Public Protection Enforcement Policy

1. Introduction

1.1 This policy addresses the practical application of the Public Protection enforcement procedures and aims to provide a fair and effective approach to enforcement action by officers of the authority.

1.2 All enforcement action must be compliant with relevant legislation and guidelines and must be fair, clear, transparent, consistent and robust.

1.3 The policy covers all aspects of the service and seeks to assist officers in the decision making process when dealing with enforcement issues. It sets out a consistent approach regarding the use of formal and informal mechanisms at their disposal to achieve effective and efficient compliance with relevant statues.

2. Purpose of enforcement

2.1 The service supports the judicious use of statutory powers as an effective means of ensuring that businesses and individuals, local premises, practices and activities comply with statutory requirements and do not put the economic wellbeing, health and safety or amenity of the general public, employees, other businesses or consumers at risk. We will assist and advise wherever possible but will also take firm action against those who act irresponsibly or flout the law.

3.1 Scope

3.1 This policy applies to all enforcement activities taken by the Public Protection Service.

3.2 This policy should be read in conjunction with any service specific and corporate policies and procedures as well as national guidance on enforcement issues, and the Public Protection Enforcement and Legal Process Manual.

3.3 Enforcement in the context of this policy includes action carried out in the exercise of statutory enforcement powers and duties. It includes the inspection of premises, the provision of advice as well as formal enforcement including fixed penalty notices, statutory notices and prosecution.

3.4 All officers will follow this enforcement policy as far as reasonably practicable. Any departure from the policy, for example to deal with situations of urgency or imminent risk, must be justifiable and be approved by the appropriate line manager when practicable, which may be after the event.

3.5 There may be circumstances where shared or complementary enforcement action may be taken with other agencies. In such cases the decision on enforcement options shall have regard to any relevant policies and procedures of the other agency.

4. Principles

4.1 Regulatory effort will be directed in accordance with the Government's "Regulator's Code", and as regulators the council will:

• carry out our activities in a way that supports those we regulate to comply and grow
• provide simple and straightforward ways to engage with those we regulate and hear their views
• base our regulatory activities on risk
• share information about compliance and risk
• ensure clear information, guidance and advice is available to help those we regulate meet their responsibilities to comply
• ensure our approach to regulatory activities is transparent

4.2 The Council has also adopted the Enforcement Concordat, which established principles of good enforcement and set out what businesses and others being regulated are entitled to expect from enforcement officers.

4.3 Enforcement activities will be conducted in an open and transparent manner. Officers will explain clearly in plain language what is expected of those to whom legislation applies and what can be expected of the enforcement service. Clear distinctions will be drawn between statutory requirements and advice or guidance regarding what is good practice but not compulsory.

4.4 The authority will seek to raise awareness about the need to comply with legislation using an educational approach to promote good practice.

4.5 We aim to provide a courteous and efficient service, and all enforcement activities will be carried out in a helpful manner, actively working with businesses to advise on compliance.

4.6 Any enforcement action will be proportionate to the risk and seriousness of the breach of legislation.

4.7 The Service will endeavour to ensure that enforcement action is consistent by taking a similar approach in similar circumstances.How ever officers will take into account many variables such as level of risk, compliance history and the attitude and actions of those involved which may result in different outcomes in what appear potentially similar investigations.

4.8 Officers engaged in enforcement activity will be expected to maintain an open mind during the course of an investigation.

5 Investigative procedures

5.1 All investigations into breaches of legislation will follow best professional practice and the requirements of the following:

• GOV.UK: The Human Rights Act 1998 (opens new window)
• GOV.UK: The Regulation of Investigatory Powers Act 2000 (opens new window)
• GOV.UK: Police and Criminal Evidence Act 1984 (PACE) codes of practice (opens new window)
• GOV.UK: Criminal Procedure and Investigations Act 1996 (opens new window)
• Crown Prosecution Service: The Code for Crown Prosecutors (opens new window)

5.2 Regard shall be had to corporate guidance and policies on the specific requirements of the above legislation.

6 Enforcement options

6.1 All officers will have regard to:

• the documented procedures listed in the schedule
• any departmental or organisational procedure notes
• any relevant guidance in Statutory Codes of Practice or guidance notes issued under the relevant statutes or by a recognised body and which are accepted as providing a national standard
• the Public Protection Service Enforcement and Legal Process Manual

6.2 Informal action

6.2.1 Informal action includes offering advice, verbal warnings and requests for action, the use of informal letters and inspection reports. Informal action should be considered against the following criteria:

• the act or omission is not serious enough to warrant formal action and does not pose a significant risk to public health, safety or economic welfare
• the individual or company's history is such that it can be reasonably expected that the informal action will achieve compliance
• the officer has high confidence in the individual or management's ability to correct a defect or contravention and undertake any works which may be required
• standards in general are good, suggesting a high level of awareness of statutory responsibilities
• the consequences of non-compliance are acceptable e.g. minor matters, or the time period allowed to seek compliance does not present a risk to health safety or welfare

6.2.2 Informal action includes education, publicity and media campaigns and working with commercial and community groups.

6.3 Formal actions

6.3.1 Formal action involves the proportionate use of formal mechanisms to achieve compliance. Formal action may be taken where informal action has been unsuccessful or is deemed inappropriate when considering the seriousness of the offence or the urgency of the situation. Administrative penalties, including fixed penalty notices may be used without prior
informal action.

6.3.2 Formal action includes the use of Statutory Notices, Penalty Notices, works in default or direct action, review or revocation of licences or other approvals, simple cautions, or prosecution and any other legal action of any nature.

6.3.3 Decisions to instigate formal actions will be taken in accordance with the Enforcement Options Guidelines (Annexe 1), which will be reviewed and updated as necessary under the authority of the Associate Director.

6.3.4 Decisions to instigate prosecutions will be taken in accordance with the Prosecution Guidelines and all other guidelines and procedures (Annexe 2), which will be reviewed and updated as necessary under the authority of the Associate Director.

7. Qualifications and authorisations of officers

7.1 The Associate Director shall ensure that officers who carry out enforcement duties are appropriately qualified and trained.

7.2 The Associate Director shall ensure that officers carrying out enforcement duties are authorised in writing and that the extent of the authorisation is reviewed from time to time in the light of their qualifications and experience.

8. Equal opportunities

8.1 The service recognises that there is diversity within the community.

9. Complaints procedure

9.1 The Council has a formal complaints procedure which ensures that any complaint is dealt with quickly, consistently and helpfully. Complaints can be made in person, in writing, by email or on-line complaints form.

9.2 Where repeated or vexatious complaints are received advice may be sought from the corporate complaints officer.

10. Review

10.1 This Enforcement Policy will be reviewed every two years or when significant new legislation affects the policy and updated as appropriate.

11. Access to this policy

11.1 A copy of this policy is available on the Council website, or can be obtained by writing to the Public Protection Service, County Hall, Bythesea Road, Trowbridge, Wiltshire, BA14 8JN.

Annexe 1: Formal Enforcement Options Guidelines

I. These guidelines should be read in context with the Public Protection Enforcement Policy. Enforcing officers should identify what enforcement options are available, what is the purpose of the enforcement action and then choose the most appropriate action which may include informal actions such as:

• a warning letter
• advice
• request for action

II. The following formal options may be available and should be considered subject to the specific legislation. A list of formal options is given below together with some factors which indicate whether the option is appropriate. Options may be applied individually or in combination.

A. Statutory Notices are not a punitive action and may be used where:

• there is non compliance with informal action
• there is a history of non-compliance
• works or actions are required of the recipient
• service of a notice is mandatory

B. Works in default or direct action may be used where:

• there is non-compliance with a statutory notice
• in advance or without a statutory notice where the legislation permits; and it is appropriate to deal with an urgent risk
• it is appropriate and proportionate to resolve outstanding requirements
• to deal with urgent risks

C. Fixed Penalty or other Administrative Penalties may be used where:

• evidence of an offence is found
• it is a proportionate method of dealing with an infraction

D. Review or Revocation of licence or other permit may be used where:

• it is a proportionate response to the gravity of the situation

E. Simple Cautions may be used where there is an admission of guilt and in line with Home Office guidance to:

• deal quickly and simply with less serious offences
• divert less serious offences away from the courts
• reduce the chance of repeat offences

F. Civil Procedures e.g. Undertakings to trade fairly, injunctions:

• where there is a history of persistent complaints or offences

G. Seizure/Forfeiture

• to deal with goods or equipment that is unsafe, illegal or have been used in the commissioning of an offence

H. Prosecutions may be used where:

• there is sufficient evidence of the offence and a realistic prospect of conviction.
• it is in the public interest

Prosecutions will only be instigated in accordance with the prosecution guidelines in Annexe 2.

1. Purpose

1.1 To ensure that recommendations and decisions about prosecutions are made in a consistent and fair manner.

1.2 These guidelines are intended to act as a guide to Officers in taking enforcement action. These guidelines are not intended to limit or fetter an Officer's discretion.

2. Application

2.1 These guidelines are to be read in the context of the enforcement policy, relevant legislation and case law and in accordance with
national guidelines. In particular:

2.1.1 The Code for Crown Prosecutors issued by the CPS (January 2013): Crown Prosecution Service: The Code for Crown Prosecutors (opens new window)

2.1.2 Regulators' Code - issued by the Department for Business, Innovation and Skills: GOV.UK: Regulators Code (opens new window)

3. Making the decision to recommend prosecution

3.1 Prosecution should take place when:

3.1.1 It is in the public interest to prosecute the offender for the charges chosen; and

3.1.2 There is sufficient evidence, capable of being admitted as evidence in Court, to support the prosecution.

4. The Public Interest Test

4.1 In deciding whether it is in the public interest to prosecute an offender under clause 3.1.1 above, regard must be had to all relevant public interest considerations that weigh in favour of, and against, prosecution proceeding. Annex 1 to these guidelines is a checklist of factors that, if relevant, the Officer ought to turn his or her mind to in deciding whether or not it is in the public interest to
proceed with criminal charges.

4.2 The factors listed do not form a test. They are intended as a guide to help focus the decision-maker's mind on matters of relevance in determining whether the prosecution is in the public interest. The number of factors in favour of, or against, prosecution is not necessarily relevant as to whether or not prosecution is recommended.

5. The evidential sufficiency test

5.1 In determining whether there is sufficient evidence under clause 3.1.2 above, the Officer must be satisfied that there is sufficient admissible evidence to provide a "realistic prospect of conviction" against each proposed defendant on every charge.

5.2 The Officer must be satisfied that the evidence to be relied on will not be excluded by the Court under any enactment or rule of law. In particular:

5.2.1 All interviews, confessions and other formal statements of the proposed defendant have been recorded and obtained in accordance with Police and Criminal Evidence Act (PACE).

5.2.2 All information resulting from investigations has been obtained in accordance with the provisions of Regulation of Investigatory Powers Act where applicable.

5.2.3 All searches have been undertaken by the persons with the required powers and have been conducted in accordance with PACE, its codes of practice, or the particular legislation that governs that search.

5.2.4 The evidence relied on will not be excluded for being hearsay or documentary hearsay.

5.2.5 The evidence must also be reliable. In determining whether the evidence is sufficiently reliable to be accepted by the Court, regard must be given to:

5.2.5.1 Where reliance is being placed on a confession, whether that confession is affected by the defendant's age, intelligence, level of understanding or the circumstances in which the confession was made.

5.2.5.2 Any explanation given by the defendant. Is the explanation credible and likely to be accepted by the Court? If so, does the explanation constitute a defence to the charges?

5.2.5.3 The identity of the defendant when this is put in issue by the defence. Do eyewitnesses suitably identify the defendant?

5.2.5.4 Is there any unused evidence obtained in the investigation, which is disclosable to the defence, that may undermine the prosecution in any way?

5.2.5.5 The credibility and accuracy of prosecution witnesses. In the event of a conflict of evidence between the defendant and the prosecution witness, is the prosecution witness's evidence likely to be believed?

5.2.6 Evidence that may not be reliable ought not to be discarded. Its reliability must, however, be considered in determining whether there is a realistic prospect of
conviction.

6. Selecting and recommending charges

6.1 After considering the factors listed above in part 3.1, Officers may exercise their discretion in the following ways:

6.1.1 Issuing an informal caution either orally or in writing;

6.1.2 Deciding to recommend a Simple Caution; or

6.1.3 Deciding to recommend a formal prosecution.

6.2 An informal caution ought only be recommended if the officer is satisfied that:

6.2.1 An informal caution is likely to be an effective deterrent to the offender; and

6.2.2 The caution is appropriate for the type of offence, the
gravity of the offending and the circumstances and history of the offender.

6.3 An out of court disposal may be recommended in accordance with Ministry of Justice guidance: GOV.UK: Case management guidance - How to use out-of-court disposals (opens new window)

6.4 If prosecution is recommended, then charges ought to be selected that reflect the seriousness and extent of the offending and provide the Court with sufficient power to sentence the defendant adequately.

6.5 Where numerous offences appear to have been committed, consideration ought to be given to proceeding with specimen charges and having the remaining offences taken into consideration by the Court upon sentencing.

6.6 Charges should not be selected solely for the purpose of negotiation, with a view to dropping them in return for a guilty plea on other charges. Each charge must fulfil the criteria detailed in clause 3.1.

6.7 Recommendations shall be made in a timely manner, bearing in mind any time limits for bringing a prosecution, the need for adequate time for legal services to prepare and issue summonses and the reluctance of the Courts to entertain cases where there has been unnecessary delay.

7. Accepting guilty pleas

7.1 In certain circumstances a defendant may wish to plead guilty to some but not all of the charges. Prosecuting Officers should only accept the guilty pleas in such cases if they are of the opinion that the Court is able to pass a sentence which matches the seriousness of the offences. Officers must never accept a guilty plea because it is convenient.

Annex A: Questions to be addressed in considering whether it is in the public interest to prosecute

 

Other issues not otherwise considered:


Note: this checklist is not intended to be a test. It is to be used as a guide to direct consideration of relevant issues in determining whether prosecution is in the public interest. It is not exhaustive. Any other factors of relevance that are not included on this list must be taken into account as well.