Corporate Enforcement

1. Introduction

1.1 Staffordshire County Council ('the Council') believes that prevention is better than cure and that its role involves actively working with the public and with businesses to help them comply with the laws that affect them. It has adopted the Cabinet Office Enforcement Concordat and this Policy reflects the principles of the Concordat.

1.2 The Council acts as a regulatory and enforcement agency in a number of areas, including:

Safety at Sports Grounds
Town and Country Planning
Trading Standards
Food Law
Weights and Measures
Education
Social Services
Countryside
Highways

1.3 This Policy will be observed in all such areas, in addition to any other detailed enforcement policies that may exist under these functions

1.4 This Policy is intended to provide guidance for officers, businesses and consumers and the public. It does not affect the discretion of the Council to take legal proceedings where this is considered to be in the public interest.

2. Basic Principles

2.1 The role of the Council is to ensure that in enforcement and regulation, the interests of the public are protected.

2.2 The purpose of this Policy is to ensure that the law is applied in a fair, equitable and consistent manner and to guide officers into taking the appropriate action.

2.3 In general, and where appropriate, consideration will be given to alternatives to prosecution, for example giving advice and assistance, or obtaining assurances or undertakings about future conduct.

2.4 Before formal action is taken, officers will normally provide an opportunity to discuss the circumstances of the case and, if possible, resolve points of difference, unless immediate action is required (for example, in the interests of health and safety, environmental protection or to prevent evidence being destroyed.)

2.5 All decisions will be impartial and will not be influenced by race, politics, gender, sexual orientation, religious beliefs or any other belief or status of the alleged offender.

2.6 Officers will have due regard to the principles contained within the Enforcement Concordat, and any other published and relevant guidance, including:

the Code for Crown Prosecutors,
Home Office Circular 18/1994 (The Cautioning of Offenders),
the Food Safety Act 1990 Code of Practice
LACORS Chief Officer circulars
Planning Policy Guidance issued by Central Government.

2.7 The County Council will take into account the comments of any victim, injured party or other relevant person to establish: -

his or her views about the circumstances in which enforcement action is deemed appropriate
the nature and extent of any harm or loss, and its significance relative to the individual circumstances.

2.8 Staffordshire County Council is a public authority for the purposes of the Human Rights Act 1998. Officers will therefore apply the principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

3. The Range of Actions Available

3.1 The action taken in each case will be decided on its merits. In addition, officers may decide to refer a matter to another agency or service where appropriate.

3.2 The range of options available include:

Informal Action and Advice
Service of a Legal Notice
Written Undertaking
Enforcement Orders
Injunction
Formal Caution
Revocation or refusal of a licence, approval of registration
Prosecution

These are referred to below and are in addition to specific measures that exist under particular legislation.

4. Informal Action and Advice

4.1 Before deciding to adopt this course, officers will need to be satisfied:

that the organisation or individual will remedy the situation, without formal action being taken;
that there is no serious threat to public health, safety or the environment, nor serious harm to amenity;
that previous advice has not been ignored;
that the organisation or individual has not acted deliberately or negligently; and
that there has not been a similar previous alleged offence or breach committed by the same organisation or individual.

4.2 The Council's advice and requirements will be set out clearly and simply in writing, with an explanation of any remedial work required. Legal requirements will be clearly distinguished from best practice advice.

5. Service of a Legal Notice

5.1 In certain circumstances legislation allows an officer to serve upon an organisation or individual a notice requiring action to be taken or, that certain operations/activities be stopped immediately.

5.2 Legal notices are normally used where:

a serious threat to public health, safety, the environment, or to amenity will arise or a situation deteriorate, if a breach is not remedied quickly; or
an informal approach has failed, or in the opinion of the officer is likely to fail to achieve the necessary improvements; or
the breach is one of a number of matters prescribed under legislation, for example, under the Weights and Measures Act, in planning law and guidance, or where information or action is required pursuant to another Council function.

5.3 In circumstances where actions or neglect by a business or individual cause a threat to public health, safety, the environment or serious harm to amenity, the service of a legal notice may be followed by an investigation into the cause. An investigation may lead to further enforcement action, including prosecution.

5.4 A failure to comply fully with a legal notice will be taken as a disregard for the law and appropriate action will be taken.

6. Written Undertakings and Enforcement Orders

6.1 Under some legislative regimes, where an individual or organisation persistently fails to comply with the law, the Council may seek a written undertaking from that person that they will cease the action complained of. In such circumstances, the Council may determine that no further formal action will be taken.

6.2 In cases where an individual or organisation has breached or has refused to provide a written undertaking to cease the action complained of, an application to a court may be made for an enforcement order, or for other formal action in accordance with the relevant legal provisions.

7. Injunctions

7.1 Where an individual or organisation fails, or appears unlikely, to comply with an obligation under the law an injunction may be sought, for whatever measures the Court thinks appropriate for the purpose of restraining the alleged breach or any anticipated breach.

8. Formal Caution

8.1 A formal caution is a serious matter and will be kept on record. This will influence future decisions as to whether or not to institute proceedings if the person/business re-offends again. It may also be cited in any subsequent court proceedings.

8.2 In order to safeguard the offender's interests, the following conditions must be met before a caution can be administered: -

there must be evidence of the offender's guilt sufficient to give a realistic prospect of conviction;
the offender must admit the offence; the Council must be prepared to commence formal proceedings if the caution is not accepted.
the offender (or, in the case of a juvenile, his or her parents or guardian) must understand the significance of a caution and give informed consent to being cautioned.

8.3 If the first two of the above requirements are met, consideration will be given as to whether a caution is in the public interest. The Council will take into account the public interest principles described in the Code for Crown Prosecutors, including:

not prosecuting certain categories of offender, such as elderly people or those who suffer from some sort of mental illness or impairment, or a severe physical illness;
the offender's attitude towards the offence: the wilfulness with which it was committed and their subsequent attitude. A practical demonstration of regret, such as apologising to the victim and/or offering to put matters right, so far as they are able;
where offenders are involved in group offences an individual's involvement can vary greatly. Consideration as whether to prosecute or caution, will depend on the part played by each offender. Different methods of dealing with individuals may be justified.

9. Prosecution

9.1 Prosecution has potentially serious consequences: a criminal record, adverse publicity, an adverse effect upon a business' trading position and even loss of liberty. For this reason the decision to prosecute is not taken lightly.

9.2 Prosecution will normally only be considered where one or more of the following "public interest" criteria are satisfied:

serious threat to public health or safety or to the environment, suffering caused to animals or the risk of disease, or serious harm to amenity;
deliberate fraudulent or reckless practice, or a threat of a significant economic disadvantage to consumers or businesses;
threats of violence to any person or to any officer of the Council or the obstruction of an officer carrying out his or her statutory duties;
the victim is part of a vulnerable group, for example children, disabled or the elderly;
the offence was committed in the presence of or in close proximity to a child;
a prosecution would have a significant positive impact on maintaining community confidence or on the social, economic and environmental well being of communities;
the law is being flouted or the actions complained of are irresponsible.
the matter complained of is seen as being widespread or of sufficient significance to justify formal action to prevent general disregard for the law and/or public Policy, following appropriate notices being given.

9.3 It is also important that there should not be undue delay between the date of the alleged offence and the institution of legal proceedings.

9.4 In addition the case must satisfy both of the following criteria:

a realistic prospect of conviction; and
a realistic prospect that the alleged offender will not be able to successfully prove any statutory defence.

9.5 Other factors which may influence the decision to prosecute, include:

the conviction(s) is likely to result in a significant sentence or penalty;
a conviction is likely to result in a confiscation or any other order;
whether the alleged offence was the result of a genuine mistake and, if so, has the matter been satisfactorily rectified;
whether the prosecution is likely to have an adverse effect on the victim's physical or mental health of any person who is a victim of the alleged offence;
the views of the relevant 'home authority' - i.e. the local authority in which the alleged offender's head office is based;

9.6 Deciding on the public interest is not simply a matter of adding up the number of factors on each side. The Council must decide how important each factor is in the circumstances of each case and then go on to make an overall assessment.

10. Availability of the Policy

10.1 A copy of this Policy, the Enforcement Concordat and any other relevant guidance or policies will be made available upon request. A version for the partially sighted is also available.

The Enforcement Policy is also available in PDF format||.