Enforcement Policy
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Introduction
1. The purpose of
this policy is to secure efficient compliance with legislation
whilst minimising the burden on businesses, individuals,
organisations, and the Council.
2. The policy explains the approach adopted by the
Service when carrying out the Council's duty to enforce a wide
range of legislation. It is written in general terms as it is
intended to be applied in a wide range of situations.
3. We endeavour to serve Cheshire consumers and
businesses by working with the business community to ensure fair
and safe trading and a thriving economy. We take particular care to
help small businesses; voluntary and community organisations to
meet legal obligations with minimal expense.
4. We will respond
promptly to any reasonable requests from Cheshire based businesses
for assistance in complying with trading standards law and have
formal "Home Authority" agreements with many local businesses which
trade beyond Cheshire. Under these agreements we will, amongst
other things, act as a single point of contact for other
authorities wishing to raise issues with those businesses, thus
minimising the disruption to those businesses.
5. The Council has adopted the Concordat on Good
Enforcement agreed between central and local government and is
committed to complying with the following guiding principles:
Standards
6. We will publish
our Service Standards and make them available to businesses and
others who are regulated.
7. We will provide
information and advice in plain language and will be open about how
we set about our work. We will discuss general issues, specific
compliance failures or problems with anyone experiencing
difficulties.
Helpfulness
8. We believe
prevention is better than cure and therefore encourage businesses
and others to seek advice from us to assist with compliance.
Complaints About Our Service
9. We provide a
well-publicised, effective and timely complaints procedure.
Proportionality
10. We will minimise
the costs of compliance by ensuring that any action we require is
proportionate to the risks. As far as the law allows, we will take
account of the individual circumstances of each case when
considering action.
Consistency
11. We will carry
out our duties in a fair, equitable and consistent manner. Whilst
Officers are expected to exercise judgement in individual cases, we
have arrangements in place to promote consistency, including
effective liaison arrangements with other authorities and
enforcement agencies who may have a shared enforcement role. All
investigations are undertaken in accordance with legal requirements
and where appropriate, government guidelines.
Levels of Enforcement Action
12. Legislation may
be enforced by one or a combination of methods:-
Promotion: to raise awareness about legal
standards and promote good practice. This is typically achieved by
the issuing of press releases, distributing leaflets and other
forms of written guidance available to the public and businesses,
and by face-to-face contact.
Informal warnings: these will be used to
reinforce promotional activities where, whilst the law may have
been broken or where a minor offence had been committed, it was not
thought appropriate to take any other action. An informal warning
can be oral or written. If it is believed by the recipient that
such a warning is inappropriate or unjustified then this policy
allows for the decision to be reviewed by a senior officer.
Formal enforcement:
this includes the use of statutory (legal) notices; written
undertakings and enforcement orders; the refusal to grant or revoke
a licence or registration; simple cautions; fixed penalty notices
and; prosecution. This course of action would be taken following
procedures laid down in legislation, codes of practice and
professional guidance notes.
Statutory (Legal) Notices
13. Many Acts of
Parliament enforced by the Council provide for the service of
statutory notices, which require a person, business or organisation
to comply with specific legal requirements. Where a formal notice
is served, the method of appealing against the notice (i.e.. if the
recipient feels that the notice is unjustified or excessive in its
requirements) will be provided in writing at the same time. The
notice will explain what is wrong, what is required to put things
right and what will happen if the notice is not complied with.
14. In general,
failure to comply with a properly written and served statutory
notice makes the recipient liable to prosecution. In some cases the
Council is able to, and will generally carry out works to comply
with the notice and recover the cost of doing so from the recipient
of the notice. In exceptional circumstances both prosecution and
service of a notice may be appropriate.
15. 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.
16. 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.
Simple Cautions
17. Under
certain circumstances, a simple caution may be an appropriate
alternative to prosecution. This option will be considered before
prosecution. A simple caution is a serious matter. It is recorded
on the Central Register of Convictions and may be used to influence
any decision whether or not to institute proceedings if the person
should offend again. It may be referred to in any subsequent court
proceedings. It will not be referred to in respect of any
conviction recorded more than three years earlier.
18. Simple
cautions serve the following purposes:-
a) to deal quickly and simply
with less serious offenders;
b) to avoid unnecessary appearance in criminal courts;
c) to reduce the chance of offenders re-offending.
19. We will comply
with Home Office guidance on the cautioning of adult offenders and
in particular before issuing a caution, the following conditions
must be satisfied:-
(i) there must be evidence of
guilt sufficient to give a realistic prospect of conviction;
(ii) the suspected offender must admit the offence, usually by
signing a declaration;
(iii) the suspected offender must understand the significance of a
simple caution and give an informed consent to the caution.
Prosecutions
20. The
Council will use discretion in deciding whether to initiate a
prosecution. Where the circumstances justify it, prosecution
without prior warning may take place.
21. The
Council will consider prosecution when:-
it is appropriate in the
circumstances, as a way to draw attention to the need for
compliance with the law, especially where there would be a normal
expectation of a prosecution, or where, through the conviction of
offenders, others may be deterred from offending; or
- there is the potential for considerable harm arising from the
breach; or
- the gravity of the offence, taken together with the general
record and approach of the offender justifies it.
22. The
decision to prosecute will always take account of the criteria set
down in the Code for Crown Prosecutors.
23. Before
deciding to prosecute there must be sufficient evidence for a
realistic prospect of conviction taking account of any defence that
may be available, and it must be in the public interest.
24. The
following public interest criteria will normally be taken into
account when deciding on the relevance of legal proceedings,
although this list is not exhaustive:-
- The prevalence of the type of offence.
- The need for a suitable deterrent.
- The risk of danger or injury to the public.
- The failure to comply with a statutory notice or respond to
advice about legal requirements.
- The disregard of legal requirements for financial reward.
- Significant financial loss, potential or actual, to a third
party.
- A history of similar offences.
- Persistent breaches of legislation.
- Where fraud, gross negligence or guilty knowledge is a
factor.
- Minor breaches of a number of statutes.
25. Where
possible an offender will be told as soon as sufficient evidence is
obtained that a prosecution may follow.
26. All
prosecutions will be brought without unnecessary delay.
27. We aim to
maximise our effectiveness by working with other authorities and
other agencies whenever appropriate, sharing intelligence where it
is lawful to do so and mounting joint operations where that would
bring benefits.
Outside agencies who we work with
include:
- Police
- HM Revenue and Customs
- DEFRA / State Veterinary Service
- Office of Fair Trading
- Assets Recovery Agency
- The enforcement arms of trade protection organisations such as
the Federation Against Copyright Theft
Equality & Diversity
28. Equality and
diversity issues have been considered when drawing up this policy.
It reflects the Council's values, and is in line with
anti-discrimination legislation. It will be applied in accordance
with the legal obligations of the County Council irrespective of
disability, gender, race, religion, age, sexual orientation and
marital status or any other grounds which would constitute unfair
or unreasonable discrimination.
29. The policy will
have no detrimental impact on minority groups and such groups will
be afforded the same level of protection from crime and anti-social
behaviour and crime specifically targeted at minority groups will
be appropriately addressed.
30. We regularly
review our policies and practice to ensure a continuing commitment
to providing services that do not discriminate against minority
groups.
