ENFORCEMENT POLICY

1. Lancashire County Council Trading Standards Service enforces a wide range of public protection legislation. We recognise that most businesses want to comply with the law and we will seek to help them and others meet their legal obligations without unnecessary expense, but we will take firm action where appropriate. In our enforcement activities we will follow relevant and appropriate codes of practice, protocols and guidance, including the Police and Criminal Evidence Act 1984, Criminal Procedure and Investigations Act 1996, Regulation of Investigatory Powers Act 2000 etc

ENFORCEMENT CONCORDAT

2. Lancashire County Council is a signatory to the Enforcement Concordat , which sets out what business and others being regulated can expect from Enforcement Officers. It commits us to good enforcement policies and procedures, and carrying out enforcement functions in an equitable, practical and consistent manner, which helps to promote a thriving national and local economy. We are committed to these aims and to maintaining a fair and safe trading environment.

Principles of Good Enforcement - Policy

3. Standards: In consultation with business and other relevant interested parties, including technical experts where appropriate, we will draw up clear standards setting out the level of service and performance the public and business people can expect to receive. We will publish these standards and our annual performance against them. The standards will be made available to business and others who are regulated.
4. Openness: We will provide information and advice in plain language on the rules that we apply and will disseminate this as widely as possible. We will be open about how we set about our work, including any charges that we set, consulting business, voluntary organisations, charities, consumers and workforce representatives. We will discuss general issues, specific compliance failures or problems with anyone experiencing difficulties.
5. Helpfulness: We believe that prevention is better than cure and that our role therefore involves actively working with business, especially small and medium sized businesses, to advise on and assist with compliance. We will provide a courteous and efficient service and our staff will identify themselves by name. We will provide a contact point and telephone number for further dealings with us. Applications for licenses, registrations etc. will be dealt with efficiently and promptly. We will ensure that, wherever practicable, our enforcement services are effectively co-ordinated to minimise unnecessary overlaps and time delays.
6. Complaints About Services: We will provide well publicised, effective and timely complaint procedures easily accessible to business, the public, employees and consumer groups. In cases where disputes cannot be resolved, any right of complaint or appeal will be explained, with details of the process and the likely time scales involved.
7. Lancashire Trading Standards Service, invite dissatisfied service users to take complaints to the officer involved or their senior officer. If the complaint remains unresolved it is referred to:
   The Chief Trading Standards Officer
   Lancashire County Council
   Trading Standards Service
   58-60 Guildhall Street
   Preston
   PR1 3NU
   Telephone: 01772 533644
   Fax: 01772 533648
   E-Mail: tsd@lancashire.gov.uk
   
8. If the complainant remains dissatisfied, the complaint is investigated in accordance with the County Council's complaints procedure.
9. Proportionality: We will minimise the costs of compliance for business by ensuring that any action we require is proportionate to the risks. As the law allows, we will take account of the circumstances of the case when considering action. We will take particular care to work with small business and voluntary and community organisations so that they can meet their legal obligations without unnecessary expense, where practicable.
10. Consistency: We will carry out our duties in a fair, equitable and consistent manner. While inspectors are expected to exercise judgement in individual cases, we will have arrangements in place to promote consistency, including effective arrangements for liaison with other authorities and enforcement bodies.
11. We support the Home Authority Principle, operated by the Local Authorities Co-ordinators of Regulatory Services (LACORS) by placing special emphasis on goods and services originating within their area, and providing businesses with a source of guidance and advice.

Principles of Good Enforcement - Procedures

12. Advice from an officer will be put clearly and simply and will be confirmed in writing, on request, explaining why any remedial work is necessary and over what time-scale, and making sure that legal requirements are clearly distinguished from best practice advice.
13. Before formal action is taken, officers will provide an opportunity to discuss the circumstances of the case and, if possible, resolve points of differences, unless immediate action is required. Where immediate action is considered necessary an explanation of why such action is required will be given at the time and confirmed in writing, in most cases, within 5 working days and, in all cases, within 10 working days.
14. Where there are rights of appeal against formal action, advice on the appeal mechanism will be clearly set out in writing at the time the action is taken (whenever possible this advice will be issued with the enforcement notice).

TRADING STANDARDS POLICIES

Dealing With Infringements

15. On occasions officers have to deal with problems which can constitute criminal offences for which legal proceedings may be taken against an individual or a company. The nature of infringements varies considerably, but each will be thoroughly evaluated in accordance with our policies.

Minor Infringements

16. Minor infringements will normally be dealt with by the officer at the time, and may involve the officer drawing the matter to the attention of an appropriate person. Advice may be given where necessary and corrective action agreed and implemented to bring the business to compliance. On occasion, the officer's explanation may be followed up by a verbal or written warning. Rarely will a minor infringement result in more formal action being taken. However, if previous advice has been ignored, an officer may choose to deal with the infringement in a formal way. .

Major Infringements

17. Major infringements may result in a written warning, a simple caution or prosecution. In certain instances officers will serve a statutory 'Notice of Powers', which sets out the officer's powers under the legislation being enforced, together with the Trader's rights. They may use these powers to take samples, inspect records or seize goods and documents.
18. For major infringements the officer will prepare a report containing a full and balanced account of the facts of the infringement and will be used in considering whether to prosecute. Traders are always given the opportunity to give an explanation of the circumstances surrounding the commission of an offence and any 'due diligence' precautions that may have been taken to prevent such an offence occurring. Officers must record this explanation at a formal interview, which takes the form of questions and answers. The interview is always written down or tape-recorded. Traders are invited to seek legal advice prior to these interviews taking place and can be accompanied by a legal representative at the interview itself. Interviews are conducted strictly in accordance with the Codes of Practice under the Police and Criminal Evidence Act 1984, and interviewees are advised of their rights to silence and representation

Prosecutions

19. The Code for Crown Prosecutors is used in considering prosecutions as follows: -
20. The decision to prosecute a person/business is a serious step and Lancashire County Council follows the principles of the Code for Crown Prosecutors issued by the Director of Public Prosecutions so that it can make fair and consistent decisions about prosecutions. The Code contains information that is important to those who work in the criminal justice system and to the general public. Account should be taken of the Code when a decision is being made to charge a person with an offence. By applying the same principles, everyone involved in the system is helping to treat victims fairly and to prosecute fairly but effectively.

General Principles

21. Lancashire County Council has a power to institute proceedings under section 222 of the Local Government Act 1972 where it considers it expedient for the promotion of the interests of the inhabitants of its area. The Chief Trading Standards Officer has a delegated power to institute proceedings on behalf of the County Council. The Chief Trading Standards Officer has further authorised certain officers ("authorised officers") to undertake this power on his behalf. Each case is unique and must be considered on its own facts and merits. However, there are general Code principles that apply to the way in which every case is approached, namely:
22. Authorised officers must be fair, independent and objective and must not let any personal views about ethnic or national origin, sex, religious beliefs, political views or the sexual orientation of the suspect, victim or witness influence decisions, and must not be affected by improper or undue pressure from any source. It is a duty to make sure that the right person is prosecuted for the right offence. In doing so authorised officers must always act in the interests of justice and not solely for the purpose of obtaining a conviction.
23. Authorised officers have the duty to review, advise on and prosecute cases, ensuring that the law is properly applied, that all relevant evidence is put before the court and that obligations of disclosure are complied with, in accordance with the principles set out in the Code.
24. Lancashire County Council is a public authority for the purposes of the Human Rights Act 1998. Authorised officers must apply the principles of the European Convention on Human Rights in accordance with the Act.

Review

25. Each case received from investigating officers is reviewed to make sure it meets the evidential and public interest tests set out in the Code. Review is a continuing process and authorised officers must take account of any change in circumstances.

Code Tests

26. There are two stages in the decision to prosecute. The first stage is the evidential stage. If the case does not pass the evidential stage, it must not go ahead, no matter how important or serious it may be. If the case does pass the evidential stage, authorised officers must decide if a prosecution is needed in the public interest.
27. This second stage is the public interest stage. Authorised officers will only start a prosecution when the case has passed both stages.

The Evidential Stage

28. Authorised officers must be satisfied that there is enough evidence to provide a 'realistic prospect of conviction' against each defendant on each charge and consider what the defence case may be, and how that is likely to affect the prosecution case.
29. 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. This is a separate test from the one that the criminal courts themselves must apply. A jury or magistrates' court should only convict if satisfied so that it is sure of a defendant's guilt.
30. When deciding whether there is enough evidence to prosecute, Authorised officers must consider whether the evidence can be used and is reliable. There will be many cases in which the evidence does not give any cause for concern. But there will also be cases in which the evidence may not be as strong as it first appears. Authorised officers must ask themselves the following questions:

Can the evidence be used in court?

31. Is it likely that the evidence will be excluded by the court? There are certain legal rules which might mean that evidence which seems relevant cannot be given at a trial. For example, is it likely that the evidence will be excluded because of the way in which it was gathered or because of the rule against using hearsay as evidence? If so, is there enough other evidence for a realistic prospect of conviction?

Is the evidence reliable?

32. Is there evidence which might support or detract from the reliability of a confession? Is the reliability affected by factors such as the defendant's age, intelligence or level of understanding?
33. What explanation has the defendant given? Is a court likely to find it credible in the light of the evidence as a whole? Does it support an innocent explanation?
34. If the identity of the defendant is likely to be questioned, is the evidence about this strong enough?
35. Is the witness's background 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?
36. Are there concerns over the accuracy or credibility of a witness? Are these concerns based on evidence or simply information with nothing to support it? Is there further evidence which the investigating officer should be asked to seek out which may support or detract from the account of the witness?
37. Authorised officers should not ignore evidence if unsure that it can be used or is reliable, but should look closely at it when deciding if there is a realistic prospect of conviction.

The Public Interest Stage

38. The public interest must be considered in each case where there is enough evidence to provide a realistic prospect of conviction. A prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour, or it appears more appropriate in all the circumstances of the case to divert the person from prosecution. Although there may be public interest factors against prosecution in a particular case, often the prosecution should go ahead and those factors should be put to the court for consideration when sentence is being passed.
39. Authorised officers must balance factors for and against prosecution carefully and fairly. Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence or the circumstances of the suspect. Some factors may increase the need to prosecute but others may suggest that another course of action would be better.
40. The following lists of some common public interest factors, both for and against prosecution, are not exhaustive. The factors that apply will depend on the facts in each case.

Some common public interest factors in favour of prosecution.

41. The more serious the offence, the more likely it is that a prosecution will be needed in the public interest. A prosecution is likely to be needed if:

1. A conviction is likely to result in a significant sentence;
2. A conviction is likely to result in confiscation or any other order;
3. The offence was committed against a person serving the public;
4. The defendant was in a position of authority or trust;
5. The evidence shows that the defendant was a ringleader or an organiser of the offence;
6. There is evidence that the offence was premeditated;
7. There is evidence that the offence was carried out by a group;
8. The victim of the offence was vulnerable, has been put in considerable fear, or suffered personal attack, damage or disturbance;
9. The offence was committed in the presence of, or in close proximity to, a child
10. The offence was motivated by any form of discrimination against the victim's ethnic or national origin, sex, religious beliefs, political views or sexual orientation, or the suspect demonstrated hostility towards the victim based on any of those characteristics;
11. There is a marked difference between the actual or mental ages of the defendant and the victim, or if there is any element of corruption;
12. The defendant's previous convictions or cautions are relevant to the present offence;
13. The defendant is alleged to have committed the offence whilst under an order of the court;
14. There are grounds for believing that the offence is likely to be continued or repeated, for example, by a history of recurring conduct; or
15. The offence, although not serious in itself, is widespread in the area where it was committed.
16. A prosecution would have a significant positive impact on maintaining community confidence

Some common public interest factors against prosecution

42. A prosecution is less likely to be needed if:
    1. The court is likely to impose a nominal penalty;
    2. The defendant has already been made the subject of a sentence and any further conviction would be unlikely to result in the imposition of an additional sentence or order, unless the nature of the particular offence requires a prosecution or the defendant withdraws consent to have an offence taken into consideration during sentencing;
    3. The offence was committed as a result of a genuine mistake or misunderstanding (these factors must be balanced against the seriousness of the offence);
    4. The loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgement;
    5. There has been a long delay between the offence taking place and the date of the trial, unless:
       • The offence is serious;
       • The delay has been caused in part by the defendant;
       • The offence has only recently come to light; or
       • The complexity of the offence has meant that there has been a long investigation;
    6. A prosecution is likely to have a bad effect on the victim's physical or mental health, always bearing in mind the seriousness of the offence;
    7. The defendant is elderly or is, or was at the time of the offence, suffering from significant mental or physical ill health, unless the offence is serious or there is a real possibility that it may be repeated. Authorised officers, where necessary, apply Home Office guidelines about how to deal with mentally disordered offenders, and must balance the desirability of prosecuting a person who is suffering from significant mental or physical ill health with the need to safeguard the general public;
    8. Details may be made public that could harm sources of information, international relations or national security;
    9. Deciding on the public interest is not simply a matter of adding up the number of factors on each side. Authorised officers must decide how important each factor is in the circumstances of each case and go on to make an overall assessment.

The relationship between the victim and the public interest

43. Authorised officers prosecute 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 the authorised officers should always take into account the consequences for the victim or the victim's family.
44. It is important that a victim is told about a decision which makes a significant difference to the case in which he or she is involved. Authorised officers should ensure that any agreed procedure is followed.

Youths

45. Authorised officers must consider the interests of a youth when deciding whether it is in the public interest to prosecute. However, authorised officers should not avoid prosecuting simply because of the defendant's age. The seriousness of the offence or the youth's past behaviour is very important.
46. Authorised officers will only consider cases involving youths for prosecution if the youth has previously received a written warning or a formal caution, unless the offence is serious or the youth does not admit committing the offence. Written warnings and formal cautions are intended to prevent re-offending and the fact that a further offence has occurred indicates that attempts to divert the youth from the court system have not been effective. So the public interest will usually require a prosecution in such cases, unless there are clear public interest factors against prosecution.

Simple Cautions

47. When deciding whether a case should be prosecuted in the courts, authorised officers should consider the alternatives to prosecution. This will include a simple caution. The Home Office guidelines should be applied. If the caution is not administered because the accused refuses to accept the caution, the appropriate authorised officer may review the case again.

Charges

48. Authorised officers should select charges which:
    1. Reflect the seriousness of the offending;
    2. Give the court adequate sentencing powers; and
    3. Enable the case to be presented in a clear and simple way.
49. This means that the authorised officers may not always continue with the most serious charge where there is a choice
50. Authorised officers should never go ahead with more charges than are necessary just to encourage a defendant to plead guilty to a few, and should never go ahead with a more serious charge just to encourage a defendant to plead guilty to a less serious one. The charge must not be changed simply because of the decision made by the court or the defendant about where the case will be heard.

Mode of Trial

51. Authorised officers apply the current guidelines for magistrates who have to decide whether cases should be tried in the Crown Court when the offence gives the option and the defendant does not indicate a guilty plea. Authorised officers should recommend Crown Court trial when satisfied that the guidelines require to do so.
52. Speed must never be the only reason for asking for a case to stay in the magistrates' courts. But authorised officers should consider the effect of any likely delay if they send a case to the Crown Court, and any possible stress on victims and witnesses if the case is delayed.

Accepting Guilty Pleas

53. Defendants may want to plead guilty to some, but not all, of the charges. Alternatively, they may want to plead guilty to a different, possibly less serious, charge because they are admitting only part of the crime Authorised officers should only accept the defendant's plea if it is thought that the court is able to pass a sentence that matches the seriousness of the offending, particularly where there are aggravating features, and never accept a guilty plea just because it is convenient.
54. In considering whether the pleas offered are acceptable, authorised officers should ensure that the interests of the victim, if there is one are taken into consideration. As appropriate, authorised officers will, where possible, take into account any views expressed by the victim or the victim's family when deciding whether or not it is in the public interest to accept the plea. However, the decision rests with the authorised officers.
55. It must be made clear to the court on what basis any plea is advanced and accepted. In cases where a defendant pleads guilty to the charges but on the basis of facts that are different from the prosecution case, and where this may significantly affect sentence, the court should be invited to hear evidence to determine what happened, and then sentence on that basis.
56. Where a defendant has previously indicated that he or she will ask the court to take an offence into consideration when sentencing, but then declines to admit that offence at court, the appropriate authorised officer will consider whether a prosecution is required for that offence. The prosecution advocate should explain to the defence advocate and the court that the prosecution of that offence may be subject to further review.

Prosecution Advocates' Role in Sentencing

57. The prosecution advocate should draw the court's attention to:
    1. Any aggravating or mitigating factors disclosed by the prosecution case;
    2. Where appropriate, evidence of the impact of the offending on the community;
    3. Any statutory provisions or sentencing guidelines which may exist;
    4. Any relevant statutory provisions relating to ancillary orders (such as forfeiture, compensation, disqualification).
58. The prosecution advocate should challenge any assertion made by the defence in mitigation that is inaccurate, misleading or derogatory. If the defence persist in the assertion, and it appears relevant to the sentence, the court should be invited to hear evidence to determine the facts and sentence accordingly.

Re-starting a Prosecution

59. People should be able to rely on decisions taken by the Service. Normally, if a suspect or defendant is told that there will not be a prosecution, or that the prosecution has been stopped, that is the end of the matter and the case will not start again. But occasionally there are special reasons why authorised officers will re-start the prosecution, particularly if the case is serious. .
60. These reasons include:

1. Rare cases where a new look at the original decision shows that it was clearly wrong and should not be allowed to stand;
2. Cases, which are stopped so that more evidence which is likely to become available in the fairly near future can be collected and prepared. In these cases, the appropriate authorised officer will tell the defendant that the prosecution may well start again; and
3. Cases which are stopped because of a lack of evidence but where more significant evidence is discovered later.

Trading Standards Service Policy

61. Within the overall code guidelines the Trading Standards Service may consider a prosecution where:
    1. An offence is detected which is prevalent, or could become so, and prosecution of that offence could encourage compliance by all potential offenders.
    2. An offence is committed by a defendant whose past record indicates a lack of regard for the law
    3. Repeated minor offences of the same or a similar nature are committed and the offender refuses to improve.
    4. Advice about the likelihood of an offence arising had been given, and that advice had been rejected
    5. An offence is detected and advice or a caution is administered and the same or subsequent offence is committed.
    6. The investigation reveals a course of conduct, which is reckless or negligent, or there is a high risk to public safety.
    7. An investigation reveals an element of fraud or dishonestly.

Partnership Working

62. The Service works with other Trading Standards Services in accordance with the National Protocol for Major Trading Standards Investigations and with any other agencies as appropriate to ensure effective and efficient investigation and enforcement action.
63. The Service may share its enforcement role with other agencies as appropriate, including joint action on investigations and legal proceedings. Enforcement partners include other local authorities and services, Police, Office of Fair Trading, Government Services, and Food Standards Agency etc.
64. The Service supports Office of Fair Trading protocols and Memorandums of Understanding concerning the shared enforcement of legislation including, The Consumer Credit Act 1974, Unfair Terms in Consumer Contracts Regulations 1999, Estate Agents Act 1979, Distance Selling Regulations 1999, Orders made under the European Act 2002, Environment Agency Memorandum regarding Petroleum Safety, etc.

Lancashire Interests

65. The Service pursues the County Council's objectives of promoting social, economic and environmental well-being and will consider enforcement initiatives, tackling trading malpractices etc., identified by businesses, consumers or employees. This may include providing specific advice, guidance, warnings, targeted enforcement action and campaigns for improvements in the law or trade practices.
66. The service will maintain and develop officer guidance for the investigation and prevention of offences and provision of consumer and business advice and information. The Service supports the Local Authorities Co-ordinators of Regulatory Services (LACORS) Home Authority Principle and provides calibration and advisory services and appropriate out-of-hours services and contact e.g. Petroleum safety and animal health.
67. The Service will work with businesses, consumers and other relevant partners to promote economic and social and environmental well-being and a fairer and safer trading environment in Lancashire.
68. The Service supports Lancashire Criminal Justice Board strategic aims of improving the local delivery of justice; building confidence in the Criminal Justice System and reducing fear of crime, and; delivering a service that meets the diverse needs of individuals and communities in Lancashire.

Food Safety Act 1990

69. Where breaches of the Food Safety Act 1990, or regulations made thereunder are alleged, regard shall also be had to the current 'Food Law: Code of Practice (England)' and the 'Food Law: Practice Guidance (England).

Unroadworthy vehicles

70. For breaches relating to unroadworthy vehicles (either under the Road Traffic Act 1988, or General Product Safety Regulations), the Service will undertake investigations and consider prosecution where the seller is a trader, or a person with appropriate skills, knowledge (e.g. mechanics), or has an association or relationship with the trader, or where repairs render the car unroadworthy before sale to an innocent purchaser.
71. The Service will not investigate private sales, or pursue investigations into previous sales beyond the last trade sale.

Overloaded Goods Vehicles

72. The Service does not have a statutory duty to undertake these functions. However, from time to time, the Service may undertake various vehicle checks, exercises and examine weighing records etc (i.e. 'back ticket checks') that may result in prosecution.

Under Age Sales

73. The Service will undertake investigations into the sale of age restricted goods where appropriate, with the aid of young test purchasers having regard to LACORS or other appropriate guidelines. The test purchasers will always state their true age if asked by the retailer.

Powers of Officers

74. The criminal laws enforced by the Service may confer certain powers on our officers to enter premises, examine and seize goods, equipment, documents etc. Unsafe goods may be suspended from sale.
75. In these circumstances, officers will identify themselves and, on request, explain their powers/duties. Where appropriate, warrants to enter premises may be obtained from the Magistrates Courts.

Legislation Enforced

76. The legislation enforced by the Service is listed in a separate "Schedule of Statutes" which is subject to amendment or addition as appropriate.