Formal Enforcement Options

This policy covers the enforcement of legislation by the Council, its Officers or contractors.

6.0      Formal Enforcement Options
Enforcement will normally move from level 1 through to level 3, although in serious cases it may be
appropriate to commence at level 3. The points below are general and apply  to all service areas in
 the scope of this policy; specific enforcement information for particular services may be set out
in their operational  documents.

The seriousness of a particular case will be judged against criteria such as the nature of the
offence9, the consequences, the level of risk or harm which could or has occurred and the level of
intent of the offender10
The following sections provide guidance to officers where formal enforcement options (level 3) are
being considered. In some cases the enforcement action will be taken by the officer acting under
delegated authority, in other cases the matter may be referred to a Council committee or
subcommittee. Delegation arrangements are set out in the Council constitution.

 

6.1     Statutory (legal) Notices
Some  legislation  provides  for  the  service  of  statutory  notices  which  require a  person, 
business  or  organisation to  comply  with specific requirements.
Some notices may require works to be undertaken, others may impose a prohibition which prevents
actions from starting or continuing. In some circumstances the use  of a notice is a power
available to the authority; other times it is a statutory duty. Where the service of a notice is a
power, that decision will usually be taken by an appropriate authorised officer. Except in
exceptional or emergency situations, all  notices will be peer reviewed prior to service (template
in appendix B). Prior to the service of the notice the authorised officer concerned must ensure
that the  situation to which the notice relates has not been remedied.


Generally, the notice will explain:

  • what is wrong
  • what is required to put things right
  • the timescale in which to put things right
  • what will happen if the notice is not complied with

In some circumstances where a formal notice has been served there may be a right of appeal against the Council's decision. Aside from the general appeal procedures in 
respect of Human Rights issues, there  are  certain  notices  which allow a more specific and
direct route of appeal through the local courts or other tribunal. In such cases, an explanation of
the method of appeal will be provided at the time the notice is issued.


It is anticipated that individuals, organisations or businesses who do not comply with a properly
written and served statutory notice will be considered for prosecution in line with the Code for
Crown Prosecutors.

 

6.2     Work in default
Sometimes a further possible action after the service of a notice is the carrying out of "work in
default". Where appropriate, this will be considered. The decision to carry out work in default
will be governed by the urgency of the situation and the risk benefit which is to be achieved.
Every effort will be made to ensure that work is carried out competently and that recharges are not
unnecessarily high. Recharges may include costs to cover staff time expended after the service of a
statutory notice. Outstanding debts will be passed to the Council's legal services for recovery.


It may be necessary for the Council to take steps to remove unauthorised campers from land either
in the ownership of the Council or at the request of another land owner. The Council's internal
procedures will be followed in this regard. Where a request is received from the owner of a third
party land the Council will not always act on their behalf, but may request the landowner to take
their own action to secure possession of the land.

 

6.3     Fixed penalty notices
There are specific offences where these notices may be considered as an enforcement option. Fixed
Penalty Notices are an alternative to prosecution. They allow the offender to prevent the
prosecution process taking place by paying a financial penalty. Fixed Penalty Notices will not be
used for repeat offenders or where there is previous record of a Fixed Penalty Notice being served
for that offence.


If the penalty is unpaid then the offender will be prosecuted for the original offence. A Fixed
Penalty Notice will therefore only be issued where there is enough evidence to support a
prosecution. Unpaid notices will be followed up with prosecution to ensure their use is not
discredited. Government guidance is clear that not prosecuting in the case of unpaid notices is
unacceptable.

 

6.4     Simple Cautions
As an alternative to the prosecution of summary offences where the person admits their guilt, a
simple caution may be considered. Senior Officers of the Council (usually a Head of  Service or
Director) have delegated authority to issue simple cautions.  The Council will follow guidelines
from the Ministry of Justice.
Simple cautions will not usually be considered where the offender has a previous record of enforcement action at level 2 or 3 for the offence under consideration.

 

6.5 Injunctions
In some cases an injunction may provide a more appropriate remedy. The advice of the Council's legal service will be taken in this regard.


6.6     Prosecution
Discretion will be used in deciding whether to initiate a prosecution. The Welwyn Hatfield Borough
Council Constitution sets out the delegated arrangements for initiating a prosecution. This may be
to a senior officer, a committee, or in certain cases the case officer.

The decision to prosecute will always take into account the criteria laid down in the Code for
Crown Prosecutors11 (the Code). This includes two "tests" which  the case
must be subjected to - the evidential test and the public interest test. Proceedings will only be
brought when to do so is considered to be in the public  interest.


•  The Evidential Test
The first stage in deciding whether to prosecute is the consideration of the evidence. If a
particular case does not pass this stage then a prosecution should not go ahead. Officers need to
satisfy themselves and the Council's legal advisor(s) that the evidence can be used in Court, that
it is reliable and that there is a realistic prospect of a conviction. If the case satisfies the
evidential test then it must proceed to the second stage to decide if a prosecution for the
particular offence is in the public interest.


•  The Public Interest Test
Public Interest factors can affect the decision to prosecute or not to prosecute. These factors are
set out in the Code and may include the seriousness of the offence, the level of culpability of the
suspect, the circumstances and any harm caused, whether the offender  is  over  18 years old, the
impact on the community, whether a prosecution is a proportionate response and whether any sources
of information require protecting. Some factors may increase the need to prosecute but others may
suggest that another course of action may be more appropriate. It is quite possible that one public
interest factor alone may outweigh a number of other factors which tend in the opposite direction.
Although there may be public interest factors tending against prosecution in a particular case, the
Council will consider whether nonetheless a prosecution should  go ahead and those factors put to
the court for consideration when sentence is passed.

 

6.7     Endorsement, suspension and revocation of Licences
Following the conviction for certain offences, it may be appropriate to  endorse a licence issued
by the Council. In some cases the revocation of a  licence is an enforcement option (which may or
may not require the holder to have been convicted of an offence).


This policy recognises that endorsement, suspension and revocation of licences can have a serious
impact on an individual's livelihood and such decisions will only be taken  having  full  regard 
to  the  human  rights  issues regarding the removal of such a licence drawing upon appropriate legal  advice.

 


11 Copy available at http://www.cps.gov.uk/publications/code_for_crown_prosecutors/
 

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Published 06/21/2019