PFD Cllr Collier - 13032008 - Enforcement Policy - Report
BOROUGH OF POOLE
CABINET DECISION BY PORTFOLIO HOLDER FOR THE ENVIRONMENT
REPORT OF HEAD OF ENVIRONMENTAL & CONSUMER PROTECTION SERVICES
AMENDMENT OF ENVIRONMENTAL AND CONSUMER PROTECTION SERVICES ENFORCEMENT POLICY TO TAKE INTO THE REGULATORS COMPLIANCE CODE
1Purpose of Report
1.1To advise the Portfolio Holder of amendments needed in the enforcement policy of Environmental and Consumer Protection Services to take into account the Regulators Compliance Code.
2Decision Required
2.1That the Portfolio holder for Environmental Areas approves the amendments to the enforcement policy to come into force on 6th April 2008.
3Background Information
3.1Environmental and Consumer Protection Services have an enforcement policy. The policy
is to ensure that there is consistency in the approach to making decisions which concern enforcement action.
3.2 The Department for Business Enterprise & Regulatory Reform under Section 23 of the Legislative and Regulatory Reform Act 2006 have issued the Regulators Compliance Code as a Code of Practice.
3.3 Environmental and Consumer Protection Services have a duty to have regard to the
Code. This means that we must take into account the Code’s provisions and give them due weight in developing our policies or principles and in setting standards and giving advice.
3.4 The Government asked Professor Richard Macrory to review Regulatory Penalties.
His recommendation was that regulators should have regard to the six penalties principles outlined in the Macrory review.
4Enforcement Policy Amendments
4.1The amended policy can be found at Appendix A
Shaun Robson
Head of Environmental and Consumer Protection Services
Contact Officer:Lucy Magill, Regulatory Services Manager 01202 261736
Background Papers:
Appendix A Amended enforcement policy
ENVIRONMENTAL AND CONSUMER PROTECTION SERVICES
ENFORCEMENT POLICY
1 /Aim of the Policy
1.1 / Environmental and Consumer Protection Services are committed to the enforcement principles contained within the Regulators’ Compliance Code. This means that our sanctions and penalties contained within this policy should:- 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 issue, 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.
1.2 / This policy will be implemented in accordance with the all the Hampton Principles outlined in the Regulators’ Compliance Code and the Principles of Good Enforcement within the Enforcement Concordat.
1.3
1.4 / Officers of Environmental and Consumer Protection Serviceswill use the sanctions to promote the image of Poole as a safe, healthy and welcoming place for all by taking appropriate action to protect the economic interests, health and safety of the public and the environment.
Decisions on enforcement action will take into account the risk to health, safety and economic well-being, the seriousness of the infringement and whether it is in the public interest to proceed.
2 /
Introduction
2.12.2 / To achieve the aims of the policy, Environmental and Consumer Protection Services will use a range of sanctions. These sanctions may be used separately or together, depending on the nature of the offence, the penalties available under the relevant legislation and the outcome which we seek to achieve.
The options available are:
- To take informal action
- To issue formal notices
- To issue fixed penalty notices (FPN’s)
- To issue simple cautions
- To take civil enforcement action
- To prosecute
- To review permits or licences
3 /
Informal Action
3.1 / Informal action to secure compliance with legislation will include offering advice, requests for action, verbal warnings, the use of written instructions and the issue of inspection reports.3.2 / 3.2.1
3.2.2
3.2.3
3.2.4 / Informal action will be considered in one or more of the following circumstances:-
The act or omission is not serious enough to warrant formal action.
From the individual/enterprise’s past history it can be reasonably expected that informal action will achieve compliance.
Confidence in the management is high
The consequences of non-compliance will not pose a significant risk to public health, the environment or a person’s economic well-being.
3.3 / The need to clearly differentiate between legal requirements and matters which are recommended as good practice will be recognised in all enforcement action, even if only giving verbal advice.
4 /
Formal Notices
4.1 / The use of Statutory Notices will be considered to be appropriate if one or more of the following criteria apply:-4.1.1
4.1.2
4.1.3
4.1.4
4.1.5
4.1.6 / There are significant contraventions of the relevant legislation.
There is a lack of confidence in the individual, proprietor or
enterprise to respond to an informal approach.
There is a history of non-compliance with informal action.
Standards are generally poor, with little management awareness of statutory requirements.
The consequences of non-compliance could be potentially serious or deteriorating.
If it is intended to prosecute and effective action also needs to be taken as quickly as possible to remedy conditions that are serious and deteriorating.
4.2 / All guidance and Codes of Practice will be complied with. Statutory limits or, in their absence, realistic time limits, will be detailed in notices. If appropriate, discussions about the action required will be held. Any person or company who becomes the subject of formal or informal action will be given the right to seek clarification and where relevant any right of appeal.
5 /
Simple Cautions and Prosecutions
5.15.2
5.3 / A Simple Caution is a specific form of warning where an individual admits committing an offence. They are used in cases where a prosecution could be brought but there are strong mitigating factors. Enforcement Officers will have full regard to Home Office Guidelines when administrating official Cautions.
Prosecutions against a business or an individual take place in the criminal courts. Depending on the circumstances a warning or a statutory notice may not always be issued before taking a prosecution.
In accordance with the Code for Crown Prosecutors there are two stages in the decision to prosecute. The first stage is the evidential test. If the case does not pass the evidential test, it must not go ahead, no matter how important or serious it may be.
5.3.1
5.3.2
5.3.3
5.3.4
5.3.5 / Officers must be satisfied that there is enough evidence to provide a ‘realistic prospect of conviction’ against each defendant on each charge. They must consider what the defence case may be and how that is likely to affect the prosecution case.
When deciding whether there is enough evidence to prosecute, Enforcement Officers must consider whether the evidence can be used and is reliable. During the collection of evidence Officers must follow the Police and Criminal Evidence Act 1984 and the associated Codes of Practice.
It must be considered whether the evidence will be excluded from the court. There are certain legal rules, which might mean that evidence will be excluded because of the way it was gathered or because of the rule against using hearsay as evidence.
Enforcement Officers should not ignore evidence because they are not sure that it can be used or is reliable. However, it should be looked at closely when deciding if there is a realistic prospect of conviction.
Enforcement Officers will consider the suitability of witnesses and their willingness to give evidence and whether a prosecution may result in unjustified risk, harm or suffering to a witness or complainant.
5.4 / The second stage is the public interest test. Environmental and Consumer Protection Services will only initiate or continue a prosecution when the case has passed both tests.
5.4.1
5.4.2 / The public interest must be considered in each case where there is enough evidence to provide a realistic prospect of prosecution. Although there may be public interest factors against a prosecution in a particular case, often the prosecution should go ahead and those factors should be put to the court for consideration when sentence is being passed.
Officers of Environmental and Consumer Protection Services will balance factors for and against prosecution carefully and fairly. Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence or the circumstances of the offender. Some factors may increase the need to prosecute but others may suggest another course of action would be better. For example, where courts have previously been reluctant to impose reasonable penalties in relation to similar matters or to award prosecution costs.
5.5 / This Authority recognises that the following are circumstances which are likely to warrant prosecution:-
5.5.1
5.5.2
5.5.3
5.5.4
5.5.5
5.5.6
5.5.7
5.5.8
5.5.9
5.5.10 / If clear criminal intent is encountered.
The actions have resulted in significant environmental damage, including all fly tips.
The alleged offence involves a significant breach of the law such that the public health, safety or well-being is or has been put at risk.
The alleged offence involves a failure by the suspected offender to correct an identified contravention having been given a reasonable opportunity to comply with the lawful requirements of an authorised officer.
The offence involves a failure to comply in full or in part with the requirements of a statutory notice.
There is a history of similar offences.
The alleged offence involves fraud.
If the environment or the economic well-being or health and safety of the public has been disregarded for financial reward.
If there has been an illegal obstruction or assault of any officer in the course of their duty.
Where an FPN has not been paid.
5.6 / Where a simple caution won’t be accepted by the accused a prosecution will ensue.
6 /
Fixed Penalty Notices
6.16.2
6.3
6.4
6.5
6.6 / A fixed penalty notice (FPN) is a notice which may be issued for various offences. For a full list of offences for which a fixed penalty notice may be issued please contact Environmental and Consumer Protection Services. Any offences which are added to this list will be done by the Service Unit Head in consultation with the Portfolio Holder and with public notice.
An FPN can be offered instead of taking other formal action for persons of 18 years and over and companies and other organisations who are reported.
FPN’s for applicable offences will normally be offered to the person, companies and other organisations reported by Borough of Poole officers where there is sufficient evidence to convict in court for single offences.
FPN’s will not be issued where the reported offender has received an FPN for any applicable offences in the past 2 years unless agreed by the Head of Environmental and Consumer Protection Services
FPN’s will not be issued where the Head of Environmental and Consumer Protection Services decides that another course of action is more appropriate. This decision will be based on sections 1,2,3 and 6 of this Enforcement Policy.
Should FPN’s remain unpaid after the payment period specified on the FPN the offences will be reported to The Head of Environmental and Consumer Protection Services.
7 /
Civil Sanctions
7.17.2 / The use of civil sanctions will be considered when it is thought necessary to seek to change unacceptable patterns of behaviour or non-compliant business practices. These sanctions can be used in conjunction with criminal sanctions.
Enforcement action under the Enterprise Act 2002 will be considered when the practices of a business based in Poole harm the collective interests of consumers in the United Kingdom or when the practices of a business anywhere in the United Kingdom harm the interests of consumers in Poole. All action will be taken in consultation with the Office of Fair Trading.
8 /
Review of Licences
8.18.2
8.3 / Environmental and Consumer Protection Services administer a wide variety of licences, permits and registrations (“licences”). The different legislation under which these licences are granted allows for a variety of sanctions including the powers to impose conditions and revoke licences.
In deciding whether it is appropriate to impose conditions, the Service Unit will follow requirements within the individual statutes. Conditions will only be imposed to ensure the proper function of the licence and will not be imposed unnecessarily.
In exceptional circumstances it may be necessary to revoke a licence in accordance with the appropriate statutory provisions. This is likely to be when all other options have been attempted or when the seriousness of any breach makes it injudicious to retain the licence.
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