Departmental Prosecution Policy

This page sets out how Blackburn with Darwen Trading Standards Service undertakes its enforcement activities.

Aim Guiding Principles Enforcement Activities Consistent Enforcement Actions Assessing Appropriate Action in Cases of Infringement Enforcement Actions Available

Aim

To provide a framework within which enforcement actions and criminal investigations can be controlled and monitored in order to ensure a consistency of approach and decision-making and to facilitate the formal legal process.

This Service Enforcement Policy sets out the framework in which we seek to use our regulatory powers to secure the above, and aims in particular to:

• Provide a framework to assist enforcement staff in deciding the level of action to pursue in individual cases.
  
• Promote consistency both within this Department and across Local Authority boundaries whilst recognising the individuality of cases.
  
• Communicate those measures clearly to the local community.

Guiding Principles

The Council and this Service takes its regulatory role seriously with a determination to operate fairly and firmly in appropriate cases.

The duty to comply with legal standards is placed upon the individuals or businesses concerned. Our prime role as regulators is to ensure compliance and our preferred method of doing so is by working together. Enforcement actions are a means of helping to secure appropriate standards, not an end in themselves.

We understand that the vast majority of persons wish to comply with those legal standards.

We recognise that our response to situations should be proportional to the physical and economic risk involved. Adequate opportunity should be given to rectify non-critical problems.

We have a role to play in influencing policy and legislation relevant to our fields of operation.

Subject to resource constraints, we welcome and encourage approaches for guidance and, in particular, development of relationships under the LACOTS `Home Authority Principle' designed to ensure that businesses can look to one Local Authority for guidance.

Any decision regarding enforcement action will be impartial and will not be affected by any views with regard to the race, politics, gender, sexual orientation or religious beliefs of any offender, victim or witness.

The Department recognises that current and retrospective enforcement procedures require consideration within the context of the Human Rights Act 1998, and this is reflected in consideration of our enforcement policies and guidance.

Enforcement Activities

We respond to all complaints and requests for service in priority order set out in our annual Departmental Plan adopted by the Council.

Pro-active audits and inspections are focused according to national standards based on risk whenever possible. The Department has limited resources and must strike a balance between the level of work and support provided to individual businesses and cover of the whole community.

Our departmental structure helps to reduce the number of visits necessary by combining activities whenever possible. However, multiple visits cannot be avoided in some cases due to the need to respond to complaints or requirements for special expertise.

Information provided by us distinguishes between legal requirements and advice based on good practice.

We take steps to ensure that our staff approach similar enforcement situations consistently.

We aim to influence and act within national and regional consistency agreements and subscribe fully to the LACOTS Home Authority Principle, the Cabinet Office's Enforcement Concordat and the principles of the Code of Conduct for Crown Prosecutors.

Consistent Enforcement Actions

Consistent enforcement action is desirable, but absolute uniformity would be unfair by failing to recognise individual circumstances that may aggravate or mitigate action to be taken.

We aim to achieve consistency by preparing our Officers engaged in enforcement activities to exercise a degree of discretion and make decisions within an overall framework. It is an important part of an officer's work to assess the level of investigation needed in a particular case. The likely action can often be assessed relatively early and thus influence the extent of the investigation. This provides clarity for business and efficiency for us.

All our investigations take account of relevant defences. We do not take formal enforcement action if we assess that a defence would be available. We also recognise the "De minimis" principle that we should not take prosecution action in the case of trifling infringements.

Whilst advice is appropriate in most problem situations, a significant number of serious incidents are revealed each year that demand stronger action, (e.g. sales of tobacco to children).

Enforcement actions will be communicated clearly to those concerned, with an invitation to contact a named Officer to discuss.

Assessing Appropriate Action in Cases of Infringement

Internal guidance provides consistent starting points for action to be taken in particular circumstances. Final action taken will depend on any aggravating or mitigating factors present.

• Nature of the offence, including the presence of deliberate intent/fraud
  

• Previous record of infringements as modified by the Rehabilitation of Offenders Act (which provides that `spent' convictions are no longer relevant)
  

• National guidance provided, in particular the national Enforcement Concordat, the Code for Crown Prosecutors and Home Office Circulars on Official Cautions

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

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

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

• The offence involves the threat of violence against any person
  

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

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

• The victim is part of a vulnerable group e.g. children, elderly persons
  

• The offender has relevant previous convictions
  

• The offender has repeatedly ignored advice
  

• There is a widespread disregard of the law and appropriate notice has been given to the business community that legal proceedings will be considered for future breaches
  

• Some other significant public purpose would be served

Mitigating factors could include the examples below, but these should always be balanced against the seriousness of the offence and the likelihood of it being repeated

• The problem was revealed by an approach for advice from the business concerned
  

• Compliance with previous advice by BwDBC / Home Authority or guidance from government departments
  

• Co-operative attitude to prevent recurrence
  

• Legitimate conflict of interpretation (not just disagreement) where it may be more appropriate to seek adjudication through e.g. LACOTS or HELA
  

• Previous good history or absence of complaints
  

• Low general awareness of legislation when prosecution would single-out a trader unfairly
  

• Reluctance of witnesses to testify
  

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

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

• The loss or harm caused was minor
  

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

• A prosecution is likely to have a very bad effect on the victim's physical or mental health
  

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

• The views of a relevant 'home authority', i.e. an Environmental Health/Trading Standards Department in the offender's home area

Enforcement Actions Available

Examples of enforcement actions available to the Service are:-  

No Action - Other than collation of information for the purpose of policing the situation in such a way that in time any of the following actions require consideration. To be adopted where infringements appear to be occurring but evidence is lacking at the time.

Advice/Education - The provision of advice on how to comply with the law. Both a routine and ongoing initiative and particularly available to those local traders who approach the Department.

Local Business Partnership - Working with the business community to help them understand and comply with the law. To be adopted where there is an opportunity to address businesses or a particular area of trade as a whole.

Warning letter - Written warning that a recurrence or continuation of an infringement may result in legal action. For use where it is considered by a Principal Officer that the warning letter is likely to have the desired effect of a cessation of the activity and that the matter is not a breach of legislation which would have serious consequences for consumers.

Statutory notice - Legal powers exist which can require persons to take remedial action or cease a particular course of conduct. In certain extreme cases powers are available to close businesses and/or halt processes. To be issued by Officers in the normal course of their routine work as a means of achieving compliance with legislation, with the exception of more serious breaches requiring the use of prohibition or suspension notices which must be authorised by a Principal Officer. Subsequent failure to comply could result in prosecution.

Forfeiture - Voluntary surrender of offending articles accompanied by advice/warning in writing concerning the activity engaged in. To be adopted where a Principal Officer is satisfied that this is an appropriate course of action and will invariably be accompanied by formal written caution.

Stop Now Orders - The seeking of an Order under The Stop Now Orders (E.C. Directive) Regulations 2001 for the cessation or prohibition of Community infringements. For implementation only within the restricted areas of activity identified in the Regulations and in particular in relation to persistent activity.

Formal Caution - A specific form of warning following the guidelines in Home Office Circular 18/1994. These are used in situations where a prosecution could be instituted and the person liable admits the offence but there are strong mitigating circumstances.

Prosecution - The prosecution of issues before the criminal courts. Depending on the circumstances prosecutions may be taken without having undergone any of the foregoing actions. Prosecutions are instigated only after careful consideration of all the circumstances.

Blackburn with Darwen Borough Council, Environment, Housing & Neighbourhood Dept, Public Protection Service, Davyfield Road Depot, Roman Road Industrial Estate, Blackburn, BB1 2LX
Telephone:  (Consumer Advice)  08454 040506   (Trader Advice)  (01254) 267677    Fax: (01254) 267672
e-mail: [email protected]

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