Email: customer.care@merthyr.gov.uk    Tel: 01685 725000
Address: Merthyr Tydfil CBC, Civic Centre, Castle Street, Merthyr Tydfil, United Kingdom CF47 8AN

Trading Standards Enforcement Policy

1. INTRODUCTION

1.1 The Trading Standards Service has extensive regulatory functions, dealing with matters such as animal health and welfare, food safety in relation to compositional standards, explosives licensing, consumer safety, weights and measures, fair trading, age restricted sales and numerous other aspects of trading standards.

1.2 The Service seeks compliance with these legislative standards by carrying out a programme of routine inspections, sampling, test purchases, special projects, responding to consumer complaints, requests for service and offering advice.

1.3 This Policy outlines the approach we take when considering enforcement action. It is intended to ensure we adopt a consistent approach. It commits us to good enforcement policies and procedures to ensure effective compliance with legislation.

2. PURPOSE

2.1 The Service’s aim is to promote the health, safety, social and economic well being of the public by regulation, information, advice and action.

2.2 It is committed to these objectives in its approach to enforcement action, which is intended to:

  • Ensure that we enforce the law in a fair, equitable and consistent manner
  • Assist and advise business and others in meeting their legal obligation.
  • Focus on prevention rather than cure
  • Take firm action against those who flout the law, act irresponsibly, or where there is an immediate risk to health and/or safety 

3. WHAT DO WE MEAN BY ENFORCEMENT?

3.1 Enforcement within the terms of the policy is widely defined. Each time an officer deals with a complaint, receives an inquiry or makes a programmed inspection of a premises, he must decide what the most appropriate type of action would be. “Enforcement” action in its widest interpretation can include:

  • Taking informal action such as offering advice, verbal warnings, sending a letter or issuing an inspection report.
  • Issuing statutory notices to ensure compliance with standards within a specified time 
  • Issuing simple cautions 
  • Injunctive Actions 
  • Prosecution 

4. PRINCIPLES OF ENFORCEMENT

4.1 Concordat on Good Enforcement

4.1.1 The Authority has formally adopted the central and local government Concordat on Good Enforcement. This means that we will be open, helpful and fair and careful to ensure that any action we require is proportionate to the risks. This approach is intended to provide better information to businesses and the community and, by doing so, lend support to our efforts to deliver a best value service. The Service believes in firm but fair regulations. Underlying this are the principles of proportionality in the application of the law and in securing compliance, consistency of approach, transparency in how the Service operates and what those who are regulated can expect from us and targeting of enforcement action.

4.2  Proportionality

4.2.1    The enforcement action taken by the Service will be proportionate to the risks posed and the seriousness of the breach. As far as the law allows, we will take into account the circumstances of the case and the attitude of the individual when considering what action to take.

4.3 Consistency

4.3.1 We aim to carry out our duties in a fair, equitable and consistent manner. Officers will need to exercise their professional judgement and discretion accordingly to the circumstances of each individual case.

4.3.2 Arrangements are in place to promote consistency in the enforcement and interpretation of legislation through liaison with other local authorities.

4.3.3 There are situations where the local authority shares or has a complimentary enforcement role with other agencies, e.g. Police, Customs & Excise, Office of Fair Trading (OFT), Department of the Environment, Food and Rural Affairs (DEFRA) etc. In these situations we shall have due regard to any codes of practice, memorandum of understanding or other agreements or advice that may exist, and seek to co-operate with those agencies.

4.4 Transparency

4.4.1 This means helping those who are regulated and others, to understand what is expected of them and what they should expect from us. It also means making clear why an officer intends to or has taken enforcement action and what rights of appeal are available.

4.4.2 It also means ensuring that enforcement policies are available to the public on request as well as being accessible at offices and by way of electronic means.

4.5 Targeting

4.5.1 Targeting means making sure that regulatory effort is directed primarily towards those whose activities are likely to give rise to the most serious breaches of legislation.

4.5.2 We have systems for prioritising regulatory effort and they include:-

  • Responding to complaints from the community about regulated activities.
  • The inspection of premises according to the risk posed.
  • The gathering and acting on intelligence about illegal activities. 

4.6 Human Rights

4.6.1 In carrying out its duties the Service will respect the rights and freedom of individuals under the European Convention on Human Rights and the Human Rights Act 1998.

4.7 Objectivity

4.7.1 We will seek to ensure that decisions are not influenced by the gender, ethnic origin, religious or political beliefs or sexual preferences of the offender, victim or witnesses. Sensitive consideration will be given where persons involved are children, elderly, infirm or suffering from learning difficulties.

5. LEVELS OF ENFORCEMENT ACTION

5.1 Prevention by Promotion

5.1.1 We believe that the first step in enforcement is to help prevent contravention of the law by raising awareness and promoting good practice. Methods of achieving this include training courses, special promotions, the issuing of press releases, the production of leaflets and other forms of written guidance and opportunities presented by day to day contact with businesses and other customers.

5.2. Informal Action

5.2.1 We will use our best efforts to resolve any situations where the law may have been broken without issuing formal notices, or referring the matter to the courts. This will be our first option when the circumstances indicate that a minor offence may have been committed and we are confident that appropriate corrective action will be taken. We will confirm the situation in writing in a clear manner and explain why any recommended remedial work is necessary and over what time scale it should be completed. We will make sure that legal requirements are clearly distinguished from recommendations.

5.3 Legal Notice

5.3.1 Some of the various pieces of legislation that we enforce provide for the service of formal notices on individuals, businesses and other organisations requiring them to meet specific legal requirements. Where a formal notice is served, the method of appealing against the notice and the time scale for doing so will be provided in writing at the same time. The notice will explain what is wrong and where appropriate what is required to put things right and what the likely consequences are if the notice is not complied with.

5.3.2 In most situations before formal action is taken, we will provide an opportunity to discuss matters and hopefully resolve points of difference. However, this may not be possible where immediate action is considered necessary, e.g. in the interests of health and safety or to prevent an imminent risk to health.

5.4 Simple Caution

5.4.1 The use of a simple caution offers an alternative to prosecution and will be considered during any decision to prosecute. Before issuing a caution, the following conditions must be satisfied:

  • There must be evidence of guilt sufficient to give a realistic prospect of conviction if the case were to be taken to prosecution 
  • The offender must understand the significance of the simple caution and consent to it 
  • The offender must admit the alleged offence by signing a simple caution form. 

5.4.2 A simple caution is a serious matter, which will influence any future decision should the company or individual offend again. It can be referred to in any subsequent court proceedings, but this will not apply if the caution was issued more than 3 years before. Where the offer of a simple caution is refused, a prosecution will generally be pursued.

5.5 Injunctive Actions

5.5.1 In certain circumstances the authority can seek Orders in the Civil Courts to stop infringements of a wide range of consumer protection laws.

The Authority may seek agreement from a person/business to:

  •  Cease a particular action
  •  Sign an informal undertaking 
  •  Sign a formal undertaking 

5.5.3  In urgent cases or where the above cannot be agreed upon the Authority may

  •  Seek an Injunctive Order in the Civil Courts
  •  Seek an Interim Order. 

5.5.4 Anyone who contravenes the terms of a formal undertaking or Order issued by the Courts could be in contempt of court and liable to a fine or imprisonment. The necessity for action will be determined by the evidence of or potential for consumer harm stemming from the infringement. Proportionality will also be ensured by operating the requirement to seek a voluntary cessation or to obtain an undertaking whenever possible.

Except in situations requiring urgent action, businesses will be given a reasonable opportunity to put things right before proceedings are commenced.

5.6 Prosecution

5.6.1 Where the circumstances warrant it and the alternative actions mentioned previously in this policy are considered inappropriate, then prosecution may result. The Head of Trading Standards (in consultation with the Legal Services) has delegated powers to institute legal proceedings. Any decision to prosecute will take into account the criteria set down in the Code for Crown Prosecutors and Attorney Generals Guidelines. We will consider the following factors when deciding whether or not to prosecute:

  • The seriousness and effect of the offence 
  • The forseeability of the offence, or the circumstances leading to it.
  • The intent of the offender 
  • Non-compliance with the requirements of any statutory Notice 
  • The history of offending 
  • The attitude of the offender 
  • The deterrent effect of a prosecution, on the offender and others 
  • Whether there is enough evidence to prove the offence 
  • The likelihood of success of the prosecution 
  • Whether it is in the public interest 
  • Whether any other action would be more appropriate or effective 

These factors are NOT listed in order of significance. The rating of the various factors will vary with each situation under consideration.

5.6.2 The following are some specific public interest criteria which will be taken into account whenever a prosecution is contemplated, to ensure that a prosecution is brought only where it is appropriate to do so and to ensure consistency in the decision making process. If, during the course of the prosecution process, new information becomes available or the defendant’s circumstances alter, a re-assessment or the course of action will be made and, if necessary, a prosecution withdrawn or a different allegation substituted.

5.6.3 Factors tending to favour caution/informal warning

  • Young, elderly or infirm offender
  • Recompense has been made to any affected party 
  • Small business [few financial/technical resources] 
  • Accident, mistake, misjudgement, oversight, or ignorance of the law. 
  • A ‘one off’ incident 
  • A ‘technical’ offence 
  • Long (unjustifiable) delay since offence 
  • Suggestion previously given that no prosecution would ensue 
  • There is no ‘victim’ (or the victim is content for there to be no prosecution) 
  • Already sentenced for a related matter (or currently imprisoned for a significant period on any matter) 
  • Co-operative since the offence disclosed 
  • Other strong mitigation 

5.6.4 Factors tending to favour prosecution

  • Human safety endangered or an animal welfare issue 
  • Significant (actual or potential) financial loss incurred [or there is substantial (actual/potential) gain to the offender] 
  • There is evidence of ‘intent’ or ‘guilty knowledge’ [e.g. use of false name/address] 
  • There is evidence of recklessness or negligence [e.g. previous advice/warning for similar matter, or numerous offences disclosed] 
  • Offender has previous similar conviction/caution [especially if present offence committed whilst on bail or during the currency of a conditional discharge, etc.] 
  • There has been long term, or recurring, offending 
  • There has been widespread publicity about this sort of offence [or information, business seminars, etc., on the point have been widely available]. 
  • Offence is of a type locally or nationally prevalent 
  • There is an identified ‘victim’ or complainant [especially if a ‘vulnerable’ victim [e.g. elderly or mentally infirm] 
  • There is potential for a court to compensate a victim [amount of loss is verifiable, etc] 
  • Other sanctions (e.g. Improvement Notice/Suspension Notice) are not available 
  • The offer of a caution has been rejected 
  • An officer was obstructed 
  • Failure to comply with a statutory notice 

6. APPLICATION OF POLICY

6.1 All officers must refer to this Policy when making enforcement decisions. It must be read in conjunction with any additional operational procedures produced for specific functions.

6.2 Any departure from this Policy must be exceptional, capable of justification and be fully considered by the Head of Service before a final decision is made.  This shall not apply where a risk of injury to health is likely to occur due to a delay in the decision being made.

6.3 The Legal Section will monitor the application of this Policy by an on-going process of review to ensure that the appropriate level of enforcement action is taken.