Animal Health Fixed Penalty Notice Scheme: Enforcement Guidance

Issuing FPNs

When to issue a FPN

FPNs can only be issued for relevant offences specified in Schedule 1 of the Regulations when an authorised officer has reasonable grounds to believe that person has committed a relevant offence. In addition, the offence must have been committed in Scotland.

The Regulations provide that a FPN may be issued, however, there is no compulsion to issue a FPN. Other enforcement actions remain available and enforcement authorities should consider which enforcement method is most likely to change behaviour and deliver compliance with legislation. In most cases, advice and guidance should be the primary enforcement action to promote compliance, followed by warning letters and statutory notices. Issuing a FPN could supplement these actions or be the next enforcement step when advice and guidance is considered to be insufficient to change behaviour, or previous advice and guidance has not been followed and the issue remains unresolved.

Only an authorised officer can issue a FPN. Under the Regulations an “authorised officer” means:

• in relation to offences under the Animal Health Act 1981, an inspector, veterinary inspector, officer of the local authority or constable. In practice this would, in the main, be local authority inspectors or officers
• in relation to offences under the Bees Act 1980, an authorised person within the meaning of section 3 of that Act. In practice this would be a Scottish Government Rural Payments and Inspections Directorate (SGRPID) Bee Inspector

An authorised officer should consider the following when deciding whether a FPN could be issued:

• an offence has been committed
• it is considered a proportionate response (see below for circumstances when a FPN should not be issued)
• there is sufficient evidence of the offender’s guilt to support prosecution if the offender does not pay the FPN

FPNs are issued as an alternative to prosecution. If an alleged offender does not pay the FPN, the enforcing authority should be prepared to refer the case to COPFS for consideration of prosecution for the original offence. Failure to follow up on unpaid FPNs could undermine their effectiveness as an enforcement tool.

When a FPN should not or may not be issued

The use of a FPN will not be suitable in every circumstance. Enforcement authorities should consider the following to determine whether a FPN is appropriate:

• there is no criminal liability
• a FPN would be disproportionate for the offence – for example, if the offence is minor and can be rectified with advice or guidance
• prosecution is considered more suitable – for example:
  • if there is evidence of wider criminality
  • if there is evidence of a significant threat to the human food chain or national biosecurity
  • if there is evidence indicating that the offender has received significant financial benefit as a result of the non-compliance
• the age of the offender – FPNs should not be issued to those under the age of 16 (see Enforcement against young people)

In addition, there are circumstances where a FPN may not be issued. FPNs may not be issued:

• for legislative requirements and offences that are not specified in Schedule 1 of the Regulations
• when the behaviour in question falls within the terms of an exclusion set out in the fourth column of the table in Schedule 1 of the Regulations - for example, if the legislative requirement was breached by a veterinary surgeon when they are acting in their professional capacity, and there is an exclusion which provides that this is not a relevant requirement.
• when there is repeat offending and the escalation process is being followed
• if criminal proceedings can no longer be brought for the offence (see Time restrictions to consider).

Collecting evidence and standards of proof

To issue a FPN, an authorised officer must be satisfied that there is sufficient evidence that a person has committed an offence.

An enforcement authority should always undertake an appropriate investigation into a suspected offence, regardless of what any eventual enforcement action may be. Any enforcement action taken must be supported by sufficient evidence.

In addition to powers of entry conferred on an authorised officer by any other enactment, an authorised officer may enter any premises (except domestic premises) at all reasonable times for the purpose of determining whether a FPN should be issued. Refusing to grant an authorised officer access to premises is an offence for which the maximum fine of level 5 on the standard scale may be given upon summary conviction.

Enforcement against young people

Where a relevant offence is considered to have been committed by a person under the age of 18, enforcement authorities should provide advice and guidance to promote compliance with the legislation in the first instance. If alternative enforcement approaches do not alter behaviour, FPNs can be issued to young people between the ages of 16 and 18. FPNs should not be issued to children under the age of 16.

Time restrictions to consider

A FPN cannot be issued if the time limit for initiating criminal proceedings in relation to the relevant offence has expired:

• for offences under the Bees Act 1980, criminal proceedings must be brought within 6 months after the contravention occurred, and in the case of a continuous contravention, within six months after the last date of such contravention – see section 136 of the Criminal Procedure (Scotland) Act 1995.
• for offences under the Animal Health Act 1981, criminal proceedings must be brought within 6 months of the date on which sufficient evidence to warrant proceedings in the opinion of the prosecutor came to the prosecutor’s knowledge (see section 75(3) of the Animal Health Act 1981). In addition, no proceedings may be brought more than three years after the commission of the offence, or in the case of an offence involving a continuous contravention, after the last date on which the offence was committed – see section 75(4) of the Animal Health Act 1981.

The payment period for a FPN is excluded from the time limit for bringing criminal proceedings for an offence – see regulations 14 and 15 of the Regulations. This means the initial payment period, the appeals period and any subsequent payment period if an appeal is rejected are not included in the time limits set out above.

Options when multiple offences are detected

A FPN should relate to a single offence. Multiple FPNs should not be issued at one time. When an authorised officer identifies that multiple offences have been committed, they should consider whether a FPN is the most appropriate enforcement action. Other forms of enforcement, such as referral to COPFS, may be more effective and proportionate. If a FPN is considered the most appropriate enforcement method, a single FPN for the offence with the highest FPN penalty should be issued.

Escalation process for repeat offending

The escalation process for repeat offending allows the penalty notice amount for FPNs issued at levels 1-5 to be increased by 50% for second offences. The escalation process only applies where the repeated offence is identified within a period of three years from the date the first FPN is issued and when the FPNs are issued by the same enforcement authority.

For example, a person is issued a FPN for a relevant offence by an authorised officer appointed by South Lanarkshire Council. If the person commits the same relevant offence within a period of three years but this is identified by an authorised officer appointed by North Lanarkshire Council, the escalation process will not apply and they would issue the FPN as if this was the first offence.

The table below shows the escalation process that should be followed where all FPNs are issued by the same enforcement authority:

For FPNs issued at level 1-5

If, in the three years after the first FPN has been issued, a person continues or repeats the offending conduct, a further FPN can be issued. Where the second offence is identified by the same enforcement authority as the first offence, the FPN issued for the offence can be double the amount of the first FPN.

If the person continues or repeats the offending conduct after the second FPN has been issued and within three years of the first FPN being issued, then a third FPN must not be issued. Instead, the enforcement authority should consider referring the case to COPFS for consideration of prosecution.

If more than three years have passed since the first offence, the escalation process will not apply. If a FPN is to be issued, it should be considered a first offence.

For FPNs issued at level 6 and 7

If, in the three years after the first FPN has been issued, a person continues or repeats the offending conduct, a further FPN must not be issued. Given the seriousness and potential impact of repeated non-compliance of offences at these levels, the enforcement authority should consider referring the case to COPFS for consideration of prosecution.

If more than three years have passed since the first offence, the escalation process will not apply. If a FPN is to be issued, it should be considered a first offence.

FPNs and cross compliance

Where there has been non-compliance, a person may face the possibility of both receiving a cross compliance penalty from the SGRPID and receiving a FPN from an enforcement authority. This is because the arrangements for the payment of financial support and cross compliance operate separately from any proceedings for a criminal offence. A FPN is an offer to discharge liability to conviction for the relevant criminal offence in exchange for payment of the relevant penalty. Regardless of whether a FPN is issued and paid, separate consideration may still be given to the significance of the regulatory breach for the purposes of assessing any cross-compliance penalty.

Enforcement authorities should continue to share information on non-compliance, but the decision to impose a cross compliance penalty or to impose a FPN is a matter for each separate authority.

How to issue a FPN

A FPN must be delivered personally to the person, or left at or posted to the proper address of the person in order to be considered properly served.

An authorised officer has the power to require a person to give their name and address for the purposes of issuing a FPN. Failing to provide these details when required to do so, or giving a false name or address is an offence for which the maximum fine of level 5 on the standard scale may be given upon summary conviction.

What to include in a FPN

A FPN must state the offence it relates to and specify the circumstances alleged to constitute the offence. It must also include:

• the date the notice is issued
• the penalty amount for the offence
• the relevant enforcement authority to whom the FPN may be paid and their address
• the payment period, including the period where the early re-payment discount applies
• the method or methods by which payment may be made
• that should the person choose to accept the offer to discharge liability for the offence and pay the FPN, that the person may not be convicted at any time for the circumstances alleged to constitute the offence
• that if the FPN is not paid within the payment period, or if a person intimates their intention not to pay the FPN, that person may prosecuted for the offence
• details of the procedure for intimating an intention not to pay the FPN
• details of the procedure for appealing the FPN and the address at which an appeal should be sent

An example of a FPN is provided at Annex A.