Environment:

Health and Safety Inspectors from the Council inspect businesses on a regular basis to check that employers are complying with the law and to offer advice. The Council is presently responsible for health and safety enforcement in about 1500 premises in the Borough covering such activities as holiday parks, shops, offices, warehouses, leisure facilities and non-factory premises.

Enforcement of health and safety is in line with the Council’s Enforcement Policy. Please see below for more information.

SERVICE POLICY REFERENCE

The Unit Health and Safety Service Plan for 2005-2006 is available here.

The findings of the recent audit of the health and safety service of the Council by the Health and Safety Executive can be viewed here

FURTHER INFORMATION

For further Information relating to health and safety contact:

Environmental Health and Enforcement Unit

Berwick-upon-Tweed Borough Council

Council Offices

Wallace Green

Berwick-upon-Tweed

TD15 1ED

Tel (01289) 301734

The website of the Health and Safety Executive contains comprehensive information including guidance notes which can be downloaded www.hse.gov.uk.

Environmental Health Unit Enforcement Policy:

The enforcement tools available under the Health and Safety at Work etc Act 1974 and associated legislation are: -

• Improvement Notice
• Prohibition Notice (either immediate or deferred)
• Formal caution
• Prosecution

In general terms, where contraventions are noted the first step will be to advise the person responsible of the contravention and the steps needed to rectify the problem. Therefore the service of an Improvement Notice would not normally be considered to be the first option. There is however an exception to this general rule and that is where the contravention found is sufficiently serious that not to serve an Improvement Notice straight away would leave employees and/or the public in danger.

The normal situation where it would be appropriate to serve an Improvement Notice is where a contravention has been previously brought to the attention of an employer but has not been actioned after a reasonable period of time. Another alternative situation where a notice would be served is where a contravention is noted and the past history of the employer is such that there is little or no prospect of an informal approach having the desired effect.

A prohibition notice would be served where there is an imminent risk of serious injury to an employee or member of the public. If such a risk exists then a formal approach would be taken straight away without delay irrespective of the past history of the duty holder.

Where serious offences exist or there is a history of non-compliance then consideration would be given to pursuing a prosecution or formal caution. The decision making process laid down in the main Enforcement Policy would be used to guide this process.

Typical situations that could result in a prosecution being taken are: -

• A serious accident to an employee or member of the public where there are fundamental flaws in management procedures
• A serious accident to an employee or member of the public where an individual has blatantly ignored safety procedures
• Non-compliance with a Improvement Notice without reasonable excuse
• Repeated non-compliance with basic health and safety requirements
• Obstruction of an authorized officer

Serious health and safety breaches, which although did not lead to an accident or injury, could have done.

ENFORCEMENT AND PROSECUTION POLICY

INTRODUCTION

 1. The Environmental Health Unit supports the principles of the Council’s Vision and principles. The Unit supports the aims and objectives by improving the environment, and the health, safety and welfare of residents within the Borough. It will achieve much of this through education, by providing advice and by regulating the activities of others. Securing compliance with legal regulatory requirements, using enforcement powers including prosecution, is an important part of achieving this aim.

2. The Unit's functions are extensive. They include pollution control, licensing, food safety, enforcement, pest control, health and safety, health promotion, housing, general public health, street sweeping, recycling, management of the Charter Market and provision of public conveniences. The activities dealt with range from domestic householders to complicated industrial processes.

3. Unit staff work with national and other local government regulators on matters such as air pollution, contaminated land, housing, health and safety, licensing and food safety to ensure coherent regulation. They also work with commerce, industry, voluntary groups, non governmental organisations and the public in order to achieve common goals.

4. The Unit regards prevention as better than cure. It offers information and advice to those it regulates and seeks to secure co-operation avoiding bureaucracy or excessive cost. It encourages individuals and businesses to put the environment first and to integrate good environmental practices into normal working methods.

5. This policy sets out the general principles, which the Unit intends to follow in relation to enforcement and prosecution. It is to be used in conjunction with more detailed specific guidance for staff in respect of each of the Unit's functions. The implementation and effectiveness of the policy will be monitored by the Borough Environmental Health Officer.

PURPOSE AND METHODS OF ENFORCEMENT

6. The purpose of enforcement is to ensure that preventative or remedial action is taken to promote public health or to secure compliance with a regulatory system.

The need for enforcement may stem from the existence of a public health problem or a breach of legislation or condition of a licensed activity. Although the Unit hopes to achieve full voluntary compliance with relevant legislative requirements and license provisions, it will not hesitate to use enforcement powers where necessary.

7. The powers available include improvement notices and enforcement notices (where contravention can be prevented or needs to be remedied), prohibition notices (where there is an imminent risk of injury to health or of serious environmental damage), suspension or revocation of licences, variation of licence conditions, injunctions and the carrying out of remedial works. Where the Unit has carried out remedial work, it will seek to recover the full costs incurred from those responsible.

8. Where a criminal offence has been committed, in addition to any other enforcement action, the Unit will consider instituting a prosecution, administering a caution or issuing a warning.

PRINCIPLES OF ENFORCEMENT

 9. The Council supports the principles of good enforcement laid down in the Enforcement Concordat issued by the Cabinet Office. The Council has formally signed up to these principles and applies them in its routine enforcement activities.

10. The Unit believes in firm but fair regulation. Underlying the policy of firm but fair regulation are the principles of; proportionality in the applications of the law and in securing compliance; consistency of approach, transparency about how the Unit operates and what those regulated may expect from the Unit, and targeting of enforcement action.

PROPORTIONALITY

 11. In general, the concept of proportionality is included in much of the regulatory system through the balance of action to protect public health against risks and costs.

12. Some incidents or breaches of regulatory requirements cause or have the potential to cause injury to health or serious environmental damage. Others may interfere with people's enjoyment or rights, or the Unit's ability to carry out its activities. The Unit's first response is to prevent harm to individuals or the environment from occurring or continuing. The enforcement action taken by the Unit will be proportionate to the risks posed and to the seriousness of any breach of the law.

CONSISTENCY

 13. Consistency means taking a similar approach in similar circumstances to achieve similar ends. The Unit aims to achieve consistency in, advice tendered, the response to public health and other incidents, the use of powers and decisions on whether to prosecute.

14. However the Unit recognises that consistency does not mean simple uniformity. Officers need to take account of many variables; the scale of the public health impact, the attitude and actions of management and the history of previous incidents or breaches. Decisions on enforcement action are a matter of professional judgement and the Unit, through its Officers, need to exercise discretion.

The Unit will continue to develop arrangements to promote consistency including effective arrangements for liaison with other enforcing authorities.

TRANSPARENCY

15. Transparency is important in maintaining public confidence in the Unit’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 Unit. It also means making clear why an Officer intends to, or has taken enforcement action.

16. Transparency is integral part of the role of Unit Officers and the Unit continues to train its staff and to develop its procedures to ensure that:-

- where remedial action is required, it is clearly explained (in writing, if required) why the action is necessary and when it must be carried out; a distinction being made between best practice advice and legal requirements.

- so far as is practical, opportunity is provided to discuss what is required to comply with the law before formal enforcement action is taken, unless urgent action is required, for example, to protect public health, the environment or to prevent evidence being destroyed.

- where urgent action is required, a written explanation of the reasons is provided as soon as practicable after the event.

- written explanation is given of any right formal enforcement action at the time the action is taken.

TARGETING

17. Targeting means making sure that regulatory effort is directed primarily towards those whose activities give rise to or risk public health, where the risks are least well controlled or against deliberate flouting of the law. Action will be primarily focused on lawbreakers or those directly responsible for the risk and who are best placed to control it.

18. The Unit has systems for prioritising regulatory effort. They include the response to complaints from the public, the assessment of risks posed by commercial premises and the assessment of risks to general public health.

19. In the case of commercial/industrial premises, management actions are important. Repeated incidents or breaches of regulatory requirements which are related may be an indication of an unwillingness to change behaviour, or an inability to achieve sufficient control and may require a review of the regulatory requirements, the actions of the proprietor/operator and additional investment. A relatively low risk site or activity poorly managed has the potential for greater risk to public health than a higher risk site or activity where proper control measures are in place.

PROSECUTION

PURPOSE

20. The use of the criminal process to institute a prosecution is an important part of enforcement. It aims to punish wrong doing, to avoid a recurrence and to act as a deterrent to others. It follows that it may be appropriate to use prosecution in conjunction with other available enforcement tools, for example, a prohibition notice requiring the operation to stop until certain requirements are met. Where the circumstances warrant it, prosecution without prior warning or recourse to alternative sanctions will be pursued.

21. The Unit recognises that the institution of a prosecution is a serious matter that should only be taken after full consideration of the implications and consequences. Decisions about prosecution will take account of the Code for Crown Prosecutors and other appropriate guidance.

SUFFICIENCY OF EVIDENCE

• A prosecution will not be commenced or continued by the Unit unless it is satisfied that there is sufficient, admissible and reliable evidence that the offence has been committed and that there is a realistic prospect of conviction. If the case does not pass this evidential test, it will not go ahead, no matter how important or serious it may be. Where there is sufficient evidence, a prosecution will not be commenced or continued by the Unit unless it is in the public interest to do so. Public interest factors are considered as part of the decision making process and are contained on the Legal Action Proposal Form.
• Whenever a decision is being taken regarding a potential prosecution, a Legal Action Proposal Form will be completed (see attached). The investigating officer(s) will complete the form with the Borough Environmental Health Officer, or deputy, and the form will be used to record the factors taken into account as part of the decision-making process.

PUBLIC INTEREST FACTORS

24. The Unit will consider the following factors in deciding whether or not to prosecute:-

- willingness of defendant to prevent a recurrence

- consideration of explanation offered

- whether the offence was a genuine mistake/misunderstanding

- whether the offender is old/ill/infirm/etc

- whether there is a victim/someone who suffered loss

- whether the offence is widespread within the area

- whether the case is likely to establish a precedent

25. The factors are not exhaustive and those which apply will depend on the particular circumstances of each case. Deciding on the public interest is not simply a matter of adding up the number of factors on each factor is in the circumstances of each case and go on to make an overall assessment.

COMPANIES AND INDIVIDUALS

26. Criminal proceedings will be taken against those persons responsible for the offence. Where a company is involved, it will be usual practice to prosecute the Company where the offence resulted from the Company's activities. However, the Unit will also consider any part played in the offence by the Officers and employees of the Company, including Directors, Managers and the Company Secretary. Action may also be taken against such officers (as well as the Company) where it can be shown that the offence was committed with their consent, was due to their neglect or they "turned a blind eye" to the offence or circumstances leading to it. Employees may have action taken against them where they have acted in a grossly negligent way or specifically against the instructions of their employer.

CHOICE OF COURT

27. In cases of sufficient gravity, for example death or serious injury to a person or persons or serious environmental damage, where circumstances allow, consideration will be given to requesting the magistrates to refer the case to Crown Court. The same factors as listed in paragraph 22 (above) will be used, but including consideration of the sentencing powers of the Magistrates' Court.

 PENALTIES

28. The existing law gives the courts considerable scope to punish offenders and to deter others. Unlimited fines, and in some cases, imprisonment may be imposed by the higher courts. The Unit will continue to raise the awareness of the courts to the gravity of many environmental health offences and will encourage them to make full use of their powers.

29. The Unit will always seek to recover the costs of investigation and court proceedings.

ALTERNATIVES TO PROSECUTION

30. In cases where a prosecution is not the most appropriate course of action, the alternatives of a caution or warning will be considered.

31. A caution is the written acceptance by an offender that they have committed an offence and may only be used where a prosecution could properly have been brought. It will be brought to the Court's attention if the offender is convicted of a subsequent offence.

32. A warning is a written notification that, in the Unit's opinion, an offence has been committed. It will be recorded and may be referred to in subsequent proceedings.

33. As with a prosecution, additional enforcement mechanisms may also be used in conjunction with a caution or warning.

WORKING WITH OTHER REGULATORS

 Where the Unit and another enforcement body both have the power to prosecute, the Unit 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.