Corporate enforcement policy

5.0 Investigation of Offences

Legislation provides Council Authorised Officers with a wide variety of investigatory powers to assist them in their work. Officers will at all times have regard to the guiding principles of this policy and other relevant guidance when exercising their investigatory powers.

It is the right of persons to have legal representation in their dealings with the council if they so wish.

The work of the Council as a regulator, including investigations, will be subject to prioritisation on the basis of risk. Once started, investigations will be conducted in a timely manner, in accordance with the requirements of relevant legislation, including Police and Criminal Evidence Act, Regulation of Investigatory Powers Act, Criminal Procedures Investigation Act and Human Rights Act. Regard will be had to the requirements of associated Codes of Practice and guidance. Investigations will be brought to a timely conclusion.

The Council will not generally act on anonymous complaints/requests for service and will require all people contacting the Council to provide basic minimum information to assist the investigation. Failure of an individual who requests service to co-operate with the investigation team may limit the ability of the Council to resolve a particular case, particularly if a person is unwilling to provide statements or other evidence or attend Court as a witness on behalf of the Council.

The Council cannot assist in the negotiation for compensation from third parties on behalf of an individual or organisation.

5.1 Production of Authority

Authorised Officers have been provided with a Council Employee Identification Card, a warrant style card summarising the powers they are able to exercise, and certified copies of their official authorisation documents (the so called "instrument of appointment"). These all contain a picture of the officer. Upon request, or where statute demands, officers will produce appropriate and necessary identification. The original copies of all such documents will be kept securely for use in legal proceedings and will therefore not routinely be carried by officers.

The Council is aware of the Local Government Association "Cold Calling Protocol" and, where appropriate, officers will attempt to make an appointment before attending domestic premises, unless this would hinder or prejudice the progress of the investigation. Verification of an officer's name and status may be obtained by telephoning the number on the officer's identification card.

5.2 Surveillance

It may be necessary to undertake surveillance to assist with an investigation. Any surveillance covered by the definitions contained in the Regulation of Investigatory Powers Act (RIPA) will be conducted in accordance with that Act, appropriate guidance, corporate policy and Codes of Practice. Covert Surveillance will only be undertaken where:

• it is in relation to an offence carrying a minimum term of 6 months imprisonment or a specified offence relating to tobacco or alcohol control
• it is in the interests of preventing crime
• the use of covert surveillance is necessary and proportionate to the potential offence being investigated
• it has been authorised by a Council authorising officer and the authorisation has been brought into effect by a magistrate.

The Director (Public Protection, Planning and Governance), the Head of Public Health and Protection and Principal Governance Officer are the Council's appointed authorising officers for covert surveillance. Authorisations for surveillance where confidential information (as defined in the RIPA codes of practice) may be obtained can only be granted by the Chief Executive. Further details are contained in the Council Corporate surveillance (RIPA) policies.

5.3 Searches

It may be necessary to conduct a search as part of an investigation. A search is different from an inspection. Where appropriate, subject to the relevant Codes of Practice where a search is undertaken a "notice of powers and rights" (often referred to as a PACE6 Code B Notice) should be served if:

• The officer is on someone's property and
• There are reasonable grounds for suspecting an offence and
• The officer is gathering evidence (including taking photographs)
• This includes searches conducted by authority of a warrant or by the exercise of statutory powers.

5.4 Interviews with Suspects

It may be necessary to conduct an interview under caution with a person (or duly authorised representative of a corporate body) suspected of committing an offence. These interviews will be conducted in accordance with the Police and Criminal Evidence Act Codes of Practice. Wherever possible, recorded interviews will generally take place at the Council Offices. So called "interviews by letter" may be undertaken, but each case will be judged on its own merits.

5.5 Serious Incident Liaison

The investigation of certain workplace incidents can be a complex issue and the primacy (taking the lead role) for such will vary depending on the premises where the incident took place and circumstances found at the time of the incident. It is the intention that there will be a single point of contact for the victim's family. This person will be different to the lead investigating officer.

People react to grief in different ways and this policy recognises that it is essential that the victim's family are kept informed throughout such a traumatic time. A liaison bridge between the investigation team and the victim's family will be established for every fatality investigated by the Council.

The family of any victim of a workplace fatality investigated by the Council will be kept appropriately informed, particularly with regard to:

• The progress of the investigation
• Enforcement options available and actions taken
• Consequences of enforcement actions
• Penalties/ other legal remedies available

It is the responsibility of the lead investigating officer to ensure that there is documented contact with the victim's family:

• At the start of the investigation - explaining the process, roles and names of key officers
• After any enforcement assessment has been made but before action is taken, thereby giving the victim's family an opportunity to make their views known; unless enforcement action is urgently needed to address an imminent risk.
• Once any information has been laid, the exact nature of the offences should be notified and explained.
• Between the information being laid and the first hearing if any new information comes to light/course of action previously described needs to be modified.
• Before each hearing (including hearings at HM Coroners' Court)
• After the verdict - with a view to explaining the situation and providing closure

Investigations in relation to workplace fatalities will be conducted in accordance with the Association of Chief Police Officers (ACPO) joint protocol for liaison7 and investigators guide.

5.6 Liaison with Primary, Home or Lead authorities

Where it has been established that the subject of potential enforcement action has entered into a Primary Authority (including Home or Lead Authority Partnership or Scheme) with another local authority, unless the matter is one of extreme urgency, the council will notify the primary authority of the proposed enforcement action.

Where an inspection plan has been produced by the Primary Authority in connection with a regulated entity then officers are required to exercise their inspection function in accordance with any primary authority inspection plan.

5.7 Data Protection

The Council will share information with other statutory enforcement agencies, subject to the relevant legal provisions. Before information is shared with an external third party, unless the Council is specifically able to do so by statute, the consent of the person providing the information will be obtained. Where the Council requests information to be provided by another organisation it may do so via service of data protection request notice; example provided in appendix A.

5.8 Freedom of Information and access to information

The Council will comply with the Freedom of Information Act and Access to Environmental Information Regulations. Requests for access to information will be dealt with in a timely manner and with reference to appropriate guidance and the Council Legal Team. Requests will initially be passed to the Council's Freedom of Information Officer for action. Documents will be held on file for the required retention periods and then will be disposed of appropriately.

Subject to the provisions of the Freedom of Information Act, the Data Protection Act, the General Data Protection Regulations and the Access to Environmental Information Regulations the Council can make no guarantees regarding confidentiality. Ongoing investigations may be subject to exemptions regarding disclosure but closed cases may be subject to partial or full disclosure.

5.9 Record keeping

All Authorised Officers and support officers are responsible for keeping accurate and appropriate notes relating to their investigations and enforcement activities. This includes computer logs and paper/written notes. The Council will provide appropriate notebooks and software for this purpose. In particular Authorised Officers should ensure that both actions and key decisions affecting the direction of the investigation are recorded.

5.10 Collection of Evidence

Where physical evidence is collected as part of an investigation the officers involved in the case will ensure the evidence is stored and handled in appropriate way whilst it is in the Council's possession. This policy recognises that an investigation may be compromised by the inappropriate handling of evidence or the lack of evidential continuity as regards a particular piece of evidence. Once evidence is in the possession of the Council it will not generally be released to third parties (including the press) except for the purposes of laboratory or other technical examination.

• Photographs, digital images and videos

Sometimes it may be necessary or helpful to make digital images or take photographs or video to assist an investigation. The authority will provide training and equipment for this purpose and procedures are in place to ensure the evidential continuity of any images made.

• Measurements and recordings

Sometimes it may be necessary or helpful to make measurements or recordings to assist with an investigation. The authority will provide appropriate training and equipment for such purposes and will ensure any equipment receives necessary periodic calibration.

5.11 Enforcement Decision Records

All Level 3 Enforcement Decisions made by employees will be peer reviewed. Each service area is responsible for producing a suitable document (paper or electronic) for their own needs, having regard to the legislation that they enforce and their own operational procedures. An example is provided at appendix B. In exceptional circumstances such as an emergency, out of hours or in response to a matter of evident concern found during an inspection, this policy recognises that such peer review may not be possible. The purpose of such a peer review is to provide a second opinion, check for errors and to aid consistency.

5.12 Liaison with Interested Parties

Where appropriate when enforcement action is being considered, liaison may take place with interested parties. For example, if enforcement action was being considered in connection with private sector housing, then liaison would take place with the landlord and/or managing agent.

5.13 Liaison between Departments

Some of our enforcement powers, for example the issuing of Community Protection Notices overlaps with our statutory nuisance powers. In this situation national guidance must be followed to ensure that the correct and most appropriate legislation is used.

7 http://www.hse.gov.uk/pubns/wrdp1.pdf