ENFORCEMENT POLICY*

1.0 Introduction

The decision to take formal enforcement action against an individual is a serious step. Fair and effective enforcement action is essential to the maintenance of law and order. Even in a small case enforcement action has serious implications for all involved - victims, witnesses and defendants.

This Policy is designed to make sure that everyone knows the principles that Devon’s Trading Standards Service applies, when making decisions about what action should follow the discovery of an infringement of the legislation enforced by the Service. By applying the same principles, everyone involved in the Service is helping to treat victims fairly and to prosecute fairly but effectively.

The Trading Standards Service uses this Policy to provide guidance for its Officers, Devon’s businesses and consumers.

It cannot affect the discretion of the Head of Trading Standards to take action in any case where it is deemed to be in the public interest to take proceedings in a court of law.

2.0 Purpose

2.1 The principal objective of enforcement action is to ensure that individuals and businesses comply with trading standards legislation and that the interests of consumers and legitimate businesses are safeguarded.

2.2 The purpose of this enforcement policy is to ensure that the Service enforces the law in a fair, consistent and transparent manner and to assist officers to make informed decisions as to appropriate enforcement action at an early stage.

2.3 In general, consideration will be given to the use of alternatives to prosecution to ensure that individuals and businesses comply with the law eg. giving advice and assistance, obtaining assurances about future action and issuing formal cautions.

2.4 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, Office of Fair Trading, the involvement of the relevant agencies will be considered at the earliest opportunity.

2.5 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 Devon’s consumers and businesses.

2.6 Any decision regarding enforcement action will be impartial and will not be influenced by any view with regard to the ethnic or national origin, sex, 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.

2.7 The Trading Standards Service is a public authority for the purposes of the Human Rights Act 1998. Trading Standards Officers will apply the principles of the European Convention on Human Rights in accordance with the Act.

2.8 In any issue relating to the enforcement of Legislation the Service will have regard to the principles of the Enforcement Concordat to which Devon County Council is a signatory and a copy of which is available as a separate document.

There are two stages in the decision as to whether a prosecution is appropriate. The first stage is the evidential considerations. If the case does not pass the evidential considerations, it will not be pursued, no matter how important or serious it may be. If the case does meet the evidential considerations, Officers of the Trading Standards Service must then decide if it is in the public interest to proceed with the prosecution.

3.0 Evidential Considerations

Officers of the Trading Standards Service must be satisfied that there is enough evidence to provide a realistic prospect of conviction against each defendant on each charge. They must consider what the defence case may be, and how that is likely to affect the prosecution case.

A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates, properly directed in accordance with the 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:

3.1 Whether there is enough evidence to prove the offence.

3.2 Whether the evidence is admissible in court, for example evidence may be excluded because it breaches the rule against using hearsay as evidence.

3.3 Whether the evidence is reliable.

3.4 Whether the offender can make out a statutory defence or is likely to have a credible explanation for the court.

3.5 Whether there is evidence to suggest that a witness’s background, credibility, age, intelligence or level of understanding is likely to weaken the prosecution case. For example, does the witness have any motive that may affect his or her attitude to the case, or a relevant previous conviction?

Officers should not ignore evidence because they are not sure that it can be used or is reliable. But they should look closely at it when deciding if there is a realistic prospect of conviction.

4.0 Prosecution

Formal enforcement action will normally only be considered where one or more of the following Public Interest criteria are satisfied:

4.1 There is a significant risk to public health and safety or to the environment.

4.2 The offender, by action or inaction, risks causing suffering to animals or has increased the risk of the spread of animal disease.

4.3 The offence involves the threat of violence against any person.

4.4 The offender deliberately obstructs an officer of the Authority carrying out his or her duties.

4.5 Fraudulent or reckless practice or the threat of significant economic disadvantage to consumers or businesses is involved.

4.6 The victim is part of a vulnerable group eg. children, elderly persons or has been put in a position of considerable fear, damage or disturbance.

4.7 The offender has relevant previous convictions.

4.8 The offender has repeatedly ignored advice.

4.9 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.

4.10 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 Officers should always take into account the consequences for the victim of the decision whether or not to prosecute, and any views expressed by the victim or the victim’s family.

5.0 Other Public Interest factors to be considered

In deciding whether or not to institute proceedings, the following factors may mitigate against the need for prosecution, but should always be balanced against the seriousness of the offence and the likelihood of it being repeated:

5.1 A conviction is likely to result in a very small or nominal penalty.

5.2 The offence resulted from a genuine mistake and the offender is prepared to rectify the problem.

5.3 The loss or harm caused was minor.

5.4 There has been undue delay in bringing the matter to court (unless the
delay was the fault of the offender).

5.5 A prosecution is likely to have a very bad effect on the victim’s physical or mental health.

5.6 The offender is elderly or a minor, or was, at the time of the offence, suffering from significant mental or physical ill health.

5.7 The views of a relevant ‘home authority’, ie the Trading Standards Service in the offender’s home area.

6.0 Case Review

Each case will be subjected to an on-going process of review to ensure that the appropriate level of enforcement action is taken in each case.

7.0 Availability of this document

This Enforcement Policy is to be kept publicly available and a copy will be accessible on the Service’s webpages

* This Policy is written with due consideration to the standards of proof required for the institution of court proceedings which are set out in the Code of Practice for the Crown Prosecution Service, HMSO, published 11th October 2000.