·
Protecting residents, visitors, workers,
consumers, businesses, the Council’s
financial position and the environment of the area
·
Protecting against
the spread of infectious diseases
in the area
·
Equitable and consistent enforcement actions
·
Fostering an environment which encourages economic
progress in our district
·
Helping businesses and others to understand and meet their
legal obligations
·
Reducing unnecessary burdens on businesses and individuals
·
Responding proportionately to the seriousness of regulatory breaches
·
Taking firm action,
including legal action where appropriate, against those who fail to change
their behaviour, persistently flout the law or act negligently or deliberately seek to distort the market place
1.3 Scope
Brighton and Hove City Council Safer Communities has enforcement
teams relating to the following areas of compliance:
·
Trading Standards
·
Licensing
·
Food Safety
·
Health and Safety
·
Environmental
Protection
·
Animal Wardens
·
Taxi Licensing
·
Field Officers
·
Community Safety
1.4 Policy Consistent with Best Practice and Statutory Requirement
This Policy has been developed with due regard to the Principles
of Good Enforcement set
out in the following guiding documents:
·
The
Regulators’ Code, a code issued in respect of certain specified Council regulatory functions.
·
The Code for Crown Prosecutors
·
The
Enforcement Policy Statement of the Health and Safety Executive and the National Local Authority Enforcement
Code Health and Safety at Work England,
Scotland and Wales, April 2013, which the Council’s Health and Safety Enforcement
Officers need to follow.
·
The Food Standard
Agency’s Regulators’ Code,
which came into force in April 2014.
In certain circumstances we may conclude that a
provision contained in one or more of these codes is either not relevant
or is outweighed by another
provision or relevant factor. We
will ensure that any decision to depart from
relevant policy guidelines will be properly reasoned and based on
material evidence.
1.5 Legal Obligations
All enforcement activities, including investigations and formal
actions, will always be conducted in
compliance with the Council’s statutory obligations. Council enforcement officers should act within the
scope of their delegated authority and with due regard to all relevant
legislation, such as:
·
Health and Safety at Work
etc. Act 1974
·
Police and Criminal Evidence
Act 1984,
·
Criminal Procedure and Investigations Act 1996,
·
Human Rights
Act 1998,
·
section 17 of
the Crime and Disorder Act 1998,
·
Regulation of Investigatory Powers Act 2000,
·
Investigatory Powers
Act 2016
·
Criminal Justice
and Police Act 2001,
·
Legislative and Regulatory Reform
Act 2006,
·
Regulatory Enforcement and Sanctions Act 2008
·
Equality Act 2010, and
·
Protection of Freedoms Act 2012
Officers will have due regard to any relevant, regulations,
guidance formal procedures and
codes of practice made under such legislation.
2. Our Enforcement Principles
The principles are that
Regulatory activities should be:
· carried out in a way, which is transparent, accountable, proportionate and consistent;
·
targeted only at cases in which action is needed.
2.1
Helping Businesses and Others to Compliance –
Supporting Economic Progress
We will take care to help businesses and others meet their legal obligations without unnecessary expense.
We will strive to ensure that when information is needed from businesses that it is assessed to avoid duplication of requests and amended where
necessary.
Whenever practicable we will promote positive incentives for
businesses that comply, such as the National Food Hygiene Rating Scheme.
We
will, where practicable and appropriate, provide
feedback to business when there are changes in business risk ratings as
a result of their performance.
2.2 Openness through Clear,
Accessible Guidance
Any information and advice about the legislation that we enforce
shall be provided in plain language where
practicable including on the Council website at www.brighton-hove.gov.uk.
2.3 Helpfulness through Clear, Accessible Guidance
We aim to help businesses get it right first time through the
provision of a courteous and
efficient service. Our staff will identify themselves by name and carry proof of their identity. We will provide a contact point and
telephone number for further dealings
with us and we will encourage businesses and others to seek guidance or information from us.
All requests for service, including applications for approval of establishments, licences,
registrations, etc, will be dealt with efficiently and promptly within the resources
available. We will ensure that, wherever
practicable, our enforcement services are effectively co-ordinated to minimise
unnecessary overlaps and time delays.
2.4 Meeting the Needs of
All Our Service Users
As far as it is reasonable to do, we will make provision for the
particular interests of our service
users, including businesses, their employees and the public in line with the
Council’s own policies and procedures.
2.5 Targeted, Proportionate and Risk-based Enforcement
We will adopt a risk-based approach
to target resources where most needed.
In line with the
codes referred to above, we will take account of the circumstances of the case and the response of those subject to
regulation when considering action. At the same time we will use intelligence and direct resources
to identify those who
flout the law or act irresponsibly
and take appropriate action against them, including prosecution where
appropriate.
2.6 Consistent Enforcement
We will carry out our duties in a fair,
equitable and consistent manner. While officers
are expected to exercise judgement in individual cases and to treat each case on its own merits,
we will have arrangements in place to promote consistency. Any actions taken should therefore:
·
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 could 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 non-compliance, where appropriate; and,
·
aim to deter future non-compliance.
We support and will promote
arrangements for effective
liaison with other authorities and enforcement bodies through schemes
such as the Home Authority
principle, the Lead Authority principle
and the Primary Authority principle.
2.7 Working with Other Enforcement
Agencies
Sometimes there is more than
one agency that can act in response to a problem. If there is a shared enforcement role with other agencies, whenever
possible our enforcement activities will be co-ordinated with these agencies
to prevent duplication or delays.
2.8
Best Practice
Guidance from an officer will be put clearly and simply, explaining
why any remedial work or action is
considered to be necessary and over what time-scale. Such guidance will make sure that legal requirements are clearly
distinguished from best practice advice
and will be usually confirmed in writing.
3.
How We Take Enforcement Action
3.1 Wherever possible officers will attempt to
reach a solution by agreement unless immediate action
is necessary and proportionate.
3.2 Where there are statutory rights of appeal
against formal action, information about those appeal rights
will be given, either with the Notice
governing the action taken or, where this is not
appropriate or practicable, in a letter following the action to be
sent as soon as reasonably practicable.
3.3 Enforcement Actions
Whenever enforcement officers
deal with matters
that could constitute a criminal offence, and for which legal proceedings can be taken against an individual
and / or a company, such allegations will be properly investigated.
3.4 At the conclusion of an officer’s
enquiries, a decision will be made as to the
most appropriate course of action.. The enforcement action that the
local authority chooses to take will
depend upon the particular circumstances and the approach of the business or regulated person to
dealing with the breach. The Council will be robust in dealing with those that
deliberately or persistently fail to
comply or target vulnerable persons, or compromise public safety.
3.5
Guidance for issuing Fixed Penalty Notices:
Officers and their representatives will follow relevant
guidance to determine if it is appropriate to issue a FPN
3.6
Informal Action
– Advice or Warning
Minor infringements are generally dealt with informally by means of advice
and guidance. Where appropriate a
report will be left at the time of
the visit or contained within a
written letter of advice or warning. If advice
is ignored, or if there is another factor that warrants a formal response, the Council may choose to treat the incident in a formal
way.
3.7 Formal Action – Statutory Notice
If officers have the relevant authority, they may issue a statutory
notice requiring certain actions to be carried
out within a given timescale. It is the responsibility of the
recipient to comply with the notice. Failure to
do so may result criminal action being taken.
3.8 Formal Action – Investigation
In more serious cases an investigation will be conducted to determine
the most appropriate course of
action.
3.9
Suspected offenders
will be given the opportunity to provide their version of the events including, where provided for by the legislation, of
any statutory defences. Officers may decide to do this by
inviting the suspect to attend a formal
interview.
3.10 Formal interviews will be carried out in
accordance with the relevant PACE codes issued under the Police and Criminal
Evidence Act 1984 (PACE).
Some matters may not proceed to a full criminal investigation but
may instead be dealt with by way
of a committee hearing.
3.11
Formal Action -
Criteria for Assessing Action on Suspected Offences The Council
takes care to ensure an independent and consistent approach
is taken to prosecution decisions. Where the investigating officer
recommends prosecution the ultimate decision will rest with the
Head of Safer Communities.
In all cases the appropriate course of action to take is decided
having regard to relevant policies
and the current Code for Crown
Prosecutors, which involves a two-stage decision making process:
·
Firstly,
an evidential test to ensure that there is enough evidence to provide a ‘realistic prospect of conviction’. If this is lacking, then no prosecution or alternative means
of disposal of criminal
offences will be taken.
·
Secondly, a public
interest test, which will
determine whether it is in the public interest
for a prosecution to be taken.
3.12 Public interest criteria
The Council will consider all relevant circumstances carefully and will have
regard to the following public interest criteria:
·
the gravity of an
alleged offence, taken together with the seriousness of any actual or potential harm, or the general record
and approach of the offender;
·
there has been a reckless disregard of regulatory requirements;
· there have been repeated breaches
giving rise to significant risk, or persistent
and significant poor
compliance;
·
there has been a failure to honour voluntary
undertakings or comply with statutory notices; or there has been a
repetition of a breach that was subject to a simple caution;
·
false information has
been supplied wilfully, or there has been an intent to deceive, in relation
to a matter which gives rise to significant
risk;
·
authorised officers
have been intentionally obstructed in the lawful course of their duties.
This is not an exhaustive list. Where we consider that formal
enforcement action is necessary each case will be
considered on its own merits.
3.13 The Code for Crown Prosecutors test insofar
as it relates to the council requires the consideration of the following
questions:
a) How serious is the offence
committed?
•
The more serious the offence, the more likely it is that a prosecution is required.
•
When assessing the
seriousness of an offence, prosecutors should include in their consideration the suspect’s culpability and the harm
caused, by asking themselves the questions
at b) and c).
b) What is the level of culpability of the
suspect?
•
The greater
the suspect’s level of culpability, the more likely it is that a prosecution is required.
•
Culpability is likely to be determined by:
i. the suspect’s level of involvement;
ii. the extent to which the offending was premeditated and/or
planned;
iii. the extent to which the suspect has benefitted from criminal conduct;
iv. Whether
the suspect has previous criminal
convictions and/or out-of-court disposals and any offending whilst
on bail or whilst subject to a court order;
v. whether the offending was or is likely to be continued, repeated or escalated;
vi. The suspect’s age and maturity
(see paragraph d below).
•
A suspect is likely to
have a much lower level of culpability if the suspect has been compelled, coerced or exploited,
particularly if they are the victim
of a crime that is linked
to their offending.
•
Prosecutors should also
have regard to whether the suspect is, or was at the time of the offence, affected by any significant mental or
physical ill health or disability, as
in some circumstances this may mean that it is less likely that a prosecution is required. However,
prosecutors will also need to consider how serious the offence was, whether the suspect is likely to re-offend and the need to
safeguard the public or those providing care to such persons.
c) What are the circumstances of and the harm caused to the victim?
•
The circumstances of
the victim are highly relevant. The more vulnerable the victim’s situation, or the greater the perceived vulnerability
of the victim, and the more ham and impact caused to the victim, the more likely
it is that a prosecution is
required.
•
This includes where a
position of trust or authority exists between the suspect and victim.
•
A prosecution is also
more likely if the offence has been committed against a victim who was at the time a person serving the public.
• It is more likely that prosecution is required if the
offence was motivated by any form of prejudice against the victim’s actual or
presumed ethnic or national origin,
gender, disability, age, religion or belief, sexual orientation or gender identity;
or if the suspect targeted
or exploited the victim, or demonstrated hostility
towards the victim, based on
any of those characteristics.
•
Prosecutors also need
to consider if a prosecution is likely to have an adverse effect on the victim’s physical or mental
health, always bearing in mind the seriousness of the offence,
the availability of special measures
and the possibility of a
prosecution without the participation of the
victim.
•
Prosecutors should take
into account the views expressed by the victim about the impact that the offence has had. In appropriate cases, this
may also include the views of
the victim’s family.
•
However, the Council
does not act for victims or their families in the same way as solicitors act for their clients, and
prosecutors must form an overall view of the
public interest.
d)
What was the suspect’s age and maturity
at the time of the offence?
•
Prosecutors should consider the suspect’s maturity,
as well as their chronological age, as young adults will continue to mature into their mid- twenties.
•
As a starting point, the younger
the suspect, the less likely it is that a prosecution is required.
•
If the offender is
under 18 then officers may liaise with the Youth Offending Service or
Children’s Services as appropriate
e) What is the impact on the community?
• The greater the impact of the offending on the community,
the more likely it is that a prosecution is required.
•
The prevalence of an
offence in a community may cause particular harm to that community, increasing the seriousness of the offending.
•
Community is not
restricted to communities defined by location and may relate to a group of people who share certain characteristics, experiences or backgrounds, including an occupational group.
•
Evidence of impact on a
community may be obtained by way of a Community Impact Statement.
f) Is prosecution a proportionate response?
•
In considering whether
prosecution is proportionate to the likely outcome, the following may be relevant:
i.
The cost to the Council
and the wider criminal justice system, especially where it could be regarded as excessive when weighed against any
likely penalty. Prosecutors should
not decide the public interest on the basis of
this factor alone. It is essential
that regard is also given to the public interest
factors identified when
considering the other questions, but cost can be a relevant factor when making an overall assessment of the public
interest.
ii.
Cases should be
prosecuted in accordance with principles of effective case management. For example, in a case
involving multiple suspects, prosecution might be reserved for the main participants in order to avoid excessively long and complex
proceedings.
3.14 Prosecutions related to Health and Safety
The Council will normally prosecute
where one or more of the following
circumstances are found to apply:
· Death was
a result of a breach
of the legislation.
·
The gravity of the
alleged offence, taken together with the seriousness of any actual or potential harm, or the general
record and approach of the offender warrants it.
·
There has been reckless
disregard of health and safety requirements.
·
There have been repeated
breaches giving rise to significant risk, or persistent
and significant poor
compliance.
· Work has been carried out without
or in serious non-compliance with an appropriate licence.
·
The standard of
management of health and safety is found to be far below legal requirements and to give rise to significant risk.
·
Failure to comply with an improvement or prohibition notice.
·
False information has been supplied
wilfully in relation
to a matter which gives rise to significant risk.
·
Inspectors have been obstructed in the course
of their duties.
Where there has been a work-related death, enforcement officers will
follow the National Work-related Death Protocol in liaising with the police to consider
whether the circumstances of the case might justify
a charge of manslaughter.
3.15 Formal Actions following
conclusion of the criminal investigation
The eventual
course of action
taken may be one of the following: -
·
No action
·
Verbal or Written
Advice or Warning
·
Undertakings & Injunctive action
·
Formal Notice
·
Work in Default
·
Simple Caution
in accordance with current Home Office guidance
·
Fixed Penalty
Notice
·
Seizure
·
Prosecution
·
Possession action
·
Refusal/Suspension/Revocation of a licence
, permit or certificate
·
Review of Premises Licence
·
Closure notice-
persistently sell to minors
·
Criminal Behaviour
Order
·
Forfeiture
·
Tobacco Restriction Orders
·
Post-conviction court orders
·
Reduction in capacity at a sports
ground
·
Confiscation of Proceeds of Crime
·
Restitution
·
Referral to committee
·
Administrative Penalty
·
Financial or other Civil Penalty Notices.
·
Unlawful profit
orders.
·
Community Protection
Notice
·
Closure Order
There are other options for formal action that are available to certain regulatory officers
under the legislation that they enforce on behalf
of the council or other sanctions that may be provided for in subsequent legislation.
3.16
An explanation of the
formal action options
a.
No action
In certain circumstances, contraventions of the law may not warrant
any action. A decision of no action
may also be taken where formal
enforcement is inappropriate in the circumstances.
b. Verbal or written
advice or warning
For minor breaches of the law we may give verbal or written advice. This
will clearly identify any contraventions of the law and give advice on how to
put them right, including a deadline
by which this must be done. Failure to comply could result in an escalation of enforcement action.
c. Undertakings & Injunctive action
The range of actions under various legislation (for example the
Enterprise Act 2002 and the Anti-Social Behaviour, Crime and Policing Act 2014) include:
informal assurances, formal undertakings, interim
orders, court orders and contempt
proceedings.
d. Formal Notice
Certain legislation allows notices to be served requiring offenders
to take specific actions or cease certain
activities. Notices may require activities to cease immediately where the circumstances
relating to health, safety, environmental damage
or nuisance demand. In other circumstances, the time allowed will be reasonable, taking into account
the seriousness of the contravention, the implications of
the non-compliance and the appeal period for that notice. All notices
issued will include
details of any applicable Appeals
Procedures.
e. Work in Default
The Council is given powers under legislation to carry out works in default where a person
has been required to do works but has failed
to do so. In most circumstances a person will be given notice of the Council's
intention to carry outworks in their default.
Once the Council
has started works it is an offence for that person to obstruct the Council
or any of the contractors
that have been employed to carry out the works. The cost of the works will be recovered in accordance with
the relevant statutory provisions. The Council
is not obliged to carry out works and reserves the right not to do so where the cost of the works is likely to
be very high or there are likely to be difficulties in recovering the costs.
f. Simple Caution
Where a prosecution would otherwise be justified, a Simple Caution may be offered
to the defendant. The purpose
of these cautions is to avoid
unnecessary court action, but can only be used where the defendant fully admits the offence and agrees to it being dealt
with this way.
A Simple Caution will be issued in accordance with the current Home
Office Circular. If a caution is declined, a prosecution
should normally follow.
g.
Fixed Penalty Notice
The Council has powers to issue fixed penalty notices
in respect of some breaches. A fixed penalty notice is not a
criminal fine and does not appear on an individual’s criminal
record. If a fixed penalty
is not paid, the Council
may commence criminal proceedings
or take other enforcement action in respect of
the breach.
h. Civil or Financial Penalty notices
The Council has in certain circumstance the power to issue Civil or
Financial Penalties in relation to
particular offences in question. The powers are set out in law and the Council will follow the relevant policy and procedures.
i. Prosecution
In circumstances where none of the other forms of enforcement action are considered appropriate a prosecution will be
considered and may ensue
j. Refusal/ Suspension/ Revocation of a licence, permit or certificate
Brighton and Hove City Council issues
licences to carry out certain
activities. It also has a role
to play in ensuring that appropriate standards are met in relation to licences issued. 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 a review of the
licence which may result in its suspension,
revocation or amendment. When considering future licence applications or similar
applications this service may take previous breaches and enforcement action
into account.
k. Forfeiture
Some legislation allows us to apply to the court to seek forfeiture
of goods, either in conjunction with a prosecution, or
separately.
l. Tobacco Restriction Orders
Where an offender continually breaks the law by selling tobacco
products to young people, we may make
a complaint to the court and apply for a restricted premises order or a restricted sale order. The effect of such an order is to prohibit a premise or a person from selling tobacco for a period
of time up to one year.
m. Post-Conviction Court Orders
A person that is convicted of a relevant offence in the Criminal
Courts, can under the Anti-Social
Behaviour Crime and Policing Act 2014, be given an order that is equivalent to an Anti-Social Behaviour
Order, known as a Criminal Behaviour Order, which prohibits and/or requires the offender from doing anything
described in the order. A Remedial Order can be made for breach of a Community
Protection Notice under section 49 of the Anti-social Behaviour, Crime and Policing Act 2014. Dog Destruction and Control Orders
can be made under The Dangerous Dogs Act 1990 and the Dogs Act 1872.
n. Confiscation of Proceeds
of Crime
Where a prosecution concerns offending conduct falling within the
relevant tests under the Proceeds of
Crime Act 2002, we will consider seeking a confiscation order to remove the benefit obtained from such criminal conduct. The making of such orders sends a clear message that ‘crime does not pay’. The
purpose is to recover the financial benefit
the offender has obtained from their criminal
conduct.
o.
Reduction in
capacity at a sports ground
Formal action may also be taken in relation to all or part of sports
grounds such as imposing
a reduction in capacity
or issuing a Prohibition or Closure Notice.
4. How We Implement this Enforcement Policy
4.1
Publication and
Publicity
Following adoption, this policy will be published on the city
council’s website and in printed
form on request.
In order to deter others the council will aim to publish any
prosecution or other enforcement
action within 24 hours of the conviction or sentence unless there is good reason not to do so.
4.2
Responsibilities
Each manager of a regulatory service that is covered by this policy
will be responsible for its effective
implementation throughout the enforcement activities of their team. Every
officer within these teams will be responsible for applying it in relation to any enforcement activity covered by this policy.
4.3
Liaison with Other Regulatory Bodies
and Enforcement Agencies
Where there is a wider regulatory interest, enforcement activities
will be co- ordinated with other regulatory bodies and enforcement agencies
to maximise the effectiveness of any enforcement.
Where an enforcement matter affects a wider geographical area beyond
the local authority’s boundaries, or involves enforcement by one or more
other local authorities or organisations,
where appropriate all relevant authorities and
organisations will be informed of the matter as soon as possible
and all enforcement activity coordinated with them.
The officers will share intelligence relating to wider regulatory
matters with other regulatory bodies and enforcement agencies including:
•
Government Agencies
incl HMRC, Border
Force
•
Police Forces
•
Fire Authorities
•
Statutory Undertakers
•
Other Local
Authorities
The sharing of any specific
information with other regulatory bodies and enforcement agencies will take place
having due regard to the published data protection policies for the Council in
line with the General Data Protection Regulation and the Data Protection Act
2018 .
4.4 Monitoring and Review of the Policy
The operation of this policy in practice will be reviewed at least every
three years. The content of the
policy will also be reviewed in the light of any relevant changes in legislation or updated codes of practice. Any significant changes will be subject to prior approval
by relevant elected
Members of the authority following
consultation with the council’s senior officer group.
