The enforcement of the law

Trading Standards are often judged by the public on the enforcement action we take – specifically criminal prosecutions. This is probably because it is one of the few things that Trading Standards do that regularly makes it into the news.

Of course there are lots of other ways we can make businesses comply with the law other than enforcement action – indeed the vast majority of our outcomes are achieved through other means. It is worth remembering that our main purpose is not to punish businesses for breaking the law but to get as many businesses to comply with the law as possible.

What is enforcement action? Well I will define it as using the law to punish someone or using some form of power to force a business to do something (and face a punishment if they don’t).

Criminal prosecutions – probably the thing most people are familiar with. This is when a person or business is taken to the magistrates or crown court and if found guilty is punished by way of fine, community sentence or jail.

Cautions – one step down from a prosecution. If the offender admits the offence then they can be given a caution which is basically a warning but can be used against them should they be caught doing the same thing in the future.

Fixed penalty notices – basically a fine – rarely used.

Civil injunctions – this is when the court issues an injunction preventing a person or business from doing something in the future. Unlike a prosecution it doesn’t punish someone for doing something in the past but is meant to prevent them from doing something in the future. Disobeying an injunction is contempt of court and can lead to jail. Injunctions are supposed to be the enforcement tool of the future (instead of prosecutions) – it is worth bearing in mind though that an injunction does not punish a person or business for their past behaviour.  In the future it may be possible for injunctions to have conditions attached to them (e.g. to make the business refund customers)

Notices – these are notices that make a business do something or face court action if they don’t.

Types of notices include:

  • improvement notices
  • suspension notices
  • withdrawal  notices

I should say that those are the actions we can take across all of the laws we enforce. Some laws will only allow for one method of enforcement whereas others will allow multiple methods.

As I have mentioned – the vast majority of outcomes we achieve (i.e. making businesses comply with the law) will be achieved without having to resort to enforcement action.

Advice – we give advice all the time – if the business complies then there is often no need to take any further action. We can be alerted to a business doing something wrong in various ways, for example:

  • Complaints received from the public
  • Our own proactive monitoring (e.g. of websites)
  • Carrying out visits (e.g. to shops)

Warnings – a warning letter is a step down from a caution. It is basically telling a business that if they are caught breaking the law again then they almost certainly will be pursued formally (usually by way of prosecution or civil injunction). A warning letter can often stop a business from breaking the law in the future.

The point of this post is really to highlight that criminal prosecutions are not the be all and end all and you have to use whatever tool is most appropriate to the situation. Sometimes you might use multiple tools – for example a prosecution and an injunction.

We are often contacted by people accusing others of having broken the law (and having committed a criminal offence). That may well be the case but the fact that someone has committed an offence does not mean that they will be automatically prosecuted. There is a famous saying:

‘It has never been the rule in this country – I hope it never will be – that criminal offences must automatically be the subject of prosecution.’ (Sir Hartley Shawcross).

Every Trading Standards will have an enforcement policy which outlines when they will take formal action such a prosecution. There are various reasons why a prosecution might not be taken – the issue is not considered serious enough, we can stop the business doing the same thing again through advice, it doesn’t meet the public interest test or the Trading Standards department may not have enough money to take action. In fact I see criminal offences being committed all of the time but we only take action a small proportion of the time (there may be other issues preventing action being taken, such as not having enough evidence and so on).

When it comes to fixed penalty notices for example – we never issue them simply for political reasons –because they can be seen as a way of making money.

With injunctions I am aware many Trading Standards departments don’t have the in house skills to take such actions.

My personal view is that not enough enforcement action is taken and as a general rule Trading Standards departments are not aggressive enough (and there can be a huge variance between different departments on this point) – but as always it comes back to money. Taking legal action costs money – something we don’t have much of right now.

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