Policy paper

Forestry Commission Enforcement Policy Guidance Notes

Updated 17 January 2024

Applies to England

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

1. Introduction and background

This document details the legislation and offences that the Forestry Commission (FC) are responsible for enforcing. It outlines the tools and disposal options available to us and associated processes.

We will use the full range of enforcement and sanctioning tools that are available to us, in combination if necessary, to achieve the best outcomes for woodlands, the environment and for people in accordance with the enforcement policy.

In this document anything beyond the provision of advice and guidance or a warning is considered to be either a civil or a criminal sanction.

There may be occasions where the FC decides not to apply a particular sanction at our disposal due to conflicting priorities and preferred environmental outcomes. This may include not serving a Restocking Notice if there are other environmental considerations, for example peat restoration.

The FC will engage with its stakeholders and partnership agencies when appropriate to do so or where the legislation of that stakeholder or partnership may provide a more appropriate response or solution in respect to achieving outcomes. This could include, but is not limited to, organisations such as Defra, Environment Agency, Historic England, Natural England and Local Authorities.

The FC forms part of Defra, who signed the Prosecutors Convention 2009. This ensures cooperation and collaborative working between organisations, as described above, and should promote public confidence.

2. Legislation

As a regulatory body, the FC oversees a multitude of legislation covering different regulatory areas. The different areas may have specific enforcement options to effectively deal with non-compliance and breaches of regulations and the law. The majority of offences resulting in investigation and enforcement activity fall under the Forestry Act 1967 which are in the majority strict liability offences. (See para 3). You can view the Forestry Act in full on www.legislation.gov.uk.

The FC is responsible for regulation and enforcement including the following legislation:

• Forestry Act 1967 section 17 (1) - Tree felling without the authority of a Felling Licence
• Forestry Act 1967 section 24 (3) – Failure to comply with a section 24 Enforcement Notice
• Forestry Act 1967 section 30 (5) – Failure to provide information of interest in land or providing a misstatement of interest in land
• Environmental Impact Assessment (Forestry) (England and Wales) 1999 regulation 22 – Failure to comply with a regulation 20 Enforcement Notice
• The Official Controls (Plant Health and Genetically Modified Organisms) (England) Regulations 2019 regulation39 – Failure to comply with a condition or provision of a Notice, Authorisation, Permit or Direction made under the regulations

The above list is not exhaustive and where other offences are either notified or identified through FC regulatory controls these will also come under the scope of the FC enforcement policy.

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

Additionally, the FC will make use of its enforcement powers to apply other legislation to achieve and support outcomes where appropriate and necessary for example under the Proceeds of Crime Act 2002. This can also be viewed at www.legislation.gov.uk.

3. Burden of proof

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.

The offences contained within the Forestry Act 1967 are mainly classified as “strict liability offences”. For these offences, only the act of committing the offence needs to be established (actus reus). The state of mind (mens rea), or culpability, of the defendant is irrelevant. This means it is irrelevant whether they intended to commit the actus reus, were reckless as to whether they committed the actus reus or were negligent as to whether they committed the actus reus.

In simple terms if one or more elements of the actus reus (the criminal act) requires no proof of mens rea then it is termed as strict liability.

In cases of illegal felling (S9 and S17 of the Forestry Act 1967) the burden of proof is on the suspect to prove that a felling licence was not required at the time the felling took place. The FC just needs to prove that the criminal act occurred, that is to say that the trees were felled, and that there was no valid felling licence in place at the time. This is confirmed in case law. For further information on case law, please see the London Criminal Courts Solicitors’ Association.

Other offences require a different burden of proof, namely that we must be satisfied beyond reasonable doubt that an offence has been committed before we can issue a sanction.

Once a decision to prosecute has been made, prosecutors must continually review this decision as the prosecution process develops and in light of any defence case put forward. Any new or additional information or evidence that comes to light during the investigation process must be reviewed and, where relevant, communicated to the prosecutor as part of the continual review process.

4. Investigations

We will ensure that all investigations are legally compliant. We will pay due regard to legislative requirements and will adhere to the principles such as those set out in the Rules of Evidence and various Codes of Practise.

In carrying out our investigation as to whether or not an offence has been committed, or is likely to be committed, we will apply the safeguards laid down by the Police and Criminal Evidence Act 1984 (PACE) where appropriate. You can find out more on the PACE GOV.UK page.

When we assess our evidence as to whether an offence has been committed, we will carefully assess the weight and value of all evidence to satisfy ourselves that an offence has been made out in accordance with the evidential and public interest tests. We will assess any weaknesses and ambiguities in our evidence and take necessary steps to deal with them. In the event of a direct conflict of evidence we will weight any uncertainty in favour of the accused.

We will also ensure that we comply with all the legislative requirements that are set out in:

• the Criminal Procedures and Investigations Act 1996
• the Regulation of Investigatory Powers Act 2000
• the European Convention on Human Rights Act 1998

4.1 Public interest

We will consider public interest factors when deciding on a course of action and will review them throughout the enforcement process. Some public interest factors may have more weight placed on them than others and this will be assessed on a case-by-case basis.

Public interest requires a prosecutor to consider a number of questions including:

• the seriousness of the offence
• the culpability of the suspect
• the level of harm
• whether prosecution is a proportionate response.

The FC will apply these principles to our enforcement process, noting that the Crown Prosecution Service (CPS) is the final arbiter in relation to prosecution and to whether the public interest test is met.

4.2 Intent

We are more likely to make a referral for prosecution when an offence has been committed deliberately even though the mens rea of intent is not required for the majority of Forestry Act offences.

4.3 Foreseeability

Where the circumstances leading to the offence could reasonably have been foreseen, and no avoiding or preventative measures were taken, the response will normally be to impose a sanction beyond advice and guidance or the issuing of a warning. This includes where the mens rea of recklessness is present.

4.4 Nature of offending

Where the offending impacts on our ability to be an efficient and effective regulator we will make a referral for consideration of prosecution. For example, where:

• our staff are obstructed in the conduct of their duties
• we are targeting a particular type of offending
• we are provided with false or misleading information

4.5 Financial implications

Where legitimate business is undercut, or where profits are made or costs are avoided, (such as costs saved by not obtaining a permit or licence) this will normally lead to a referral for prosecution. This will include offences motivated by financial gain.

4.6 Deterrent effect

When choosing a sanction, we will consider the deterrent effect, both on the offender and others. Prosecutions, because of their greater stigma if a conviction is secured, may be appropriate even for minor non-compliances where they might contribute to a greater level of overall deterrence.

Where the use of a sanction is likely to reduce future self-reporting of offences or non-compliance, a different sanction may be appropriate.

4.7 Previous history and repeat offending

The degree of offending or non-compliance including site-specific offending or generic failures by the offender will be taken into account. We will normally escalate our enforcement response where previous sanctions have failed to achieve the desired outcome.

For example, where a formal caution has previously been used to deal with offending but has failed to encourage behaviour change and prevent a repeat of the offending, it is likely that the offender will be referred for prosecution.

4.7 Attitude of the offender

Where the offender has a poor attitude towards the offence or is uncooperative with the investigation or remediation, this will normally mean that we will consider a referral for prosecution. Where the offender provides us with the details of an offence voluntarily or through a self-reporting mechanism, we will take this into account when deciding on a sanction or whether advice and guidance will suffice.

4.8 Personal circumstances

We will consider the personal circumstances of the offender (for example if the offender is suffering from a serious illness). A first offence by a juvenile will not normally result in a referral for prosecution.

5. Offences

The main offences under the different legislation which the FC have responsibility for are detailed below. There are other offences within the legislation which have not been included, such as those relating to byelaws and verderers. This section details the most common offences and the sanctions available. Further details are available in the relevant legislation.

5.1 Forestry Act 1967

Section 7(4) Forestry Act 1967

Obstruction of any person authorised by the Commissioners to enter land to kill and take rabbits, hares, or vermin where they are likely to damage trees or tree plants. Summary conviction only. Penalty on conviction: Level 2 fine.

The standard criminal and offence specific responses are:

• formal caution
• prosecution

Other Non-Statutory responses are:

• advice
• warning

No Civil Sanctions are available for this offence.

Section 17(1) Forestry Act 1967

Tree felling without the authority of a felling licence or other valid reason as set out in Section 9 Forestry Act. Summary conviction only. Penalty on conviction: a fine (Unlimited).

“Anyone who fells a tree without the authority of a felling licence, the case being one in which section 9(1) of this Act applies so as to require such a licence, shall be guilty of an offence”

The standard criminal and offence specific responses are:

• formal caution
• prosecution

Other Non-Statutory responses are:

• advice
• warning
• stop felling letter

No Civil Sanctions are available for this offence

There is a presumption under Section 9(1) Forestry Act (1967) that any felling of living trees will require a felling licence unless an exemption applies. An exemption may include felling small quantities of trees (5 metres cubed) within set timescales, or when felling in specific areas (for example: orchards or gardens). If you do not obtain a Felling Licence where one is required, you may face legal action. Details on felling licences and getting permission can be found in the online publication Tree Felling Getting Permission and are on our Felling Licence page on GOV.UK

This applies to everyone involved in the felling of trees, for example the owner, agent, timber merchant or contractor.

Felling licences are usually issued subject to restocking conditions following Government policy.

Note: Attempting to market illegally felled timber is an offence under the Timber and Timber Products (Placing on the Market) Regulations 2013.​

Section 17(A) Forestry Act 1967

This provides the FC the power to require restocking after unauthorised felling by issuing a restocking notice on a person who has felled a tree without the authority of a felling licence under Section 17 Forestry Act.

“The FC may serve a notice on a person where it appears that he has committed an offence under section 17 of the act, and he has such an estate or interest in the land”.

This section requires that when a person is served, they must restock or stock the land, or other such land as agreed. They must also maintain those trees in accordance with the rules and practice of good forestry for a period not exceeding 10 years as specified in the notice.

No offence specific penalty is available for this offence However, non-compliance can result in the issue of an Enforcement Notice under Section 17C and Section 24 Forestry Act 1967.

Other responses are:

• advice
• Enforcement Notice (where a restocking notice issued under Section 17A has not been complied with).

Section 24(4) Forestry Act 1967

Failure to comply with a Section 24 Enforcement Notice. Summary conviction only. Penalty: a fine (Unlimited).

“A person who without reasonable excuse fails to take any steps required by a notice given to him under this section shall be guilty of an offence”.

This offence relates to persons failing to take any steps required under an Enforcement Notice issued under the Forestry Act 1967 without reasonable excuse. This refers to any works required to be carried out in accordance with the conditions of a felling licence, restocking notice (see section 17C) as well as not complying with any felling directions given by the FC under section 18.

The standard criminal and offence specific responses are:

• formal caution
• prosecution

Other Non-Statutory responses are:

• advice
• warning

No Civil Sanctions are available for this offence.

Forestry Act 1967 amended by the Environment Act 2021 allows the courts to issue a Restock Order following conviction for failure to comply with Section 24 Enforcement Notice.

Non-compliance with the Court Restock order has an unlimited fine and potentially a custodial sentence.

Section 30(5) Forestry Act 1967

Failing to provide information relating to an interest in land or providing a misstatement relating to an interest in land. Summary conviction only. Penalty: level 1 fine.

“Anyone who, having been required in pursuance of this subsection to give any information, fails to give it, or knowingly makes any mis-statement in respect thereof, shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale”

The standard criminal and offence specific responses are:

• formal caution
• prosecution

Other Non-Statutory responses are:

• advice
• warning

No Civil Sanctions are available for this offence.

5.2 Environmental Impact Assessment (Forestry) (England and Wales) 1999

Regulation 20 - Environmental Impact Assessment (Forestry) (England and Wales) 1999

Regulation 20 allows the FC to serve an enforcement notice on a person who has carried out work without consent where consent was required; or breaching a condition subject to which consent has been granted.

Under Regulation 20, if someone is served an Enforcement Notice, they are directed to:

• apply to the FC for consent
• discontinue work in relation to the relevant project
• restore the land to its condition before any work was carried out
• carry out works specified in the Enforcement Notice to secure compliance with any condition subject to which consent was granted or remove or alleviate any injury caused to the environment

Other Non-Statutory response is:

• advice

No Civil Sanctions are available for this offence.

Regulation 21 allows a person to appeal against an enforcement notice issued under Regulation 20.

Regulation 22(1) Environmental Impact Assessment (Forestry) (England and Wales) 1999

Failure to comply with a regulation 20 “discontinuance” Enforcement Notice, where a person has carried out work in contravention of an enforcement notice requiring them to discontinue that work.

Triable either way. Summary conviction. Penalty: a fine (unlimited). On conviction on indictment to a fine (unlimited).

“Any person who carries out work in relation to a relevant project in contravention of a requirement to discontinue that work in an enforcement notice served on him in accordance with regulation 20 shall be guilty of an offence”.

The standard criminal and offence specific responses are:

• formal caution
• prosecution

Other Non-Statutory responses are:

• advice
• warning

No Civil Sanctions are available for this offence

Regulation 22(2) Environmental Impact Assessment (Forestry) (England and Wales) 1999 - Failure to comply with a regulation 20 “other than discontinuance” Enforcement notice. Summary conviction only. Penalty: a fine (Unlimited)

“Any person on whom an enforcement notice has been served in accordance with regulation 20 who fails, within the period specified in the enforcement notice, to carry out any measure, other than discontinuance of the relevant project, required by the enforcement notice shall be guilty of an offence”

The standard criminal and offence specific responses are:

• formal caution
• prosecution

Other Non-Statutory responses are:

• advice
• warning

No Civil Sanctions are available for this offence.

5.3 The Official Controls (Plant Health and Genetically Modified Organisms) (England) Regulations 2019 (Amended 2020)

Regulation 38(1) The Official Controls (Plant Health and Genetically Modified Organisms) (England) Regulations 2019(Amended 2020)

Summary conviction only. Penalty under Regulation 48 is a Fine (unlimited).

A person commits an offence if the person contravenes or fails to comply with any of the following:

• Regulation26(1) (relating to notifications in respect to seed potatoes, citrus fruits, other plants, and plant products)
• Paragraphs 2(1) or (2), 3(1) or (2), 6(1) or (2), 12(1), 13(1), 14(1), 15(1), 16, 21(1), 22(7), 23(2), 28(1), 29(7), 30(2) or 32(2) of Schedule 2 (measures relating to certain solanaceous species)
• a provision of the Plant Health Regulation specified in Part 1 of Schedule 3;
• a provision of the Official Controls Regulation specified in Part 2 of Schedule 3 (insofar as it applies to plants, plant products or other objects which are subject to a plant health rule)
• a provision of any other retained direct EU legislation specified in Part 3 of Schedule 3

These offences are subject to authorisations, permits, approvals or notices as set out in paragraph 2.

The standard criminal and offence specific responses are:

• formal caution
• prosecution

Other Non-Statutory responses are:

• advice
• warning

Regulation 39 The Official Controls (Plant Health and Genetically Modified Organisms) (England) Regulations 2019 (Amended 2020)

Failure to comply with requirements of a notice. Summary conviction only. Penalty under Regulation 48 is a fine (Unlimited).

Failure to comply with a condition or provision of a Notice, Authorisation, Permit or Direction made under the regulations.

The standard criminal and offence specific responses are:

• formal caution
• prosecution

Other Non-Statutory responses are:

• advice
• warning

Regulation 41 – The Official Controls (Plant Health and Genetically Modified Organisms) (England) Regulations 2019(Amended 2020)

Provision of false or misleading information. Summary conviction only. Penalty under Regulation 48 is a fine (Unlimited).

If for the purpose of obtaining an authorisation or a permit or procuring the issue of a UK plant passport or a certificate, a person either:

• knowingly or recklessly makes a false statement or representation which is false in a material particular

• knowingly or recklessly furnishes a document or information which is false in material particular

• intentionally fails to disclose any material information

The standard criminal and offence specific responses are:

• formal caution
• prosecution

Other Non-Statutory responses are:

• advice
• warning

Regulation 42 – The Official Controls (Plant Health and Genetically Modified Organisms) (England) Regulations 2019(Amended 2020)

Improper use of plant passports or certificates. Summary conviction only. Penalty under Regulation 48 is a fine (Unlimited)

Dishonestly issues a UK plant passport or a certificate or dishonestly alters or reuses a plant passport or certificate.

The standard criminal and offence specific responses are:

• formal caution
• prosecution

Other Non-Statutory responses are:

• advice
• warning

Regulation 43 – The Official Controls (Plant Health and Genetically Modified Organisms) (England) Regulations 2019(Amended 2020)

Obstruction. Summary conviction only. Penalty under Regulation 48 is a fine (Unlimited).

Intentionally obstructs a plant Health Inspector or authorised person, fails to assist, or provide information an inspector reasonably requires, fails to produce a document or record when required to do so by an appropriate authority or plant health inspector acting in enforcement of the regulations.

The standard criminal and offence specific responses are:

• formal caution
• prosecution

Other Non-Statutory responses are:

• advice
• warning

Regulation 44 - The Official Controls (Plant Health and Genetically Modified Organisms) (England) Regulations 2019(Amended 2020)

Disclosure of information received from HMRC under Regulation 34(1). Triable either way. Summary conviction. Penalty imprisonment for a term not exceeding 3 months, to a fine or to both. On indictment to imprisonment for a term not exceeding 2 years, to a fine or to both.

A person commits an offence if they disclose information received from HMRC relating to a person whose identity is specified in the disclosure or can be deduced from the disclosure, other than for the purpose specified and HMRC have not given prior consent for the disclosure.

The standard criminal and offence specific responses are:

• formal caution
• prosecution

Other Non-Statutory responses are:

• advice
• warning

6. Sentencing

In addition to punishment in the form of imprisonment or a fine, there are several ancillary orders that a court can issue, at their discretion or upon application by the prosecuting authority. This includes orders such as:

• restocking orders in respect to forestry
• disqualification from being a company director
• confiscation orders if a confiscation investigation has been completed
• forfeiture and destruction orders for seized items (for example, wood marking equipment) in respect to plant health

6.1 Proceeds of crime

The FC will consider offences under the Proceeds of Crime Act 2002 where appropriate and may conduct confiscation investigations. This involves proving how much financial benefit has been made from someone’s criminal activity, and upon conviction, a confiscation order can be made by the court up to the value of the identified benefit, depending on the amount of the offender’s available assets. A proportion of the money recovered is used to fund further crime fighting and asset recovery work.

7. Explanations of Outcomes

7.1 Advice

Where a minor breach is found that can be easily rectified, advice may be given either verbally or in writing reminding the regulated person of the need to obey the law without prejudice to other purely civil remedies.

7.2 Service of Stop or Cessation notices

Such notices advise or prohibit the recipient from continuing an activity. It is an offence to disobey these notices. This excludes a stop felling letter which is advisory only.

7.3 Service of Remediation notices

Such notices, also referred to as reinstatement notices, require the recipient to carry out specified remediation work.

7.4 Carrying out of remediation in default of action by the recipient and recovering costs

This could involve the FC carrying out works such as planting of trees and taking direct action in respect to plant health issues including undertaking work for example following non-compliance. The FC can conduct the work and claim costs back for doing so.

7.5 Warning Letter

Where there is evidence that an offence has been committed but a caution (see below) is not appropriate, a warning letter may be issued without prejudice to other purely civil remedies informing the regulated person that they have committed an offence. Should they continue to offend, this warning letter may be considered in determining future action by the FC and the courts.

7.6 Cautions

A caution is a formal warning that may be offered to someone who has admitted to committing an offence. Offenders can decline to accept a caution, in which case the prosecutor may choose to pursue a prosecution.

The decision to offer a caution is made by the FC or CPS in conjunction with the investigator but the caution itself is administered by the FC or the police dependent on the circumstances and offence being investigated.

7.7 Prosecution

The purpose of prosecution is to secure a conviction and ensure the defendant may be punished by a court and acts as a deterrent to the defendant and others. A prosecution may be appropriate where a person disputes the offence or their part in it or where the matter is too serious for a warning or caution to be appropriate.