Enforcement Policy

This policy relates to the enforcement of all trading standards functions

The effectiveness of legislation in protecting consumers or other groups in society depends crucially on how far people comply with the law. This Service recognises that most individuals and businesses will want to comply with their legal obligations and we will, therefore, endeavour to help them meet those obligations without unnecessary expense. However, officers of this service will take firm action, including prosecution where fitting, against those who flout the law or act irresponsibly. Traders, consumers and staff will benefit from this policy through better information and consistency of enforcement.

The primary aims of this service

To maintain and improve standards of operation in commercial activities in Hackney and to ensure that premises, practices and products are safe, fair and comply with all relevant legislation and that risks to health are minimised and fair competition prevails.

To ensure that traders, consumers and employees of commercial activities in Hackney are properly informed of their legal obligations and rights and that they are supported or enabled to take action in appropriate cases.

These aims along with the enforcement of the law in a fair, sensible, and consistent manner help to promote a thriving national and local economy.

The aims of this policy therefore are to:

• provide clear guidance to all enforcement officers;
• ensure consistent enforcement that is proportionate to the risks involved;
• provide an element of flexibility to recognise officer judgement through not being over prescriptive;
• provide equal treatment for all.

Enforcing the law, protecting the community

Enforcement actions are taken within the context of a legal and policy framework.  Hackney has adopted the Enforcement Concordat produced by the Government’s Better Regulation Unit, which lays out the principles of good enforcement.  These are:-

• To draw up clear standards, setting out the level of service and performance the public and business can expect to receive.
• To deal with the public and business in an open an honest way.
• To provide a courteous, efficient and helpful service.
• To respond promptly and positively to complaints about the service.
• To ensure that enforcement action is proportionate to the risk.
• To carry out our duties in a fair, equitable and consistent manner

Where a decision to prosecute is made, this decision will be taken in accordance with the code for Crown Prosecutors, which details the considerations to be taken into account when bringing proceedings.

Enforcement decisions and actions will also be made with due regard to the provisions of:

• The Human Rights Act (this can be viewed on the Her Majesty’s Stationery Office  website)
• The Crime and Disorder Act (this can be viewed on the Her Majesty’s Stationery Office  website)
• Equal rights and anti-discrimination legislation.

In the public interest, matters concerning non-compliance will be shared, where appropriate, with other enforcement agencies.  Where this takes place, due regard will be paid to the provisions of the Data Protection Act.

Openess

We will provide information and advice in plain language on the rules that we apply and will make these as widely available as possible. We will be open about how we set about our work, including any charges that we set, consulting those involved where we can. We will discuss general issues, specific compliance failures or problems with anyone experiencing difficulties who request our assistance.

We will also provide our enforcement figures for publication to each neighbourhood committee.

Customer care

This service believes that prevention is better than cure. Our role therefore involves actively working with business, especially small and medium-sized businesses, to advise on and help with compliance. We will provide a polite 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 and we will encourage business to seek advice or information from us. We will deal with applications for registrations and other legal approvals efficiently and quickly. We will ensure, wherever practicable, that we effectively co-ordinate our enforcement services to minimise unnecessary overlaps and time delays.

Consistency

For an enforcement policy to be effective, field staff and their supervisors must use it fairly and consistently. Senior managers must also apply it in their decisions, especially when they are taking action using delegated powers. Any enforcement action should be proportionate to the risks involved and taken in accordance with official guidance issued by central government departments.

While we expect officers to exercise judgement in individual cases, we will have arrangements in place to promote consistency. These will include effective liaison arrangements with other authorities and enforcement bodies’ e.g. the Local Authorities Co-ordinating Body on Regulatory Services (LACORS).  We will also subscribe to “TS-Interlink” which enables national co-ordination of trading standards work.

We work in an environment where our actions will often have a financial impact on businesses and others. We must therefore ensure consistent levels of compliance to be fair and seen to be fair. This Policy seeks to ensure there is a clear line of responsibility and authorisation for taking enforcement actions.

Home authority principle

Consistency of approach is very important not only where individual cases are concerned but also in the way that different enforcement authorities deal with cases against the same trader. To ensure that companies with multiple outlets are not given conflicting advice by the various local authorities in whose area they are based, LACORS (the Local Authority Coordinating Body on Regulatory Services) devised the Home Authority Principle. These state that the Local Authority which has in its area the head office of a company, or the office in which the relevant decisions are made, should set up formal liaison links with that company. A Home Authority Officer is appointed and an official of the company agrees to be a contact point. This has a number of advantages both for officers and the company in that:

• there is clear and easy access to advice;
• the company is not contacted by local authorities from all over the country when one problem arises but only by the Home Authority Officer. This Officer may then relay the results of their investigation to all interested parties via a national computer data link;
• complaints and queries from all local authorities may be channelled effectively through the company contact and so dealt with more quickly.

Enforcing the Law

Enforcing officers need to exercise discretion in the use of the range of powers and any policy should not unduly restrict the officer in the use of their judgement based on expertise and experience. However, in assessing what enforcement action to take, an officer should consider:

• the company or individual’s response to the visit of the officer; their record of compliance, and
• the result of the inspection or visit and gravity of the offences noted.
• If the officer finds evidence of legal contraventions, they have a choice of enforcement options:
• Informal action or warning (either verbal or written such as follow-up advice)
• Use of notices
• Formal Home Office cautions
• Prosecutions
• Seizure and detention

1. Informal action

We wilt normally use this option where there is no major risk from contraventions, there is reasonable confidence that the business or individual will take the right corrective action and this is the first contact with the trader on this issue. As far as the law allows, we will take account of the circumstances of the case and the operator’s conduct when considering action. We wilt take particular care to work with small businesses, voluntary and community organisations so that they can meet their legal duties without unnecessary expense, where practicable.

We may issue written warnings to make clear that we will view any further breaches of legislation seriously and these may be subject to enforcement action. We will try to provide written advice on good practice, industry guidance or technical information where there is a need to help in meeting requirements. As part of our informal written warnings system we issue an inspection record after every visit.  

We will put any advice clearly and simply. We will confirm this in writing, when asked or when necessary, explaining why any remedial work has to be done and over what timescale. We will make sure we distinguish clearly legal requirements from best practice advice. We will ensure that language is not a barrier to communications and understanding before going beyond the informal action stage.

Before formal enforcement action is taken, we will provide an opportunity to discuss the circumstances of the case. If possible we will try to resolve points of difference, unless immediate action is required. (For example, to protect people’s heath and safety or the environment, or to prevent evidence from being destroyed).

2. Use of notices

We will consider the service of statutory environmental health notices which either require works to be carried out or safety systems to be put in place where we have the power to do so and the circumstances meet the requirements of any Guidance or Code of Practice. We will take such action where the risks to the public/employees or the record of the offender make this necessary.

We will consider using suspension notices where there is a serious contravention of consumer safety legislation and there is an imminent risk of personal injury.

Where there are rights of appeal against the issue of a notice, we will set out clearly advice in writing on how to appeal at the time the action is taken. (Whenever possible we will issue this advice with the enforcement notice)

3. Formal Home Office cautions

It may be fitting in certain circumstances to issue a formal caution to deal quickly and

simply with less serious offences. This can divert these offences from the Courts and

reduce the chances of repeat offences. However, a formal caution is recognised as

a “live” conviction and will remain until spent under the Rehabilitation of Offenders Act 1974. The following conditions should be fulfilled before we give a formal caution:

• there is enough evidence of the suspected offender’s guilt to give a realistic prospect of conviction;
• the suspected offender must admit the offence;•
• the suspected offender must understand the significance of a formal caution and give an informed consent to being cautioned, and
• where goods are involved, the trader voluntarily surrenders those goods. For these reasons if we offer a Formal Caution to an offender which they refuse to accept, we will then prosecute.

4. Prosecutions

An officer may recommend prosecution as a way to draw attention to the need for compliance and for preserving good standards. Officers investigating breaches of the law must consider the potential of those breaches to cause harm as well as any harm actually caused, and that a prosecution would be in the public interest.

In recommending prosecution the officer will consider:

• The potential for considerable harm arising from the breach (especially involving public/employee safety)
• The gravity of the offence (especially those involving negligent, intentional or repeated acts or involving public safety)
• Whether the matter has come to the attention of the Service via a consumer or employee complaint
• The evidence shows that the offence was premeditated
• The victim of the offence was vulnerable.
• The protection of children from harm (especially where goods and services have been sold where there is a legal age restriction)
• The willingness of the party to prevent a recurrence of the problem Any explanation offered by the affected defendant
• The general record of the defendant ie has the trader been previously advised of the matter in question
• Whether officers have been obstructed from or assaulted while carrying out their duties
• The likelihood of the defendant being able to prove a ‘due diligence’ defence.
• The likely ability of any important witness in giving evidence, and their willingness to co-operate
• The desirability for publicity to highlight the result of non-compliance and to deter others from similar failures
• If the evidence available provides a realistic prospect of conviction
• The probable benefit of a prosecution and the importance of the case - for example, whether it might establish legal precedents for other companies or in other geographical areas
• Where an offence is found to have been committed by a retailer and that offence, via a chain of evidence, can be traced to a manufacturer or importer or other person/company bringing the goods into the UK, then prosecution action will be taken against the manufacturer, importer or other person/company alone unless:
• the retailer cannot provide sufficient evidence to trace the manufacturer or importer; or
• the offence was of a nature to have been easily identified by the retailer; or
• other circumstances exist whereby the offence has occurred due to the act or default of the retailer.

5. Seizure and detention

We will use this option to seize or detain food, documents, goods, or equipment where it is necessary to protect public health and safety or remove nuisance, or secure evidence for legal proceedings.

Best value and quality

To give the best value and quality of service to customers within the resources available, the following will apply:

We will employ properly qualified staff who are trained to ensure their Continuing Professional Development.

• We will monitor the nature and quality of inspections by staff.
• We will use customer satisfaction surveys to assess client satisfaction and the need for change.
• We will monitor compliance with the Council’s Equal Opportunities Policy, and we will assess the need for improvements in service delivery.

Complaints about the Service

Hackney has a well publicised, effective and timely complaints procedure easily accessible to business, the public, employees, and consumer groups. The Council Complaints Leaflet explains how to make a complaint about a Council service and is available from the Corporate Contact Centre. They may be contacted via the general Council switchboard number. 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.

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Page updated: 15 Jun 2010