Enforcement Policy

Introduction

The purpose of this policy is to set out what business and individuals being regulated can expect from us in enforcing the law.

Our primary function is to protect the public and the environment. At the same time, carrying out our enforcement functions in an equitable, practical and consistent manner helps to promote a thriving local and national economy. We are committed to these aims and to maintaining a fair and safe trading environment.

The effectiveness of legislation in protecting the public and legitimate business, depends crucially on the compliance of those regulated. We recognise that most businesses want to comply with the law. We will, therefore, take care to help business and others to comply with their legal obligations, without unnecessary expense, whilst taking firm action, including prosecution, where appropriate. All citizens will reap the benefits of this policy through better information, choice and safety.

The policy explains the approach to enforcement in general terms, since it is intended to be applied to a wide range of situations. It may be supplemented by other more specific enforcement policies. This policy takes into account official Central Government guidance such as the Enforcement Concordat.

The policy is based on the six guiding principles of the Enforcement Concordat: -

Standards

In consultation with our stakeholders, we will draw up clear service standards, setting out the level of service and performance the public and business can expect. We will report our performance against these standards.

Openness

We will provide information and advice in plain language on the rules that we apply and will disseminate this as widely as possible. We will be open about how we set out our work and consult our stakeholders on issues that affect them.

We will discuss general issues, compliance failures or problems with anyone experiencing difficulties.

Helpfulness

We believe that prevention is better than cure and that our role therefore involves working with business, especially small enterprises and large 'national' businesses that are locally based, to advise and assist on compliance. We will provide courteous and efficient service and our staff will identify themselves by name. We will provide a contact point for further dealings with us and will strongly encourage business to seek advice/information from us. Applications for approval, licences, registration, etc, will be dealt with efficiently and promptly. We will wherever practicable, co-ordinate our enforcement services to minimise unnecessary overlaps and delays.

Complaints

We have a formal complaints procedure in place which attempts to resolve disputes in an effective and timely manner. We will explain the mechanisms for appeal where the dispute cannot be resolved.

Proportionality

We will minimise the costs of compliance for business by ensuring that any action we require is proportionate to the risks. As far as the law allows, we will take into account all the circumstances of the case and the attitude of the business when considering the level of action. We will take care to work with small businesses and voluntary and community organisations so that they can meet their legal obligations without unnecessary expense where practicable.

Consistency

We will carry out our duties in a fair, equitable and consistent manner. While inspectors are expected to exercise judgement in individual cases we will have arrangements in place to promote consistency, including effective arrangements with other authorities and enforcement bodies.

Levels of Enforcement Action

Legislation may be enforced by one or a combination of methods: -

Promotion:

To raise awareness about legal standards and promote good practice. This is typically achieved by the issuing of press releases, making leaflets or other forms of general guidance available and by visits by the inspector. Advice from an officer will be put clearly and simply, in writing if required, specifying why any remedial work is necessary, over what time-scale, and making sure that legal requirements are clearly distinguished from best practice.

Informal Warnings:

These will be used to reinforce promotional activities. Informal warnings may be oral or in writing and will be issued where:

• The nature of the breach is minor;
• From past history it can be reasonably expected that such action will achieve compliance;
• The consequences of non-compliance will not pose a significant risk to the public or the environment.

Even where some of the above criteria are not met, due regard will be given to the size and/or nature of the business i.e. such as small enterprises and voluntary bodies.

Formal Action

This includes the use of statutory notices, the refusal to grant a licence, works in default, naming rogue traders in the media, formal cautions and prosecution. In investigating any breach, due regard will be given to procedures laid down in legislation, any relevant codes of practice and official guidance. Before taking formal action, we will provide an opportunity to discuss the circumstances of the case, and if possible, resolve any points of difference, unless immediate action is required.

Statutory Notices

Many Acts enforced by the Council provide for the service of statutory notices, which require businesses or individuals to comply with specific legal requirements. The notice will explain what is wrong, how to put things rights, what will happen if the notice is not complied with and rights of appeal should you feel the notice is excessive or unjustified.

In general, failure to comply with a notice makes the recipient liable for prosecution. Failure to comply with a notice also may allow the Council to carry out the works, as detailed in the notice and claim the relevant costs from the recipient. In exceptional circumstances, prosecution may run alongside the issuing of a notice.

Formal Cautions

This option will be considered before prosecution. A formal caution is a serious matter and is recorded on the Central Register of Convictions. The caution may influence the decision, where future breaches are identified and is referred to in any subsequent proceedings, up to three years from date of offence. Formal cautions serve the following purposes: -

• To deal quickly and simply with less serious offences;
• Avoid unnecessary appearance in criminal courts;
• To reduce the chance of offenders re-offending

Before issuing a formal caution, there must be clear evidence of guilt or a realistic prospect of conviction. The offender must admit the offence, by signing a declaration and understand the significance of the formal caution. In most instances a formal prosecution will commence against the offender should they refuse to sign the caution.

Prosecution

The Council will use discretion in deciding whether to initiate a prosecution. Other approaches may be effective, but where circumstances warrant it, prosecution without prior warning and recourse to alternative sanctions may take place.

The Council will consider prosecution when: -

• It is appropriate in the circumstances, as a way to draw attention to the need for compliance with the law and the maintenance of standards required by law, especially where there would be a normal expectation that a prosecution would be taken, or where, through the conviction of offenders, others may be deterred from similar failure to comply with the law; or
• Where there is the potential for considerable harm arising from the breach; or
• The gravity of the offence, taken together with the general record and the approach of the offender, warrants it.

The Council will also identify and prosecute individuals, including Directors and managers, if they consider that the acts or omissions by these individuals, led directly to the commission of the offence.

The decision to prosecute will always take into account the criteria set down in the Code for Crown Prosecutors.

Before deciding to prosecute: -

• There must be sufficient evidence for a realistic prospect of conviction, taking into account any statutory defence that is available; and
• It must be in the public interest

The following public interest criteria will normally be taken into account when deciding on the relevance of legal proceedings (although this list is not exhaustive): -

• The prevalence of the type of offence;
• The need for a suitable deterrent;
• The risk of danger or injury to the public;
• The failure to comply with a statutory notice or to respond to advice about legal requirements;
• The disregard of legal requirements for financial, or other, reward;
• Significant economic loss, potential or actual, to a third party;
• A history of similar offences;
• Persistent breaches of legislation;
• The prospect of further re-offending;
• Where fraud, gross negligence, or guilty knowledge is a factor;
• Minor breaches of a number of statutes.

Where possible, an offender will be told as soon as sufficient evidence is obtained of the potential outcomes of the investigation, including prosecution.

A prosecution will not be brought solely as a mechanism for an affected third party to seek compensation through the criminal courts, unless other public interest criteria are also satisfied.

All prosecutions will be brought without unnecessary delay.

Where there is a shared or complementary enforced role with other agencies e.g. Police, HSE, OFT, full liaison will take place in respect of any decision to be prosecute.