Enforcement and Investigation Activities

1. Scope

All overt enforcement activities carried out by officers of the Enforcement Team.

2. Definitions

Enforcement action –includes, but not exclusively, patrols by vehicle, bicycle and on foot. The verbal and written advice as to the requirements of legislation, letters of warning/caution from an officer, Fixed Penalty Notices, formal cautions and prosecutions.

3. Exceptions

None

4. Appendices

Departmental Generic Enforcement policy
Enforcement Team Enforcement Policy

5. Health and Safety

Due regard shall be had to the Department of Health and Regulatory Services Safety Policy and Safe Working Procedures as applicable

6. General

1. In carrying out enforcement duties officers shall ensure that the persons or premises under examination are aware of the officers identity and have been informed of the broad purpose of the officers presence.
2. In carrying out enforcement activities it is recognised that any response to an apparent breach of statutory requirements should be proportionate to the overall nature of that breach; this procedure seeks to identify the responses available.

7. Overt Vehicle CCTV Surveillance

1. Officers using any vehicles fitted with CCTV units will ensure a new video tape is installed at the beginning of each shift.
2. Officers will ensure that the CCTV unit will be recording at all times the vehicle is in use.
3. The officer will not target or zoom the CCTV unit onto any person/s, premise or vehicle, unless the officer in charge has
   reasonable cause to suspect an offence is being, or is about to be, committed.
4. Where an officer suspects an offence, as 3 above, the officer shall if equipped engage the interior microphone and after giving his/her name, designation, date and time, the officer will state the reason the CCTV unit has been targeted. Otherwise a written record of this information shall be made.
5. Where targeted CCTV surveillance is continued, after the initial contact and surveillance has ceased, or a known offender is being targeted, then the officer in charge will first seek to obtain verbal or written RIPA authorisation depending on the circumstances.
6. Where a verbal RIPA authorisation is obtained, written authorisation will be obtained as soon as is practicable to do so.

8. Video Tapes

1. All videotapes will be kept for at least 31 days after use and will be securely stored within the designated locker.
2. No videotape shall be used more than 12 times.

9. Enforcement Decisions

1. Enforcement decisions shall be consistent, balanced, fair and relate to common standards that ensure the public and the environment are adequately protected. These decisions should be made in accordance with the Departments Enforcement Policy.
2. Where possible immediate enforcement action will be taken
3. The factors to be considered in coming to a decision include:-
   1. The circumstances of the offence
   2. The past history of the offender
   3. The degree of wilfulness involved
   4. The likely effectiveness of the various enforcement options

10. Enforcement Options

1. In the event of a contravention being detected then the following enforcement options will normally be available:
   1. Verbal warning
   2. Advice letter &/or fact sheet
   3. Warning letter
   4. Statutory powers, for example Fixed Penalty Notices under Environmental Protection Act 1990, and The Dogs (fouling of Land) Act
   5. Formal caution
   6. Prosecution

In some cases a combination of these options may be appropriate.

2.  In exercising any of the above options officers shall clearly differentiate between those actions that are required to achieve legislative compliance and those actions that might more properly be regarded as best practice.

11. Timeliness of Actions

Where an officer detects a contravention of legislation the nature of the contravention shall be bought to the attention of the person responsible for the activity and/or premise as soon as practicable. This may be a verbal statement, of action being taken at the time the offence is witnessed, or a letter sent as soon as practicable, outlining the offence and the action being taken.

12. Verbal Warning

Verbal warning may be given when the alleged infringement is by accident or mistake, and the infringement is corrected whilst the officer is present.

13. Warning Letter &/or Fact Sheet

1. Where an officer intends to issue a letter of warning and/or a fact sheet in response to an observed infringement consideration shall be given to the requirement at para 9.0 above.
2. Warning letters will normally be sent where it is considered necessary to have a full record of the offence and advice given.
3. Warning letters shall be issued where there is substantive evidence of a criminal offence but the nature of the infringement is such that, having regard to the Enforcement Policy, a written warning is, in the officers opinion, a proportionate response.
4. Warning letters will normally be signed by the officer who observed the infringement but may be signed by the Team Supervisor or Principal Environmental Health Officer.

14. Fixed Penalty Notices

1. The fixed penalty notice (FPN) can be used to enforce legislation where that legislation gives an authorised officer the power to issue such a notice.
2. Failure to pay a FPN will, other than in exceptional circumstances, result in further enforcement action.
3. All FPN will be signed by appropriately trained, experienced and authorised officers. The officer will be satisfied that the contravention is significant and that all appropriate criteria are met. Sufficient evidence will be available to justify the notice, and details of all evidence will be properly recorded to satisfy PACE and CPIA requirements.
4. Time limits given on FPN will be in accordance with statutory requirements. These are currently 14 days
5. Other relevant bodies will be informed of the action as necessary, copies will be forwarded on request.
6. Requests for time extensions to pay a FPN will not be unreasonably rejected. Confirmation of an extension or reason for a rejection of an extension will be put in writing to the applicant.
7. In addition the following approach will also be adopted in respect of Fixed Penalty Notices:
   • On payment of the FPN, within 14 days or any extension agreed by the CHRSO, no further legal action will be taken by the local authority.
   • For non-payment of the FPN formal legal action will ensue. Where this is for the first offence and where appropriate a formal caution may be used if the offender admits the offence.
   • Subsequent offences committed by the same person and where two Fixed Penalty Notices have been issued in the last 12 months shall result in summary proceedings in Magistrate's court, rather than issuing a further FPN.
   • In the case of minors FPN will be issued on those aged 16 or more. Action will be taken as necessary as detailed above. (Note that summary proceedings will be taken in Youth Court).
   • FPN will not be issued for under 16's. Should a minor of this age commit an offence an informal letter will be issued to the parents, the child, the child's school and the police.
   • If a person under the age of 16 has received warning letters but continues to offend consideration will be given to the issue of a Fixed Penalty Notice.

15. Formal Cautions

1. The Home Office issued a circular (14/1985) in relation to the cautioning of offenders. Although the circular was directed to police authorities, a Home Office spokesman said that there should be as much consistency as is practical in the policy applied by all prosecution agencies. This was replaced by Home Office Circular 59/1990 'The Cautioning of Offenders' which laid down national standards for cautioning, and this has now itself been replaced by Home Office Circular 18/1994.
2. The subject of cautioning was considered on the basis that there is no rule of law that suspected offenders MUST be prosecuted and that cautioning represents a possible alternative course of action. Formal cautions will therefore be issued in accordance with the current Home Office circular, and will be considered against the criteria listed below. A properly administered formal caution (which should not be confused with a letter of warning) may be cited at a future court hearing provided that the caution was administered for an offence committed within 3 years of the offence for which the prosecution is brought.
3. Where there is sufficient evidence to warrant a prosecution but the public interest would not benefit from such a course of action, then a formal caution may well be appropriate.
4. Formal cautioning will not be used as an alternative to a weak prosecution case
5. In considering whether to administer a formal caution the following criteria must be met:
   1. there must be evidence of the offender's guilt sufficient to give a realistic prospect of conviction. In other words a conviction should be more likely than an acquittal before a court of law
   2. the offender must admit the offence, and
   3. the offender must be an adult and must understand the significance of a caution and give informed consent to being cautioned. This agreement will not be sought until it is decided that cautioning is the correct course of action.
6. In deciding whether to caution or prosecute the following factors must be taken into consideration:
   1. the nature of the offence
   2. the likely penalty if the offender was convicted by a court
   3. the offender's age and state of health
   4. the offender's previous criminal history
   5. the offender's attitude towards the offence.
7. If an offender refuses to accept a formal caution, the Principal Environmental Health Officer or Chief Health and Regulatory Services Officer will reconsider the evidence and decide whether or not a prosecution should be instituted.

16. Prosecution

Details of when a prosecution should be taken are detailed in the Department of Health and Regulatory Services generic Enforcement Policy and the Enforcement Team's Enforcement Policy.