- General Principles & Intent of the Policy
- Scope of the Policy
- Approach to dealing with non-compliance
- How action is determined
- Factors influencing our response to breaches of legislation
- Conduct of investigations
- Powers of authorised officers
- Range of actions available (as set out in legislation)
- Compliance Advice, Guidance and Support
- Voluntary Undertakings
- Statutory Notices
- Financial Penalties
- Injunctive Actions, Enforcement Orders, Etc
- Simple Caution
- How decisions are made on enforcement action
- Application of 'zero tolerance' policies
The purpose of this policy is to detail the processes the Environmental Health Department (the department) will follow when determining enforcement actions in relation to carrying out statutory duties on behalf of the Council.
The department will comply with relevant national guidance and codes of practice in relation to its statutory functions. Specifically, in relation to enforcement it has looked to adhere to the guidance issued by the Office for Product Safety and Standards in the 5 priority regulatory outcomes for England.
These priorities are as follows:
- Support economic growth, especially small businesses, by ensuring a fair, responsible and competitive trading environment
- Protect the environment for future generations including tackling the threats and impacts of climate change
- Improve quality of life and well-being by ensuring clean and safe neighbourhoods
- Help people to live healthier lives by preventing ill health and harm and promoting public health
- Ensure a safe, healthy and sustainable food chain for the benefit of consumers and the rural economy
The work undertaken by the departments four main teams can trace clear links to the themes of protecting public health, protecting the environment, supporting businesses and protecting important features such as the food chain which are present in the principles.
As a public authority, the department and Council as a whole has regard to, and applies, the principals of the Human Rights Act 1998. This policy takes into account the provisions of this legislation and applies it to decisions regarding enforcement action taken by the department. The Data Protection Act 2018 is also relevant to this policy and the wider actions by the department.
This policy forms the overarching enforcement policy for the department covering all of its core functions. It outlines the approach to enforcement and lays down the principles which will be followed in deciding appropriate and proportionate action in relation to any given case.
Enforcement includes any criminal or civil action taken by the department aimed at ensuring parties such as members of the public or businesses comply with the law.
The department will work with, and consult, other agencies and service areas within the Council as necessary where there is a shared role in enforcement.
Reasonable steps will be taken to assist businesses and individuals in complying with legal requirements, however the department is prepared to ensure compliance by exercising formal powers available, including where appropriate, prosecutions.
Where appropriate the department will seek to raise awareness and increase compliance levels by publicising unlawful practices, criminal activity and related enforcement actions taken. This may include outcomes from specific court cases.
The department looks to take an open, fair and proportionate approach in dealing with breaches of legislation. As a first step, raising awareness and promoting good practice will be used with officers signposting affected parties to relevant guidance and good practice.
Where a supportive and guidance related approach has not worked to resolve a potential breach of legislation, the department will not hesitate to taking formal legal action appropriate to the circumstances of any given case.
Advice regarding the specific non-compliance with legislation, the actions required to be taken to remedy the non-compliance, and decisions surrounding our actions will be provided at the time of a given intervention.
Where possible, an opportunity will be provided for the department to consider the decision on its chosen course of action, to ensure actions are proportionate and consistent. Where immediate enforcement action is required, the opportunity for discussion may not be given if the breach of legislation is serious and/or if there is an imminent public health or safety risk.
Officers investigate potential breaches of legislation and take responsibility for managing the investigations and making decisions regarding enforcement action. As part of this process they regularly consult with colleagues and managers in determining the best and most appropriate course of action to take. In relation to prosecutions, where relevant, cases will be reviewed with a manager and in line with this policy before submitting it to the Council’s Legal department for further processing.
Where the department has a shared enforcement role with either another Council department or external agency, officers will liaise with the relevant party to ensure effective co-ordination and avoidance of inconsistencies.
Where evidence is found that a business or other regulated party is showing flagrant disregard for the law, or is persistently failing to comply with advice and /or requests from the department, informal action may be considered inappropriate. Under these circumstances enforcement action may be escalated directly to either prosecution or more severe sanctions where available or applicable to the circumstances.
If it is clear that a regulated party is willing to resolve a non-compliance with legislation quickly, and takes on board and implements guidance from the department, an informal approach will be considered as opposed to triggering formal enforcement action. However, where there is a serious breach and/or an imminent risk to public health and safety, enforcement action may still be taken even if co-operation has been forthcoming. Where specific legislative guidance and regulations exist which set out enforcement requirements, these will also be followed as appropriate.
Where a breach of legislation is investigated the approach taken will be proportionate and take into account factors such as the business size and capacity.
If the department has provided advice to a regulated party, it will make necessary checks to ensure that advice in relation to rectifying a breach of legislation has been complied with and rectified.
The department may receive referrals from other agencies which require investigation. These referrals will be subject to the same enforcement policy as referrals made from members of the public. Where necessary, the department may refer reports it receives to other enforcement agencies where it is not the relevant enforcement agency. If this is the case, the relevant person(s) making the report will be informed.
In investigating a report or referral regarding a non-compliance, officers will assess the information initially received and also make additional enquiries to obtain further intelligence. Based upon the information to hand, the officer will make an informed judgement as to what further investigations are needed. Officers will consult with their manager to help assess the case and any risks posed.
The process followed by officers in the pursuit of investigations of alleged breaches of legislation will depend on the specific legislation under which the investigation is being conducted. In addition to the primary legislation, the following statutory instruments will also be taken into consideration so far as they apply to each given case;
- Criminal Procedure and Investigations Act 1996
- Regulation of Investigatory Powers Act 2000
- Criminal Justice and Police Act 2001
- Human Rights Act 1998
- Police and Criminal Evidence Act 1984
These acts and their associated guidance control how evidence is collected and used. Authorised officers of the department will comply with the relevant sections of these acts while conducting investigations.
Powers made available to officers and the department vary considerably depending on the specific requirements of Legislation– it is not the purpose of this document to detail authorisations or delegations, but to specify how powers will be applied.
If officers are presented with a situation where they believe they are being obstructed in carrying out their duties they will always explain the nature and extent of their relevant authority to try and resolve the issue. Where this approach is not successful the department may pursue charges of obstruction against regulated parties as appropriate.
The primary authority scheme is recognised and where it is applicable, the guidance and directions associated with the scheme will be followed by officers both as part of routine duties and in relation to any potential enforcement action.
Where powers of seizure are used to secure items or evidence, a notice or receipt will be provided to the regulated person at the earliest practicable time afterwards detailing what items/articles have been seized and why.
Officers will carry out formal interviews under caution in line with this policy and the Police and Criminal Evidence Act 1984.
In relevant cases where either criminal or civil proceedings are intended to be brought, a case file will be prepared by the investigating officer. The case file will be reviewed with a line manager before its submission to the Legal Department. Further advice and consultation will be sought with the Legal Department regarding any potential prosecution.
Wherever appropriate, officers will keep regulated parties informed of the progress of investigations and any associated enforcement actions.
There is a broad range of actions set out within the various legislation the department enforces. The following sections detail the broad examples of those types which may be used.
This is used as the first response in many cases of reported breaches of legislation which are identified. Advice may be provided either verbally or more formally in the form of a warning letter to assist regulated parties in understanding the issues at hand and addressing breaches of legislation. The advice provided will detail the relevant legislation and breach identified, and where possible provide advice on how to rectify the breach.
Most issues will be confirmed via the use of either a letter or other forms of written communication such as emails. Such letters will be taken into consideration if breaches of legislation continue to be present and more formal action is deemed necessary.
Where appropriate the department may accept voluntary undertakings from regulated parties concerning actions to be taken to rectify breaches of legislation identified. Where these undertakings are not appropriately honoured, the department will pursue formal action against the regulated party.
Voluntary undertakings will only be considered where it is clear that the regulated party clearly understands the nature and extent of the breach of legislation and is clearly committed to resolving the issue in a prompt manner. Additional consideration will also be given to the level of remorse shown by the regulated party. Any concerns regarding immediate risks to public health and safety will be taken into consideration and where applicable will negate the use of a voluntary undertaking over a formal approach to enforcement.
All voluntary undertakings will be documented with the relevant document co-signed by both the case officer and regulated party.
The department has powers to issue statutory notices in respect of many breaches of legislation. Examples include improvement notices, prohibition notices and abatement notices. All statutory notices are legally binding and subject to provisions laid out in the relevant legislation. Failure to comply with a statutory notice is an offence and will under most circumstances lead to prosecution and the undertaking of works in default as may be necessary.
Statutory notices will clearly set out the relevant legislation, the breach of legislation, what actions must be taken and any associated timescales for compliance or appeal. Details pertaining to the appeals process will be included with any statutory notice.
Where necessary, some notices may be affixed to premises and registered as local land charges.
The department has powers to issue charges such as fixed penalty notices in respect to some breaches of legislation. Such financial penalties are not criminal fines and do not appear on an individual’s criminal record. Where a financial penalty is not paid, the department may instigate an appropriate prosecution.
The issue of fixed penalty notices, where they are available, are issued at the discretion of the department and are used where the circumstances are appropriate. The provision of advice, or to move immediately to prosecution, are also options available to officers.
Where officers consider the use of a fixed penalty notice, they must take into account the nature of the offence, the level of remorse shown by the offender, (where available) any previous history of noncompliance or mitigating and aggravating factors.
In some circumstances the department 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.
The department is 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, the Council will usually only seek a court order if it has serious concerns about compliance with voluntary undertakings or a notice.
The department has the power to issue simple cautions (previously known as ‘formal cautions’) as an alternative to prosecution for some less serious offences, where a regulated party admits an offence and consents to the simple caution. Where a simple caution is offered and declined, the department will begin the process for a prosecution.
A simple caution will appear on the offender’s criminal record. It is likely to influence how the Council 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.
Simple cautions will be used in accordance with Home Office Circular 016/2008 and other relevant guidance.
The Council may prosecute in respect of serious or recurrent breaches, or where other enforcement actions, such as voluntary undertakings or statutory notices have failed to secure compliance. When deciding whether to prosecute the Council has regard to the provisions of The Code for Crown Prosecutors as issued by the Director of Public Prosecutions.
Prosecution will only be considered where the Council is satisfied that it has sufficient evidence to provide a realistic prospect of conviction against the defendant(s).
If the evidential test is satisfied a prosecution will usually take place unless there are public interest factors tending against prosecution which outweigh those tending in favour. The more serious the offence or the offender’s record of breaches/criminal behaviour, the more likely it is that prosecution will be required in the public interest.
Assessing the public interest is not merely a matter of adding up the number of factors on each side and seeing which has the greater number. The public interest must be decided on the merits of each individual case and making an overall assessment. It is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction.
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. The court may order the forfeiture and disposal of noncompliant goods and/or the confiscation of any profits which have resulted from the breach. Prosecution may also lead, in some circumstances, to the disqualification of individuals from acting as company directors.
In assessing what enforcement action is necessary and proportionate consideration will be given to, the following principles;
- Aim to change the behaviour of the offender;
- Aim to eliminate any financial gain or benefit from non-compliance;
- Be responsive and consider what is appropriate for the particular offender and regulatory issues, which can include punishment and the public stigma that should be associated with a criminal conviction;
- Be proportionate to the nature of the offence and the harm caused;
- Aim to restore the harm caused by regulatory non-compliance, where appropriate, and;
- Aim to deter future non-compliance
Where appropriate decisions about what enforcement action is to be taken may involve consultation between:
- Investigating Officer(s)
- Appropriate Line Managers
- The Legal Department
The decision to prosecute a case will be taken by those with authority to do so in accordance with the Council’s Scheme of Delegations.
The department has a zero tolerance approach to offences, especially those in relation to enviro-crime matters. Zero tolerance does not mean that on discovery of an offence, formal legal action will always follow. It does however mean that officers will not ignore offences or potential offences, and will seek to provide an intervention as appropriate. Interventions may be drawn from any options available to the department and can range from the provision of advice/education, up to the instigation of a prosecution for offences committed. The choice of intervention is dependent on the nature of the offence and the circumstances of the case as discovered by the investigating officer. Departmental procedures provide more direct instructions to officers for specific issues such as fly-tipping, littering, dog fouling, etc.
Last Updated on Thursday, September 17, 2020