1 Introduction
1 “Enforcement” is defined as including any advice, inspection, action, instruction or warning, caution or prosecution given to a person or organisation who is or is believed to be acting unlawfully.
2 It is the County Council’s policy that only officers authorized through the delegated powers of Deputy Chief Executives, Directors and Senior Officers can undertake enforcement work.
3 The County Council is a signatory to and committed to the aims of the Government’s Enforcement Concordat. Anyone undertaking an enforcement role on behalf of the County Council in any capacity must have regard to the Enforcement Concordat together with any additional requirements of a specific Service area as laid down by codes of conduct, legislation or other provisions contained in this Enforcement Policy.
4 Anyone having a duty to enforce the law must ensure that they deal with those subject to enforcement action courteously, fairly and objectively.
5 The Human Rights Act 1998 is directly relevant to those in the public sector undertaking investigations. Separate policies relate to activities subject to this Act.
6 Where an enforcement role is shared with another agency, it is the policy of this authority to undertake joint enforcement activity in order to minimise any unnecessary duplication and delay. Joint working may be undertaken with agencies including the Police, Customs and Excise, DEFRA and Environmental Health departments or any other relevant agency as appropriate. This work will be subject to that agency complying with the underlying principles of this policy.
7 This policy should be read in conjunction with a number of other pieces of legislation and Corporate or Service Area procedures relating to enforcement. These include: -
- Investigations: The Criminal Procedure and Investigations Act 1996 (CPIA) and the Police and Criminal Evidence Act 1984 (PACE).
- Surveillance: The Regulation of Investigatory Powers Act 2000 (RIPA).
- County Council procedures:
Code of Conduct for Employees
Complaints Procedure
Food Complaints Procedure.
Home Authority Arrangements.
Investigation Process.
Legal Process Guidelines.
8 This policy will be owned by the Head of Trading Standards on behalf of the County Council. It will be reviewed annually. Any minor amendments will be approved via ECS Spokes. Major amendments will be consulted upon and approved in the same manner as this policy.
2. The Enforcement Concordat
1 As a result of signing up to the Enforcement Concordat, the County Council promises to adhere to the principles of good enforcement. It is therefore incumbent on all enforcement officers to follow these principles during all enforcement actions. Full details are in the Concordat document. A summary of the provisions are as follows: -
Standards. We will publish standards and annual performance against them. Similar issues will be dealt with in the same way using guidance from Government or other relevant agencies
Openness. We will give advice and information in plain language. Clear distinction will be made between legal requirements and recommendations on good practice.
Helpfulness. Prevention is better than cure, so actively working with business will assist with compliance as a first step before enforcement.
We will give a courteous and efficient service. Applications for licences
and registrations will be dealt with promptly.
Complaints about service. We will have a well publicised, effective and timely complaints procedure.
Proportionality. We will endeavour to minimise costs of compliance for businesses. The concept of proportionality is included in our regulatory system through balancing the actions taken against the risks to the community and the cost of doing so with the seriousness of any contravention of the law.
Consistency. We will carry out our duties in a fair, equitable and consistent manner.
3. Enforcement Policy: General
1 Enforcement officers will comply with the provisions of the Enforcement Concordat in everything they do in connection with all aspects of the enforcement process.
2 Enforcement officers will comply with or have regard to the provisions of any Code of Practice published by a Government Department or other advisory body as necessary.
3 Enforcement officers will deal with anyone subject to the enforcement process in a courteous, fair and objective manner.
4 Any enforcement action will be proportionate to the seriousness of the infringement.
5 Investigations will be carried out in accordance with the codes and procedures set out by the County Council or Service area.
- No prosecution will be undertaken without subjecting the case to the tests outlined in the code for crown prosecutors published by the Crown Prosecution Service and the specific Service area policies.
8 The Authority will where necessary use statutory powers that exist to enable investigations to continue outside its boundary, where an infringement is one of a serious nature.
9 The Authority will carry out covert surveillance of individuals when necessary but will do so within the legislative framework.
10 The Authority has a firm commitment to ensuring full and equal access to all the services that are provided by the department. To meet this objective, amongst other things, the Authority will ensure:
- the provision of translators for interviews where the interviewee’s first language is not English.
- the carrying out of enforcement visits outside normal office hours when the business concerned operates at those times.
4 Enforcement Actions
The Authority has a policy of taking a graduated approach to enforcement actions which should follow the pattern outlined below:
1. Advice and Guidance: to assist individuals, existing and prospective businesses and other organisations comply with legal obligations. This may be achieved through guidance given during visits, explanatory leaflets or training. At this level, there will be the opportunity to resolve issues through discussion.
2. Informal Warnings: used to reinforce advice and guidance where minor breaches of the law have been identified or thought not to be appropriate to take more formal action. Warnings of this type may be given verbally or in writing.
3. Formal Enforcement Action: includes the use of statutory notices (which include Improvement Notices and Suspension Orders), formal cautions and prosecution. Formal action may also include the seizure of goods documents or other items where legal power exists and it is proper to exercise it.
4. Proceeds of Crime. Will take action in appropriate cases to recover assets that have been accrued through criminal activity.
Usually, enforcement action will move through the various levels although serious cases may be acted upon in a formal manner from the start.
Statutory and Formal Notices
Some legislation gives the option for the issue of statutory notices that require a person, business or organisation to comply with specific requirements. Generally, these notices will explain
- What is wrong
- What is needed to put things right
- The timescale in which to put things right
- What will happen if the notice is not complied with.
Sometimes there will be a right to appeal. In such cases an explanation of the method of appeal will be issued at the time of the notice.
Formal notices may require the suspension of work or activities, a requirement to carry out works or to prevent the sale or supply of goods.
Generally, if anyone ignores or otherwise fails to comply with a properly issued notice, it is the policy of the authority to issue a caution or to prosecute.
Simple Cautions
Under certain circumstances a simple caution may be used as an alternative to prosecution. A person can only be given a caution if he or she admits the offence.
Simple cautions issued form part of a person’s criminal record. For example in relation to Trading Standards offences, a caution is usually recorded as a conviction on the Central Register of Convictions held by the Office of Fair Trading. It will remain on record for three years and may influence a decision to prosecute should the individual or organisation re-offend.
Simple cautions are intended to:
- enable quick resolution with regard to certain offences
- avoid unnecessary appearance in criminal courts
- reduce the chances of re-offending.
Before a simple caution can be issued, the following conditions must be satisfied:
- a there must be sufficient evidence to give a realistic prospect of conviction
- b the offender must understand the significance of a formal caution and admit the offence through signing a declaration
Fixed Penalty Notices
The Authority will where it is appropriate and lawful to do so issue fixed penalty notices. This is likely to include the authorisation of agents to issue fixed penalty notices on behalf of the authority where it is expedient, and necessary to do so.
Injuctive Action
The Authority may apply to the courts for injunctive action where it is necessary to do so, particularly under the terms of any legislation that requires recourse to the civil courts. Failure to comply with injunctive action could result in proceedings for contempt of court. A person can be imprisoned for this offence.
Prosecution
The Authority will use discretion in deciding whether to initiate a prosecution and will only do so where it is considered to be in the public interest having followed the criteria set out in paragraph 6.
The decision to prosecute will always take into account the criteria laid down in the Code for Crown Prosecutors. The more serious the offence, the more likely it is that a prosecution will be needed in the public interest.
Forfeiture Proceedings
Where there is a need to dispose of goods in order to prevent them re-entering the market and a defendant is unlikely to voluntarily surrender items, the authority may apply to a criminal court for a forfeiture order following prosecution.