Standards:
We believe that prevention is better than cure and that our role therefore involves actively working with residents, Parish Councils, resident associations, community groups and business, to advise and assist with understanding the law.
We will provide a courteous and efficient service and our staff will identify themselves by name. We will provide a contact point and telephone number for further dealings with us and we will encourage recipients to seek advice/information from us, or a solicitor where appropriate. We will ensure, wherever practicable, our enforcement services are effectively co-ordinated to minimise unnecessary overlaps and time delays.
We will provide information and advice in plain language on the rules that we enforce and confirm any advice in writing on request explaining why action is required and in what timescale. We will clearly distinguish between what any recipient of advice must do to comply with the law and what is recommended as best practice.
We will advise if a matter is to be reported for legal proceedings and advise you of the procedure for making complaints or representations in cases of dispute.
Before any action is taken there will be an opportunity to discuss the case, although if we are considering prosecution these discussions will take the form of a formal interview or by letter under caution where the officer considers this the most appropriate course of action.
Where a right of appeal against a formal notice exists, other than through the courts, advice on the appeal mechanism will be set out in writing at the time the action was taken.
The prosecution process will be fully explained to all victims, complainants and witnesses. Officers will therefore make it clear that any statement and or premises central to an allegation must be disclosed to the defendant as part of the court process. Officers will further explain that victims, complainants and witnesses seeking, out of fear of intimidation of reprisals, to remain anonymous that such decisions are a matter for the court having considered all the circumstances.
Consistency:
We will carry out our duties in a fair, equitable and consistent manner. Whilst officers necessarily exercise discretion in individual cases, we will have arrangements in place to promote consistency. These include applying the principles of good enforcement set out in the Legislative and Regulatory Reform Act 2006, the Enforcement Concordat, Regulators’ Compliance Code and the Code for Crown Prosecutors. Officers will also liaise with other authorities and enforcement bodies to ensure that best practices are shared.
Inspection:
As a regulatory body the Council carries out its duties in various ways. For example, through inspection, sampling, testing, investigations, issuing notices and prosecutions. We recognise that most individuals and businesses will want to comply with the law and we will endeavour to help them meet their legal obligations without unnecessary burden or expense. However, in addition to reactive enforcement actions we will target specific actions at those activities and areas that give rise to elevated risks to public health or are detrimental to the local environment.
Transparency:
We will help individuals, groups and businesses to understand what is expected of them and what they can expect from an enforcement officer. We will distinguish between statutory requirements and what is desirable but not compulsory.
We are committed to ensuring that any information or advice we provide is in plain understandable language and in a format that is accessible.
The Council has a complaints procedure that is accessible to businesses, the public, employees, and consumer groups. In cases where disputes cannot be resolved, any right of complaint or appeal will be explained, with details of the process and the likely time-scales involved.
If a member of the public or business is not satisfied with the service that they have received or the way in which any complaint has been dealt with and wishes to complain to the Local Government Ombudsman we will provide information on how this may be done.
Enforcement Options:
Bath and North East Somerset Council recognises the importance of achieving and maintaining consistency in its approach to making decisions that concern standards of enforcement action.
In making a decision the officers will consider:
· the seriousness of the offence;
· any explanation offered by the defendant;
· the age of the defendant (i.e. whether the defendant is a child or young person);
· the previous relevant history, if any;
· the likelihood of the defendant being able to establish a defence;
· the ability of any important witnesses and their willingness to give evidence;
· whether other action such as the issue of a fixed penalty notice would be more appropriate or as effective;
· whether it is in the public interest to act;
· the advice contained in the Code for Crown Prosecutors;
Having considered all relevant information and evidence, one or more of the following choices for action are available to officers:
· no action
· informal action
o referral to another agency or authority
o written advice or warning
· formal action which may include:
o the service of a fixed penalty or penalty charge notices
o the service of a statutory notice
o the service of an anti-social behaviour order
o issuing of a formal or simple caution
o the institution of legal proceedings
No Action:
Where an investigation reveals that at the time of the visit or patrol, no offence has occurred, or an offence has occurred but no offender can be identified, then no further action will be taken by the Council.
Informal Action:
Informal action includes the offering of advice either verbally or by letter and or recommending remedial action a person or business is expected to take.
Informal action may be appropriate in, for example, the following circumstances:
· the offence committed was by a genuine mistake or accident;
· the witness to the offence wishes to remain anonymous and or is not prepared to give a witness statement;
· where the offence has been committed by a child or young person (although in certain cases such as repeated offences it may be appropriate to consider formal action)
The above list is not intended to be exhaustive and where some of the above criteria are not met, there may be circumstances in which informal action will be more effective than formal action. Reaching a decision in these instances will necessarily involve the enforcement officer exercising his or her discretion. The officer will therefore make a record of how that discretion has been exercised.
When informal action is taken, officers will ensure that any written documentation provided will:
· contain all information necessary to identify the allegation;
· identify the legislation concerned;
· clearly indicate any recommendations of good practice and explain that these are not legal requirements.
An authorised officer will always make clear, even when giving verbal advice, what are legal requirements and what are recommendations of good practice.
As far as possible, advice and information should be in plain language and be free from jargon.
Formal Action:
Authorised officers will consider the use of formal action in accordance with the relevant services quality system or working procedures, Codes of Practice and guidance.
a) Fixed Penalty and Penalty Charge Notices:
Certain offences are subject to Fixed Penalty Notices (FPN’s) and Penalty Charge Notices (PCN’s) and where legislation permits offences maybe dealt with by way of a FPN or PCN.
FPNs and CPNs may only be served by authorised officers who are deemed to be competent, qualified and suitably experienced. Such Notices maybe issued without first issuing a warning.
The following circumstances are likely to warrant using a FPN/PCN:
· Officer has witnessed the offence;
· Officer believes there are "reasonable grounds" to consider an offence has been committed;
· There is a witness or witnesses to the offence and the offender can be clearly identified;
· The alleged offender has not received a FPN before, or has previously received no more than two FPN in the previous twelve months.
b) Statutory notice:
Only specifically authorised officers will be permitted to serve Statutory Notices.
Notices will be served where specific legal provisions state a notice shall be served e.g., where a statutory nuisance is established or for more serious or repeated contraventions of the law.
Every notice will have accompanying notes explaining any appeal procedure and each notice will include officer contact details.
Realistic time limits to comply with a Notice will be stated in the Notice and where deemed appropriate by the officer agreed with the subject of the Notice as being attainable and appropriate. Requests for an extension of time to comply should be made in writing to the officer who issued the Notice explaining the reason for the request and be made before the time limit for compliance has expired.
Statutory Notices may also be served in conjunction with institution of prosecution proceedings.
Failure to comply with a Notice may result in prosecution and or the Council arranging for the necessary works to comply with the Notice to be carried out e.g., the seizure of noise making equipment.
c) Anti-social Behaviour Orders:
In circumstances where persistent non compliance with notices or there is a series of offences amounting to anti-social behaviour the Council may in consultation with the Council's Anti-Social Behaviour Team, apply for an anti-social behaviour order.
d) Formal Cautions:
Formal cautions are an alternative to prosecution and will be considered in accordance with currently available Home Office guidance. A formal caution is a means to divert less serious offences away from the Courts, to deal with these offences quickly and reduce the chances of repeated behaviour.
The following conditions must exist before a formal caution is administered:
· There must be evidence upon which there is a realistic prospect of conviction;
· Such a prosecution will be in the public interest;
· The suspect must admit the offence;
· The suspected offender must understand the significance of a formal caution and give informed consent to being cautioned;
It should be noted that there is no legal obligation for any person to accept the offer of a formal caution and no pressure will be applied to any person or business to accept a caution.
Failure to accept a caution may result in referring the matter for prosecution of the offence.
e) Prosecutions:
Decisions to prosecute will be taken having had regard to the Code for Crown Prosecutors and only undertaken when:
· There is sufficient evidence to provide a realistic prospect of a conviction, and
· prosecution is in the public interest.
As part of the investigation process, persons suspected of breaching legal requirements will, wherever possible and at the discretion of the investigating officer,
· Be questioned under caution in accordance with the Police and Criminal Evidence Act 1984, whether that be by formal interview or letter under caution
· Be given the opportunity to demonstrate that a defence is available, and
· Have the opportunity to give an explanation or make any additional comments about the alleged breach.
In reaching a decision to prosecute we will take into account the views of any victim, injured party or relevant person in order to establish the nature and extent of any actual or potential harm or loss and its significance. We will also consider the willingness of the victim, injured party or relevant person to take part in the prosecution process.
When considering formal action, the officer will have consideration to all the factors contained in the decision notice attached to this policy to enable a consistent, fair and objective decision to be made.
Review
The Council will periodically review this policy to reflect any relevant change in current political management arrangements, statute and guidance.