Public Protection - Compliance and Enforcement Policy

8.1      Overview

8.1.1   In responding to breaches of the law, a range of actions is available to the Service, and these are set out in 8.4 below.  The appropriate action will be determined following careful consideration of the particular facts of each individual case and having regard to the approach of the alleged offender and any comments they wish to be taken into consideration.

We will normally take a graduated approach within the hierarchy of enforcement, and progress to taking formal action when informal means have failed to achieve the desired effect.

There may be circumstances where it is suspected that an offender has committed offences across a number of local authority areas, it may be more appropriate for another local authority outside of our area to take enforcement action even when an offence has been committed within the Powys County Council area. 

Conversely there may be occasions when it would be more appropriate for the Service to take enforcement action in respect of offences that occurred elsewhere.  In such circumstances we may enter into a legal agreement for one authority to take the lead role, as appropriate, making use of the provisions of Section 19 of the Local Government Act 2000, Sections 101 and 222 of the Local Government Act 1972 or any other enabling provisions or the provisions of the Consumer Rights Act 2015.  The rationale for making these decisions will be documented within the legal process.

8.2      Conduct of Investigations

8.2.1   All investigations will be carried out with due regard to the following legislation and any associated guidance or codes of practice, in so far as they relate to Powys.

• the Criminal Procedure and Investigations Act 1996
• the Police and Criminal Evidence Act 1984
• the Regulation of Investigatory Powers Act 2000
• the Criminal Justice and Police Act 2001
• the Human Rights Act 1998
• the Protection of Freedoms Act 2012

These Acts and associated guidance control how evidence is collected and used and give a range of protections to citizens and potential defendants.

8.2.2   Our procedures for interviewing alleged defendants follow the principles set out in the Police and Criminal Evidence Act 1984, as amended, and the relevant associated Codes of Practice.

8.2.3   Enforcement powers are provided by the legislation under which our officers are authorised - staff will use these powers when necessary, but always in a proportionate manner.  Officers will reasonably expect co-operation during the investigation of alleged contraventions, and it can be an offence to obstruct an authorised officer in the course of their duties.

8.2.4   Where officers exercise their powers of seizure, the person from whom any goods or documents are seized (or their representative) will be advised of the fact and provided with a receipt.  Seized items will be stored securely and in accordance with documented procedures.

8.2.5   Offenders are not normally subject to the possibility of arrest under the law enforced by the services within Powys County Council, however there are some exceptions.  These include offences under the Trade Marks Act 1994, and other law, subject to the necessity test of section 24 of the Police and Criminal Evidence Act 1984, for example when the bringing of a case would be hindered by the disappearance of the offender.

8.2.6   All investigations will be completed in a timely fashion and having regard to any time limits for bringing formal action prescribed by specific pieces of legislation.

8.2.7   Where the Council has an interest in a premises it will promote and prioritise compliance in the same way that it does in other premises in which it does not have an interest. Furthermore, it will ensure that the attention received is in accordance with the criteria applied to other duty holders.

8.3      Communication

8.3.1   Our staff will always communicate with any Primary Authority or Home Authority at the earliest possible opportunity in an investigation.

8.3.2   Those affected by enforcement action, including witnesses and defendants, will be kept informed of the progress of investigations in a clear, appropriate, and timely manner. 

8.3.3   Where appropriate, the results of our prosecution cases will be published through different media outlets and together with any partners involved in proceedings or the case.  Such results may also be drawn to the attention of interested parties including victims and witnesses.

8.4      Decisions on Enforcement Action

A range of enforcement outcomes is available to the Service, as detailed below.  The appropriate action will be determined following careful consideration of the circumstances of each individual case.

We will use compliance advice 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 reoccurrence accompanies by appropriate timescales.

If a similar breach is identified in the future, any previously issued warning letter will be taken into account in considering the most appropriate enforcement action to take on that occasion.  Such a letter cannot be cited in court as a previous conviction, but it may be presented in evidence as part of the factual matrix of a bad character application.

We recognise that where a business has entered into a Primary Authority Partnership, the Primary Authority may provide compliance advice and support, and will take such advice into account when considering the most appropriate enforcement action to take.  We may discuss any need for compliance advice and support with the Primary Authority.

We will have regard to the Crown Prosecutors Code of Practice with respect to the suitability of disposal of any alleged breach:

There are a number of civil remedies and criminal enforcement actions available to the Service:

8.4.1 Civil Remedies

8.4.1.1 Voluntary Undertakings

We may accept voluntary undertakings that breaches will be rectified and/or recurrences prevented.  The Service will take any failure to honour voluntary undertakings very seriously and enforcement action is likely to result.

8.4.1.2 Injunctive Actions

In some circumstances the Service may seek an injunction or order from the court that an identified breach is rectified and/or prevented from recurring, or it may control or prohibit a particular activity in the future.  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 an injunctive action constitutes contempt of court, a serious offence which may lead to imprisonment.

8.4.1.3 Civil Sanctions

The Regulatory Enforcement and Sanctions Act 2008 enables the government to give local authorities the power to impose various new civil sanctions.  These options are:

• The issuing of a fixed monetary penalty notice
• The issuing of a variable monetary penalty notice
• The issuing of a compliance notice
• The issuing of a restoration notice
• The issuing of a stop notice
• Permitting a business to make an enforcement undertaking

In respect of certain laws, local authorities in Wales currently have powers to impose:

Fixed Monetary Penalties

The Service may impose Fixed Monetary Penalties, which are capped at a relatively low level and are not intended to be used for more serious cases of non-compliance.  Fixed Monetary Penalties are not criminal fines and do not appear on an individual's criminal record.  Fixed Monetary Penalties cannot be used in conjunction with any other sanction.

Discretionary Requirements

The Service has powers under certain legislation to impose Variable Monetary Penalties and Non-Monetary Discretionary Requirements. 

Variable Monetary Penalties may be imposed up to a maximum level set out in the relevant legislation.  Non-Monetary Discretionary Requirements are requirements to take steps to ensure that a breach does not continue or recur.  Where the Service chooses to impose Non-Monetary Discretionary Requirements it will clearly set out what those steps should be and the time period within which they must be completed.  A failure to comply with the requirements is likely to result in a financial penalty.  Variable Monetary Penalties and Non-Monetary Discretionary Requirements may be used in combination.

Should the Government make additional sanctions available to the Service, we will comply with the legislative requirements for their use, provide guidance on how we will use these penalties and publicise details of any case in which these sanctions are used.

8.4.2 Criminal Enforcement Actions

8.4.2.1 Statutory Notices

In respect of many breaches, the Service has powers to issue statutory notices. These include: 'Stop Notices', 'Prohibition Notices', 'Emergency Prohibition Notices', and 'Improvement Notices'.  Such notices are legally binding. Failure to comply with a statutory notice can be a criminal offence and may lead to prosecution and/or, where appropriate, the carrying out of work in default (see 8.4.4 below).

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.

Some notices issued in respect of premises may be affixed to the premises and/or registered as local land charges.

8.4.2.2 Fixed penalty notice and penalty notice for disorder

The Service has powers to issue fixed penalty notices in respect of certain breaches. These notices give the offender the opportunity to avoid prosecution by payment of the prescribed sum in recognition of the offence.  The decision to offer an offender a Fixed Penalty Notice or in respect of underage sales of alcohol a Penalty Notice for Disorder is at the discretion of the investigating officer.  They will only be issued where the evidence would have been sufficient to support a prosecution.

Payment of a fixed penalty does not provide an individual immunity from prosecution in respect of similar or recurrent breaches.  In some circumstances, in particular where breaches are serious or recurrent, it may be that prosecution is more appropriate than the issuing of a fixed penalty notice.

8.4.2.3 Financial investigations and Confiscation of Assets

We will conduct financial investigation under the Proceeds of Crime Act 2002 and The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 to assist investigations and determine levels of criminal benefit from criminality and any assets available. We will apply for disclosure and enforcement orders to assist this.  In cases where a suspect is likely to dissipate assets or where we reasonably deem it proportionate, we will restrain assets where criminal proceedings are being considered.  We will not make a decision to institute legal proceedings on the basis of purely seeking to obtain incentivisation monies from POCA actions.         

If any monies are received from the Home office incentivisation system then those monies will be held in a reserve account and reinvested in proceeds of crime work and to support crime and disorder strategies relevant to the service that obtained them, as well as community schemes to reduce crime and disorder, and we will produce yearly plans to meet Home Office audits on this work.

8.4.2.4 Enforcement Orders

In some circumstances the Service may seek an order from the Court. Failure to comply with a court order constitutes contempt of court, a serious offence which may lead to imprisonment.

The Service 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, a court order will generally only be sought where there are serious concerns about consenting to, or complying with, voluntary undertakings or a notice.

In some instances, the Service may ask the Court for forfeiture orders in respect of seized goods or articles with a view to their destruction / confiscation.

8.4.2.5 Health and safety offences

When circumstances find that enforcement will be undertaken under health and safety legislation, consideration will also be taken of the Health and Safety Executive's Enforcement Policy Statement:

Enforcement Policy Statement (hse.gov.uk)

Furthermore, any enforcement decision for health and safety will have been taken through this Enforcement Management Model.

For matters of Health and Safety the Independent Regulatory Challenge Panel will look into complaints regarding advice given which is considered incorrect or goes beyond what is required to control the risk adequately. The challenge panel provides an independent means for any person (whether companies or individuals) to complain about advice given or actions put upon them by the Health and Safety Executive (HSE) or Local Authority (LA) health and safety regulators.  It will not consider the actions taken, or advice given, by the regulator where there are existing statutory mechanisms of appeal.  In the first instance complainants should seek to resolve the matter locally with the regulators and their managers.  If this is not possible, they can raise their complaint with the panel.  The panel will focus on substantive issues only.  The Independent Regulatory Challenge Panel (hse.gov.uk)

8.4.2.6 Simple Caution

A simple caution (previously known as a formal caution) is an alternative to prosecution, where the circumstances are such that the caution is likely to be effective and its use is appropriate to the offence.  It is an admission of guilt, but it is not a form of sentence, nor is it a criminal conviction.

Simple cautions are issued by a senior officer and can only be given to an offender who is over 18, where:

• There is sufficient evidence of obtaining a realistic prospect of a conviction,
• The offender admits their guilt, and
• It is in the public interest to use a simple caution rather than institute criminal proceedings.

There is no legal obligation for a person to accept the offer of a simple caution, but failure to accept a caution will normally result in prosecution for the offence. Each case will be considered on an individual basis.      

Where the offence committed is a recordable offence, a simple caution will appear on an offender's criminal record.  It is likely to influence how the Service and others deal with any similar breaches in the future and may be cited if it is relevant to any proceedings in the future.  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 guidance on the cautioning of adult offenders:

Simple cautions: guidance for police and prosecutors - GOV.UK (www.gov.uk)

For each simple caution, the manager in the case will decide whether it is reasonable to consider a charge be invoiced to the person/business/company subject of the investigation. This will not be conditional on signing the caution but would be issued when one of the following occurs:

• Where there are significant offences, and the service has conducted extensive costs to investigate the offences, and
• Where the Professional lead believes it is proportionate to the offending involved

8.4.2.7 Prosecution

We may prosecute breaches of legislation, particularly in respect of those who disregard the law or who act irresponsibly, or where there is an immediate risk to health and safety.  Where other forms of enforcement action, such as voluntary undertakings, statutory notices or a caution have failed to secure compliance, then prosecution is more likely.

As with the preceding enforcement options, a number of factors will be taken into consideration including but not exclusively-

• The seriousness of the offence,
• The previous history of the offender,
• Any statutory defence available,
• Action taken to avoid recurrence,
• Any explanation offered and, if the law allows, the circumstances and attitude of the offender
• What course of action will best serve the public interest,
• Whether there is a realistic prospect of conviction.

The decision as to whether prosecution is the most appropriate course of action in a particular case will be made

• In accordance with this policy,
• In accordance with the code of conduct for Crown Prosecutors The Code for Crown Prosecutors | The Crown Prosecution Service (cps.gov.uk),
• and in accordance with statutory requirements, taking into consideration all relevant codes of practice, and without any unnecessary delay.

In following the Code for Crown Prosecutors, a prosecution will only be commenced where the Council is satisfied that there is sufficient evidence to provide a realistic prospect of conviction against the defendant(s).  In addition, the Council must be satisfied that having considered all the relevant facts and circumstances of the case, and having regard to the criteria established by the Code for Crown Prosecutors, a prosecution would be in the public interest.

Having considered all the relevant facts and circumstances of an individual case, the Head of Service or Senior Manager will decide on the course of action by the local authority, based upon the recommendation of the Professional Lead or Manager for the relevant service, and after taking legal advice.

We will ensure that the constitution of the authority reflects the scheme of delegation for the institution of proceedings and that this is kept up to date.

In certain circumstances such as matters relating to health and safety, the institution of legal proceedings will be in the name of the authorised officer designated as an appropriate inspector.

A successful prosecution will result in a criminal record.  There are a range of punishments available to the court depending on the charge, the circumstances of a case and the offender.  These include a discharge, a fine, a community order, or a prison sentence in serious cases.  The court may order the forfeiture and destruction 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 keeping animals, and may have consequences for individuals seeking certain types of employment and proceeds of crime proceedings.  A record of the action will be recorded on internal systems and disclosed to any relevant databases such as the Sanctions Information Database (Trading Standards) and where applicable PNC/PND.

The Head of Service or Senior Manager can review any decisions and consider any further outcomes suggested by the defendant (or their solicitor) if they meet the overriding principles set out in the code of prosecutors.  

The Service will also consider applying for other orders on conviction where appropriate, for example a Criminal Behaviour Order.

8.4.3 Other remedies

8.4.3.1 Refusal, Suspension or Revocation of Licences

Powers exist to review, suspend, and revoke a range of licences. Some of these powers are delegated to officers acting under section 113 of the Local Government Act 1972, but where legislation prescribes or the authority has reserved the right under a scheme of delegation, such actions can only be taken by a sub-committee of the relevant participant Council.  Licence holders have the right to attend hearings and to be informed of their right of appeal against a decision.  When considering future licence applications, the previous breaches and enforcement action will be taken into account.