Enforcement Policy

This policy is designed to make sure that everyone knows the principles that the Heart of the South West Trading Standards Service applies when enforcing the law. It also provides a framework to ensure we behave in a fair, consistent and proportionate manner. We aim to improve regulatory outcomes without imposing unnecessary burdens.

Trading Standards exists to protect consumers and to maintain a fair and equitable trading environment in which businesses can thrive. We use a range of techniques, including educating both consumers and businesses on their rights and obligations and, where necessary, will intervene directly to ensure practices are improved and compliance achieved.

All our enforcement actions aim to be proportionate to the size, capacity, and nature of the regulated business. When reviewing policies we will consider how we can best support economic growth for compliant businesses.

We are committed to principles of good enforcement and this policy takes account of key documents, namely:

• The Enforcement Concordat, March 1998, to which we are a signatory.
• The Regulator’s Code, BIS April 2014.
• The Food Standards Agency Framework Agreement, as amended.
• The Code of Practice for Crown Prosecutors, Crown Prosecution Service October 2018.
• The Human Rights Act 1998 and the European Convention on Human Rights.

In the context on this policy “Enforcement” includes any action, including any regulatory intervention, taken by our officers aimed at ensuring businesses or individuals comply with the law.  These actions include inspection/audit visits and providing advice through to seizing goods and prosecution or other legal action. Any decision regarding enforcement action will be impartial and will not be influenced by any view with regard to the ethnic or national origin, gender, religious beliefs, political views, or sexual orientation of any offender, victim or witness. Officers’ decisions will not be influenced by improper or undue pressure from any source.

Representations and appeals

If you would like to comment on this policy or complain or appeal about the way it is operated please contact us by telephoning 01392 381381 or emailing tradingstandards@devon.gov.uk or by writing to Trading Standards Service, County Hall, Topsham Road, Exeter EX2 4QD.

Where formal legal action or formal Notices are involved, there may be prescribed mechanisms to enable the subject of the action to make representations or appeal against decisions. If so, you will be directed to them.

The Devon County Council complaints procedure also deals with service delivery issues and can be accessed either by contacting us as above, or at customer.relations@devon.gov.uk or by writing to the Customer Relations Team, Room 120, County Hall, Topsham Road, Exeter EX2 4QD.

1. Targeted enforcement

We aim to take an evidence based approach to prioritise our resources in areas where they will be most effective. We will not take enforcement action without a reason. To ensure this we will use intelligence and risk assessment to inform all our regulatory activity. This will include consideration of the likelihood and impact of regulatory non compliance. All inspection or sampling programmes, and projects will be conducted on this basis.

As part of this process we aim, where it is due, to give positive feedback to traders and, where applicable and possible, a change in their risk rating.

2. Publicity and confidentiality

Where traders have acted against the law we may use publicity in order to raise awareness, increase compliance, and improve the monitoring of traders. We may also publish the results of specific court cases and other formal action taken. At the same time, we will maintain the confidentiality of information in accordance with current legislation.

3. Advice and guidance

We recognise that prevention is better than cure and that most businesses wish to comply with the law. To that end we will provide authoritative, understandable and accessible advice. Where a business initiates a request for advice, we may make a charge for it. We will:

• Respond to business advice queries, providing an initial response within five working days.
• Confirm advice in writing, if requested.
• Distinguish between what is good practice and what is a legal requirement.
• Consider the impact of the advice or guidance to ensure it does not impose any unnecessary burdens, and provide an opportunity for dialogue in relation to the advice so as to ensure the advice is consistent and proportionate.
• Consider any advice provided by other regulators and if there are any disagreements, we will discuss those with them with a view to resolving them.
• Ensure that you can reasonably obtain advice without directly triggering enforcement action.
• Provide clear information on potential charges at an early stage.

4. Primary Authority

We support the Primary Authority scheme and partnerships which have been developed to promote good practice and reduce burdens on business. The main objectives are to create partnerships, which will provide positive benefits to both parties. We will:

• Keep records of our dealings with businesses for which we act as Primary Authority, so as to minimise the amount of information they have to give us.
• Provide them with appropriate advice and guidance. We may make a charge for this.
• Support efficient liaison between local authorities thereby minimising duplication and contributing towards “best value”.
• Provide a system for the informal resolution of problems and disputes.
• Consider entering Primary Authority partnerships where appropriate and support those that have been established elsewhere.

5. Sanctions

Where someone breaks the law we may use any of a number of available measures to achieve their compliance. Actions will be proportionate and consideration will be given to the need to support or enable economic growth.

Where we take such formal action we will tell you why we are acting. These reasons will be confirmed in writing at the earliest opportunity.

If the details of an incident reveal evidence of a matter where there is a shared or complementary enforcement role with other agencies, for example: the Police, Environmental Health or HM Revenue & Customs, the involvement of the relevant agencies will be considered at the earliest opportunity.

In making decisions about enforcement action, it is to be noted that the service is not acting on behalf of an individual complainant. It is in fact exercising a wider responsibility to further its primary aim of securing a fair and safe trading environment which is responsive to the needs of all consumers and businesses in Devon, Plymouth, Somerset and Torbay.

Any sanctions applied by the service will:

• Take account of other established means to encourage control of the practice in question.
• Aim to change the behaviour of the offender.
• Aim to eliminate any financial gain or benefit from non compliance.
• Be responsive and consider what is appropriate for the particular offender and regulatory issue, including the impact of non-compliance on local communities or on strategies for controlling the spread of animal or human disease (for example in controlling the spread of Covid-19).
• Consider punishment and the public stigma that should be associated with a criminal conviction.
• Be proportionate to the nature of the offence and the harm or risk of harm caused.
• Aim to restore the harm caused by the non compliance.
• Aim to deter future non compliance.

Measures we may take include:

5.1 No Action

Contraventions may not warrant action where the detrimental impact on the community is small and the required action is not in the public interest.

5.2 Indirect Action

This includes referral to another authority or agency for information or action.

5.3 Advice

This may be verbal or in writing or in the form of a departmental warning letter.

5.4 Penalty Notices

Certain breaches may attract monetary Penalty Notices, or Fixed Penalty Notices (FPNs). When considering whether to apply these, and what level of penalty to apply, we will take heed of the requisite burden of proof and any published national guidelines. Legislation allowing for the issue of Penalty Notices usually provide for mechanisms to make Representations and Appeals.

5.5 Seizing goods

Some legislation permits our officers to seize goods or documents. This includes unsafe goods or items that may be used in evidence. When we seize items we will give the person from whom we take them an appropriate receipt which will indicate why they have been taken.

5.6 Forfeiture

Some legislation allows us to seek forfeiture of goods, either in conjunction with a prosecution, or separately. We may also suggest a voluntary surrender of goods if circumstances appear appropriate.

5.7 Formal Notice

These are used as appropriate in accordance with some legislation. They usually require offenders to take specific action or cease certain activities. Examples are Improvement Notices in relation to petroleum storage or Prohibition Notices in relation to safety at sports grounds.

5.8 Undertakings and Injunctive Actions

Where offenders repeatedly offend, or the breach is widespread or serious, we may seek undertakings or orders under the Enterprise Act to stop the practice. Breach of these can be contempt of court. We may also seek the use of anti social behaviour orders, where appropriate.

5.9 Review of Licences, Permits or Certificates

Where activities are carried out under any licence or permit we may seek review, modification, suspension, revocation or any other permitted outcome. If required remedial measures or improvements are implemented, consideration will be given to restoration of original conditions.

5.10 Caution

In accordance with the current most up to date Ministry of Justice guidance or any legislation applicable at the time, we may seek a “Simple Caution” (or any other form of caution made available for us to use) from the offender. A Caution involves an admission of guilt from the offender and there must be enough evidence to prove the case. A record is kept and may be cited in court if a later offence results in prosecution.

5.11 Prosecution

Aside from the general factors above relating to the appropriateness of the sanction, there are two more stages in the decision as to whether a prosecution is the appropriate sanction.  The first is the evidential test and the second is the public interest test. These tests will be reviewed throughout an investigation and we will swiftly stop any progress to prosecution of cases which do not meet the evidential test and which cannot be strengthened by further investigation or where the public interest clearly does not require a prosecution.

5.11.1 Evidential Test

If a case does not pass this test it will not be pursued by prosecution, no matter how important or serious it may be. We must be satisfied that there is enough evidence to provide a realistic prospect of conviction, against each defendant on each charge. We must consider what the defence case may be, and how that is likely to affect the prospects of conviction.

A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates, or judge hearing a case alone, properly directed in accordance with law, is more likely than not to convict the defendant of the charge alleged.

The following evidential factors will be considered when deciding whether there is a realistic prospect of conviction:

• Whether there is enough evidence to prove the offence.
• The likelihood of evidence being held as inadmissible by the courts and the importance of that evidence in relation to the evidence as a whole.
• Whether there are any reasons to question the credibility or reliability of evidence.
• Whether the offender can make out a statutory or other defence
• Whether there is any material that may affect the assessment of the sufficiency of evidence including examined and unexamined material in the possession of investigators and material that may be obtained through further reasonable lines of enquiry.
• Evidence will not be ignored because officers are not sure that it can be used or is unreliable. But they should look closely at it when deciding if there is a realistic prospect of conviction.

5.11.2 Public Interest Test

In every case where there is enough evidence to justify a prosecution we will go on to consider whether a prosecution is required in the public interest. It has never been the rule that a prosecution will automatically take place once the evidential stage is met. We will consider all of the following which are relevant to all sanctions.

• The seriousness of the offence including whether there is a significant risk to public health or safety; damage to the environment; causing suffering to animals or risk of spread of animal or human disease or detrimental impact on local or national strategies to control their spread.
• The culpability of the offender including their level of involvement in the offence, the degree of premeditation or pre planning, relevant previous convictions or out of court disposals or previous advice or warnings and their age or maturity or whether, at the time of the offence, they were suffering from any significant mental or physical ill health.
• Any threat of violence against any person.
• Any obstruction of an officer of the authority in carrying out their duties.
• Whether fraudulent or reckless practice or the threat of significant economic disadvantage to consumers or businesses is involved.
• Whether the victim is part of a vulnerable group e.g. children, elderly persons or has been put in a position of considerable fear, damage or disturbance.
• Whether the offence was motivated by any form of discrimination against the victim’s ethnic or national origin, gender, age, religion or belief, sexual orientation, or gender identity or the offender demonstrated any hostility toward a victim based on any of these.
• Whether prosecution is proportionate to the likely outcome, including a consideration of the cost of the action to the authority and the wider criminal justice system, especially where it could be considered excessive when weighed against any likely penalty.
• The principles of effective case management. For example in a case involving multiple defendants’ prosecution may be reserved for the main participants in order to avoid excessively long and complex proceedings.
• There is widespread disregard of the law and appropriate notice has been given to the business community that legal proceedings will be considered for future breaches.
• The views of any relevant Primary Authority for the trader in question.

The Trading Standards Service prosecutes cases on behalf of the public at large and not just in the interests of any particular individual. However, when considering the public interest test we will always take into account the effect of the offences on any victim, as expressed by any Victim Personal Statement, as well the consequences for the victim, including any significant adverse effect on the victim’s physical or mental health, of the decision whether or not to prosecute.

5.11.3 Selection of Charges

Where multiple charges are possible we should select charges which:

• reflect the seriousness and extent of the offending
• provide adequate sentencing powers and post-conviction orders
• allow confiscation orders in appropriate cases
• do not over represent the extent of the case simply to encourage a defendant to plead guilty to a few.

5.11.4 Proceeds of Crime, Compensation and Costs

Upon conviction, we may consider making applications under the Proceeds of Crime Act.  The purpose is to eliminate financial gain from criminal conduct. We may also assist the courts, where victims apply for compensation as it is our policy that the victims of crime should be compensated where possible.

We will attempt to recover the cost of enforcement action wherever possible, for example by applying to courts for full prosecution costs (in accordance with existing law). This is to mitigate the burden to Council Tax payers of the cost of enforcement.