Appendix C
Enforcement Actions
Enforcement Actions available to the Council in Respect of Criminal and Civil breaches.
A) Compliance Advice, Guidance and Support
The Council uses compliance advice, guidance and support as a first response in the case of many breaches of legislation that are identified. Advice is provided, sometimes in the form of a warning letter, to assist individuals and businesses in rectifying breaches as quickly and efficiently as possible, avoiding the need for further enforcement action. A warning letter will set out what should be done to rectify the breach and to prevent re-occurrence. If a similar breach is identified in the future, this earlier letter will be taken into account when considering the most appropriate enforcement action to take on that later occasion. Such a letter cannot be cited in court as a previous conviction but the Council may seek to use this as evidence in future proceedings.
The Council recognises that where a business has entered into a partnership with a Primary Authority, that Primary Authority will provide compliance advice and support. The Council will take such advice into account when considering the most appropriate enforcement action for it to take. It may discuss any need for compliance advice and support with the Primary Authority.
Where more formal enforcement action such as a simple caution or prosecution is taken, the Council recognises that in certain circumstances, in order to prevent further breaches, there is likely to be an ongoing need for compliance advice and support.
B) Voluntary Undertakings
The Council may accept voluntary undertakings that breaches will be rectified and/or recurrences prevented. The Council will take any failure to honour voluntary undertakings very seriously and enforcement action is likely to result.
C) Statutory (Legal) Notices
In respect of many breaches, the Council has powers to issue statutory notices. These include:
- Stop Notices;
- Abatement Notices
- Planning Notices;
- Prohibition Notices;
- Emergency Prohibition Notices;
- Improvement Notices.
Such notices are legally binding and any failure to comply with a statutory notice is a criminal offence and may lead to prosecution and/or, where appropriate, the carrying out of work in default (i.e. the Council will carry out the works and recover the costs of doing so from the business, individual or organisation subject to the notice).
A statutory notice will clearly set out actions which must be taken and the timescale within which they must be taken. It is likely to require that any breach is rectified and/or prevented from recurring. It may also prohibit specified activities until the breach has been rectified and/or safeguards have been put in place to prevent future breaches. Where a statutory notice is issued, an explanation of the appeals process will be provided to the recipient at the same time.
Some notices issued in respect of premises may be affixed to the premises and/or registered as local land charges where permitted/required by the legislation under which such notices are issued.
D) Financial penalties
The Council has powers to issue fixed penalty notices or civil penalties in respect of some breaches. These are not criminal fines, and do not appear on a company or an individual’s or organisation’s criminal record. If a penalty is not paid, the Council may commence criminal proceedings (following which any conviction will result in a criminal record), or take other enforcement action in respect of the breach.
If a penalty is paid in respect of a breach/offence the Council will not take any further enforcement action in respect of that breach. Payment of fixed a penalty does not provide immunity from prosecution in respect of any similar future or recurrent breaches/offences.
The Council is only able to issue fixed penalty notices/penalties where it has specific powers to do so. If fixed penalty notices are permitted under the relevant legislation then they will only be issued at the Council’s discretion. In some circumstances, in particular where breaches are serious or recurrent, it may be that the Council considers that prosecution is more appropriate than the issue of a fixed penalty notice.
E) Injunctive Actions, Enforcement Orders etc.
In some circumstances the Council 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 be asked to direct that specified activities be suspended until the breach has been rectified and/or safeguards have been put in place to prevent future or recurrent breaches.
Failure to comply with a court order constitutes contempt of court, a serious offence which may lead to imprisonment.
The Council 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.
F) Simple Caution
The Council has the power to issue simple cautions (previously known as ‘formal cautions’) as an alternative to prosecution for some less serious offences, where a person admits an offence and consents to the simple caution. Where a simple caution is offered and declined, the Council will commence prosecution proceedings.
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 as a previous conviction if the tests in the Criminal Justice Act 2003 are met. 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.
G) Prosecution
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 may be considered where the Council is satisfied that it has sufficient evidence to provide a realistic prospect of conviction against the defendant(s). Following consideration of the evidential test, the Council will consider all relevant circumstances carefully and have regard to the following public interest criteria:
- How serious is the offence committed?
- What is the level of culpability of the suspect?
- What are the circumstances of and the harm caused to the victim?
- Was the suspect under the age of 18 at the time of the offence?
- What is the impact on the community?
- Is prosecution a proportionate response?
- Do sources of information require protecting?
A successful prosecution will result in a criminal record. The court may impose a fine or a community penalty and in respect of particularly serious breaches, a prison sentence as governed by the appropriate legislation and sentencing guidelines. The court may order the forfeiture and disposal of non-compliant 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 or from working in certain areas and/or industries. The Council will also seek to recover, via the courts, the costs which it incurs in conducting the prosecution.
H) Refusal, suspension or revocation of licences
The Council issues a number of licences and permits. It also has a role to play in ensuring that appropriate standards are met in relation to licences issued by other agencies. Most licences include conditions which require the licence holder to take steps to ensure that, for example, a business is properly run. Breach of these conditions may lead to action being taken in relation to the licence/licence holder. This action can vary from adding/amending licence conditions to reviewing the licence; and from suspension to revocation of the licence.
In the event of a licence being refused, suspended or revoked, there is in most cases a right of appeal (details of which will be notified to the licensee at the time of the relevant action being taken).
When considering future licence applications, the Council may take previous breaches and enforcement action into account.