever possible we will advise offenders about 'good practice,' but we will clearly distinguish between what offenders must do to comply with the law, and what is recommended.

We recognise that where a business has entered into a partnership with a primary authority, the primary authority will provide compliance advice and support. We will take such advice into account when considering the most appropriate enforcement action for it to take. It may discuss any need for compliance advice and support with the primary authority.

Where more formal enforcement action is taken, we recognise that there is likely to be an ongoing need for compliance advice and support to prevent further breaches. This could be in situations such as a simple caution or prosecution.

3. Voluntary Undertakings

We may accept voluntary undertakings that breaches will be rectified and/or recurrences prevented. We will take any failure to honour voluntary undertakings very seriously and enforcement action is likely to result.

4. Statutory (Legal) Notices

In respect of many breaches, our authorised officers have powers to issue statutory notices. Such notices are legally binding. Failure to comply with a statutory notice can be a criminal offence and may lead to prosecution. It may also lead to the work being carried out in default (sometimes known as Direct Action) where appropriate. This means that if a notice is not complied with (a breach of the notice), we may carry out any necessary works to satisfy the requirements of the notice ourselves. Where the law allows, we may then charge the person/business served with the notice for any cost we incur in carrying out the work.

A statutory notice will clearly set out actions which must be taken and the timescale within which they must be taken. It is likely to require that any breach is rectified and/or prevented from recurring. It may also prohibit specified activities until the breach has been rectified and/or safeguards have been put in place to prevent future breaches.

Notices may require immediate action where, for example, there are risks to public health or health and safety of persons, or an immediate risk of environmental damage or serious nuisance.

In certain limited circumstances where an authorised officer is satisfied that there is an imminent risk of injury to health because of the condition of the premises, notice to close them may be served (for example, under the provisions of food safety legislation). This is followed by an application to a Magistrates Court to confirm the closure.

Some notices issued in respect of premises may be affixed to the premises and/or registered as local land charges.

Where a statutory notice is issued, an explanation of the relevant appeals process will be provided to the recipient.

5. Financial Penalties

Certain offences are subject to fixed penalty notices where prescribed by legislation. These notices are recognised as a low-level enforcement tool and avoid the defendant obtaining a criminal record. Where legislation permits an offence to be dealt with by way of a Fixed Penalty Notice (FPN), we may choose to administer a FPN on a first occasion, without issuing a warning. They will be used in appropriate circumstances to give a fast and measured response to the situation.

If a Fixed Penalty is paid in respect of a breach, we will not take any further enforcement action in respect of that breach. Payment of a fixed penalty does not provide immunity from prosecution in respect of similar or recurrent breaches.

If a Fixed Penalty is not paid, we may commence criminal proceedings or take other enforcement action in respect of the breach.

6. Injunctive Actions, Enforcement Orders, etc.

In some circumstances we may seek a direction from the court (in the form of an order or an injunction) that a breach is rectified and/or prevented from recurring. The court may also direct that specified activities be suspended until the breach has been rectified and/or safeguards have been put in place to prevent future breaches.

Failure to comply with a court order constitutes contempt of court, a serious offence which may lead to imprisonment.

We are required to seek enforcement orders after issuing some enforcement notices, providing the court with an opportunity to confirm the restrictions imposed by the notice. Otherwise, we will usually only seek a court order if it has serious concerns about compliance with voluntary undertakings or a notice.

7. Simple Caution

We have the power to issue Simple Cautions (previously known as 'Formal Cautions') as an alternative to prosecution for some less serious offences, where a person admits an offence and consents to the Simple Caution. Where a Simple Caution is offered and declined, prosecution is likely.

A Simple Caution will appear on the offender's criminal record. It is likely to influence how we and others deal with any similar breaches in the future, and may be cited in court if the offender is subsequently prosecuted for a similar offence. If a Simple Caution is issued to an individual (rather than a corporation) it may have consequences if that individual seeks certain types of employment. Offenders will be made aware of this before agreeing to a Simple Caution.

Simple Cautions will be used in accordance with the Home Office Circular and other relevant guidance issued by the relevant Lead Specialist.

8. Anti-Social Behaviour

Anti-social behaviour will be dealt with in accordance with the statutory guidance issued by the Home Office. ('Anti-social Behaviour, Crime and Policing Act 2014: reform of anti-social behaviour powers - statutory guidance for professionals').

We will liaise with our statutory partners to ensure that Anti-social Behaviour is effectively dealt with and that our actions are proportionate.

9. Prosecution

We are likely prosecute in respect of serious or recurrent breaches, or where other enforcement action, such as voluntary undertakings or statutory notices, have failed to secure compliance. When deciding whether to prosecute we will have regard to the provisions of the Code for Crown Prosecutors issued by the Director of Public Prosecutions.

Under normal circumstances, a process of escalation will be used until either compliance is reached or there is no option other than to instigate proceedings. Exceptions would be:

• Where there is a serious risk to personal safety or the environment;
• The offences have been committed deliberately or negligently or involve deception; or
• Where there is significant economic detriment.

Each case will be considered on its own facts and merits.

Once an officer has completed their investigation, they will submit a case report to a senior officer, who will decide the most appropriate course of action.

The senior officer will take into consideration the requirements of the Code of Crown Prosecutors and other relevant codes before deciding whether to authorise legal proceedings.

The Legal Lead Specialist must be satisfied that there is sufficient evidence to provide a reasonable prospect of conviction against each defendant on each charge (this means that a jury or bench of Magistrates, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged). This decision should be taken in consultation with the relevant Senior Lead Specialist.

To this end, the Legal Lead Specialist (in consultation with the relevant Lead Specialist) will look at all the available evidence. This includes reliability of witnesses, supporting documentation, and any other matters relating to the investigation. Only when this evidential test has been satisfied will the public interest to proceed with the prosecution be considered.

In deciding whether a prosecution will serve the public interest, the senior officer will balance factors for and against the prosecution carefully, fairly, and impartially. Some factors may increase the justification to prosecute whereas others may militate against.

A successful prosecution will result in a criminal record. The court may impose a fine and, in respect of particularly serious breaches, a prison sentence. In some circumstances, prosecution may also lead to the disqualification of individuals from acting as company directors. In the case of food safety laws individuals can be disqualified from managing a food business.

The Council will always seek to recover all prosecution costs where possible.

In some cases we are likely to make applications to the Court under the Proceeds of Crime Act 2002 (POCA) for confiscation of assets. These are the most serious cases or where there is persistence of offending over a long period or where the offences are deemed to be 'lifestyle crime' under POCA. Their purpose is to recover the financial benefit that the offender has obtained from his criminal conduct.

10. Refusal/Suspension/Revocation of Licences

We issue a variety of licences and permits and register certain persons/activities. Many of these include conditions which require the licence holder to take steps to ensure that, for example, a business or activity is properly run. Breach of these conditions may lead to a review of the licence which may result in its revocation or amendment.

When considering future licence applications, we may take previous breaches and enforcement action into account.

We will provide a timely explanation in writing to any rights of representation or appeal to our enforcement action and provide practical information on the process involved.

Where legislation allows and information arises which goes to the heart of the licensing legislation then a case may be brought for immediate revocation of the licence.