Introduction
This policy is intended to provide a source of guidance for officers, businesses and consumers. Whilst we recognise that the majority of businesses and, or individuals wish to comply with the law, occasions do arise when enforcement action, including prosecution, must be taken.
We have the discretion of whether or not to bring proceedings before the Civil and, or Criminal Courts. We may choose to do so when we are satisfied that the circumstances in which the alleged offence(s) when considered with one or more of the public interest factors outweigh the mitigating factors.
This policy explains the factors we consider both for and against before we institute legal proceedings. This policy should be read in conjunction with our compliance and enforcement policy.
Prosecution and Enforcement Sanctions Policy
The decision to prosecute, bring enforcement order proceedings or to offer an individual an alternative out of court sanction is a serious step. Fair and effective prosecution and the use of enforcement orders are essential elements in ensuring the service meets its objectives of:
- Objective 1: Developing our use of intelligence to scan and test the market place and tackle those organised criminal networks and unscrupulous businesses who deliberately, repeatedly or recklessly engage in fraudulent trading practices that harm the interests of consumers and legitimate businesses. Whilst rogue trading can occur in any trade sector we have identified the following that specifically impact our local communities:
- doorstep crime and scams
- cybercrime
- illicit tobacco
- product safety
- second-hand car sales
- intellectual property, and
- food fraud
- Objective 2: Supporting economic growth by helping businesses to comply with their legal responsibilities and enhancing public protection through delivery of our chargeable business advice services and through increasing the number of our business partnerships.
- Objective 3: Engaging with the public, communities, businesses and partners to increase resilience and safeguard the vulnerable against scams, rogue trading and unfair business practices.
It is our duty to ensure that we make our decisions with integrity and we remain fair and impartial. This ensures that we achieve positive outcomes for victims, witnesses, defendants and our local communities.
As regulators we have a duty to review, advise on and prosecute cases or offer appropriate alternative enforcement sanctions. There are a range of enforcement sanctions available to us. These are set out in our compliance and enforcement policy.
Every case we investigate is unique and will be considered on its own facts and merits. However there are general principles that we will apply to the way in which we will deal with each case. We will be fair, independent and objective.
The decision regarding enforcement action will be impartial. It will not be influenced by any personal views with regard to ethnic or national origin, gender, disability, age, religion or belief, political views, sexual orientation or gender identity of the suspect, victim or any witness. Nor will we be influenced by improper or undue pressure from any source.
Deciding to prosecute through the criminal courts and, or commence enforcement order proceedings through the civil courts is a serious step. Whilst fair and effective legal proceedings are essential to maintain law and order we acknowledge that even in a small case there can be serious implications for all involved. This includes victims, witnesses and the defendants. When making the decision to institute proceedings we will apply the appropriate parts of the Code for the Crown Prosecution Service to ensure that we make fair and consistent decisions.
Some common public interest factors tending in favour of prosecution
The following list contains some of the factors that we consider both for and against prosecutions and enforcement order proceedings. We will normally only consider such actions where one or more of these public interest criteria are satisfied:
- there is significant risk to public health or safety or to the environment
- the offender, by action or inaction, risks causing unnecessary suffering to animals or has increased the risk of the spread of animal disease
- the offence involves the threat of violence, or duress, coercion, harassment or undue influence against any person
- the offender deliberately obstructs an officer of the Authority carrying out his or her duties
- the offence involves fraudulent or reckless practice or economic disadvantage to consumers or businesses or an act or omission harming the collective interests of consumers
- the offender has previous conviction(s) or enforcement orders(s) or cautions or has given an undertaking or assurance not to conduct specified practices
- the offender has repeatedly ignored advice
- there are grounds for believing that noncompliance is likely to continue or be repeated for example by a history of recurring conduct
- the probable benefit to the community at large of a prosecution or enforcement order proceedings or the importance of the case or the need for a suitable deterrent
- the offence was premeditated
- the offence was carried out by a group
- the offence was committed in the presence of, or in close proximity to a child
- the offence was motivated by discrimination against the victims ethnic or national origin, gender, disability, age religion or belief, political views sexual orientation or gender identity; or the offender demonstrated hostility towards the victim based on any of those characteristics
- the victim or potential victim was in a vulnerable situation and the offender took or would have took advantage of this
- there was a marked difference in ages of the offender and the victim and the offender took advantage of this
- there was a marked difference in the level of understanding of the offender and the victim and the offender took advantage of this
- the offender was in a position of authority or trust and took advantage of this
- the offender was a ringleader or an organiser of the offence
Some common public interest factors tending against prosecution
We will consider the following factors when deciding whether or not to institute proceedings as they may mitigate the need to bring a prosecution or an application for an enforcement order:
- a conviction is likely to result in a nominal penalty
- the offence resulted from a genuine mistake or misunderstanding
- the seriousness and the consequences of the offence(s) can be adequately dealt with by an alternative enforcement sanction which the offender accepts and with which he or she complies
- the loss or harm can be described as minor and was the result of a single incident rather than a commercial practice
- there has been a long delay between the offence taking place and the date of the trial, unless:
- the offence is serious
- the delay is caused wholly or in part by the offender
- the offence has only recently come to light; or
- the complexity of the offence has meant that there has been a long investigation
- the prosecution or enforcement order proceedings is likely to have a detrimental effect on the victims physical or mental welfare
- the offender is elderly or a minor, or was, at the time of the offence, suffering significant mental or physical ill health
- the offender has put right the loss or harm caused (although prosecution or an enforcement sanctions will not be avoided solely because the victim has been compensated)
- the views of a relevant “Primary” or “Home “ Authority, i.e. another Trading Standards Service maintaining a relationship with the suspect
- the explanation offered by the offender
- the willingness and or actions of the offender to prevent a recurrence of the noncompliance
Evidential considerations
If the factors tending towards prosecution and, or enforcement order proceedings outweigh those against the following evidential factors will be considered to ensure that there is a realistic prospect of conviction or obtaining the court order:
- whether there is sufficient evidence to meet the required burden of proof
- whether the evidence is admissible
- whether the evidence is reliable
- whether the suspect can make out a statutory defence
- the ability and, or willingness of any witness to co-operate
Commenting on this policy
You can make comments about the content of this policy or the manner of its application.
These comments will assist us in the continual monitoring and review of this policy. This is important to help ensure that the policy remains up to date and reflects the views of our community and changes in legislation. Please contact us should you require any further information on how we carry out our work, if we can be of further assistance to you or if you have a complaint about the provision of our service.
If you remain dissatisfied or feel that you cannot talk to us, you may wish to make a complaint.
How to contact us
- online reporting form
- telephone: via Citizens Advice on 0808 2231133. Lines are open Monday to Friday 9am to 5pm, closed on bank holidays and public holidays