Policy paper

Forestry Commission Enforcement Policy

Updated 17 January 2024

Applies to England

• Publication for Northern Ireland
• Publication for Scotland
• Publication for Wales

1. Introduction

This document sets out the Forestry Commission’s (FC) enforcement and sanctions policy.

The FC is the Government regulator for forestry in England. This policy outlines our enforcement process and reflects the principles of the Department for Environment, Food and Rural Affairs (DEFRA) in their Defra enforcement policy statement.

The priorities of government and the FC are to expand, protect, improve, and connect England’s woodlands now and into the future. The term ‘woodlands’ is used interchangeably with ‘forests’ and ‘trees’ in the policy, unless otherwise stated. The FC has a statutory duty to promote the interests of forestry, the development of afforestation and maintain adequate reserves of growing trees across the country under the Forestry Act 1967.

This responsibility to expand, protect, improve, and connect is achieved, in part, by enforcing controls placed on tree felling by the Forestry Act 1967. In addition, the FC deals with legislation in respect to the Environmental Impact Assessment (Forestry) (England and Wales) Regulations 1999, as well as the Plant Health Act 1967 and the Official Controls (Plant Health and Genetically Modified Organisms) (England) Regulations 2019 (as amended). Further details of offences can be found in the Enforcement Policy Guidance notes.

The FC also have responsibility for identifying fraud, corruption, and bribery for example in cases where funding has been obtained through false representation or where we identify financial irregularities.

2. Purpose

This document explains:

• the results we want to achieve
• the principles we uphold in relation to regulation and enforcement
• the enforcement and sanction options available to us
• how we make enforcement decisions
• the enforcement framework and application

This policy is designed to protect woodlands, people, and the environment through compliance, regulation, education, prevention, and enforcement. This one overarching enforcement policy will encompass key principles and standards to ensure clear understanding of enforcement actions considered or undertaken by the FC.

This policy replaces the previous FC policy statement published 11 July 2017.

3. Scope

This policy sets out the principles and approach we take in dealing with enforcement and applies to all FC staff, and others empowered under our regulations.

This policy does not aim to provide a ‘one size fits all’ approach to enforcement across the FC but is an overarching framework of how the FC, its staff and officers will undertake regulatory and enforcement action as part of day-to-day work. There may be occasions when, dependent on facts, it will not be appropriate to follow the precise steps of this policy and therefore it should be read as a general guide to good practice, rather than being prescriptive for all cases.

This policy also considers the subtle differences in approach between the different regulatory regimes and appropriate legislation by providing a framework for specific enforcement procedures which will be of benefit for business and individuals.

4. Our regulation and enforcement principle

The FC adopts the principle that, in relation to enforcement, prevention is better than cure. In this respect, advice, guidance and education are key functions of regulatory compliance. As such, our general approach is to advise, guide and educate those likely to undertake forestry and woodland management activity, such as tree felling, to enable compliance, as well as prevent harm to the environment. Where compliance is not achieved through these methods we will, where appropriate or necessary, use the legislation available to us to seek compliance through enforcement.

The term ‘Enforcement’ in this policy is taken to mean any action to secure compliance with a restriction, requirement, or condition in relation to a breach or suspected breach, as well as any action taken in connection with imposing a sanction for an act or omission.

Enforcement is fundamentally about sanctioning an individual for unacceptable behaviour, rather than providing support to them. However, the FC will seek in most cases (where possible) restorative action through remedial solutions or sanctions instead of, or in addition to, seeking prosecution. It should be noted that where both actions are taken, they need not occur at the same time.

5. Outcome focused enforcement

The enforcement outcomes the FC wants to achieve are:

• to stop illegal activity from occurring or continuing
• put right environmental harm or damage
• bring illegal activity under regulatory control and so comply with the law
• the conviction of offenders and to deter future offending

We achieve these outcomes by:

• deterring the illegal felling of trees through provision of a robust regulatory and enforcement regime
• preventing lasting environmental damage caused by forestry and other woodland management operations
• dealing effectively in preventing damage to the environment caused by pests and diseases
• preventing the import and export of timber, timber products and timber packaging in breach of plant health regulations
• preventing the marketing of seeds, cuttings or planting stock in contravention of forest regulations

6. Principles of regulation and enforcement

The FC’s approach to the inspection of forestry and woodland management activity and to enforcement is based on the Hampton principles as detailed below.

6.1 Proportionality

All enforcement activities undertaken by the FC will be proportionate in application of the legislation and in securing regulatory compliance. We will balance action to protect woodlands, people, and the environment against the risks and costs of such action. Where we cannot secure regulatory compliance and good practice as set out within the UK Forestry Standard we will use the enforcement powers conferred upon us to their full effect, where we decide it is appropriate or necessary to do so.

Proportionality in securing compliance will generally involve taking account of the degree of harm caused by a breach or by non-compliance. Sometimes, the precautionary principle will require enforcement action to be taken even though the risks may be uncertain. The principle of proportionality does not, therefore, equate to simply applying the least intrusive sanction possible.

Breaches of regulations or non-compliance with conditions or controls including those applied through associated legislation (such as the Conservation of Habitats and Species Regulations 2017) can cause, or have the potential to cause, significant and potentially irreparable damage to woodlands, people, and the environment. Our first response will be to prevent harm from occurring or continuing through measures such as protection and restoration. This is achieved through the regulatory frameworks in respect to tree felling controls, plant health controls and environmental impact assessment controls through other regulations. Where this cannot be achieved, we will act to put right the damage caused through enforcement.

6.2 Growth Duty

We will consider the growth duty as detailed under the Deregulation Act 2015. This means we will only take enforcement action or impose a sanction when we need to, and will do so in a proportionate way. We will make sure our enforcement action supports rather than hinders legitimate business. We will not allow operators to pursue economic growth at the expense of protections for woodlands, people, and the environment.

We will deal with non-compliant activity and behaviour appropriately because it harms:

• woodlands, people, and the environment
• businesses that are compliant – it can disrupt competition and act as a disincentive to invest in compliance
• the reputation of the forestry sector

The decision to start a criminal investigation with a view to referral for prosecution, and any decisions we make during proceedings, are not subject to the growth duty.

6.3 Consistency

Consistency means taking a consistent approach to enforcement in cases with similar circumstances to achieve similar results. We aim to be consistent in the way we apply the regulations, in how we respond to breaches of regulations, and in the powers we use to achieve outcomes. This ensures a degree of certainty and builds trust and public confidence in the way the FC undertakes enforcement.

This does not mean every enforcement decision or action taken will be the same. While the processes we apply will ensure consistency, we will also, where appropriate, apply discretion fairly and objectively to achieve suitable outcomes. Our staff will use their professional judgement and discretion, taking account of many factors, such as the attitude, ability, and competence of the regulated person(s) in relation to bringing about the outcome sought. We will also consider the scale of environmental impact, actions of individuals and managers of businesses and any history of previous breaches of legislation or offences.

Enforcement action will require staff to follow set procedures and protocols to ensure consistency in the collection and review of evidence and the enforcement actions taken.

We will regularly review our decision-making processes to ensure they are always consistent and compliant with legislation, the Regulators Code and will adapt to change as and when required. We will seek to effect change where necessary to enhance understanding and achieve compliance with legislation.

6.4 Transparency

Transparency means helping those regulated to clearly understand what is required of them and setting out what they may expect from the FC in return. We make clear to the people and businesses we regulate what they must do to comply with the law.

Information and advice are provided to support compliance. This is clear, prompt, and accessible in a range of formats and media. We publish guides outlining what is required from individuals and others in plain language.

In the event of a breach or non-compliance, we will make clear what remedial action is required from the regulated person when they contravene the regulations or the law. We explain what breach or offence we think has been or is being committed and why we intend to take or have taken enforcement action. We make clear the right to make representations or to appeal enforcement actions and decisions where appropriate. This includes the victim’s Right to Review.

6.5 Targeting

Our approach to enforcement will be an intelligence led, risk, and evidence-based approach. It involves identifying and focusing on those presenting the greater risk. We will deal effectively with those who are negligent and those responsible for deliberate or malicious acts. This may include landowners, agents, management companies, contractors, and or individuals, as identified during investigations. Targeting will respond to changing trends, gaps, and issues and in line with shifts in priorities and resources.

6.6 Accountability

Enforcement outputs and outcomes will be collated, and official statistics published annually where required, to instil confidence in those that are regulated, our stakeholders and the public, and for the FC to evaluate performance.

Where legislation allows, and subject to requirements, we will publish details of criminal convictions and notices.

We use regulatory processes to monitor, and check permitted and other activities to assess compliance with regulations and legislation. We work with other regulators and partners to ensure the action we are taking is not subject to conflicting consents. We work collaboratively to ensure compatibility with other agencies and partners to ensure effective outcomes.

All actions undertaken will comply with legislation and codes. All enforcement action will be followed up to ensure that aims and outcomes such as restoration and behaviour towards compliance have been achieved.

The FC will follow the requirements of the Regulators Code. This provides the framework for how regulators should engage with those they regulate.

Paragraph 2.2 of the Regulators Code requires, where appropriate, a regulator to clearly explain what the non-compliant item or activity is, the advice being given, actions required or decisions taken, and the reasons for these.

Paragraph 2.2 of the Regulators Code does not apply where immediate enforcement action is required to prevent or respond to a serious breach, or where providing such an opportunity would be likely to defeat the purpose of the proposed enforcement action. For the purpose of this limitation, we may not apply paragraph 2.2 of the Regulators’ Code to instances where:

• there is a suspicion of an incident with a serious or potentially serious environmental impact
• there is a suspicion of deliberate efforts to avoid regulatory control
• immediate action is required to prevent or respond to a serious breach
• there is a suspicion of actions that undermine legitimate business
• to do so is likely to defeat the purpose of the proposed enforcement action for example (e.g., selling of land to prevent enforcement measures)
• there is any other reason for the purposes of ensuring appropriate enforcement

7. Enforcement and sanction penalty principles

We expect compliance with relevant legislative requirements and binding conditions of licences, notices, or other legal duties. When considering the appropriate course of action to address offending and non-compliance the FC aims to:

• change the behaviour of the offender
• prevent and deter future breaches by the offender and others
• take steps to ensure any harm or damage is restored
• remove any financial gain or benefit arising from the breach
• be proportionate to the nature of the breach and the harm caused
• be responsive and consider what is an appropriate response to the regulatory issue including punishment and the stigma associated with a criminal conviction
• reinforce where appropriate the requirements for compliance with legislation

These principles are in line with the principles set out in the Regulators Code.

8. Liability for prosecution

To ensure a fair decision-making process, the decision to prosecute must be taken independently of those that undertook the investigation.

Prosecutions on behalf of the core Defra departments and its executive agencies have been conducted by the Crown Prosecution Service (CPS) since 2011. Continued FC reliance upon CPS will be reviewed periodically.

FC investigations are neutral endeavours that, without prejudice, aim to uncover the facts of any particular incident. Although investigation of the circumstances or matters discovered during inspection or following a complaint is vital before taking any enforcement action, such an investigation does not have to be a criminal investigation.

Before the FC instigates a criminal investigation with a view to referral to the CPS for a decision on prosecution we will ensure that an investigation is the most appropriate enforcement action to take based on the evidence. If enforcement action is not an appropriate response the FC may not progress the case to investigation.

Throughout the investigation, the FC will consider the public interest and evidential factors to ensure any changes are considered and accounted for as appropriate. These factors may result in an investigation being stopped at this point. It may also result in additional weight being attributed to the investigation aiding the case and where applicable submission to the CPS.

Most criminal offences place the burden of proof upon the prosecution to prove beyond reasonable doubt that an offence occurred. However, some offences contain a reverse burden, where the burden falls upon the defendant to prove their innocence. This is the case in relation to some offences that the FC is responsible for enforcing. Further information on the burden of proof can be found in the Enforcement Policy Guidance Notes.

Submission of a case to the CPS for a decision on prosecution does not prevent the FC from taking additional enforcement action where available and appropriate.

Cases submitted to the CPS will be subject to the Code for Crown Prosecutors. This code sets out the principles the CPS apply when they make decisions on prosecutions in particular:

• the CPS must be satisfied there is a realistic prospect of securing a conviction against each defendant (Evidential Test) and
• be sure it is the most appropriate enforcement action to take based on the evidence in the case and that it is in the public interest (Public Interest Test)

In cases where both of the elements (tests) above are applied and passed the CPS will submit the case for prosecution where appropriate. This is referred to as the “Full Code Test”.

9. Rights, records, and cost recovery

9.1 Appeals

Enforcement action (specifically the imposition of a sanction) can normally be appealed either through the criminal court process, judicial review or as a result of specific appeal provisions within the regulations or legislation.

Our publications and notices set out the complaints processes and the rights of appeal which apply in the specific circumstances of each sanction or provision under the different regulations or legislation.

If someone subject to FC enforcement action is not satisfied with a response following an appeal they may have the right to escalate the case to the relevant ombudsman.

When considering any type of appeal against enforcement and sanctioning action it may be appropriate for the appellant to obtain independent legal advice. This is a matter for the appellant and the FC is not responsible for sourcing this advice or suggesting to the appellant such advice is required.

9.2 Cost recovery

Where the law allows, we will always seek to recover the costs of investigation and legal expenses as part of enforcement proceedings. Additionally, where we incurred other costs, for example where we have carried out remedial works in accordance with our statutory powers, we will seek to recover the full costs incurred from those responsible in accordance with the ‘polluter pays’ principle and under the legislation that governs and authorises us to do so.

9.3 When the FC will publish enforcement action

We must publish details of our enforcement action when we are required to by law.

Publishing information on our enforcement activities, where appropriate, raises awareness of the need to comply with the regulatory framework. We may issue press releases and other publicity relating to offences and offenders, proportionate to the sanction, and after any appeal has been heard or appeal period has passed. Any such actions will be in accordance with legislation including the Rehabilitation of Offenders Act and Data Protection Act.

Where appropriate to do so we will consider referring (reporting) the professional(s) who have been responsible for breaches to the professional body to which they belong.

An example of the type of material we may publish includes maps identifying the area and location in question.

10. Enforcement options

The FC is responsible for a wide range of enforcement options across a number of different areas of legislation. Each area has differing penalties and resolutions that can be applied. More detailed information on the offences we regulate and the sanctions available in respect to each can be found in the Guidance on Enforcement Document.

We aim to make our enforcement response proportionate and appropriate to each situation. As a regulator, we give advice and guidance on a continual basis to facilitate compliance with forestry legislation. Additionally, in relation to specific cases we may issue a warning to an offender to bring them back into compliance where possible, although often environmental damage in a forestry context is irreparable after the fact, and so a warning will be of limited regulator value in those instances.

Where we provide advice, guidance, or a warning of this type it is without prejudice to any other enforcement response that may be required. In the event of continued or further non-compliance(s) this may influence the subsequent choice of enforcement action.

The availability of sanctions will vary both in relation to circumstances and the provisions of the particular governing legislation. Our enforcement options include:

• providing advice and guidance
• issuing a written or oral warning
• serving statutory notices
• seizure, detention, and disposal
• carrying out remedial works at the wrong doer’s expense
• issuing a formal caution
• referral for prosecution and orders ancillary to prosecution
• the above sanctions used in combination

11. How the Forestry Commission makes enforcement decisions

We will apply processes to ensure that enforcement activity in accordance with our principles of enforcement is targeted appropriately. We will prioritise cases based upon known factors against an agreed framework to ensure that all decisions we make are consistent and accountable.

First we will consider the outcome that we are seeking to achieve in accordance with our commitment to outcome-focused enforcement (para 5). We will consider what immediate action is needed as a response to protect woodlands, people, and the environment, such as the need to immediately serve a notice, detain, seize, and destroy items and whether further action is then required to secure the desired outcomes.

Where we consider that advice and guidance has not or will not achieve the necessary outcome, and that some form of sanction (either criminal or civil) is required to secure that outcome, then we will consider the facts and take an appropriate decision in relation to enforcement.

Where the circumstances leading to the offence could reasonably have been foreseen, and adequate avoiding and/or preventative measures were not taken, the response will normally give rise to a sanction beyond advice and guidance or issuing a warning.

In each case we will examine and consider the following factors:

• seriousness of the offence.
• impact and the potential risk to the environment.
• impact on the integrity of the scheme or regulatory framework. Position of the suspect / standing (landowner, professional, contractor etc)
• public perception
• organised crime
• substantial illegal gain or avoidance of loss
• substantial financial loss to a third party
• other aggravating factors

We will assess how important each one is. The weight of the factors varies, and one factor could outweigh a number of others, depending upon the circumstances.

11.1 Serious breaches

We will normally consider referral for prosecution for serious breaches such as those that involve outright criminality, negligence beyond that which is excusable in the circumstances, cause serious harm to the environment, or other factors we consider as serious or cases where the seriousness of the offence requires that it be heard in a public forum.

We will normally consider referral for prosecution, subject to a consideration of the evidential and public interest factors as appropriate, where:

• the offending has been undertaken to circumvent or avoid compliance with other legislative requirements or regulations such as planning
• the offending has created significant harm (or has the potential to cause such harm) to woodlands, people, or the environment
• the offending has been intentional, reckless, negligent beyond that which is excusable in the circumstances or involves outright criminal activity
• business professionals have shown blatant disregard for the regulations or legislation governing their profession
• there has been large-scale or protracted non-compliance with forestry or other regulatory provisions
• our staff have been subject to harassment, alarm, distress, or fear of violence
• where someone intentionally or recklessly, makes a false or misleading representation to facilitate works
• we have been obstructed in our duties and this obstruction has prevented or inhibited the investigation of potentially criminal activity or an offender has impersonated a plant health inspector
• where an offender has failed to comply with a Stop Notice or Enforcement Notice

Significant harm in the context of forestry may include even minor offending which has or may cause significant harm to trees, forests, people, or the environment. It could include an event that is likely to be difficult or impossible to recover from such as offences resulting in the permanent loss of trees, forests, or woodlands or to the resultant outcomes caused by pests, diseases and other damaging operations on trees, forests, people, and the environment. Other offences may be considered significant dependent on the facts and outcomes

11.2 Public interest factors

The FC will throughout the investigation process pay due regard to the public interest factors in each case as these may indicate the appropriate sanction(s) likely to produce the desired outcome. These outcomes may include lasting compliance with the law, redress for environmental harm and obtaining a good and lasting benefit for trees, forests, people, and the environment.

Public interest factors vary on a case-by-case basis, and they may result in an investigation being halted or they may support a referral for prosecution. For more detail on public interest considerations please refer to the Enforcement Policy Guidance document.

The CPS is the ultimate arbitrator for what does and does not meet the public interest test prior to initiating court proceedings, following a referral from the FC. Prior to a referral to the CPS, the FC will have regard to the public interest test so far as it will enable the FC to avoid referring cases to the CPS where an obvious breach of the test is likely to be found by the CPS and in order to meet our duties as a regulator.

In applying the public interest test, the FC will have regard to the nature of the offence in question, and the mens rea element, if any, that Parliament has attached to that offence.

When an offence has been committed accidentally or is a genuine mistake we are more likely to deal with it by options such as providing advice or guidance, issuing a warning or restock notice.

11.3 Companies and company office holders

Criminal proceedings will normally be commenced against those people responsible for the offence. Where there is sufficient evidence, consideration will also be given to prosecuting any company or other body corporate vicariously liable for the offence. Where there is a special statutory liability created, we may also consider prosecuting the appropriate company office holders in person where an offence appears to have been committed with their consent, connivance, or neglect.

12. Suspects, Victims, and witnesses

Investigators and prosecutors should not let any personal views about the ethnicity, country of birth, gender, disability, age, religion/beliefs, political view, sexual orientation or gender identity of the suspect, victim or any witness influence their decisions. Forestry Commission equality and diversity information can be found on GOV.UK.

12.1 Victim’s right to review (VRR)

Under the victims right to review where the CPS decide not to prosecute any requests for review under VRR should be directed to the CPS.

Where we conduct a criminal investigation into an allegation and take the decision to close the case and not investigate further the responsible party, an identified victim can request that we review that decision. Normally we will know the identity of any victims. We will tell the victim of our decision not to investigate and advise that they may have that decision reviewed. If a review is requested under VRR it will be undertaken by a suitably qualified person with no previous involvement in the case. The outcome of the review could result in the original decision being upheld or a new decision being made.

12.2 Victim and witness policy

The FC will deal with victims and witness in line with the Code of Practice for Victims of Crime in England and Wales (Victim’s Code).

12.3 Requesting information

Under the Data Protection Act, the Freedom of Information Act, and the Environmental Information Regulations, you have the right to access the information that we hold, although this is subject to certain exemptions. The FC will deal with information requests in line with the policy covering the request. For more information on how to contact us, please see the Forestry Commission homepage on GOV.UK.