Welcome to the Network Legal event - ‘To enforce of not to enforce’

Welcome to the Network Legal event - ‘To enforce of not to

enforce’

Jennifer Watts Network Legal Expert

Setting the scene on enforcement.

INTRODUCTIONS

GETTING TO KNOW YOU

• Name• Local Authority• Role• Enforcement Policy??• Scenario??• Challenge!

Principles of Enforcement

• Enforcement Concordat• Introduced in 1998: aim to promote good enforcement that

brings benefits to business, enforcers and consumers• Standards: setting clear standards• Openness: clear and open provision of information• Helpfulness: helping business by advising on and assisting

with compliance• Complaints: having a clear complaints procedure• Proportionality: ensuring that enforcement action is

proportionate to the risks involved• Consistency: ensuring consistent enforcement practice

Enforcement Concordat

‘Ultimately the concordat contributes to the

economic vitality of our local communities.

With compliance made easier, and with

enforcers able to focus their resources on

businesses who break the law allowing law-abiding

businesses to compete on a

level playing field’

Enforcement Concordat: Good Practice Guide for England and Wales http://webarchive.nationalarchives.gov.uk/+/http://www.berr.gov.uk/files/file10150.pdf

Principles of Enforcement

• The Philip Hampton Review: commissioned by Chancellor in the 2004 Budget, was influential in promoting enforcement approaches, which include;

• Increased use of risk assessment to precede and inform all regulatory enforcement work

• Increased use of support and advice to help businesses to understand and meet regulatory requirements more easily, and

• Adopting proportionate, targeted and flexible approaches to applying the law and securing compliance.

Regulatory Enforcement and Sanctions Act 2008

• Based around firm and fair regulation

• (1)In exercising its functions local authorities in England and Wales effectively enforce,

(b)in a way which does not give rise to unnecessary burdens, and

(c)in a way which conforms with the principles in subsection (2).

• (2)Those principles are that—

(a)regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent;

(b)regulatory activities should be targeted only at cases in which action is needed

Fixed Penalty Notices

The Local Approach – is it broad enough?

• Effective Campaigning? • Education – encourage behaviour change?• Decent Services?• FPN?

Golden Rules for Issuing FPN’s

• Rule 1: Assume every offence for which a FPN is issued will end in Magistrate’s Court

• Rule 2: Where there is insufficient evidence a FPN should not be issued

• NB# Is it likely to be pursued by your LA?????

Golden Rules for Prosecution

• Evidence is of key importance when it comes to enforcement. Proceedings should NOT be commenced unless the enforcement officer believes that there is a realistic prospect of success if the matter were to be defended at trial.

• It is essential that there is the mind-set and approach that assumes that every prosecution will be rigorously defended.

Code for Crown Prosecutors

• Casework decisions: taken fairly, impartially and with integrity help to secure justice for victims, witnesses, defendants and the public.

• Prosecutors must be fair, independent and objective. • Must not let any personal views about the ethnic or national

origin, gender, disability, age, religion or belief, political views, sexual orientation, or gender identity of the suspect, victim or any witness influence your decisions.

• Neither must prosecutors be affected by improper or undue pressure from any source.

• Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction.

Code for Crown Prosecutors

The Full Code Test: two stages;

1) The Evidential Stage: satisfied there is “sufficient evidence” to provide a “realistic prospect of conviction”. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may

2) The Public Interest Stage – In every case where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest. Consider seriousness, level of culpability, harm caused to victim, age of suspect, community impact, is prosecution a proportionate response

Code for Crown Prosecutors

• Out-of-Court Disposals: may take the place of a prosecution if it is an appropriate response

• Appropriate evidential standard for the specific out-of-court disposal is met including: a clear admission of guilt and that the public interest would be properly served by such a disposal

• Examples: simple or conditional caution, any appropriate regulatory proceedings, a punitive or civil penalty

http://www.cps.gov.uk/publications/docs/code2013english_v2.pdf

Keep Britain Tidy Enforcement Academy

Launch a new training concept;

• Promote best practice in enforcement• Accredited learning programme• Join a bank of Enforcement Academy graduates

available for hire by land managers • Three Stage Approach - Education, Engagement

Enforcement• Traditional classroom sessions, practical training and

assessment

Keep Britain Tidy Enforcement Academy

Benefits;

• Enforcement Officers gain an accredited qualification• Common standard/process to tackle enforcement

issues • Income generation (hire out qualified officers to other

organisations)• Low risk recruitment process for organisations that do

not currently employ enforcement officers (i.e. short term projects - no annual salaries etc.)

• QUESTIONNAIRE / ROUND TABLE DISCUSSION!

Network Event

Enjoy!

Effective Enforcement

Kenny Wilks

Background

Residents’ concerns – Results of surveys

Local Environmental Quality – Measure of cleanliness

Education and advice – Well informed officers

Collaborative working – Joined up consistent services

Environmental legislation – Dealing with ASB

• Enforcement Strategy• Enforcement Concordat• Costs v Cleanliness• Educate, Encourage

then Enforce• Members Support• Service Effectiveness

Tackling Litter

• Highly visible patrols• Offence directly observed• Patrols based on intelligence/routine• Always show/wear full ID and authority• Always caution offenders• Only issue fixed penalty notices to young

people with parental/carer guidance

Islington Approach

Out on the streets• Verification of details (Islington Electoral

Role)• Close PCSO and Police collaboration• Automated and manual FPNs• Provision of appeal procedure• On line payment option• Full IT administrative support -

Contender• Legal services support

Legislation

Environmental Protection Act 1990• Duty of care etc. as respects waste - Section 34• Receptacles for commercial or industrial waste –

Section 47• Littering - Section 87• Litter clearing notices – Section 92

CNEA 2005• Dog Control Orders x 3

Enforcement Journey

FPN ISSUED

PAID WITHIN 10 DAYS£50.00

PAID AFTER 10 DAYS£80.00

APPEAL RECIEVED

REVIEWED WITHIN10 DAYS

NO PAYMENT/APPEAL

NOTICE OF INTENDED

PROSECUTION(BY 28 DAYS)

CASE FILE PREPARED

(BY 45 DAYS)

In Practice 1. Educat

e2. Encourage

3. Enforce

Penalty Notices issued

Commercial Duty of Care 146Commercial Receptacle 880Dog Exclusion 73Dog Fouling 36Dog Lead 1Domestic Receptacle 14Flyposting 2Grafitti 1Litter Control 2Littering 4920Waste Carrier 1Waste Dumping 863

6939

Issues to Consider• Consistency amongst staff• Conflict resolution• Appeal procedure or not?• Payment rates – what to do when not

paid• Back office/legal – resources• Identification of offenders • Media interest

Kenny Wilks

Head of Street Environment Services

Kenny.Wilks@islington.gov.uk

020 527 4534

Colin Batchelor

Environmental Health ManagerBraintree District Council

Keep Britain Tidy Events September 2013

‘To enforce or not to enforce!’

Braintree District

• 3 Market Towns – Braintree, Witham,

Halstead• 61 Parishes• Population: 148,000 &

rising rapidly

Braintree District

• Is the largest geographical district in Essex – 61,171ha.• Is bounded by 7 districts and 2 other Counties• Contains 20 miles of A12 and A120, both strategic trunk

routes• In close proximity to Stansted Airport• Contains 3200 listed buildings

Braintree District

• Is one of the Portas pilot town centre schemes• Hosts an international puppet festival• Is home to Freeport Factory Shopping village • Is home to the prettiest village in Essex –

Finchingfield.

Braintree District

• Was home to the Courtauld silk and clothing empire

• Is home to Crittall windows

• Home of Olly Murs & Matt Cardle

Braintree District Council

• Council Tax Band D £1455.84 of which only £161.19 is BDC element

• BDC collects £8.7m in Council tax.

Braintree District Council

• Has assets of £80m• Has an annual budget of £15.5m (and

reducing)

Environmental Health

• Comprises– Food, H&S and

Licensing Team– Housing & Pollution

Team – Engineering

Housing & Pollution Team

• 1 Manager• 2.6 EHO’s• 2 EPO/Enforcement Officers• 2 Dog Wardens• 2 Street Wardens• 2 Pest Control Officers• 1.4 Admin

“What a great district – let me in!”

Cllr Graham Butland

Leader of Braintree District Council

So should you enforce?

Ask yourself some questions

• What are you trying to achieve?

– Improved environment– Making your mark– Setting an example– Raising income– Specific targets– Changing behaviour– Decrease in number of littering/fly tipping complaints

Ask yourself some questions

• Do you have the resource?– Staff– Legal

• Do you have Member backing/support?– Cabinet member support essential

• Do you have sound policy and procedures for taking legal action?

• What else are you doing?

The Braintree Experience

The Green Heart of Essex

• Set up concept, governance and structure • Two year project with aim to be the

Cleanest & Greenest Council in Essex– Ulterior motive?

• Budget of £250,000 in first year• Launched in June 2010 with lots of

publicity inc. ‘I’m a Councillor get me out of here!’

Monitoring

How do you know how successful you have been if you don’t know where you started?• NI 195 ? Latest equivalent

When you have done something monitor it, report it and shout about it!

Cleaner

• Extended cleaning hours to deal with the night time economy

• Rapid Response Team - litter dealt with promptly• A barrow beat operative in each of the town centres –

delighted residents, hundreds of compliments• Increased cleaning on strategic routes – improving

image perception• More bins installed – enabling the customer easy access• Deep cleansing – hot washing• Regular weed spraying and removal

Branding

• Vehicle fleet, uniforms, street furniture e.g. litter bins carry Green Heart brand

• Web-site dedicated GreenHeartofEssex – over 30,000 visitors

• Over 500 Green Heart of Essex press mentions

• Social networks – Facebook over 500

regulars– Twitter nearly 2,000

Campaigning

Campaigning

Campaigning

Campaigning

Involving• Communities

– Volunteers , community groups & partners• Schools

– 62 signed up to be Green Champions• Neighbouring authorities

– Co-ordinated litter picking on highways• Businesses

– esp. Galleys Corner (McDonalds & KFC)– Other business initiatives.

Involving• Public engagement - get them on your

side and reporting• See it – Report it!• Stamp out Poo – Tell us who!• Report the Tosser!

• Communities– Volunteers , community groups & partners– Police– Greenfield Housing Association

Actions with McDonalds

• Develop littering report sheet• Extended use to KFC

Actions with McDonalds

• Registration numbers on receipts

Actions with McDonalds• Education /

enforcement

Actions with McDonalds

• Use their publicity opportunities

• Get their staff reporting littering

• Make use of company CCTV

So what do we do?

• Witness/Receive reports of littering• Send letter with questions under caution• Consider response – FPN/NFA • Reminder letters • Failure to pay FPN consider legal action• Pursue case if at all possible• Also pursue s33, s46, s79, s92A, s215,

Road side stop checks

Enforcement 2012/13

• 130 FPNs issued• 112 paid• 12 Cancelled• 6 prosecuted

Cost Benefit

• £7885 FPNs raised (but this is not the reason for issue)

• £2836 Legal fees cost to us• £1196 Costs recovered through the Courts

Benefits

• Much improved environment• Improved satisfaction, place survey results• Clear message to the public• Eagerness of others to report• Awareness of public – who’s watching you?• Enhanced reputation• Regional example of good practice

Risks

• Awarding of costs by the Court• Decisions of Magistrates and Judges• Support of the public – Use PR team• Relationship with legal team• Follow up of FPNs• Local press coverage

Conclusion

• Enforcement is only part of a bigger picture

• Get Member & HOS support• Engage PR and legal teams• Follow up on FPNs• Promote your story with local press• Apply the Nike factor –JUST DO IT!

Thank you for listening/ staying awake/patiently

waiting for lunch !

Lunch and networking

Round Table Discussion

Thank you

For further information on the Network please contact:

rachel.scarisbrick@keepbritaintidy.org

or call on 01942 612 665