3. Compliance with Home Authority Principle/ Primary Authority Scheme
The Home Authority Principle means that businesses that trade in our area, where they trade or provide services that impact beyond our boundaries, are able to get advice and support from us on matters such as legal requirements, changes to the law and so forth. This usually takes the form of a semi-formal relationship.
We support the Home Authority Principle, which has been developed to promote good enforcement practice and reduce burdens on business. The primary objective is to create a partnership, which will provide positive benefits to both parties.
We will therefore:
- provide businesses for whom we are the ‘home authority’ with appropriate guidance and advice
- maintain records of our contacts with ‘home authority’ businesses to reduce the amount of information they have to provide to us
- support efficient liaison between local authorities
- provide a system for the resolution of problems and disputes
In April 2009, the Regulatory and Enforcement Sanctions Act 2008 introduced the Primary Authority Principle – in contrast to the Home Authority Principle, this is a formal relationship.
A Primary Authority is a local authority registered by the Local Better Regulation Office (LBRO) as having responsibility for giving advice and guidance to a particular business or organisation that is subject to regulation by more than one local authority. We will give due consideration to any business, based in our area, who wishes to enter into such an arrangement.
If there is an agreement for this Authority to act as a Primary Authority, subject to an assessment of the Authority’s suitability to undertake this role we will enter into a partnership with that business. We will liaise with other councils to ensure that inspection and enforcement action reflects the advice given. We will work with those businesses for which we are the Primary Authority to produce guidelines for other councils to avoid unnecessary checks and tests.
We may charge your business for services supplied through the Primary Authority scheme. Any decision to charge will be made in consultation with the business and following the guidance issued by LBRO.
4. Our Enforcement Actions
Legislative compliance will be secured by one or a combination of methods. In deciding what enforcement action to take against an offender we will have regard to the following aims:
- to change the behaviour of the offender
- to eliminate any financial gain or benefit from non-compliance
- to be responsive and consider what is the most appropriate sanction for the particular offender and the regulatory issue concerned
- for the action to be proportionate to the nature of the offence and the harm/potential harm caused
- to restore the harm caused by regulatory non compliance, where appropriate
- to deter future non-compliance
The available enforcement options include the following:
4.1 No action
In certain circumstances e.g. where the detrimental impact on the community is small, contravention of the law may not warrant any action.
4.2 Promotion
Where ever possible promotion will be used to raise awareness about legal standards and promote good practice. This will be achieved by distribution of guidance, provision of accessible training sessions and face to face contact to enhance compliance and self regulation.
4.3. Indirect action
This would include referral to another authority or agency for information or action.
4.4. Verbal/written advice or warning
Where a relatively minor offence has been committed but is not thought appropriate to take any further action, in which case the suggested corrective action and a timescale will be given.
4.5 Civil Sanctions under Regulatory Enforcement and Sanctions Act 2008
Where the Council has been issued an order allowing use of the following civil sanctions, they may be used as an alternative to Criminal Action to secure compliance.
4.5.1 Variable Monetary Penalty (VMP)
The amount of the penalty to be determined by the Council to ensure the penalty reflects the nature of the non compliance.
4.5.2 Compliance Notice
This is a requirement to take specified steps within a stated period to secure that an offence does not continue or happen again.
4.5.3 Restoration Notice
This is a requirement to take specified steps within a stated period to secure that the position is restores to what it would have been, so far as possible, to what it would have been if no offence had been committed.
4.5.4 Stop Notices
These prevent a business from carrying on an activity described in the notice steps have been taken towards compliance.
4.5.5 Enforcement Undertakings
Where a business is reasonably suspected of causing an offence that business may offer to give an undertaking to the Council to carry out certain corrective action specified in that undertaking.
4.5.6 Fixed Penalty Notices
Fixed Penalty Notices (FPN’s) are recognised as a low-level enforcement tool we may choose to administer a FPN on a first occasion, without issuing a warning. This avoids a criminal record for the defendant.
We will comply with any relevant guidance on the use of fixed penalty notices.
4.6 Penalty Charge Notices
Penalty Charge Notices (PCN) are prescribed by certain legislation as a method of enforcement by which the offender pays an amount of money to the enforcer in recognition of the breach.
Failure to pay the PCN will result in the offender being pursued in the County Court for non-payment of the debt.
A PCN does not create a criminal record and we may choose to issue a PCN without first issuing a warning.
4.7 Penalty Notice for Disorder
A Penalty Notice for Disorder (PND) is the fixed penalty option for anti-social behaviour such as the sale of alcohol to a minor
4.8 Statutory (Legal) Notices
These are used as appropriate in accordance with relevant legislation (they usually require offenders to take specific action or to cease certain activities).
Examples include improvement notices, prohibition notices and suspension notices
4.9 Seizure
Some legislation permits our Officers to seize goods and documents that may be required as evidence
When we seize goods, we will give an appropriate receipt to the person from who they are taken
On some occasions, we may ask the person to voluntarily surrender the goods.
4.10 Forfeiture
Some legislation allows us to apply to the court to seek forfeiture of goods, either in conjunction with a prosecution, or separately.
4.11 Undertakings and Injunctive action under the Enterprise Act
The range of actions available under this legislation includes the following:
- informal undertakings
- formal undertakings
- interim orders
- court orders
- contempt proceedings
Civil undertakings are also available for a wider range of offences (see 4.5.5)
4.12 Review of Licences
Where there is a requirement for a business to be licensed by a local authority e.g. Licensing Act, or other body e.g. Office of Fair Trading, then a review of the licence or permit may be sought where the activities or fitness of the license holder is in question.
4.13 Anti-Social Behaviour Orders and Criminal Anti-Social Behaviour Orders
Where the non compliance under investigation amounts to anti-social behaviour, then, following liaison with the Council’s Anti-Social Behaviour Unit where applicable, an Anti-Social Behaviour Order (ASBO) or a Criminal Anti-Social Behaviour Order (CRASBO) will be sought to stop the activity.
4.14 Taking animals into possession
Under the Animal Welfare Act 2006, if a veterinary surgeon certifies that ‘protected animals’ are suffering or are likely to suffer if their circumstances do not change, we will consider taking them into possession and applying for Orders for re-imbursement of expenses incurred and subsequent disposal
4.15 Caution in accordance with the current Home Officecircular 016/2008
These can be issued to deal quickly and simply with less serious offences and to avoid unnecessary appearances in criminal courts.
A formal or ‘Simple’ caution is an admission of guilt but it is not a form of sentence, nor is it a criminal conviction - it may be cited in court in certain circumstances. A record of the caution will be sent to the Office of Fair Trading and to other bodies that are required to be notified.
4.16 Prosecution
A prosecution will only be undertaken when the evidence passes the ‘Evidential Test’ and when it is in the public interest to do so – we will have regard to the Crown Prosecution Service Code of Practice which is available at: www.cps.gov.uk/publications/docs/code2004english.pdf
Where it is necessary to carry out a full investigation, the case will be progressed without undue delay. All investigations into alleged breaches of legislation will be conducted in compliance with statutory powers and all other relevant legislation (and relevant Codes of Practice), including the requirements of:
- Police and Criminal Evidence Act (PACE)
- Criminal Procedure and Investigations Act (CPIA)
- Regulation of Investigatory Powers Act (RIPA)
- Human Rights Act (HRA).
As part of the investigation process, persons suspected of breaching legal requirements will, wherever possible,
- be formally interviewed in accordance with PACE
- be given the opportunity to demonstrate that a statutory defence is available
- have the opportunity to give an explanation or make any additional comments about the alleged breach.
Before a decision to prosecute is taken, the alleged offence(s) will be fully investigated, a Report compiled by the Investigating Officer and the file reviewed by a Senior Manager.
We will take into account the views of any victim, injured party or relevant person to establish the nature and extent of any harm or loss, including potential harm and loss and its significance in making the decision.
4.17 Proceeds of Crime Actions
Their purpose is to recover the financial benefit that the offender has obtained from his criminal conduct.
Applications may be made under the Proceeds of Crime Act for confiscation of assets in serious cases. Proceedings are conducted according to the civil standard of proof. Applications are made after a conviction has been secured.
We will continually review our position regarding the use of enforcement options and additional sanctions under the Regulatory Enforcement and Sanctions Act 2008