CITY OF SALFORD

ENVIRONMENTAL SERVICES DIRECTORATE

ENFORCEMENT AND PROSECUTION POLICY

1.0	INTRODUCTION

1.1 	The aim of the Environmental Services Directorate is to protect and promote a fair, safe and healthy environment for the benefit of the community.	

1.2	The Directorate’s regulatory functions are extensive.  They include abandoned vehicles, animal health and welfare, occupational health and safety, pollution control (air, land, water, noise), drainage, public health nuisances, food safety / hygiene and compositional standards, disease control, consumer safety, fair trading and weights and measures.

1.3	This policy sets out the general principles which the Directorate will follow in relation to enforcement and prosecution.

1.4	The primary function of Local Government enforcement work is to protect the public, the environment and groups such as consumers and employees.  At the same time, a thriving local economy is promoted when these functions are carried out in an equitable, practical and consistent way. The Directorate is committed to achieving these aims and maintaining a fair and safe trading environment.

1.5	The effectiveness of legislation in protecting consumers or sectors in society depends crucially on the compliance of those who are regulated. The Directorate regards prevention as better than cure and recognises that most businesses want to comply with the law.  We will therefore, take care to help businesses and others to meet their obligations without unnecessary expense, whilst taking action, including prosecution, against those who flout the law or act irresponsibly.

1.6	The Directorate has also adopted the Central and Local Government Concordat on Good Enforcement which commits us to good enforcement policies and procedures.

2.0	PURPOSE AND METHODS OF ENFORCEMENT

2.1	The purpose of enforcement is to ensure that preventative or remedial action is taken to secure compliance with legal requirements.  Our preferred method of ensuring compliance is by working together with those who are regulated.  Although the Directorate expects full voluntary compliance with legal requirements, it will not hesitate to use its enforcement powers where necessary.

1.1	
2.2	There are a variety of enforcement actions available to the Directorate:-

Advice  / Education	The provision of advice on how to comply with the law.
	
Local Business Partnership	Working with the business community to help them understand and comply with the law.
	
Warning Letter	A warning that a recurrence or continuation of an infringement may result in legal action.
	
Statutory Notice	A wide range of legal powers exist which can require persons to take remedial action or cease a particular course of conduct.  In certain extreme cases we have the power to close businesses and / or halt processes.  Failure to comply  with a statutory notice will often result in prosecution.
	
Official Caution	A specific form of warning where an individual admits committing an offence.  These are used in cases where a prosecution could be brought but there are strong mitigating factors.
	
Prosecution	The prosecution of cases in the criminal courts.  Depending on the circumstances we do not always warn or issue a statutory notice before taking a prosecution.	

3.0	PRINCIPLES OF ENFORCEMENT

3.1	The Directorate believes in firm but fair regulation.  Underlying this are the principles of:- proportionality in the application of the law and in securing compliance, consistency of approach, transparency in how the Directorate operates and what those who are regulated can expect from the Directorate and targeting of enforcement action.

3.2 	Proportionality
The  enforcement action taken by the Directorate will be proportionate to the risks posed and to the seriousness of the breach.  As far as the law allows, we will take into account the circumstances of the case and the attitude of the individual when considering what action to take.

3.3 	Consistency
The Directorate aims to carry out its duties in a fair, equitable and consistent manner.  Consistency does not mean simple uniformity.  Officers  will need to exercise their professional judgement and discretion according to the circumstances of each individual case.  

Arrangements are in place to promote consistency in the interpretation and enforcement of legislation through liaison with other Local Authorities throughout  Greater Manchester and the North West Region.  We have regard to statutory codes of practice and to advice provided by the Local Authorities Co-ordinating Body on Food and Trading Standards (LACOTS), the Health and Safety Executive / Local Authority Enforcement Liaison Committee (HELA) and from Central Government Departments.

3.4 	Transparency
Transparency is important in maintaining public confidence in the Directorate’s ability to regulate.  It means helping those regulated and others  to understand what is expected of them and what they should expect from the Directorate.  It also means making it clear why an officer intends to or has taken enforcement action.  The Directorate trains its staff and has procedures to ensure that:-

•	Where remedial action is required it is clearly explained (in writing in most cases) why the action is necessary, when it must be carried out and that a clear distinction is made between best practice and legal requirements.

•	Opportunity is provided to discuss what is required to comply with the law before formal enforcement action is taken unless urgent action is required e.g. to protect the environment, to remove risks to health and safety or to prevent evidence being destroyed.

•	Where urgent action is required, a written explanation of the reason is provided as soon as practicable after the event.

•	Written explanation is given of any rights of appeals against formal enforcement action at the time the action is taken.

3.5 	Targeting
Targeting means making sure that regulatory effort is directed primarily towards those whose activities are likely to give rise to the most serious breaches of legislation.

The Directorate has systems for prioritising regulatory effort.  They include:-

•	responding to complaints from the community about regulated activities

•	the inspection of premises according to the risks posed

•	the gathering and acting on intelligence about illegal activities.

3.6	Human Rights
In carrying out its duties, the Directorate will respect the rights and freedoms guaranteed to individuals under the Human Rights Act 1988. 

4.0	PROSECUTION

4.1	The Attorney General’s guidelines on criteria for prosecution endorsed the principle that suspected criminal offences should not automatically be the subject of prosecution.  The decision to prosecute an individual is a serious step.  Fair and effective prosecution is essential to the maintenance of law and order.  Even in a small case, a prosecution has serious implications for those involved - the victim, every witness and the defendant.  The purpose of this policy is to ensure the Directorate can make fair and consistent decisions about prosecutions and it is based upon the Code for Crown Prosecutors ©.

5.0	GENERAL PRINCIPLES

5.1	Each case is unique and must be considered on its own merits, but there are general	principles that apply in all cases.  There are two stages in the decision to prosecute.

	The first stage is the evidential test.  If the case passes the evidential test, consideration must be given as to whether a prosecution is needed in the public interest.

	The second stage is the public interest test.  The Directorate will only start to prosecute when the case has passed both tests.

6.0	THE EVIDENTIAL TEST

6.1	The Directorate must be satisfied that there is enough evidence to provide a realistic prospect of conviction against each defendant on each charge.  Consideration must be given as to what the defence case may be and how that is likely to affect the prosecution case.  A realistic prospect of conviction is an objective test.  It means that a jury or bench of magistrates, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged.  
  
6.2		When deciding whether there is enough evidence to prosecute, consideration must be given as to whether the evidence can be used and is reliable.  There will be many cases in which the evidence does not give any cause for concern, but there will also be cases in which the evidence may not be as strong as it first appears.  The following  questions must therefore be asked:- 

6.3	Can the evidence be used in court?

	Is it likely that the evidence will be excluded by the court?  There are certain legal rules which may mean that, although evidence may seem relevant, it cannot be given at a trial.  For example, is it likely that evidence will be excluded because of the way in which it is gathered or because of the rule against using hearsay as evidence?  If so, is there enough other evidence for a realistic prospect of conviction?

6.4	Is the evidence reliable?

Is it likely  that a confession is unreliable for example, because of the defendant’s age, intelligence or lack of understanding?

	Is the witness’ background likely to weaken the prosecution case?  For example does the witness have any dubious motives that may affect his or her attitude to the case or a relevant previous conviction?

	If the identity of the defendant is likely to be questioned, is the evidence about it strong enough?

	Evidence should not be ignored merely because there is uncertainty as to whether it can be used or is reliable.  It should be looked at closely when deciding if there is a realistic prospect of a conviction.

7.0	THE PUBLIC INTEREST TEST

7.1 	The public interest must be considered in each case where there is sufficient evidence to provide a realistic prospect of conviction.  In serious cases, a prosecution will usually take place unless there are public interest factors against prosecution which clearly outweigh those in favour.  Although there may be public interest factors against prosecution in a particular case, quite often the prosecution should go ahead and those factors should be put to the court when sentence is being passed.  Consideration must be also given to the probable public benefit of a prosecution and the importance of the case e.g. whether it might establish a legal precedent in other companies or other geographical areas.

7.2	The Directorate must balance factors for and against prosecution carefully and fairly  having  regard to any explanation offered by a potential defendant and also the previous history of the party concerned.  Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence or the circumstances of the offender.  Some factors may increase the need to prosecute, but others may suggest that another course of action would be better.

8.0	PUBLIC INTEREST FACTORS IN FAVOUR OF PROSECUTION

The more serious the offence, the more likely it is that a prosecution will be needed in the public interest.  A prosecution is likely to be needed if:-

•	a conviction is likely to result in a significant sentence
•	the offence was committed against an officer of the Directorate - e.g. obstruction
•	the defendant was in a position of authority or trust
•	the evidence shows the defendant was a ringleader or organiser of the offence
•	there is evidence that the offence was pre-meditated or due to the defendant’s neglect or failure to take all reasonable precautions and exercise all due diligence to avoid committing the offence
•	the victim of the offence was vulnerable
•	there is evidence of corruption
•	the defendant’s previous convictions or cautions are relevant to the present offence
•	the defendant is alleged to have committed the offence whilst under an order of the court
•	there are grounds for believing that the offence is likely to be continued or repeated, for example by a history of recurring conduct, or the offence, although not serious in itself, is widespread in the area where it was committed.

9.0	SOME PUBLIC INTEREST FACTORS AGAINST PROSECUTION

	A prosecution is less likely to be needed if:-

•	the court is likely to impose a very small or nominal penalty
•	the offence was committed as a result of a genuine mistake or misunderstanding and the offender is prepared to put right any loss  (these factors must be balanced against the seriousness of the offence and defendants must not avoid prosecution simply because they can pay compensation)
•	the defendant is willing to prevent a recurrence of the offence
•	the defendant is able to establish a statutory defence
•	the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgement
•	there has been a long delay between the offence taking place and the date of trial, unless:-
•	the offence is serious
•	the delay has in part been caused by the defendants
•	the offence has recently come to light
•	the complexity of the offence has meant there has been a long investigation
•	a prosecution is likely to have a very bad effect on the victim’s physical or mental  health, always bearing in mind the seriousness of the offence
•	the defendant is elderly or is, at the time of the offence, suffering from significant mental or physical ill-health, unless the offence is serious or there is a real possibility that it may be repeated
•	other courses of action such as issuing a Formal Caution in accordance with Home Office Circular 59/1990 or an improvement notice or imposing a prohibition, would be more appropriate or effective.

10.0 	WORKING WITH OTHER REGULATORS

10.1	Where the Directorate and another enforcement body both have the power to prosecute, the Directorate will liaise with that other body to ensure effective co-ordination, to avoid inconsistencies and to ensure that any proceedings instituted are for the most appropriate offence.

SWH/TS/RP/RPT/ENFORCEMENT & PROSECUTION POLICY