3.1 Proportionality
In a situation that requires action to ensure compliance, we aim to change the behaviour of the offender and protect the public.
We will do this by being responsive and considering the most appropriate sanction for the offender and the regulatory issue concerned.
The action taken will be proportionate to the nature of the offence and the harm/potential harm caused.
We will consider the following when deciding on the most appropriate enforcement method:
- the degree of risk from the situation to both the individual concerned, the wider population and to Dorset Council
- the seriousness of the contravention
- the different technical means of remedying the situation and the enforcement powers available under the legislation being enforced
- the particular circumstances of the case and likelihood of its continuation or recurrence
- the general attitude of the offender to their responsibilities
- the compliance history of the offender and any other relevant intelligence available
- the impact of the enforcement choice in deterring the offender and others from future non-compliance
- the likely effectiveness of the various enforcement options
- the overriding legal imperatives, e.g. we must serve an abatement notice if a statutory nuisance exists
- any legal guidance, e.g. advice contained in Government circulars and case law
- our ability to restore the harm caused by the regulatory non-compliance
- our ability to eliminate any financial gain or benefit from the non-compliance
3.2 Enforcement options available
3.2.1 No action
No action may be warranted where the detrimental impact on a community of a contravention of the law is small, there is no risk to public health, or there is no public benefit in enforcement.
3.2.2 Indirect action
A notification of non-compliance may be referred to a more appropriate authority or agency for information or action.
3.2.3 Verbal warning
Where a relatively minor offence has been committed and there is good reason to expect the offender to put right the matters in question without the need for further intervention, we may issue business advice and verbally require corrective action within a specified timeframe.
3.2.3 Written advice or warning
Where a relatively minor offence has been committed but is not thought appropriate to take any further action, a written warning about the non-compliance, including details specifying any mandatory corrective action and/or recommendations on non-compulsory best practice may be given.
This may take the form of a letter or written advice issued by the officer at the time of the inspection.
Such a written warning will be given in plain English and will normally:
- identify the case officer and their contact details
- clearly state the nature of the problem and suggest either specific remedies or a standard to be achieved
- clearly distinguish between a legal requirement and recommendations of ‘best practice’
- indicate any follow-up action intended within a stated timescale
- offer to work with the person(s) responsible in finding a solution, or signpost to specialist advice or additional information
- state the enforcement actions that may follow if matters do not improve
The tone of a written warning will be firm, business-like, unambiguous, polite and helpful.
Informal action will be recorded and will be used as a basis for judgements on future enforcement action if there are recurrent instances of non-compliance.
3.2.4 Administrative penalty notices, direction notices and civil sanctions
For some offences a penalty notice, direction notice or other civil sanction can be issued to require the offender to pay a specified fine or take some other stated corrective action in recognition of the breach.
Where legislation permits an offence to be dealt with by way of a civil sanction, it may be issued on the first occasion of non-compliance, without a preceding warning.
In other legislative circumstances it requires a notice to be served which then enables a prompt return to compliance by using the Fixed Penalty Notices for less serious breaches.
Settlement avoids a criminal record for the defendant.
Failure to comply will result either in the offender being pursued for non-payment, or more likely, an escalation of the enforcement action.
Appendix 1 provides a list of the legislation under which civil sanctions can be issued by Dorset Council’s Public Health and Prevention Services and offers guidance on the issuing of these in specific cases where it is mandated that we must publish it.
This list will be subject to annual review.
3.2.5 Statutory notice
We will use statutory notices in accordance with the law, associated guidance and assessment of the particular circumstances.
A statutory notice will usually require offenders to take specific action, such as ceasing certain activities, or undertaking works, within a certain time.
Examples include:
- improvement notices
- prohibition notices
- suspension notices
together with notices covering:
- seizure
- forfeiture
- voluntary surrender
of items such as goods/documents/food etc.
3.2.6 Seizure
Certain legislation permits our officers to seize equipment that causes nuisance, or goods or documents that may be required as evidence or which may present a risk to public health.
When we seize items, we will give an appropriate receipt to the person from whom they are taken, or, if no one is available to take responsibility of the seized items we will leave a receipt on the premises from which they were taken.
On some occasions, we may ask the person to voluntarily surrender the items to the control of Dorset Council.
3.2.7 Review of licences
Where there is a requirement (such as the Licensing Act) for a business to be licensed or ‘permitted’ by a local authority, a review of the licence or permit may be sought where:
- the activities or fitness of the licence holder is in question
- there is evidence of non-compliance to conditions attached to the licence
- or there has been failure to pay annual fees etc
This may result in a variation, suspension, or the loss of the licence.
3.2.8 Injunctions and Injunctive actions
We will take all appropriate action to prevent anti-social behaviour, including the use of formal measures including applying for injunctions, orders, and the serving of notices where applicable.
This may be done in conjunction with other partners or agencies. We may also take a range of injunctive actions where they are available under the Enterprise Act 2002, including:
- informal undertakings
- formal undertakings
- interim orders
- court orders
- contempt proceedings
The Council may apply to the County Court or High Court for an injunction where the circumstances of any case require it.
This might be where the offence causes a significant problem or threat to health of an individual or group of individuals and other enforcement options are likely to be ineffective because the perpetrator has shown a careless disregard for earlier similar requirements, or where the process of law would take an unacceptably long time, having regard to the circumstances.
3.2.9 Simple caution
A simple caution may be used to deal quickly and simply with less serious offences and to avoid unnecessary appearances in criminal courts.
They may be offered where there is sufficient evidence to undertake a prosecution but a clear and reliable admission of guilt has been made by the defendant(s).
They will be carried out in accordance with the current Home Office advice.
It is not a criminal conviction, although it may be cited in court in certain circumstances.
Failure to accept a caution will lead to the matter being heard in court.
A record of the caution will be sent to bodies that are required to be notified.
3.2.10 Prosecution
Where it is necessary to carry out a full investigation, the case will be progressed without undue delay.
Before a decision to prosecute is taken, the alleged offence(s) will be fully investigated, and a file compiled by the investigating officer for review by a senior manager and member of Dorset Council’s legal services team or instructed legal counsel.
All investigations into alleged breaches of legislation will be conducted in compliance with statutory powers and all other relevant legislation and codes of practice including the requirements of:
As part of the investigation process, persons suspected of breaching legal requirements will, wherever appropriate:
- be formally interviewed in accordance with applicable legislation; translation services can be arranged where required
- be given the opportunity to obtain appropriate advocacy
- be given the opportunity to demonstrate their statutory defence, where available
- have the opportunity to give an explanation or make any additional comments about the alleged breach
We will consider the views of any complainant, victim, injured party or other relevant person to establish the nature, extent and significance of any existing or potential harm and loss in making the decision.
A prosecution will only be considered when the evidence is deemed adequate and passes the ‘evidential test’ and when it is in the public interest to do so.
3.2.11 Proceeds of crime actions
A legal process exists to recover the financial benefit that an offender has obtained from their criminal conduct after a conviction has been secured.
We will proactively consider the application of the Proceeds of Crime Act at the outset of any relevant investigation.
We may, in serious cases, make an application under the Proceeds of Crime Act for restraint or confiscation of assets.
Proceedings are conducted according to the civil standard of proof.
3.2.12 Works in default
In certain cases where the owner has failed to comply with a requirement to carry out specified works within a timescale, the Council has powers to carry out the works in their default.
We aim to recover our costs from the person(s) on whom the notice was served, by means of a charge on the land if needs be.
3.2.13 Approved premises
Some food premises who process products of animal origin need to be approved under EU 853/2004 (assimilated) before they can start operating.
This provides additional enforcement powers, to revoke, suspend or refuse approval.
Along with these are powers provided under The Food Hygiene (England) Regulations 2006 for the use of Remedial Action Notices in premises which are or would be subject to approval requirements.
3.3 Limitations
3.3.1 Although the principles of this procedure apply to all our activities, not all enforcement options are available for use in all activities.
