Scottish Government

APPENDIX 5 Enforcement Protocol

APPENDIX 5.1 Enforcement Concordat (as approved by the Cabinet Office, the Scottish Executive, COSLA)

THE PRINCIPLES OF GOOD ENFORCEMENT: POLICY AND PROCEDURES

This document sets out what business and others being regulated can expect from enforcement officers. It commits the local authority to good enforcement policies and procedures. It may be supplemented by additional statements of enforcement policy.

The primary function of central and local government enforcement work is to protect the public, the environment and groups such as consumers and workers. At the same time, carrying out enforcement functions in an equitable, practical and consistent manner helps to promote a thriving national and local economy. Local authorities are committed to these aims and to maintaining a fair and safe trading environment.

The effectiveness of legislation in protecting consumers or sectors in society depends crucially on the compliance of those regulated. Local authorities recognise that most businesses want to comply with the law. Local authorities will, therefore, take care to help business and others meet their legal obligations without unnecessary expense, while taking firm action, including prosecution where appropriate, against those who flout the law or act irresponsibly. All citizens will reap the benefits of this policy through better information, choice, and safety.

Local authorities have therefore adopted the central and local government Concordat on Good Enforcement. Included in the term "enforcement" are advisory visits and assisting with compliance as well as licensing and formal enforcement action. By adopting the concordat, local authorities commit themselves to the following policies and procedures, which contribute to best value, and will provide information to show that they are observing them.

1. PRINCIPLES OF GOOD ENFORCEMENT: POLICY

1.1 Standards

In consultation with business and other relevant interested parties, including technical experts where appropriate, local authorities will draw up clear standards setting out the level of service and performance the public and business people can expect to receive. They will publish these standards and their annual performance against them. The standards will be made available to businesses and others who are regulated.

1.2 Openness

Local authorities will provide information and advice in plain language on the rules that they apply and will disseminate this as widely as possible. They will be open about how they set about their work, including any charges that they set, consulting business, voluntary organisations, charities, consumers and workforce representatives. Local authorities will discuss general issues, specific compliance failures or problems with anyone experiencing difficulties.

1.3 Helpfulness

Local authorities believe that prevention is better than cure and that their role therefore involves actively working with businesses, especially small and medium sized businesses, to advise on and assist with compliance. Local authorities will provide a courteous and efficient service and their staff will identify themselves by name. Local authorities will provide a contact point and telephone number for further dealings with them and they will encourage businesses to seek advice/information from them. Applications for approval of establishments, licences, registrations, etc. will be dealt with efficiently and promptly. Local authorities will ensure that, wherever practicable, their enforcement services are effectively co-ordinated to minimise unnecessary overlaps and time delays.

1.4 Complaints about Service

Local authorities will provide well publicised, effective and timely complaints procedures easily accessible to business, the public, employees and consumer groups. In cases where disputes cannot be resolved, any right of complaint or appeal will be explained, with details of the process and the likely time-scales involved.

1.5 Proportionality

Local authorities will minimise the costs of compliance for businesses by ensuring that any action they require is proportionate to the risks. As far as the law allows, local authorities will take account of the circumstances of the case and the attitude of the operator when considering action.

Local authorities will take particular care to work with small businesses and voluntary and community organisations so that they can meet their legal obligations without unnecessary expense, where practicable.

1.6 Consistency

Local authorities will carry out their duties in a fair, equitable and consistent manner. While inspectors are expected to exercise judgement in individual cases, local authorities will have arrangements in place to promote consistency, including effective arrangements for liaison with other authorities and enforcement bodies through schemes such as those operated by the Local Authorities Co-ordinating Body on Food and Trading Standards ( LACOTS) and the Local Authority National Type Approval Confederation ( LANTAC).

2. PRINCIPLES OF GOOD ENFORCEMENT: PROCEDURES

Advice from an officer will be put clearly and simply and will be confirmed in writing, on request, explaining why any remedial work is necessary and over what time-scale and making sure that legal requirements are clearly distinguished from best practice advice.

Before formal enforcement action is taken, officers will provide an opportunity to discuss the circumstances of the case and, if possible, resolve points of difference, unless immediate action is required (for example, in the interests of health and safety or environmental protection or to prevent evidence being destroyed).

Where immediate action is considered necessary, an explanation of why such action was required will be given at the time and confirmed in writing in most cases within 5 working days and, in all cases, within 10 working days.

Where there are rights of appeal against formal action, advice on the appeal mechanism will be clearly set out in writing at the time the action is taken (whenever possible this advice will be issued with the enforcement notice).

Appendix 5.2 Crown Office and Procurator Fiscal Service Prosecution Code>

1. STRATEGIC AIM

As a department of the Scottish Executive, we aim to play a pivotal role in the achievement of the purpose of the criminal justice system of maintaining the security and confidence of the people of Scotland by providing just and effective means by which crimes may be investigated and offenders brought to justice.

1.1 Introduction

The Lord Advocate is the Government Minister responsible for the prosecution of crime in Scotland. Although a member of the Scottish Executive, as the head of the prosecution system in Scotland he is independent of other Ministers and indeed of any other person. No one can require the Lord Advocate to institute criminal proceedings or to abandon a prosecution. It is fundamental to the prosecution of crime in Scotland that decisions in individual cases are immune from political influence or other pressure.

The International Association of Prosecutors - Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, which the Crown Office and Procurator Fiscal Service adopted in 1999, states "the use of prosecutorial discretion… should be exercised independently and be free from political interference" and requires prosecutors to "perform their duties without fear, favour or prejudice."

Under the authority of the Lord Advocate the Crown Office and Procurator Fiscal Service provides the sole public prosecution service in Scotland. The Strategic Aim of the department involves providing just and effective means by which crimes may be investigated and offenders brought to justice.

A key objective of the department is to ensure, in the public interest, that all crimes made known to the Procurator Fiscal are investigated and that effective and consistent use is made of the range of prosecution options, alternatives to prosecution and provisions for the confiscation of proceeds of crime.

This Prosecution Code sets out the criteria for decision making and the range of options available to prosecutors dealing with reports of crime. By publishing this information the Crown Office and Procurator Fiscal Service aims to provide a general explanation of the various factors which may influence decisions regarding prosecution or alternative action. It is hoped that the Prosecution Code will provide an improved understanding of the decision making process as well as an indication of its complexity.

The police and other reporting agencies send the Procurator Fiscal reports of crimes (see separate guidance issued by the Crown Office Reports to the Procurator Fiscal: a Guide for Specialist Reporting Agencies 6 ^th Edition 2004). The Procurator Fiscal then decides whether to begin criminal proceedings, or whether to take alternative action. Such decisions must reflect the values of the department, namely:

• Impartiality
• Thoroughness
• Integrity
• Sensitivity
• Co-operation
• Professionalism

In considering the action to be taken in relation to reports of crime the prosecutor must take account of both legal and public interest considerations.

2. CRITERIA FOR DECISIONS

2.1 Legal Considerations

2.1.1 Domestic Law
In considering cases the Procurator Fiscal must decide whether the conduct complained of constitutes a crime known to the law of Scotland and whether there is any legal impediment to prosecution. For example, it may be necessary to consider the effect of any delay which has arisen; the Procurator Fiscal must consider any relevant statutory time limits and case law.

2.1.2 International and European Law
The Human Rights Act 1998 and the Scotland Act 1998 require Scottish prosecutors to act in a way which is compatible with the European Convention on Human Rights. The Scotland Act 1998 also makes it clear that the Scottish Executive must act compatibly with the United Kingdom's international obligations in general. In some cases, these obligations will be relevant to decisions about prosecution. For example:

The UN Convention on the Rights of the Child recognises and guarantees certain fundamental rights of the child. Article 3 provides that in all actions concerning children the best interests of the child shall be a primary consideration. This is relevant in cases involving child witnesses or children accused of crime.

2.2 Evidential Considerations

2.2.1 Sufficiency of Evidence
The Procurator Fiscal must be satisfied that there is sufficient admissible evidence to justify commencing proceedings.

In general, for there to be sufficient evidence there must be corroboration, that is evidence from at least two separate sources to establish the essential facts of the case, i.e.

• that the crime was committed; and
• that the accused was the perpetrator.

The prosecution must prove these matters beyond reasonable doubt.

The various sources of evidence which may be available include not only 'eye witness' evidence but medical, scientific and other forensic evidence as well as evidence of statements by an accused person.

If the evidence appears to be insufficient, the Procurator Fiscal can instruct the police, or request another reporting agency, to carry out further inquiries. If, after a full inquiry, the Procurator Fiscal is satisfied that the evidence is insufficient he cannot then proceed with a prosecution.

2.2.2 Admissibility
The laws of evidence determine whether a court can consider certain types of evidence. In considering the evidence, the prosecutor will assess whether, having regard to the laws of evidence, a court will allow the evidence to be considered in the case. For example, the court may refuse to take account of evidence that has been obtained improperly, irregularly or unlawfully. Similarly, certain categories of evidence are inadmissible.

2.2.3 Reliability
Although there may be sufficient, admissible, evidence to justify criminal proceedings, consideration must also be given to the reliability of that evidence. This involves an assessment of the quality of the evidence. Concerns about the reliability of evidence may result from the existence of contradictory evidence, or from the existence of information which suggests that a witness is unable to provide an accurate account of events.

Where there are grave and substantial concerns as to the reliability of essential evidence, criminal proceedings will not be appropriate.

2.2.4 Credibility
As with reliability, the assessment of the credibility of evidence is ultimately a matter for the court. However, there may be doubt about the credibility, or truthfulness, of a witness's evidence because of other contradictory and apparently credible evidence; because a witness is known to be dishonest or because of prior inconsistent statements made by the witness.

Where there are concerns regarding the credibility of the evidence the Procurator Fiscal may take account of this in assessing whether there is sufficient evidence.

2.3 Public Interest Considerations

Assuming that the report discloses sufficient admissible, reliable and credible evidence of a crime committed by the accused, the prosecutor must consider what action is in the public interest. Assessment of the public interest often includes consideration of competing interests, including the interests of the victim, the accused and the wider community.

The factors which require to be taken into account in assessing the public interest will vary according to the circumstances of each case.

The following factors may be relevant. Not all of them will apply in every case and the weight to be attached to any applicable factor will depend on the circumstances of each case.

The assessment of the public interest involves a careful consideration of all the factors relevant to a particular case.

2.3.1 The Nature and Gravity of the Offence
The nature of the offence will be a major consideration in the assessment of the public interest. In general, the more serious the offence the more likely it is that the public interest will require a prosecution. On the other hand, in the case of less serious offences the prosecutor may consider that the public interest would be best served other than by prosecution. In some circumstances the prosecution of a relatively minor offence, at least without first offering an alternative to prosecution, may be regarded as a disproportionate response to the circumstances of the case.

The particular circumstances of the offence may affect the prosecutor's assessment of the public interest. For example, prosecution may be indicated where the accused was in a position of trust or authority or the victim was a child or otherwise vulnerable.

2.3.2 The Impact of the Offence on the Victim and Other Witnesses
Consideration must always be given to the effects of the crime on the victim and any other witnesses. Where an offence results in significant injury or impairment, significant financial loss, distress or psychological consequences for the victim or any other witness it is likely that the public interest will be best served by prosecution. In the absence of such factors, the prosecutor may consider that the public interest would be best served by action other than prosecution.

2.3.4 The Age, Background and Personal Circumstances of the Accused
The youth or advanced age of the accused may, depending on other circumstances, be a factor which influences the prosecutor in favour of action other than prosecution.

The public interest is more likely to require prosecution where the accused has a significant history of recent previous convictions, particularly where they include convictions for similar crimes. However, where an accused person is already serving a lengthy custodial sentence, depending on other factors, there may be little to be achieved by a further prosecution.

Finally, the prosecutor may consider that ill health or other adverse personal circumstances on the part of an accused person may justify the exercise of discretion in favour of action other than prosecution.

2.3.5 The Age and Personal Circumstances of the Victim and Other Witnesses
Similar considerations apply in relation to the victim; the youth, or advanced age or personal circumstances of the victim e.g. ill health, may be regarded as an aggravating factor tending to indicate that prosecution is appropriate.

Conversely, it may be relevant to consider the possible impact on a witness of attending court and giving evidence; the age or state of health of an essential Crown witness, or some other personal factor may persuade the prosecutor to exercise his discretion otherwise than by prosecution. Such a situation might arise where the prosecutor considers that attending court and giving evidence regarding a relatively minor offence is likely to traumatise or seriously inconvenience a very young, elderly, vulnerable or infirm witness. However, in such circumstances the prosecutor will consider whether the evidence of such a witness can be considered by the court without the witness having to appear in court in person.

2.3.6 The Attitude of the Victim
In addition to considering the impact of the alleged offence on the victim and other witnesses the prosecutor must take into account any available information indicating the views of the alleged victim about whether prosecution or alternative action is appropriate.

However, any views expressed by a victim or witness will only be one factor in the assessment of the public interest.

2.3.7 The Motive For The Crime
The public interest is likely to require prosecution where criminal behaviour was sexually motivated or motivated by any form of discrimination against the victim's ethnic or national origin or religious beliefs.

It may also be relevant to consider whether the behaviour of the accused was spontaneous or planned in advance and whether it was part of a course of criminal conduct by the accused.

2.3.8 The Age of the Offence
A significant delay since the date of an offence may indicate that a prosecution will no longer be in the public interest. However, other factors will also be relevant, particularly the nature of the offence; the more serious an offence the more likely that a prosecution will remain appropriate.

In considering this factor, prosecutors must have in mind the relevant legal considerations which may affect the Crown's ability to prosecute viz. statutory timebars, the requirements of domestic law and the European Convention on Human Rights.

2.3.9 Mitigating Circumstances
The prosecutor may have reliable information indicating that the accused's actions are mitigated by circumstances such as extreme provocation. Depending on the other circumstances of the case, strong mitigating circumstances may persuade the prosecutor that the public interest would not require a prosecution. Similarly, the fact that the accused has offered restitution which has been accepted by the victim may, depending on other circumstances, persuade the prosecutor that prosecution is not necessary and that the case can be dealt with appropriately by other means.

2.3.10 The Effect of Prosecution on the Accused
In some cases prosecution may have the potential to affect the accused in a way or to an extent which is wholly disproportionate to the gravity of the alleged offence. In relation to less serious offences, this may influence the prosecutor's decision as to the appropriate action.

2.3.11 The Risk of Further Offending
Where there is information regarding the likelihood of further offending this will be relevant in deciding whether to prosecute. A legitimate purpose, both of prosecution and of the use of alternatives, is to prevent/deter further offending.

2.3.12 The Availability of a More Appropriate Civil Remedy
On consideration of the whole circumstances of a case, civil proceedings may offer a more appropriate method for settling the conflict or issue which forms the core of the case. The right of a party to seek civil redress may, depending on other circumstances, influence the prosecutor in favour of a disposal other than prosecution.

2.3.13 Powers of the Court
The ability of the court to take certain action on conviction may be a factor which weighs in favour of prosecution. Examples include the power to award compensation, to disqualify from driving or to order a driver to re-sit the driving test.

2.3.14 Public Concern
In assessing the public interest the prosecutor will take account of general public concerns as well as local community interests. Arrangements can be made to enable local community representatives to discuss general matters of concern with the Procurator Fiscal although the final decision is the responsibility of the prosecutor.

3.0 OPTIONS

3.1 Prosecution

For many of the cases reported to the Procurator Fiscal prosecution will be the preferred option, assuming that there is sufficient evidence to justify proceedings. In determining the appropriate level of court and type of proceedings the prosecutor will have regard to factors such as the gravity of the offence, the offender's record and the likely penalty in the event of conviction. The practical test to be applied is to consider the sentencing powers of the various courts.

The general rule is that cases should be taken in the lowest competent court unless there is some good reason for prosecuting in a higher court. Certain crimes such as murder and rape can only be prosecuted in the High Court. Where the Procurator Fiscal considers that a case should be prosecuted before a sheriff and jury or before the High Court he is required to conduct his own investigation and to report the circumstances of the case to Crown Office. The Lord Advocate or one of his deputes 'Crown Counsel' will instruct on further action to be taken.

3.2 Alternatives to Prosecution

3.2.1 No Proceedings
In the absence of sufficient evidence the only appropriate action is to take no proceedings. However, where there is sufficient evidence the prosecutor retains discretion not to proceed where, in his assessment, prosecution is not in the public interest.

3.2.2 No Proceedings Meantime
Where the prosecutor decides that there is insufficient available evidence to justify proceedings in respect of a serious allegation but there is a possibility that further evidence implicating the accused will be submitted within a reasonable time, the case should be marked "no proceedings meantime". Similarly, such action may be appropriate where despite there being insufficient evidence the nature of the criminal conduct suggests that the accused may re-offend in similar circumstances which might provide additional evidence so that proceedings could be brought.

3.2.3 Warnings by the Procurator Fiscal
Other than for cases reported by the Health and Safety Executive, the Procurator Fiscal may issue a written or personal warning to an accused. Such a warning will make it clear that a report of a crime has been submitted to the Procurator Fiscal and that repetition of the alleged behaviour will be likely to result in a prosecution.

3.2.4. Fiscal Fines 'Statutory Conditional Offers of Fixed Penalty'
Section 302 of The Criminal Procedure (Scotland) Act 1995 empowers the Procurator Fiscal to make a conditional offer of a fixed penalty in relation to any offence in respect of which an alleged offender could competently be tried before a district court. A range of penalties of £25, £50, £75 or £100 is available and fixed instalment payments of between £5 and £20 per fortnight may be offered.

3.2.5 Diversion from Prosecution
Diversion is the referral of an accused to the supervision of a social worker, psychiatrist, psychologist or mediator for the purposes of support, treatment or other action as an alternative to prosecution. The use of diversion by a Procurator Fiscal will, of course, be dependant on the availability locally of a suitable diversion scheme.

Diversion may be appropriate for less serious offences where it may prevent or deter further offences.

3.3 Review of Decisions to Prosecute

3.3.1 Discontinuing Proceedings
Where the prosecutor has advised an accused person, or has stated publicly, that no proceedings will be taken he has no power to reverse that decision.

However, where the decision has been taken to commence criminal proceedings the prosecutor remains under a duty to ensure that the decision remains appropriate in the public interest. Where there is a change of circumstances or where the prosecutor receives new information it will be necessary to consider whether the prosecution should continue. Where it is no longer in the public interest to prosecute or where it is no longer considered that there is sufficient evidence the prosecutor should not proceed with the case.

3.3.2 Plea Adjustment
The prosecutor has discretion to accept adjusted pleas where to do so is consistent with the available evidence or otherwise in the public interest.

The deciding factor in discontinuing proceedings or in accepting a reduced plea is the prosecutor's assessment of the public interest. Thus, it will not be appropriate to accept a reduced plea for reasons of convenience or where, despite there being sufficient evidence, to do so will distort the court's assessment of the offending behaviour and of the appropriate sentence.

3.4 Provision of Reasons for Particular Decisions

The prosecutor cannot disclose publicly the detailed reasons for a decision in a particular case. There are a number of reasons for this policy; the decision will have been based on confidential information, for example information relating to matters such as the credibility, reliability or state of health of an essential witness or details of police operations. Furthermore, public disclosure of the reasons for not proceeding or for accepting reduced pleas may expose the accused person to accusations of crime in circumstances where he no longer has the opportunity of defending himself against such allegations in a court of law.

Web: www.crownoffice.gov.uk