SMOKE FREE ENFORCEMENT PROTOCOL FOR RUNNYMEDE

Introduction

The Health Act 2006 introduces a requirement for premises, places and vehicles to be smoke free. These provisions take effect from 1st July 2007 and apply to enclosed and substantially enclosed premises, which are open to the public and to shared workplaces. The premises to which these requirements apply are defined by regulations made under the Act.

This protocol applies across Runnymede and recognises and accepts the LACORS Guidance for Local Council Regulatory Officers. This protocol aims to supplement the national guidance and assist individuals and organisations within the Borough to understand their responsibilities under this legislation and to ensure that Runnymede as a regulatory authority take a consistent approach in cases of non-compliance.

The Protocol

This protocol outlines the common approach to the enforcement of Smoke free legislation and lays down the principles which will be followed in deciding upon, and taking action. The protocol is available to businesses and consumers via Runnymede Borough Council's web site and in paper format on request.

Runnymede will take all reasonable steps to assist businesses and individuals to comply with the law. However, the Council will be prepared to ensure compliance by exercising the formal powers available to it under the provisions of the Health Act 2006 and the Regulations made there under.

In exercising its powers, the Council will have regard to the authority's existing enforcement policies and this protocol, which is also based on enforcement concordat principles: standards, openness, helpfulness, proportionality and consistency.

Procedures

There will be a prompt response to flagrant breaches of the law, but where requirements allow it, a more measured and discriminating approach will be taken. It is, however, recognised that where the law is prescriptive in laying down precisely what needs to be done there will be limits to the discretion available to regulators.

Implementation

Implementation will be carried out by authorised Officers who are trained and competent to carry out the functions contained within the legislation.  Compliance with the legislative requirements will be achieved through a combination of reactive and proactive approaches. These approaches are outlined in detail below.

Successful implementation of the smoke free legislation will be measured by the number of premises that are meeting the requirements of the law and are smoke free and/or where smoking no longer takes place rather than by the number of enforcement actions taken by any individual authority.

Proactive Interventions

Advice and information - where practicable, advice and information will be provided in a common format across the Borough.

Risk based inspections - The Council considers that the following priorities for risk based inspection are appropriate, based on health risk:

• Where it has previously been customary for people to assume they can smoke
• Where the managers may not realise the law applies to them
• Where the legislative proposals have been altered during the parliamentary process (e.g. in relation to private members' clubs)
• Where it is anticipated that the management of the premises may have difficulty in securing compliance
• Which are open to significant numbers of people
• Where there is an absence of pre-existing voluntary adopted controls on smoking
• Where it is likely that the management will wish to make use of the exemption provisions for designated bedrooms and designated smoking rooms or
• Where regulatory Officers do not usually visit as part of their routine inspections under other legislation

Where contraventions of smoke free legislation are identified appropriate enforcement action will be taken. This is outlined below under the heading of "enforcement options". Where a contravention is identified, in addition to taking enforcement action in accordance with this policy, the authorised Officer will offer assistance to aid compliance in future. Primarily this will focus on directing the offender to the web based information and advice.

Reactive Interventions

Complaint investigation - the Council will respond to complaints about contraventions of smoke free legislation with a view to securing compliance with the legislation. Where contraventions of smoke free legislation are identified, appropriate enforcement action will be taken. This is outlined below under the heading of "enforcement options".

Offences

The Health Act 2006 and associated regulations create the following main offence types:

• Failure to display no-smoking signage
• Smoking in a smokefree place
• Failure to prevent smoking in a smoke free place

Enforcement Options

In accordance with Enforcement Concordat principles, a graduated approach to enforcement will be taken and the provision of advice and information (verbal or written) is regarded as the first stage of the enforcement process.

Where a formal approach is considered appropriate, the Council will use the following enforcement options available to them, using a graduated approach :

Fixed Penalty Notices for the offences of:

• Smoking in a smokefree place or vehicle
• Failure to display no-smoking signage

Prosecution for the offences of:

• Failure to prevent smoking in a smokefree place or vehicle
• Smoking in a smokefree place or vehicle
• Failure to display no-smoking signage
• Intentional obstruction of an authorised Officer of an enforcement authority
• Failure to give an authorised Officer of an enforcement authority any facilities, assistance or information reasonably required, including making false or misleading statements

Fixed Penalty Notice Procedures

The Fixed Penalty Notice will be in the form prescribed by the appropriate regulations. A person may request to be tried for the offence in Court instead of paying a fixed penalty.

For the offence of smoking in a smoke free place, a fixed penalty of £50 is prescribed by the regulations. If this penalty is paid, there will be no liability for conviction for the offence. A discounted amount of £30 is payable if the fixed penalty is settled within 15 days.

For the offence of failing to display no-smoking signage, a fixed penalty of £200 is payable.  If this penalty is paid, there will be no liability for conviction for the offence. A discounted amount of £150 is payable if the fixed penalty is settled within 15 days.

Fixed Penalty Notices are only issued where there is adequate evidence to support a prosecution if a notice is not paid, and unpaid notices are followed up. Failure to pursue unpaid notices through the courts would discredit the use of fixed penalties in the locality, and would lead to declining rates of payment.

Prosecution Procedures

Prosecution will not be undertaken lightly and discretion must be exercised when deciding if this is the appropriate course of action. Other enforcement approaches may be more effective in securing the desired outcome. However, prosecution remains a cornerstone of enforcement and will be used where appropriate.

Prosecution without prior warning and recourse to other alternative sanction will be pursued where appropriate. For example, where there has been a blatant disregard for the law.

The purpose of prosecution is to punish the offender for wrong doing, prevent a recurrence, and act as a deterrent to others who have similar legal obligations.

The Health Act 2006 and associated regulations clarify who can be charged with the range of offences, as set out below:

Offence	Person responsible
Failure to display no-smoking signs in premises	Any person who occupies or is concerned in the management of smoke free premises
Failure to prevent smoking in a smoke free place	Any person who controls, or is concerned in, the management of smoke free premises
Smoking in a smoke free place	A person who smokes in a smoke free place
Intentional obstruction of an authorised Officer of an enforcement authority	Any person
Failure to give an authorised Officer of an enforcement authority any facilities, assistance or information reasonably required, including making false or misleading statements	Any person

Presumption to Prosecute

The decision to prosecute will be taken having regard to the advice of the local authority's solicitor. There is a presumption to prosecute in the following circumstances:

1. Where there has been a reckless disregard of the law, which has a potentially serious outcome.

2. Where there has been a blatant disregard of the law, which has placed the offender at economic advantage over those who comply.

3. Where there is a history of repeated breaches, either at the same site or at multiple sites, or a particular type of offence is prevalent at the site indicating significant management failings.

4. Failure to comply with legal notices requiring remedial action.

5. Where the contravention has caused particular public concern, e.g. an incident, which involves a member of the public or young person.

6. Obstruction or assault on Officers of the Council in the course of their duties.

7. Impersonation of an Officer to gain unlawful access to business or domestic premises.

Offences By Young Persons

All offences involving persons under 16 years of age will receive special consideration. Arrangements will be made for an appropriate adult to be present during any PACE interview involving a child or young person and the requirements of PACE Code C will be followed. Children's Services and the probation service will be notified, as appropriate, before legal proceedings are commenced. Sanctions available to enforcement Officers for offences involving children and young people may differ from those available for adult offenders.

Complaints about the Operation of the Protocol

Where a business, or member of the public, makes a complaint or expresses dissatisfaction with the way in which the protocol is being applied, this will be dealt with under Runnymede's recognised complaints procedure. Complaints and expressions of dissatisfaction will be seen as opportunities to identify possible weaknesses in the protocol and as an opportunity for improvement. Therefore, and where appropriate, this information will be used to examine possible action to improve service provision within the local authority receiving the complaint.

Review

Runnymede Borough Council is committed to ensuring that local enforcement practice reflects current best practice and Government policy. To this end, this protocol will be reviewed in line with the review of the Health Act and its Regulations and further revisions will occur where the existing protocol is shown not to reflect best enforcement practice. Any revision will ensure that the protocol reflects current best practice to ensure that those regulated are treated fairly and in line with national policy.