Trading standards enforcement policy
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 enforcement regulation including:
Police and Criminal Evidence Act 1984
Criminal Procedure and Investigations Act 1996
Regulation of Investigatory Powers Act 2000
Investigatory Powers Act 2016
Proceeds of Crime Act 2002
Regulatory Enforcement and Sanctions Act 2008
Data Protection Act 2018
Sanctions available to Trading Standards
Prosecution – this can lead to the offender having a criminal record and additionally fines, imprisonment, Criminal Behaviour Orders, Disqualification from acting as a company director, confiscation of criminal gains, forfeiture of goods seized.
Simple Caution – an alternative to prosecution where the offender admits the offence and it is in the public interest to follow this course of action.
Written Warning – an informal warning that there has been a contravention, but no further action is to be taken.
Enforcement Order – under the Enterprise Act 2002. Breach of an order is contempt of court, which carries a maximum penalty of a fine and two years' imprisonment, it can include an order to take 'enhanced consumer measures', including changes to business processes and paying compensation to victims, an order to pay the costs of the investigation and the court proceedings, and /or a requirement to publicise the order.
Undertaking -This is a formal promise by the business to comply with the law and, where appropriate, to take enhanced consumer measures. There is no obligation on Trading Standards to accept an undertaking, but it may be accepted if the business genuinely appears to be committed to making amends.
Compliance notices - In some cases, Trading Standards can issue a notice requiring the business to take action or to stop doing something, without the need to apply to court for an order. These notices have different names and different conditions depending on the law they are made under. In general there will be a deadline to comply with the notice. If a business fails to comply with a notice, this can lead to court action; if the business disagrees with the use of the notice, it usually has the opportunity to apply to the court or a tribunal to appeal against it. Compliance notices are available under a range of laws, including food standards, animal health, product safety, weights and measures, and fair trading.
Administrative penalties - In some cases, Trading Standards can issue a penalty notice, in effect imposing a fine directly on a business without the need for court proceedings. Such notices are available under a range of legislation, including laws relating to letting agents, secondary ticketing, single-use carrier bags and energy performance. The business can usually appeal to the court or a tribunal against the use of such a notice or against the level of penalty imposed.
1. Our aims in enforcing legislation
We are committed to maintaining and developing 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.
The Legislative and Regulatory Reform Act 2006 makes provision for a statutory code, the regulator's code. Specified regulators – which includes Local Authority Trading Standards Services – must have regard to the code when developing policies and operational procedures that guide regulatory activities including setting standards or giving guidance. Lancashire County Council Trading Standards Service undertakes to do so, and our approach to the six sections of the Code is outlined below..
If Lancashire County Council decides that a specific provision of the Code is either not applicable or is outweighed by another relevant consideration, we may not follow that provision but will record that decision and the reasons for it.
Regulators should carry out their activities in a way that supports those they regulate to comply and grow.
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 carry out our duties in a fair, equitable and consistent manner. While Trading Standards Service Officers are expected to exercise judgement in individual cases, we have arrangements in place to promote consistency, including effective arrangements for liaison with other authorities and enforcement bodies.
We operate a Lancashire wide Safe Trader Scheme, for businesses operating in Lancashire. We seek regular feedback from consumers and businesses in relation to the scheme and provide additional support to resolve any consumer disputes that may arise.
We seek and act on feedback from businesses we have visited in order to improve our service and react to concerns and issues raised.
The trading standards business pages with a range of information for Lancashire businesses to access advice and guidance as necessary, together with follow up contact details for businesses who wish to access bespoke advice.
We support the Local Government Association Home Authority Principle, and the Office for Product Safety and Standards (OPSS) Primary Authority Scheme. We place special emphasis on goods and services originating within our area, and providing businesses with a source of guidance and advice.
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 any case when considering appropriate 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.
Trading Standards Service Officers will receive continuous professional development to ensure that they are best placed to understand principles of good regulation together with an understanding of those they regulate to enable them to choose proportionate and effective approaches.
2. Regulators should provide simple and straightforward ways to engage with those they regulate and hear their views.
In consultation with business and other relevant interested parties, including technical experts where appropriate, we have drawn 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 evaluate our annual performance against them. The standards will be made available to business and others who are regulated.
These standards can be found here:
We 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 as appropriate. We will discuss general issues, specific compliance failures or problems with anyone experiencing difficulties. 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.
Where complaints arise in relation to advice provided or non-compliance with this code, Lancashire Trading Standards Service invite service users to raise these with the officer involved or their senior officer. If the complaint remains unresolved it is referred to:
Head of Trading Standards and Scientific Services, Lancashire County Council Trading Standards Service, County Hall, Pitt Street, Preston PR1 0LD Telephone: 01772 533569
Fax: 01772 533648 Email:firstname.lastname@example.org
If the complainant remains dissatisfied, the complaint is investigated in accordance with the county council's complaints procedure.
3. Regulators should base their regulatory activities on risk
We will follow the National Trading Standards Risk Assessment scheme and apply this to businesses in Lancashire. Our service plan is based on the risking scheme with prioritisation given to those businesses assessed as high risk.
Our service plan activities will be intelligence led. This means all activity will be initiated on the principle of sound reasoning using information and knowledge which has been assessed to identify potential problems. Using intelligence we will focus on those businesses and trade practices which cause the greatest harm to consumers, particularly those who are vulnerable, the environment or other businesses.
We will work closely with both regional and national teams where their activities are complementary or have a significant influence in relation to Lancashire issues.
4. Regulators should share information about compliance and risk.
The service will work with businesses, consumers and other relevant partners to promote economic, social, public health and environmental well-being and a fairer and safer trading environment in Lancashire.
The service will continue to work closely with a number of partners and share information accordingly within the constraints of legislation including the Enterprise Act 2002, and the Data Protection Act 2018. All existing intelligence networks and information gateways will be utilised by the service to ensure that appropriate information is shared with other bodies wherever possible.
The service works with other Trading Standards Services in accordance with regional and national priorities and objectives, and with any other agencies as appropriate to ensure effective and efficient investigation and enforcement action. The service works closely with regional and national enforcers such as Regional Investigation Teams, Illegal Moneylending Team, the National Scams Hub, and National Trading Standards.
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, Financial Conduct Authority, Government Services, Food Standards Agency, Department for Work and Pensions, HMRC, Health and Safety Executive.
5. Regulators should ensure clear information, guidance and advice is available to help those they regulate meet their responsibilities to comply.
The legislation enforced by the service is listed in a separate Schedule of Statutes which is subject to amendment or addition as appropriate.
The service will only use staff competent to perform the duties they are allocated and appropriately supervised. Clear policies are in place for the investigation and prevention of offences and provision of consumer and business advice and information which staff are trained to apply. The service provides calibration and advisory services and appropriate out-of-hours services with emergency contact in relation to Petroleum/Explosives safety and Animal Health.
We publish advice and guidance on our website for businesses to access, together with a contact point for follow up advice and guidance where needed.
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, Legal requirements will be clearly distinguished from best practice advice. If a business questions the advice provided, the investigating officer will refer the matter to their line manager for consideration of a second opinion.
6. Regulators should ensure that their approach to their regulatory activities is transparent.
The service follows the County Council's objectives of promoting social, economic and environmental well-being. Enforcement activities to tackle trading malpractices, whether identified by businesses, consumers or employees will be considered. Interventions may include providing specific advice, guidance, warnings, targeted enforcement action and campaigns for improvements in the law or trade practices.
On occasions, officers discover non-compliances which may amount to contraventions of legislation. Such non-compliances may be deemed a major infringement 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.
The law enforced by the service provides appointed officers with powers to enter businesses, examine, test and seize relevant items such as goods, equipment, cash, documents and the like.
In certain circumstances prohibition or suspension notices may be issued. Whenever a power or duty has to be exercised the officer will identify themselves and explain, when asked, the applicable power or duty being exercised. In certain circumstances a Magistrates Courts warrant will be obtained to gain entry for the purposes of a search or inspection.
The service takes an incremental approach to the appropriate action in each circumstance. If a matter can best be solved informally the officer will attempt to do so. This is termed a minor infringement and the officer will give guidance on what corrective action is needed and an appropriate timescale to achieving compliance. Such guidance may be reinforced by verbal or written warnings which will be a matter of record. Isolated minor infringements rarely lead to formal action. However, repeated incidents, multiple infringements or where previous compliance advice has been ignored may lead to formal action.
In the event of more formal action being deemed necessary this may take the form of a written warning, fixed penalty notice, simple caution, civil enforcement orders, formal notices or prosecution. In all cases the investigating officer will compile a report objectively setting out the facts of the matter. The report will be used to decide whether to prosecute or use a different formal route.
Those being investigated for possible contraventions of the criminal law will be encouraged to obtain legal representation to help them with their account of why a major infringement has occurred. This account is the opportunity to show what precautions were taken to avoid the infringement. Such precautions are known as due diligence and the investigating officer must record this when a formal interview takes place. Formal interviews have either a written record or are audio recorded. The interview rules are set out in the Police and Criminal Evidence Act 1984 and the service follows the codes of practice published in support of the Act.
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).
When investigating criminal offences the service may consider conducting financial investigations under the Proceeds of Crime Act 2002, and seeking a confiscation order of any benefit arising from criminal activity.
The Regulation of Investigatory Powers Act 2000 and Investigatory Powers Act 2016 provide a framework for certain public bodies, including local authorities, to use "covert surveillance" to gather information about individuals without their knowledge for the purposes of undertaking statutory functions in connection with the prevention or detection of crime.
The legislation is permissive legislation, that is to say that it is not mandatory for a local authority to authorise covert surveillance under the Regulation of Investigatory Powers Act 2000 but if it does so then a defence is available if the individual brings a claim against the local authority alleging that the surveillance breaches their human rights, specifically Article 8, the right to respect for private and family life, home and correspondence.
The Regulation of Investigatory Powers Act 2000 covers directed surveillance, for example the use of photography or video to record persons suspected of being engaged in criminal activity, and the use of a Covert Human Intelligence Source (CHIS), for example an informant, where the surveillance involves establishing or maintaining a relationship in order to obtain information.
Within the county council, covert surveillance authorised pursuant to the Regulation of Investigatory Powers Act 2000 is used very infrequently and typically against rogue traders, counterfeiters or individuals engaged in selling tobacco or alcohol products to children. It is used in cases where it is important to obtain information to support potential criminal proceedings, and only where that information cannot be obtained by any other means.
The authorisation procedure is twofold and involves initial authorisation by designated Trading Standards Managers (the Head of Trading Standards and Trading Standards Managers), with the application then being taken to the magistrate's court for approval, before any surveillance can be undertaken.
Regulation of Investigatory Powers Act 2000 activity and authorisations are governed by Codes of Practice and Guidance issued by the Home Office and the Investigatory Powers Commissioner's Office.
Food Safety Act 1990
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)'.
Feed Law Enforcement
Where breaches of feed law are alleged, regard shall also be had to the current Feed Law Code of Practice (England) and Feed Law Practice Guidance (England).
For breaches relating to dangerously unroadworthy vehicles (either under the Road Traffic Act 1988, or General Product Safety Regulations 2005), 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.
The service will not investigate private sales, or pursue investigations into previous sales beyond the last trade sale.
Overloaded goods vehicles
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 and documentation (i.e. 'back ticket checks') that may result in prosecution.
Under age sales
The service will undertake investigations into the sale of age restricted goods where appropriate, with the aid of young test purchasers and having regard to the OPSS Code of Practice.
The Single Use Carrier Bags Charges (England) Order 2015
Lancashire County Council is an administrator for the purposes of ensuring compliance with 2015 Order. We are required to publish guidance about our use of civil sanctions under the Order. We will follow national guidelines in relation to the use of civil sanctions. Wherever the term "relevant local authority" appears, please substitute Lancashire County Council.
Lancashire County Council reports that, during the period 5 October 2015 – 4 October 2017, it has not imposed any civil sanctions.
Energy Performance of Buildings (England and Wales) Regulations 2012
Enforcement and local authority buildings
In accordance with the provisions of regulation 34A(2) of the above mentioned Regulations, Lancashire County Council, as the local weights and measures authority for the administrative Lancashire County has on the 6th day of July 2016 entered into an Agreement with Cumbria County Council.
The effect of this Agreement is that as from the date of the Agreement, Cumbria County Council will have the duty to enforce certain provisions of the 2012 Regulations in respect of local authority buildings in Lancashire, namely Part 2 (“Duties Relating To Energy Performance Certificates”); Part 3 (“Display Energy Certificates”); Part 4 (“Inspection of Air-Conditioning Systems”); and Part 7 (“Enforcement”).
Dated this 6th day Of July 2016
Tenant Fees Act 2019/Consumer Rights Act 2015
From 1 June 2019 TS has a statutory duty to enforce the above Act.
The Tenants Fees Act 2019 stipulates what payments can be requested in connection with a tenancy from 1 June 2019. Fees which are not permitted are prohibited payments and breaches can incur penalties from £5,000 (first breach) to £30,000 (repeated breaches). There is also a criminal offence carrying an unlimited fine for repeated breaches after the first one. An offence under the Tenant Fees Act 2019 is listed as a banning order offence under the Housing and Planning Act 2016.
Where a tenancy agreement was entered into before 1 June 2019, fees can be charged until 31 May 2020, but only where these are required under an existing tenancy agreement.
View the full Government guidance.
View the Lancashire Trading Standards Tenant Fees Act policy (PDF 530 KB) in relation to this legislation.
The Code for Crown Prosecutors is used in considering prosecutions as follows: -
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.
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 Head of Trading Standards and Scientific Services, Trading Standards Managers and Principal Legal Officers have a delegated power to institute proceedings on behalf of the county council.
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:
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.
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.
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.
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.
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.
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
Authorised officers must be satisfied that there is enough evidence to provide a 'realistic prospect of conviction' against each suspect on each charge and 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. 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.
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?
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?
Is there evidence which might support or detract from the reliability of a confession? Is the reliability affected by factors such as the suspect's age, intelligence or level of understanding?
What explanation has the suspect given? Is a court likely to find it credible in the light of the evidence as a whole? Does it support an innocent explanation?
If the identity of the suspect is likely to be questioned, is the evidence about this strong enough?
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?
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?
Is there any other material that might affect the sufficiency of evidence? Authorised officers must consider whether there is any material that may affect the assessment of sufficiency of evidence, including examined and unexamined material, and material that may be obtained through further reasonable lines of enquiry.
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
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.
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. Authorised officers should consider the culpability of the suspect, and the harm caused. Some factors may increase the need to prosecute but others may suggest that another course of action would be better.
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.
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:
- A conviction is likely to result in a significant sentence;
- A conviction is likely to result in confiscation or any other order;
- The offence was committed against a person serving the public;
- The suspect was in a position of authority or trust;
- The evidence shows that the suspect was a ringleader or an organiser of the offence;
- There is evidence that the offence was premeditated;
- There is evidence that the offence was carried out by a group;
- The victim of the offence was vulnerable, has been put in considerable fear, or suffered personal attack, damage or disturbance. The more vulnerable the victim's situation or the greater the perceived vulnerability of the victim, the more likely it is that a prosecution is required. This includes where a position of trust or authority exists between the suspect and victim;
- The offence was committed in the presence of, or in close proximity to, a child
- The offence was motivated by any form of prejudice 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;
- There is a marked difference between the actual or mental ages of the suspect and the victim, or if there is any element of corruption;
- The suspect's previous convictions or cautions are relevant to the present offence;
- The suspect is alleged to have committed the offence whilst on bail or under an order of the court;
- There are grounds for believing that the offence is likely to be continued or repeated, for example, by a history of recurring conduct; or
- The offence, although not serious in itself, is widespread in the area where it was committed, and causes particular harm to that community.
- A prosecution would have a significant positive impact on maintaining community confidence
Some common public interest factors against prosecution
A prosecution is less likely to be needed if:
- The court is likely to impose a nominal penalty;
- The suspect 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 suspect withdraws consent to have an offence taken into consideration during sentencing;
- The offence was committed as a result of a genuine mistake or misunderstanding (these factors must be balanced against the seriousness of the offence);
- The suspect is a child or young person under the age of 18. In such cases the best interests of the suspect must be considered, including whether a prosecution is likely to have an adverse impact on their future prospects that is disproportionate to the seriousness of the offending. (But previous history and the seriousness of the offence could mean that a prosecution is in the public interest).
- The suspect has been compelled or coerced to commit the offence, or has been exploited. This reflects the growing recognition and concern that some persons who commit crime do so in the context of being victims themselves of more serious crimes;
- 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;
- There has been a long delay between the offence taking place and the date of the trial, unless:
- The offence is serious;
- The offence is serious;
- The delay has been caused in part by the suspect;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;
- The suspect 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;
- Details may be made public that could harm sources of information, international relations or national security;
- The cost to the prosecutor and the wider criminal justice system where it may be considered excessive when weighted against any likely penalty.
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
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.
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.
Authorised officers must consider the interests of a youth when deciding whether it is in the public interest to prosecute. Authorised officers should consider the suspect's maturity as well as their chronological age, as young adults will continue to mature into their mid-twenties. However, authorised officers should not avoid prosecuting simply because of the suspect's age.
The seriousness of the offence or the youth's past behaviour is very important.
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.
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.
Authorised officers should select charges which:
- Reflect the seriousness of the offending;
- Give the court adequate sentencing powers;
- Allow a confiscation order to be made in appropriate cases where a defendant has benefited from criminal conduct; and
- Enable the case to be presented in a clear and simple way.
This means that the authorised officers may not always continue with the most serious charge where there is a choice.
Authorised officers should never go ahead with more charges than are necessary just to encourage a suspect to plead guilty to a few, and should never go ahead with a more serious charge just to encourage a suspect 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 suspect about where the case will be heard.
Mode of trial
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 suspect does not indicate a guilty plea.
Authorised officers should recommend Crown Court trial when satisfied that the guidelines require to do so.
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.
Authorised officers should bear in mind that if confiscation proceedings are required, these may only take place in the Crown Court.
Accepting guilty pleas
Suspects 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 suspect'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.
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.
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.
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
The prosecution advocate should draw the court's attention to:
- Any aggravating or mitigating factors disclosed by the prosecution case;
- Where appropriate, evidence of the impact of the offending on the community;
- Any statutory provisions or sentencing guidelines which may exist;
- Any relevant statutory provisions relating to ancillary orders (such as forfeiture, compensation, disqualification).
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
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.
These reasons include:
- Rare cases where a new look at the original decision shows that it was clearly wrong and should not be allowed to stand;
- 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 suspect that the prosecution may well start again; and
- Cases which are stopped because of a lack of evidence but where more significant evidence is discovered later.
Trading Standards Service Policy
Within the overall code guidelines the Trading Standards Service may consider a prosecution where:
- An offence is detected which is prevalent, or could become so, and prosecution of that offence could encourage compliance by all potential offenders.
- An offence is committed by a suspect whose past record indicates a lack of regard for the law.
- Repeated minor offences of the same or a similar nature are committed and the offender refuses to improve.
- Advice about the likelihood of an offence arising had been given, and that advice had been rejected.
- An offence is detected and advice or a caution is administered and the same or subsequent offence is committed.
- The investigation reveals a course of conduct, which is reckless or negligent, or there is a high risk to public safety.
- An investigation reveals an element of fraud or dishonesty.
- Offending is or appears to be deliberately targeted towards consumers in vulnerable situations.