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Public health enforcement policy

The aim of the Policy is to set out our approach to enforcement action throughout the service areas covered, without placing an unnecessary burden on local businesses, organisations, consumers and the public.

Contents

  1. Introduction
  2. Aim of the enforcement policy
  3. Objectives
  4. Equality and diversity
  5. Consultations and review
  6. Complaints
  7. The principles of good enforcement - local government concordat on good enforcement
  8. The principles of good regulation - regulators' code
  9. Enforcement options
  10. Appendix

 

Introduction

The Public Health division of the Housing and Public Health Service delivers the following services

  • Building Control
  • Burials, Cremations and Registration Services
  • Food and Safety
  • Environmental Health and Housing
  • Licensing
  • Pollution Control
  • Trading Standards
  • Waste Management, Parks and Cleansing

Public Health has extensive regulatory functions, dealing with matters as diverse as animal health and welfare, health and safety, pollution and pest control, dog warden services, private sector housing standards, public health nuisances, food safety, communicable disease control, abandoned vehicles, licensing, registration of births, marriages and deaths, community safety, trading standards including consumer safety, food and feed standards weights and measures and fair trading.

Regulatory functions for Waste Management, Parks and Cleansing include, but are not limited to, matters relating domestic waste and recycling, commercial waste disposal, littering, dog fouling and related by-laws, fly-tipping on public and private land, street cleansing, waste disposal and household recycling centres.

Our aim is to promote the health, safety, social and economic wellbeing of the public and improve environmental conditions by regulation, information, licensing, advice and action. In addition we seek to assist legitimate businesses in meeting their legal obligations within a fair, competitive market place.

This policy applies to those services that have regulatory responsibilities and has been developed with the Enforcement Concordat's principles of good enforcement as its foundation as well as the principles of the Regulators' Code..

 

Aim of the Policy

The aim of the Policy is to set out our approach to enforcement action throughout the service areas covered, without placing an unnecessary burden on local businesses, organisations, consumers and the public. We intend to apply our legal powers consistently and fairly, whatever the circumstances. This Policy sets out our approach for those affected by our enforcement activities as well as for officers of the Authority.

 

Objectives

  • To ensure we enforce the law in a fair and consistent manner
  • To assist and advise business and others in meeting their legal obligations
  • To focus on prevention rather than cure
  • To take firm action against those who flout the law, act irresponsibly, or where there is an immediate risk to health and safety
  • To support economic progress.
  • We will also make sure all enforcement activities are:
  • Taken in accordance with the principles of good enforcement (best practice guides and / or statutory provisions).
  • Compatible with the European Convention on Human Rights and the Human Rights Act 1998, to protect the rights of the individual. In particular, due regard is had to the right to a fair trial and the right to respect for private and family life, home and correspondence.
  • Managed efficiently
  • Taken promptly and without unnecessary delay
  • Undertaken consistently by all relevant service areas within Public Health
  • Undertaken in a fair and transparent manner
  • Targeted according to risk and having regard to the National Enforcement Priorities for Wales and the priorities of the Council which include:
    • Safeguarding people from harm
    • Improving education and skills
    • Transforming our economy and infrastructure
    • Tackling poverty
    • Transformation and future Authority development.

 

Equality and diversity

The Authority and its officers in Public Health will take all reasonable and practical steps to prevent and eliminate unlawful discrimination and encourage good relations between all parties, treating all those involved with equal respect, both when corresponding with those individuals and organisations and during the enforcement proceedings.

This will be done irrespective of the individual's ethnic origin, sex, age, marital status, sexual orientation, disability, gender reassignment, religious beliefs or non-belief, use of Welsh, BSL or other languages, nationality, responsibility for any dependents or any other reason which cannot be shown to be justified.

During the monitoring and review process the Authority will also ensure that the enforcement reflects these requirements, all of which are in line with the Authority's Strategic Equality Plan. This and other related documents can be found at www.swansea.gov.uk.

This Policy is bilingual and will be provided in any other language or format on request. Officers are aware of and respect cultural requirements and when necessary and with prior notice, will arrange suitable meeting times and venues, and appropriate translation or interpretation services.

When dealing with juveniles or persons who are vulnerable, whether due to learning difficulties, mental illness or in some other way, due regard will be taken of their vulnerability and of any current Codes of Practice whether statutory or not, to ensure these persons are treated fairly.

 

Consultations and review

The Policy will be reviewed regularly by senior officers and any required amendments made in light of best practice and changes to legislation will be approved by the Head of Housing and Public Health and Head of Waste Management, Parks and Cleansing in consultation with the relevant Cabinet Member. Any major changes that would impact on those that we regulate will be subject to consultation and approval by Cabinet. We continue to welcome feedback, particularly responses from affected persons. We strive to monitor continually the content and adherence of our officers to this policy.

 

Complaints

Any complaints about the application of this Policy should be addressed to the Head of Housing and Public Health and or Head of Waste Management, Parks and Cleansing, at the address below. If the matter is not satisfactorily concluded it will be dealt with in accordance with the Swansea Council Complaints Policy.

This Policy is published on Corporate complaints procedure and in hard copy.

Requests for copies in other formats or languages or comments on this policy should be sent to the following:
 

Head of Housing and Public Health Civic Centre

Oystermouth Road Swansea

SA1 3SN

Tel 01792 636000

 

Head of Waste Management, Parks and Cleansing

The Baling Plant Llansamlet Swansea

SA6 8QN

Tel 01792 796886

 

The principles of good enforcement - local government concordat on good enforcement

The Authority has observed the Central and Local Government Concordat on Good Enforcement and acknowledges its principles. Consideration will also be given to any additional guidance or codes of practice on enforcement that are relevant to the Public Health services. The following principles will be adhered to:

 

Openness

The Authority and its officers will provide information and advice in plain language and in other languages and formats on request, on the rules that apply, and will distribute this as widely as possible. We will be open about how we set about our work including any charges we set. We will discuss general issues, specific compliance failures or difficulties in complying with the law, we will respond to enquiries and visit individuals when requested.

In certain circumstances the Authority and its officers will take steps to raise awareness and increase compliance levels by publicising unlawful business practices or criminal activity and, where appropriate, we will publicise the results of specific court cases and other formal actions. We will follow any relevant guidance, such as from the Ministry of Justice, when deciding to publish information on sentencing outcomes.

The Authority and its officers will draw up clear standards, setting out the level of service and performance the public and business can expect to receive. These will be developed in consultation with other relevant interested parties, where appropriate. We will publish these standards and our annual performance against them. The standards will be made available to local businesses and others who are regulated.

 

Helpfulness

The Authority believes that 'prevention is better than cure' and that our role involves actively working with business and individuals to advise on compliance. The Authority and its officers will provide a courteous and efficient service and our staff will identify themselves by name. We will provide a contact point and telephone number and will encourage businesses and individuals to seek advice and information from us. Applications for licences, registrations, and approval of establishments etc. will be dealt with efficiently and promptly. We will ensure that wherever practicable, our enforcement activities are effectively co-ordinated to minimise unnecessary overlaps and time delays.

 

Proportionality

The Authority and its officers will minimise the costs of compliance for business by ensuring that any action we require or take is proportionate to the risks. As far as the law allows, we will take account of the circumstances of the case and the attitude of the business or persons involved when considering action. We will take particular care to work with small businesses and voluntary and community organisations, so that they can meet their legal obligations without unnecessary expense, where practicable.

When dealing with individual members of the public, the concept of proportionality will also apply, in so far as the relevant legislation permits. We will balance the potential effect of enforcement action on the individual against the harm caused by allowing the activity to continue if it affects communities and others. Where possible we will attempt to identify and contact all individuals concerned with each case.

 

Consistency

The Authority and its officers will carry out its duties in a fair, equitable and consistent manner. Where officers are expected to exercise judgement in individual cases, we will have arrangements in place to ensure consistency, including effective arrangements for liaison with other authorities and enforcement bodies. This will be achieved through staff development training and where appropriate the use of written procedures and protocols.

 

 The principles of good regulations - Regulator's Code

The Legislative and Regulatory Reform Act 2006, Part 2, requires the Authority to have regard to the Principles of Good Regulation when exercising a specified regulatory function (Specified by the Legislative and Regulatory Reform (Regulatory Functions) Order 2007, available at The Legislative and Regulatory Reform (Regulatory Functions) Order 2007 (legislation.gov.uk)). The Regulators' Code applies to the regulation of business and supplements the principles of the Enforcement Concordat. The code only applies to specified functions carried out by our Environmental Health, Trading Standards and Licensing services.

Better Regulation Delivery Office - Regulators’ Code PDF (gov.uk)

Regulators must have regard to the code when developing policies and operational procedures that guide their regulatory activities. In certain instances we may conclude that a provision in the Code is either not relevant or is outweighed by another provision. We will ensure that any decision to depart from the Code will be properly reasoned, based on material evidence and documented. Consideration will also be given to any additional guidance or codes of practice on enforcement that are relevant to the regulatory services.

 

Supporting Regulated Businesses to Comply and Grow

The Authority and its officers will try to avoid imposing unnecessary regulatory burdens on business through our regulatory activities and we will assess whether the desired outcomes could be achieved by less burdensome means. Our policies and practices will encourage and promote compliance but, in doing so, will try to minimise the negative economic effect of our activities and the cost of compliance. We will take into consideration the size of the regulated entity, capacity and the nature of their activities.

 

Engaging With Those We Regulate and Hearing Their Views

The Authority and its officers will create effective consultation and feedback opportunities to enable continuing cooperative relationships with regulated entities and other interested parties. We will consider the impact of our policies and service standard on businesses, so we invite views from businesses, citizens and others about them. We will ensure that our officers provide courteous and efficient services to regulated entities and others and take account of comments regarding the behaviour and activity of our enforcement officers.

Complaints will be dealt with in accordance with the Authority's Corporate Complaints Procedure. 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.

 

Basing Our Regulatory Activity On Risk

The Authority and its officers will ensure that the allocation of our efforts and resources are prioritised and targeted where they would be most effective by assessing the risks to our regulatory outcomes. Such risk assessments will

inform our approach to regulatory activity including data collection, inspection programme, business advice and enforcement /sanctions. Risk assessment will take into consideration the potential impact of and the likelihood of non-compliance. We will make use of any risk assessment methodology schemes that are devised and approved by Government Departments for our specific service areas. Where the risk assessment methodology scheme allows the use of 'earned recognition', when carrying out risk assessments we will take into account the results of any visits carried out by outside auditors under an external verification scheme.

The Authority and its officers will ensure that inspections and other visits to check compliance will occur in accordance with a risk assessment methodology, except where visits are requested by businesses or where visits are made to check compliance with our advice regarding rectifying non-compliances or where we act on relevant intelligence or complaints. In those circumstances we may carry out inspections outside the frequencies stated in the appropriate risk assessment scheme. Health and safety interventions are also project based and are determined on a regional basis in line with HSE's priorities. Certain categories of premises are inspected as they are included in the National Local Authority Enforcement Code activities/sectors for proactive inspection. In addition, we may use a small element of random inspections in our programme.

When the Authority and its officers carry out a revisit to check that non-compliances have been rectified we will expect this to have been implemented, at least to a significant extent, and for the business to demonstrate that they have improved their systems to prevent similar non-compliances occurring in the future. If non-compliances have continued we will consider taking more formal enforcement action.

The Authority and its officers will focus our greatest inspection efforts on businesses where our risk assessment shows that a compliance breach would pose a serious risk to regulatory outcome and there is a high likelihood of non- compliance by business. We will provide feedback about the results of our visits including the more positive aspects of the visits and encourage and reinforce good practices. We will have regard to published inspection plans/assured advice for those businesses that are a Primary Authority partnership when conducting our programmed activity at the business.

The Authority and its officers will comply with the requirements of the Regulatory Enforcement and Sanctions Act 2008, as amended, when we are considering taking enforcement action against any business or organisation that has a Primary Authority Partnership, and will have regard to any relevant guidance issued by the Secretary of State. In particular, we will consult with the Primary Authority and take into account any advice that they have provided, notify them of any proposed enforcement action and comply with the statutory procedure if the Primary Authority does not consent to us taking this action.

At every step of the decision making process the Authority and its officers will choose the most appropriate type of intervention or way of working with businesses, including when targeting checks on compliance or taking enforcement action. If the performance of a business is seen to represent a greater or lesser risk than others of a similar type, we will make a change to their risk rating when this is allowed by the relevant risk assessment scheme. We will recognise their compliance record, including evidence of any external verification so that we can consider any appropriate earned recognition approaches. We will review the effectiveness of our regulatory activities in delivering the desired outcomes and will make any necessary adjustments accordingly.

 

Sharing Information About Compliance And Risk

When determining the data we require from businesses the Authority and its officers will endeavour to reduce business costs where possible by varying data requests according to risk, limiting collection to specific businesses or sectors, reducing the frequency of data collection, obtaining data from other sources, allowing electronic submission and only requesting data which is justified by risk assessment. In order to help target our resources and activities and to minimise duplication we will share information about businesses with other regulators when the law allows this. Where there is a need for this Authority to share enforcement information with other agencies, we will follow the provisions of the Data Protection Act 2018.

 

Making Information, Guidance And Advice Available To Business

The Authority and its officers will provide general information, advice and guidance to make it easier for businesses to understand and meet their legal obligations and we will provide it in clear, concise and accessible language. Where possible we will look to utilise any relevant national guidance. Officers are encouraged to promote compliance with the law by raising awareness of relevant standards and legal requirements by means of press statements, social media, distributing leaflets and face-to-face contact. Face-to-face contact is generally on request or by means of a programmed visit to discuss general compliance.

When offering compliance advice we will distinguish between legal requirements and suggested best practice and we will try not to impose any unnecessary burdens. Advice will be confirmed in writing, if requested. If our advice conflicts with that provided by another regulator we will liaise with them in order to reach agreement. Businesses may seek advice from us without directly triggering an enforcement action. If a business wishes to enter into a formal Primary Authority Partnership or Home Authority agreement with us, we will use our best efforts to achieve a satisfactory arrangement.

Where we encounter non-compliances we will explain the nature of the non-compliance, clearly advise on any action required and why and explain the reasons behind any decisions we make in relation to them.

When considering formal action we will, where appropriate, discuss the circumstances with those suspected of the breach and take these into account when deciding on the best approach. However, this will not apply where immediate action is required to prevent or respond to a serious breach or where to do so is likely to defeat the purpose of the proposed enforcement action.

 

Ensuring Our Approach Is Transparent

The Authority will publish a set of clear service standards about:

  • How we communicate with those we regulate and how we can be contacted;
  • Our approach to providing information, guidance and advice;
  • Our approach to checks on compliance and protocols for our conduct;
  • Our enforcement policy;
  • Our fees and charges;
  • Our appeals procedure;
  • Our complaints procedure.

These service standards are available on the Authority's website www.swansea.gov.uk and will be provided on request. We will also publish on a regular basis details on our performance against these standards including customer satisfaction survey results and data on complaints and appeals.

 

Enforcement options

A number of enforcement options are available and officers are authorised to enforce legislation in accordance with the Authority's scheme of delegation.

The appropriate option will be determined following careful consideration of the circumstances of each individual case. Our enforcement officers will interpret and apply legal requirements and enforcement policies consistently and fairly.

 

Our Enforcement Actions Will:

  • Aim to change the behaviour of the offender and deter future non-compliance;
  • Aim to eliminate any financial gain or benefit from non-compliance;
  • Consider what is appropriate to the nature of the offence and the regulatory issue;
  • Be proportionate to the nature of the offence and the harm caused, with consideration of the size of the business entity where relevant
  • Aim to restore the harm caused by regulatory non-compliance, where appropriate;

 

Conduct of Investigations

Officers investigating breaches of legislation may use powers relevant to the specific legislation they are enforcing. These can include entering premises, in some instances under a warrant of entry, to inspect goods, services, procedures, and documentation, carry out an investigation, requiring a name and address, taking samples, making test purchases and seizing items. Some legislation may include offences for obstructing an authorised officer or failing to comply with a reasonable requirement made by the officer. Where appropriate, when exercising enforcement powers, officers will also have regard to the Powers of Entry Code of Practice 2014 produced by the Home Office, and Schedule 5 of the Consumer Rights Act 2015.

As well as using such powers officers may need to speak to individuals and, in the more serious case, interview persons under caution. Such interviews will take place in accordance with the Police and Criminal Evidence Act 1984. In the most serious cases officers may make arrangements for a potential defendant to be arrested by the police to facilitate the investigation. The authority will comply with any relevant time limits specified in legislation for commencing legal proceedings. All investigations will be conducted expeditiously.

All investigations will be carried out under the following legislation and in accordance with any associated guidance or codes of practice, in so far as they relate to this authority:

  • The Police and Criminal Evidence Act 1984
  • The Criminal Procedure and Investigations Act 1996
  • The Regulation of Investigatory Powers Act 2000
  • The Criminal Justice and Police Act 2001
  • The Anti-social Behaviour, Crime and Policing Act 2014
  • The Human Rights Act 1998
  • The Protection of Freedoms Act 2012

 

Where there is a need for the Authority to share enforcement information with other agencies, it will follow the provisions of the Data Protection Act 2018. Authorised officers will comply with the requirements of the particular legislation under which they are acting, and with any associated guidance or codes of practice and will keep alleged offenders, complainants and witnesses informed of the progress of investigations. Investigating officers and managers will make a recommendation on suitable outcomes to the Head of Housing and Public Health who, in consultation with Legal Services, will make the final decision.

If there is a victim who has been directly affected by an offence, we will encourage the person to make a Victim Personal Statement (VPS), which is a statement written in the person's own words to explain how the crime has affected them. It can explain the effect that the crime had on the victim's life physically, emotionally, financially or in any other way. The victim is entitled to say whether or not they would like to have the VPS read aloud in court if a suspect is found guilty. They can decide whether to read their VPS aloud themselves or have it read aloud by someone else and we will comply with any such request.

 

Shared Enforcement Role

There are situations where the Authority shares or has a complementary enforcement role with other agencies, e.g. Police, Health and Safety Executive. In such situations we shall have due regard to the Data Protection Act 2018 any Information Sharing Protocols, Codes of Practice or Memoranda of Understanding that exist in seeking to co-operate with those agencies.

On occasion, it will be more appropriate for other agencies or other local authorities to deal with particular breaches of legislation. In carrying out shared duties, we will still comply with our Enforcement Policy, but the other agencies will maintain the right to take any action they consider necessary.

If an offender commits an offence in a number of local authority areas, it may be more appropriate for one to take a prosecution for all the offences, including ones that took place outside of its area. In such circumstances we may enter into legal agreements for one authority to take the lead role, making use of the provisions under Sections 19 of the Local Government Act 2000 and 222 of the Local Government Act 1972 or any other enabling powers.

 

Enforcement Within Local Authority-run Establishments

Where the Authority carries out enforcement for its own premises, steps are taken to ensure that enforcement decisions are free from any conflict of interest. Serious breaches of law are brought to the attention of the relevant Head of Service and Chief Executive without undue delay.

 

Informal Action

In circumstances where minor breaches of legislation have been identified formal action may not be considered appropriate. There may be no significant risk and the offence appears to have been committed by a genuine mistake or accident and, from the individual's/business' past history, it can be reasonably expected that informal action will achieve compliance. Therefore, formal action may not be in the public interest. Informal action may consist of verbal or written warnings.

We will clearly identify any contraventions of the law and give advice on how to put them right. We will distinguish between legal requirements and best practice. The time allowed will be reasonable and will take into account the seriousness of the contravention. Continued non-compliance of legal requirements could result in an escalation to more formal enforcement action.

We will take account of any advice or guidance provided to businesses by their Primary Authority Partnership when considering the most appropriate enforcement action for us to take and may discuss any need for compliance advice and support with the primary authority.

The Authority may, in some circumstances, accept voluntary undertakings that breaches will be rectified and /or recurrences prevented. Any failure to honour such undertakings is likely to result in enforcement action.

 

Formal Action

Statutory Notices

Certain legislation allows statutory notices to be served to require offenders to take specific actions or cease activities within particular timescales. These can include, but are not limited to, prohibition, improvement, revocation, suspension and remedial action, cessation and rectification, seizure and detention notices. A statutory notice will clearly set out the actions that must be taken and the timescale for completion. Failure to comply with statutory notices can be an offence and in some instances may allow the Authority to carry out works in default and charge the person served with the notice for the cost of the work. All notices will include details of any applicable appeal procedure. Some notices issued in respect of premises may be affixed to the premises and /or registered as local land charges.

Appendix 1 details the types of notices that may be issued in relation to non-compliances in Food premises and the circumstances in which such action is deemed to be appropriate.

 

Fixed Penalty Notice, Penalty Notices for Disorder, Penalty Charge Notices and Community Protection Notices.

In some areas, for example food hygiene rating scheme offences, sales of alcohol to minors, smoking in enclosed public places and mobile home sites, officers can exercise powers to issue either Fixed Penalty Notices (FPNs) or Penalty Notices for Disorder, which give the offender an opportunity to avoid prosecution by payment of the penalty. They are recognised as a low-level enforcement tool, whereby they do not create a criminal record for the offender. Choosing to pay the penalty is not an admission of guilt and so the issuing of these notices cannot be used as evidence in any future court proceedings. In some circumstances, particularly where breaches are serious or recurrent, or the notice is ignored, a prosecution may be more appropriate. Such action will only

continue where there is adequate evidence to support a prosecution. Failure to pay the amount imposed by the notice may result in the offender being pursued through the courts. All notices issued will include details of any applicable appeal procedure.

The service areas will follow relevant guidance on issuing such notices to juveniles, with actions taken being influenced by the offender's age and the circumstances of the offence. When dealing with juveniles who are vulnerable, whether due to learning difficulties, mental illness or in some other way, due regard will be taken of their vulnerability and of any current Codes of Practice whether statutory or not, to ensure these persons are treated fairly. Where a fixed penalty is issued to a juvenile which remains unpaid the authority will implement the Resolution of non-payment of FPNs Youth Offending Service intervention programme to minimise the number of cases referred to the criminal justice system.

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.

Community Protection Notices (CPNs) may be issued where anti-social behaviour is of a persistent or continuing nature and is affecting a community. A warning stipulating the matter to be resolved will be issued first. A CPN will stipulate the action to be taken to resolve the issue and the reasonable timeframe to achieve this. Failure to comply with a CPN may result in prosecution.

 

Revocation, Review and Suspension

The Authority issues a number of licences, permits and approvals. It also has a role to play in ensuring that appropriate standards are met in relation to licences issued by other agencies. Most licences include conditions, which require the licence holder to take steps to ensure that, for example, a business is properly run. Breach of licence conditions may also lead to a review of the licence, which may result in its revocation or amendment. When considering future licence applications, we may take previous breaches and enforcement action into account. In relation to reviews or revocations of licences, licence holders have the right to attend hearings and to be informed of their right of appeal against the decision.

The Authority is responsible for issuing Environmental Permits to operators who carry out certain types of industrial processes. The permits contain conditions intended to prevent or minimise pollution. Enforcement powers include revocation and suspension of permits, and in serious cases prosecution for non-compliance with an enforcement notice.

The Authority is responsible for issuing approvals to certain food establishments. The approval authorises the handling of certain types of product within an establishment. Enforcement powers include revocation and suspension of approvals.

 

Part 2A Orders

The Authority can apply for Part 2A orders under the Health Protection (Part 2A Orders) (Wales) Regulations 2010, to deal with threats to human health from infection or contamination that presents, or could present significant harm. It is for a Justice of the Peace (JP) to decide whether an order is necessary to address the risk. If the JP is satisfied of the local authority's case, an order can be made under the Public Health (Control of Diseases) Act 1984. Such orders for instance can specify that an operation must cease and articles and equipment be surrendered. The Order can also specify to destroy and dispose of surrendered articles.

 

Injunctive Actions

The Authority may seek injunctive orders in the Civil Courts to stop infringements of a wide range of laws that seriously affect the rights of others. Officers may seek agreement from a person /business to:

  • Cease a particular action
  • Comply with a negative requirement
  • Comply with a positive requirement
  • Sign an informal undertaking
  • Sign a formal undertaking.

 

In urgent cases or where the above actions cannot be agreed upon, we may seek an injunctive order in the civil courts or an interim, or without notice order. Contravention of injunction, formal undertaking or order issued by the courts could result in contempt of court and the offender could be liable to a fine or imprisonment.

In some cases, where the law allows, we will accept voluntary undertakings from an offender who agrees to stop or make changes to relevant activity, rather than applying for a formal injunction. These will only be accepted when we have sufficient confidence that the terms of the undertaking will be delivered. We are more likely to accept a voluntary undertaking when it is offered early. We will be unlikely to accept an informal undertaking where we have already decided that a prosecution is required in a particular case

For consumer protection issues injunctions may be sought under the Enterprise Act. Where consumers have suffered detriment as a result of certain breaches of consumer protection legislation, the Authority may also apply for an order under the Enterprise Act to obtain redress for consumers who have suffered loss or to achieve compliance so as to reduce the likelihood of future breaches or to provide information to enable consumers to exercise greater choice.

In certain circumstances officers are required to seek enforcement orders after issuing some enforcement notices, providing the court with an opportunity to confirm the restrictions imposed by the notice.

 

Confiscation of Assets

Under the Proceeds of Crime Act 2002, officers may seek Confiscation Orders against persons who have been convicted of offences where they have made money from their crimes. The purpose is to recover the financial benefit that the offender has obtained from their crimes and act as an additional deterrent to others. Proceedings only take place after a criminal conviction has been obtained, and are conducted according to the civil standard of proof.

 

Seizure and Forfeiture

Certain legislation enables officers to seize goods, equipment or documents, where they may be required as evidence for possible future court proceedings or to prevent further offences from being committed. When items are seized an appropriate receipt will be given to the person from whom the items are taken. In certain circumstances an application will be made to the Magistrates' Courts for forfeiture of the goods. Forfeiture may be used in conjunction with seizure and / or prosecution, where there is a need to dispose of the goods, vehicles or equipment to prevent them being used to cause a further problem or to prevent them re- entering the market place.

 

Work in Default

In the context of private sector housing, dangerous structures and other public health legislation, the Authority has powers to carry out work in default where a person has been required to do work, but has failed to do so. The work in default powers are provided in the legislation being used that is relevant to the case.

In most circumstances a person will be given notice of the Authority's intention to carry out work in default. Once the Authority has started work it is an offence for that person to obstruct the Authority or any of the contractors that have been employed to carry out the work. The cost of the work will be recovered in accordance with the relevant legislation.

 

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 may consider taking them into possession and applying for Orders for reimbursement of expenses incurred and subsequent disposal. Additionally horses and ponies found fly-grazing, straying or that have been abandoned may be seized and impounded and owners pursued for the associated costs. In cases of non-payment of these costs the authority may keep the animals and dispose of them in accordance with the relevant legislation.

 

Tobacco Restriction Orders

Where an offender continually breaks the law by selling tobacco products to young people, we may make a complaint to the court and apply for a restricted premises order or a restricted sale order. The effect of such an order is to prohibit a premises or a person from selling tobacco for a period of time up to one year.

 

Fixed Monetary Penalties

The Authority has powers under certain legislation to impose Fixed Monetary Penalties, which are not intended to be used for more serious cases of non-compliance. Fixed Monetary Penalties are not criminal fines and do not appear on an individual's criminal record. Fixed Monetary Penalties cannot be used in conjunction with any other sanction. The form and content of such notices varies between different legislation but will generally include details of the offence, the amount of penalty, the period during which proceedings will not be taken, how to appeal and where to pay. Usually the legislation allows the authority to amend or withdraw such notices if it is appropriate to do so.

 

Discretionary requirements

Under certain legislation the authority has the power to impose Variable Monetary Penalties and Non-Monetary Discretionary Requirements.

 

Variable Monetary Penalties may be imposed up to a maximum level set out in the relevant legislation.

 

Non-Monetary Discretionary requirements are requirements to take steps to ensure that a breach does not continue or recur. Where the authority chooses to impose Non-Monetary Discretionary Requirements it will clearly set out what those steps should be and the time period within which they must be completed. A failure to comply with the requirements is likely to result in a financial penalty.

The Authority may use Variable Monetary Penalties and Non-Monetary Discretionary Requirements in combination.

Should the Government make additional sanctions available to the Public Health Service, we will comply with the legislative requirements for their use, provide guidance on how we will use the penalties and publicise details of any case in which the sanctions are used.

 

Simple Cautions

The use of a Simple Caution offers an alternative to prosecution and may be considered during any decision to prosecute. A Simple Caution is an admission of guilt but is not a form of sentence, nor is it a criminal conviction. Before issuing a Simple Caution the following conditions must be satisfied:

  • There must be evidence of guilt sufficient to give a realistic prospect of conviction
  • The offender must understand the significance of a caution and consent to it
  • The offender must admit to the offence
  • The offender must be over 18 years of age

A Simple Caution is a serious matter, which will be recorded and will influence any future decision as to enforcement action should the business or person offend again. A Simple Caution can be cited in court, so it may influence the severity of any sentence imposed by the court. The refusal of an offender to be cautioned will be a material consideration when deciding whether the offender should then be prosecuted for that offence. Accepting a Simple Caution may have consequences if an individual seeks certain types of employment.

The Criminal Justice and Courts Act 2015 imposes statutory restrictions on the use of Simple Cautions. This legislation restricts the use of Simple Cautions for indictable-only offences, for certain specified either-way offences (but these do not relate to legislation enforced by the Authority) and for other offences where the offender has been convicted of or cautioned for a similar offence within the two years before the offence was committed, unless, in each case, it is decided that exceptional circumstances apply.

Under the Criminal Justice and Courts Act 2015 the Authority is only permitted to conclude that there are exceptional circumstances justifying a Simple Caution if satisfied that, were the offender to be convicted of the offence, the court would be unlikely to impose an immediate or suspended custodial sentence or a high-level community order.

 

Furthermore, in assessing whether such exceptional circumstances exist account must be taken of the following non exhaustive factors:

a) the level of culpability of the offender;

b) any harm which the offence caused;

c) any aggravating or mitigating factors;

d) the offender's antecedents;

e) the overall justice of the case and whether the circumstances require the case to be dealt with by prosecution and

f) the range of sentences appropriate to the facts of the case.

 

Officers must treat a previous offence as being similar to the present offence if it was of the same description or of a similar nature, e.g. they both involve dishonesty.

If all of the above requirements are met, the authorised officer must consider whether the seriousness of the offence makes it appropriate for disposal by a Simple Caution and whether a Caution is likely to be effective in the circumstances. Generally the more serious the offence the more likely a prosecution will be required. Officers should consider any aggravating and mitigating factors when assessing seriousness and also consider whether the sentencing guidelines indicate a likely sentence of imprisonment or a high level community order. The authorised officer may conclude that the public interest does not require the immediate prosecution of the offender.

 

Prosecution

Where the circumstances warrant it and the alternative actions listed above are considered inappropriate, then prosecution may result. As with all the previous methods of enforcement, in deciding what action to take, a number of factors will be taken into consideration including:

  • The nature and seriousness of the offence
  • The previous history of the offender
  • Any statutory defence available
  • Action taken to avoid reoccurrence
  • Any explanation offered, and if the law allows, the circumstances and attitude of the offender
  • What course of action will best serve the public interest
  • Realistic prospect of conviction

The decision to prosecute or any other formal action is taken by an appropriate authorised officer and takes into account:

The Code for Crown Prosecutors has two main tests that must be satisfied:

  • Evidential Test - Is there sufficient evidence to provide a realistic prospect of conviction?
  • Public Interest Test - Is it in the public interest to take action?

If a decision is made to prosecute, where the law allows we will always seek to recover the costs of the investigation and the legal proceedings.

If an offence has been committed by a body corporate, where the law allows, we will consider prosecuting directors or managers or other company officers when the offence has been caused by the negligence, consent or connivance of such a person. In such circumstances we will take action against the most appropriate body, for example the company, the director or both.

 

Orders Imposed by the Courts that are Ancillary to the Prosecution

At the successful conclusion of a prosecution we will apply for ancillary court orders in all appropriate cases. Listed below are some of the ancillary orders that a court may make following a conviction:

  • Criminal Behaviour Orders;
  • Disqualification from driving;
  • Disqualification of directors;
  • Compensation orders;
  • Forfeiture orders;
  • Proceeds of Crime Act confiscation orders;
  • Proceeds of Crime Act cash detention orders.

 

Charging Suspects

There may be circumstances where the police have arrested a suspect but the offences will be investigated by the local authority. After interview at the police station it may be appropriate to charge the offender and bail to an appropriate court for the offences rather than to report the suspect so that summonses can be issued at a later date. A senior officer will consider the evidential and public interest tests and if satisfied will instruct an authorised officer to charge the suspect with the offence(s) at the police station.

 

Appendix 1

Food Safety/Standards Notices

In relation to Food Safety/Food Standards non compliances a Hygiene Improvement Notice may be appropriate in any of the following circumstances or a combination thereof:

  • Where there is not an imminent risk to health;
  • Where there is a record of non-compliance with breaches of food standards/hygiene regulations;
  • Where the authorised officer has reason to believe that an informal approach may not be successful.
  • Where formal action is proportionate to the risk to public health;

 

A notice would not be appropriate in the following circumstances:

  • Where the contravention might be a continuing one and a notice would only secure an improvement at one point in time;
  • In transient situations, and it is considered that swift enforcement action is needed, for example, a one day festival or sporting event.

In certain circumstances in addition to serving a Notice and where criminal sanctions are available it may be appropriate for the Authority to prosecute.

 

HYGIENE EMERGENCY PROHIBITION NOTICES AND ORDERS

A Hygiene Emergency Prohibition Notice is served on a food business operator when an imminent risk of injury to health exists.

 

Health risk conditions where prohibition of premises may be appropriate include:

  • Infestation by rats, mice, cockroaches, birds or other vermin, serious enough to result in the actual contamination of food or a significant risk of contamination;
  • Very poor structural condition and poor equipment and/or poor maintenance or routine cleaning and/or serious accumulations of refuse, filth or other extraneous matter resulting in the actual contamination of food or a significant risk of food contamination;
  • Drainage defects or flooding of the establishment, serious enough to result in the actual contamination of food or a significant risk of food contamination;
  • Premises or practices which seriously contravene food law and have been or are implicated in an outbreak of food poisoning;
  • Any combination of the above, or the cumulative effect of contraventions which, taken together, represent the fulfillment of the health risk condition.
  • Health risk conditions where the prohibition of equipment may be appropriate:
  • Use of defective equipment, e.g. a pasteuriser incapable of achieving the required pasteurisation temperature;
  • Use of equipment for the processing of high-risk foods that has been inadequately cleaned or disinfected or which is grossly contaminated and can no longer be properly cleaned.
  • Use of storage facilities or transport vehicles for primary produce where the storage facilities or transport vehicles have been inadequately cleaned or disinfected.
  • Dual use of complex equipment, such as vacuum packers, slicers and mincers for raw and ready-to-eat foods.

 

Health risk conditions where prohibition of a process may be appropriate:

  • Serious risk of cross contamination;
  • Failure to achieve sufficiently high processing temperatures;
  • Operation outside critical control criteria, for example, incorrect pH of a product which may allow Clostridium botulinum to multiply;
  • The use of a process for a product for which it is inappropriate.

 

EMERGENCY PROHIBITION PROCEDURES (UNDER THE FOOD SAFETY ACT)

Emergency prohibition procedures will be used if an authorised officer has evidence of an imminent risk of injury to health.

 

Imminent risks of injury to health where the use of Emergency Prohibition Procedures may be appropriate:

  • A process or treatment that introduces a teratogenic chemical (one that damages a developing foetus in the womb) into food, which may cause injury to the developing foetus, but the damage will not be apparent until the baby is born.
  • A process or treatment that introduces a genotoxic chemical (one that damages genes or chromosomes) into food the effects of which may not manifest themselves until the effected child develops or a malignant tumour occurs at some time in the future.

 

Remedial action notices

Remedial Action Notices (RAN) can be served in any food establishment where the requirements of the Hygiene Regulations are being breached or an inspection is being hampered. The action taken must be proportionate to the risk to public health and where immediate action is required to ensure food safety.

 

Circumstances which may lead to the issue of a Remedial Action Notice in respect of an establishment include:

  • The failure of any equipment or part of an establishment to comply with the requirements of the food hygiene regulations;
  • Cross contamination issues;
    • The need to impose conditions upon or the prohibition of the carrying on of any process breaching the requirements of the regulations or hampering adequate health inspection in accordance with the regulations;
    • Where the rate of operation of the business is detrimental to its ability to comply with the regulations;

 

Circumstances where the issue of a Remedial Action Notice should not be used:

Remedial Action Notices should not be used to prohibit the operation of an entire establishment, in the same way a Hygiene Emergency Prohibition Notice can be used.

A Remedial Action Notice should not be served where the officer is satisfied that there is an imminent risk of injury to health: in this case a Hygiene Emergency Prohibition Notice should be served.

A Remedial Action Notice should not be served as an alternative to suspending an approval on an establishment approved under Regulation 853/2004. Suspension of approval must be actioned in accordance with Article 31 of Regulation 882/2004.

 

Circumstances which might lead to the issue of a Detention Notice

Where there are indications or suspicions that food at an establishment is unsafe and therefore examination is necessary, including the taking of samples, a Detention Notice may be issued.

 

Approved Premises

Officers will seek to remedy non-compliance in approved establishments wherever possible by using a graduated approach to enforcement.

Officers may serve a Remedial Action Notice if any of the requirements of The Hygiene Regulations, as defined by Regulation 9 of The Food Hygiene (Wales) Regulations 2006, are being breached or if an intervention under those Regulations is being hampered. More specifically, a Remedial Action Notice may be used to prohibit the use of any equipment or any part of the establishment; impose conditions upon or prohibit any process; and it also allows for the rate of an operation to be reduced or stopped completely.

 

Circumstances which could lead to the issue of a Remedial Action Notice may include:

  • the failure of any equipment or part of an establishment to comply with the requirements of the "Hygiene Regulations" as defined by Regulation 9 of The Food Hygiene (Wales) Regulations 2006;
  • the need to impose conditions upon or the prohibition of the carrying on of any process breaching the requirements of the Regulations or hampering adequate inspection in accordance with the Regulations; and
  • where the rate of operation of the business is detrimental to its ability to comply with the Regulations.

 

Withdrawal / Suspension of approval - general

If serious deficiencies are identified or production has to be stopped at an establishment repeatedly and the food business operator is not able to provide adequate guarantees regarding future production, the officer shall initiate procedures to withdraw the establishment's approval. However, the authority may suspend an establishment's approval if the food business operator can guarantee that it will resolve deficiencies within a reasonable time.

Working definitions for 'serious deficiencies' have been developed by the FSA and are detailed below:

  • actual or potential risk to public health
  • major structural deficiency
  • poor maintenance preventing effective cleaning
  • contamination of products
  • failure to control contamination from any source
  • visibly contaminated product without action from food business operator
  • inadequate separation between products of different risk categories
  • inadequate temperature control
  • serious rodent infestation
  • inadequate supply of potable water
  • poor management attitude and commitment
  • inadequate HACCP based food safety management system or good hygiene practices (pre-requisites)
  • failure of HACCP based controls

 

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