Appendix B: Enforcement Actions available to the Council in Respect of Criminal and Civil breaches
- 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 letter will be persuasive 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.
The Council recognises that where a business has entered into a partnership with a primary authority, the primary authority will provide compliance advice and support, and 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 there is likely to be an ongoing need for compliance advice and support, to prevent further breaches.
- 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.
- Statutory (Legal) Notices
In respect of many breaches the Council has powers to issue statutory notices. These include: ‘Abatement 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.
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.
- Financial penalties
The Council has powers to issue fixed penalty notices, penalty charge notices and monetary penalties in respect of some breaches of legislation. A fixed penalty notice, penalty charge notice or monetary penalty is not a criminal fine, and does not appear on an individual’s criminal record. If a fixed penalty, penalty charge notice or monetary penalty is not paid, the Council may, however, commence criminal proceedings or take other enforcement action in respect of the breach or take civil enforcement action to recover the value of the fixed penalty, penalty charge or monetary penalty subject to the provisions of the relevant legislation.
If a fixed penalty, penalty charge notice or monetary penalty is paid in respect of a breach, the Council will not take any further enforcement action in respect of that breach. Payment of the penalty does not provide immunity from prosecution in respect of similar, continuing or recurrent breaches.
The Council is only able to issue a fixed penalty notices, penalty charge notices and monetary penalties where it has specific powers to do so. If fixed penalty notices are available, their issue is at the Council’s discretion. In some circumstances, in particular where breaches are serious or recurrent, it may be that prosecution is more appropriate than the issue of a fixed penalty notice.
In specific instances dictated by regulation, the Council has powers to issue monetary penalties. In some cases the Council has discretion in the level of monetary penalty to impose. Where regulation makes provision for the Council to receive representations in respect of a charge, the Council will inform recipients how to make representation and provide guidance on what might be relevant issues. Any representation received will be reviewed in a timely manner within the terms of the regulation, the requirements of this policy and based on the reasonableness of the charge on a case by case basis.
If the Council deems fit it may confirm, vary or quash a monetary penalty.
- 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 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 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.
The Council may seek Banning Orders where relevant convictions exist and it is appropriate and proportionate to do so.
- Prosecution
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 will only be considered where the Council is satisfied that it has sufficient evidence to provide a realistic prospect of conviction against the defendant(s).
Before deciding that prosecution is appropriate, the Council will consider all relevant circumstances carefully and will have regard to the following public interest criteria:- Seriousness of the offence committed
- The level of culpability of the suspect
- 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 and in respect of particularly serious breaches a prison sentence. 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.
- Refusal/Suspension/Revocation of Licences
The Council issues a number of licences and permits. The Council 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 and public safety is assured. Breach of these conditions may lead to a review of the licence which may result in its revocation or amendment.
When considering future licence applications, the Council may take previous breaches and enforcement action into account and also other matters which, on the balance of probability, may influence the assessment of a person to be a fit and proper person.
- Prohibitions
The Council has a range of powers that allow for the prohibition of activities, structures, or use of facilities such as sports grounds.
The Council has a role to ensure the safety of the public and will exercise prohibition powers only where it is essential to protect health and there is sufficient evidence available to demonstrate that a risk to health exists.