Archived decisions

Hampshire County Council

Executive Member, Policy & Resources Item

6 December 2005

Trading Standards Enforcement Policy

Report by the Director of Property, Business and Regulatory Services

Contact: Tony Langstone Ext: 6619 email:[email protected]

1

Introduction

   

1.1

Due to recent court cases it has become necessary to revisit the Trading Standards Enforcement Policy, which was last approved by the Executive Member for Policy and Resources on 11 September 2003. The policy must cover all potential criteria for prosecutions and that any decisions in respect of legal action are properly documented. This report seeks approval to the revised version of the Enforcement Policy attached at Appendix 1. The changes have been highlighted bold and italics.

   

2

Background

   

2.1

In 1998 the Cabinet Office, in partnership with the LGA, business and consumer groups, published an Enforcement Concordat. This is a non-statutory code of practice that sets out best practice for enforcement agencies in dealing with business. The Concordat requires enforcers to

    · Set clear standards

    · Be clear and open in providing information

    · Help and advise businesses on compliance

    · Have a clear complaints procedure

    · Ensure that enforcement action is proportionate to risk

   

2.2

The former Public Protection Committee on 13 May 1998 agreed to support the principles of the Enforcement Concordat and to incorporate it into the practice and action plans of Regulatory Services. It is recommended good practice to supplement it with an Enforcement Policy.

   

2.3

The Trading Standards Service reports to the Audit Commission against Best Value Performance Indicators 166 (BV 166). One section of BV 166 relates to enforcement policies and member approval is necessary to achieve a 100% score .

   

3

Summary of revised Enforcement Policy

   

3.1

Since the last Enforcement Policy was approved a number of court cases outside Hampshire have shown that defence solicitors will exploit weakness in such policies and related procedures to avoid conviction of their clients. The Appeal Court in R v Adaway found that the prosecution had not followed its own policy, and overturned a decision in the Crown Court resulting in costs of £22,000 being awarded against the local authority. This has reinforced the need for a comprehensive policy and a robust system to ensure it is followed.

The main change to the Trading Standards policy is to widen the scope of cases when prosecution is likely to include:

    · serious cases affecting morality (to cover pornographic or violent films that are sold illegally);

    · animal health and welfare cases;

    · gross negligence;

    · misleading claims or actions;

    · and where there is significant detriment to the community interest.

The policy has also been up-dated in some minor respects to take account of changes in the law; equalities; and to emphasise that the service complies with all relevant codes.

   

4

Conclusion

   

4.1

The revised Enforcement Policy meets the requirements of the DTI's Good Practice Guide and all current eventualities regarding legal proceedings.

Recommendation

   

That the revised Trading Standards Enforcement Policy attached at Appendix 1 be approved.

   

Section 100 D - Local Government Act 1972 - background papers

The following documents disclose facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of this report.

NB the list excludes:

1 Published works

2 Documents which disclose exempt or confidential information as defined in the Act

........................

Trading Standards Enforcement Policy

This Enforcement Policy explains what happens when we find infringements of Trading Standards law. For enforcement to be fair it is important that we are open and clear about the basis on which we take action.

Our Service

Hampshire County Council is committed to protecting the public and maintaining fair trading for all businesses. The Trading Standards Service covers the following areas of law:

    · Animal Health and Welfare (on agricultural premises)

    · Consumer Credit e.g. misleading and incomplete advertisements

    · Environmental Safety e.g. packaging, explosives and petroleum

    · Fair Trading e.g. false descriptions and misleading prices

    · Food quality, composition and labelling

    · Product Safety and Under-age sales

    · Weights and Measures

We use advice as the main method of ensuring that businesses comply with legal requirements. We inspect business premises, test products, give talks, and publish a range of leaflets. When we receive an enquiry we aim to respond within 3 working days to phone messages, and 5 working days to letters, e-mails etc. Complex matters may take longer and we will give a full reply or progress report within 15 working days. (For full details of our service standards see Factsheet 5, `Hampshire -a responsive County Council', available from our Information Centres or website:

http://www.hants.gov.uk/communications/factsheet5.html)

We believe that prevention is better than cure. The Service operates a `Buy With Confidence' scheme that is intended to raise standards of fair trading by approving local businesses and recommending them to consumers. Please contact our Advice Service for further information. (See contact details at the end of this policy) or log on to www.buywithconfidence.info.

What you can expect of our staff

You are entitled to expect our staff:

    · To be courteous and helpful

    · To identify themselves by name and produce identification if requested

    · To provide a contact point for any further dealings

    · To give clear and simple advice

    · To confirm advice in writing on request, explaining why action is required and over what time-scale

    · To clearly distinguish between what you must do to comply with the law and what is recommended as best practice

    · To minimise the cost of compliance by requiring proportionate action

    · To give you reasonable time to comply (unless immediate action is necessary in the interest of Health, Safety or to prevent evidence being lost)

    · To notify you if the matter is to be reported for legal proceedings

    · In cases of dispute to advise you of the procedure for making a complaint or representations

    · To maintain confidentiality except where we have a legal obligation to disclose information.

Action we take if the law is contravened

When we find a breach of the law, in the majority of cases we deal with the matter by advice. However, in more serious cases, we can take a variety of actions, including:

    · Verbal or written warning

    · Indirect action e.g. referral to another authority for action

    · Formal Caution

    · Injunction - Enforcement Order

    · Suspension, seizure or voluntary surrender of goods

    · Prosecution and/or forfeiture of goods

Before any legal action is taken there will be an opportunity to discuss the case, although when we are considering a prosecution this will be at a formal interview. In less serious cases, as an alternative to prosecution, we may give the option of signing a formal admission that an offence has been committed. We will always observe the strict legal Codes on the way investigations are to be conducted.

Where immediate action is necessary an explanation will be given at the time and confirmed in writing, usually within 5 working days, and always within 10 working days. Where there are rights of appeal these will be clearly set out in writing at the time the action is taken. We will provide this information in the appropriate language where English is not the trader's first language.

Our policies provide for situations where we share an enforcement role with other agencies e.g. environmental health departments for food matters; police for under-age sales of alcohol etc.

Taking Legal Action

In deciding what action to take, a number of factors will be taken into consideration, including:-

    · The seriousness of any alleged offence

    · The value involved

    · The vulnerability of consumers affected

    · The previous history of the business

    · Any statutory defence available

    · Action taken to prevent any recurrence

    · Any explanation offered and, as far as the law allows, the circumstances and attitude of the business towards compliance and the investigators.

    · What course of action will best serve the community interest

Prosecution is always likely in cases which involve:

    · serious offences affecting the health, safety or morality of the public,

    · serious offences relating to animal health and welfare,

    · continued or gross negligence,

    · obstruction or wilful non-compliance,

    · deceptive or misleading claims or actions, or

    · where the community interest is detrimentally affected to a significant extent.

The decision to prosecute is taken by a senior manager:

    · in accordance with the Code for Crown Prosecutors

    · without any unnecessary delay

    · and in accordance with statutory requirements and all other codes of practice

Good Enforcement Practice

Hampshire County Council has signed the Government's Enforcement Concordat to show its commitment to good enforcement practices.

(copy available on request or visit

http://www.cabinet-office.gov.uk/regulation/pst/enforce/enforcecon.asp)

We endeavour to serve the people of Hampshire by working with the business community to ensure fair and safe trading and a thriving economy. We take particular care to help small businesses, voluntary and community organisations meet legal obligations with minimal expense. To assist in this aim we are members of a number of trade and voluntary groups and business partnerships in the county.

If you have any comments on this Enforcement Policy or would like further information then please contact us. Tel 0845 603 0081 (All calls charged at local rates) Textphone 01962 847593 Fax 01962 843915

e-mail [email protected]

Website www.hants.gov.uk/regulatory/


This policy is available in large print and alternative languages on request.