Historic England's Enforcement and Prosecution Policy

We have a duty to prevent and investigate unauthorised works to scheduled monuments pursuant to the Ancient Monuments and Archaeological Areas Act 1979.

Unauthorised works can include:

• someone executing or causing or permitting works to be executed to a scheduled monument without consent, or
• somesone failing to comply with a condition attached to a consent

In addition, we have powers in respect of the unauthorised use of metal detectors in protected places.

We have the power to prosecute the above offences relating to unauthorised works and damage.

We also work with local planning authorities, the Police and the Crown Prosecution Service in respect of other heritage offences, such as listed building and conservation area offences.

We will act proportionately, taking into account and balancing a number of factors, including but not limited to:

• the risk posed to the historic environment
• the seriousness of the breach
• the impact on the historic environment
• the cost of taking action against the suspected offender
• the public interest test
• out of court disposals

Consistency means taking a similar approach in similar circumstances to achieve similar ends. We aim to be consistent in:

• the advice we give
• our response to breaches of the law
• the use of our powers and decisions on whether to prosecute, and
• how we choose what sanction is appropriate in similar factual circumstances

However, this does not mean that every enforcement decision will be the same, as each set of circumstances may differ. We retain the discretion to reach different conclusions and exercise our legal powers on a case-by-case basis in response to differing sets of facts. Our staff will use their professional judgement and discretion, taking account of many factors, such as:

• the scale of impact on the historic environment
• the attitude and actions of individuals and managers of organisations, and
• the history of previous breaches and/or offences

All enforcement decisions will be made on a case-by-case basis. This ensures consistency of approach. The action taken, which may be immediate, will be proportionate to the gravity and nature of the non-compliance.

All forms of enforcement action will be open to public scrutiny. Members of the public have the right to access the information that we hold. This is available by submitting a Freedom of Information (FOI) request to [email protected]

In addition to the above principles, we aim to be transparent and take an evidence based approach to regulation, allocating resources to tackle higher priority risks. We also recognise that we should avoid imposing unnecessary regulatory burdens through our regulatory activity, so we endeavour to take enforcement action where appropriate to support, rather than undermine business.

We can support anyone who has committed an offence or is likely to commit an offence by giving advice and guidance. 

The advice and guidance will be in writing and will be recorded. This will be retained and any continued or further breach may influence our later choice of enforcement action.

A letter of advice is intended to offer guidance, suggestions, or recommendations to those conducting works to a Scheduled Monument. It aims to provide insight, empathy, and constructive feedback to help the recipient navigate challenges or make informed decisions while feeling supported and understood.

We can issue a written warning if we believe an individual or organisation has committed an offence. This will set out:

• the offence we believe has been committed
• the action(s) we expect to be taken by when, and
• what will happen if action is not taken

The option of issuing a warning is not contingent on the exercise of any other prosecution or enforcement powers; this is a standalone option which may be pursued together with other enforcement options or entirely independently.

The warning will be kept on record. Any continued or further breach may influence our later choice of enforcement action.

We are however more likely to offer advice or a warning in the first instance if:

• the breach is not so serious as to require immediate enforcement action
• it is not a persistent breach
• there has been a history of good compliance, or
• we are confident there will be compliance

There may however be breaches in respect of which we consider it necessary to adopt a zero-tolerance approach for the protection of the historic environment, and these may be enforced without giving a warning.
 
Written warnings will be served on the relevant individual or organisation either by personal service or by post to their last known address.

Working in partnership with Regional Police Forces, a Community Resolution (CR) can be issued as a formal outcome. It is used for the disposal of low-level crime, and may be used with children, young people and adults where:

• the case is capable of proof
• an offender has been identified
• the offender accepts responsibility for the offence and agrees to dispose of the case using a CR
• it is a less serious offence, and
• the offender does not have relevant offending history

CRs support the professional judgement of Historic England Inspectors working in partnership with police officers to assess the severity of an offence, the case details and the offender’s history to reach an outcome which best meets the interests of the public.

CRs aim to reduce the likelihood of reoffending by encouraging offenders to face up to the impact of their behaviour and take responsibility for any harm caused.

Reparation can be direct to Historic England, for example:

• attending an online awareness course offered by the Inspector of Ancient Monuments (IAM)
• engaging in some form of work to make amends for the damage they have caused, and/or
• engaging in cleaning graffiti from monuments (with guidance)

If a suspect fails to comply with the agreed outcome, Historic England can revert to dealing with the offence through alternative enforcement action, including prosecution.

We may issue a Historic England caution in cases where there is sufficient evidence to provide a realistic prospect of conviction and the offender:

• admits the offence
• provides informed consent to being cautioned
• is not a repeat offender, and
• the offence is not one where a prosecution is required in the public interest

In appropriate cases, we may also work with partner organisations to issue a conditional caution, where there is enough evidence available to provide a realistic prospect of conviction, the offender admits guilt and agrees to the conditional caution. The prosecution process is then suspended while the offender is given an opportunity to comply with the conditions. If the conditions set out in the caution are not complied with (without reasonable excuse), the prosecution may begin.

We will keep a record of the caution. It will be produced in court if the offender is later found guilty of a further offence. A caution may appear on the offender’s criminal record. It is likely to influence how we (and others) deal with any similar breaches in the future. We will use a caution to deter future offending.

If the offender does not accept the caution we will normally prosecute for the original offence.

We can work with partner organisations to seek injunctions to prevent a person from carrying out unauthorised works or damage to a scheduled monument (or where such works are threatened or likely to happen) and we can seek positive injunctions requiring someone to do something.

Injunctions are a discretionary remedy and will only be sought where:

• it is just and convenient to issue an injunction
• the injury suffered (or threatened) to the heritage asset is continuous or irreparable
• the actual or threatened activities will be a breach of criminal law, and
• damages are not an appropriate remedy

We must consider all of the following public interest factors. For each case, we will consider the factors and assess how important each is. The weight of each factor varies and, in some cases, one factor could outweigh a number of others.

• the seriousness of the offence
• the culpability of the suspect
• the circumstances of the offence and the harm caused
• the suspect's age and maturity at the time of the offence
• the impact on the community
• whether prosecution is a proportionate response

When an offence has been committed accidentally or is a genuine mistake, we are more likely to:

• give advice and guidance
• issue a warning, and/or
• issue a caution

Where the circumstances that led to an offence could reasonably have been foreseen and no action to avoid or prevent it was taken, we will normally:

• issue a caution, or
• prosecute

The more serious the impact on the historic environment is, the more significant our enforcement response will be. Our choice will be based on the potential and/or actual harm, including the risk to the historic environment.

We will normally prosecute if the offender is motivated by financial gain including:

• undercutting a legitimate business
• making a profit from the illegal activity, and
• avoiding costs, such as costs saved by not applying for a consent

We will also consider whether action can be taken under the Proceeds of Crime Act 2002 to confiscate the proceeds of those who benefit from criminal conduct. Any money or assets earned because of, or in connection with, an offence can be recovered.

When we choose a sanction, we will consider the most appropriate response to achieve:

• specific deterrence of the offender, and
• general deterrence of others who may be tempted to offend

We wish to prevent future offending by both the offender and others. To this end, in all cases, we will also consider drawing the media’s attention to information about charges which have been laid before the courts (within the parameters of avoiding publicity which could prejudice a fair trial).

We may also publicise any successful conviction, to help inform others and improve awareness and compliance.

We will check if the offender has a history of non-compliance and/or offending, including the:

• degree, number and nature of the breaches and/or offences, and
• time elapsed since the previous breaches and/or offences

We will normally escalate our enforcement response if previous sanctions have failed to achieve the desired outcome. For example, if we have previously issued a formal caution to encourage a change in behaviour to prevent future offending and the person commits the same offence again, we are more likely to prosecute.

We will normally consider a prosecution if the offender:

• has a poor attitude to the offence
• is uncooperative during the investigation
• obstructs Historic England in conducting its duties, and/or
• is uncooperative to the suggested or required remediation

We are likely to apply a lesser sanction, such as advice and guidance, where the offender:

• voluntarily provides us with details of the offence
• reports the matter to us promptly; and/or
• has independently remedied the breach

We will consider the offender's personal circumstances, including:

• whether they are in any serious ill health
• any relevant Human Rights Act 1998 or Equality Act 2010 (or any successor or replacement statute of either) implications, and/or
• the ability to pay if the sanction includes a financial penalty or requirement to carry out costly remediation

We may modify our proposed penalty if it would have a significant impact on a public or charitable body's ability to continue to provide their service(s). However, we will only consider this if the public or charitable body provides evidence to demonstrate this impact and we retain ultimate discretion when considering such issues.

We will normally consider prosecution, subject to public interest factors, if an offence is serious.

Features that make an offence more serious include, but are not limited to:

• cases where there has been intentional, reckless, negligent or outright criminal activity, and/or
• cases which have caused serious harm (or had the potential to cause such harm) to the historic environment
  
  or, cases where the offender has:
  
  
• subjected Historic England staff to harassment, alarm, distress or fear of violence
• intentionally, recklessly or wilfully made a false or misleading statement or record, and/or
• obstructed Historic England in carrying out its duties, thus preventing it from investigating potential criminal activity

We will normally choose to give advice and guidance to help bring an individual or organisation back into compliance where a minor breach has been committed. We consider a minor breach to be where there is no impact, or risk of impact, on the historic environment.

Continued repeat offending will normally result in us increasing the level of our enforcement response and imposing or seeking a more severe sanction.