Thursday, April 02, 2020
Defending trading standards prosecutions.
Quentin Hunt, a criminal defence Barrister who specialises in defending trading standards prosecutions, answers commonly asked questions about Trading Standards prosecutions.
Who are Trading Standards and what do they do?
There is no one independent body called ‘Trading Standards’; instead, every local council has a Trading Standards department that employs Officers whose job it is to investigate complaints and enforce the law relating to consumer protection. This will typically cover areas such as:
• unfair commercial practices
• food standards and safety
• counterfeit/trademark issues
• goods descriptions/labelling
• weights and measures
• animal welfare
• safety of consumers.
If a matter is taken to Court, it will generally be by the Local Authority in whose area the breaches took place.
Trading standards offences-
The ambit of laws that can be invoked by Trading Standards Officers is very wide indeed and there are many Acts and Regulations that can be used to enforce the law. The most commonly used Acts of Parliament in Trading Standards cases are:
- the Consumer Protection Act 1987,
- the Consumer Protection from Unfair Trading Regulations 2008,
- the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013
- the Consumer Protection (Amendment) Regulations 2014
- the Consumer Rights Act 2015.
Of these, one of the most commonly used is The Consumer Protection from Unfair Trading Regulations 2008. This Act makes it a criminal offence to falsely describe goods, or to supply goods which are falsely described. It applies to virtually any description and covers adverts, signs or labels; for example, a sign in a shop window or a description of the goods from a seller during the sales process. The Act applies not only to goods but also to services, but with services a description must be 'reckless' as well as false. The regulations put a positive duty on traders not to employ unfair commercial practices such as ‘boiler room’ style high-pressure selling. A non-exhaustive list of 31 commercial practices is contained within Schedule 1 of the Regulations; those commercial practices will always be considered unfair. These cover practices relating to advertising, after-sales services, products claiming to cure illnesses, pyramid schemes, codes of conduct, closing down sales, prizes and free items amongst others.
The General Product Safety Regulations 2005 impose a duty on all producers and distributors of goods to ensure that their products are safe - failure to comply can be a criminal offence.
In cases where fraudulent misrepresentations have been made the prosecution may often include counts under the Fraud Act 2006. This is reserved for the most serious of cases and carries heavy potential punishments.
What powers do Trading Standards have?
The powers of Trading Standards Officers can be found within Schedule 5 of the Consumer Rights Act 2015. More general powers are also available within specific pieces of legislation that can be enforced. The most important powers available include the power to enter premises, powers of inspection and powers to secure or seize material that might be required in evidence. The following powers are available to Trading Standards Officers:
• They can enter premises to observe the carrying on of a business and to inspect goods or documents, to test equipment, or to undertake a test purchase. If you refuse entry to an officer this could amount to obstruction which is a separate criminal offence
• They cannot enter your home without a Court warrant.
• They can obtain a Court warrant to enter any premises by force if necessary but this is unusual.
• They will often undertake routine inspections; if this is the case they must give two days' written notice before entering your premises. This is not always the case and notice is not needed if there is a reasonably held suspicion that the law has been broken, notice has been waived, it is an emergency and there is imminent risk or if giving notice would defeat the purpose of the visit.
• Where an officer suspects that there has been the law the officer is entitled to seize goods and documents.
An investigatory technique commonly used by Trading Standards’ officers is the use of a ‘Test Purchase Officer’ who will visit businesses to conduct undercover purchases and observe the operation of the business. This is a technique which whilst legal can be robustly attacked by skilled lawyers should the matter ever end up in Court.
Trading Standards Officers do not have the power to arrest an individual but they will often enlist the help of the police if they foresee that arrests will need to be made. Trading Standards have no powers to stop a business trading. The most that they can do in this regard is to apply to the courts for orders to restrict illegal activities.
Will I be prosecuted by Trading Standards?
If you are suspected of a breach of the law it is wise to consult a specialist lawyer as soon as possible as negotiation with the prosecution through structured compliance will often avoid the risks and expenses of legal action. This can be achieved through cooperation with the Local Authority and agreed remedial actions by the business; for example, by changing systems, products, advertising or labelling or organising compensation for customers who have been affected.
In more serious cases your lawyer may be able to arrange for you to receive a caution as an alternative to prosecution. This is a formal warning, which does not amount to a conviction, this would typically be offered for relatively minor first-time offending but a skilful lawyer may be able to achieve this outcome for more serious matters.
Trading standards departments always have formal enforcement options available to them. The decision whether to take such action lies with the local authority, who will have to apply the ‘full code test’ contained within the Code for Crown Prosecutors. This is whether there is a ‘realistic prospect of conviction’ and whether the prosecution is in the ‘Public Interest’ or not. Again, your lawyer will be able to make representations to the prosecutor in respect of whether the full code test is met and if successful these can result in no further action being taken by the Prosecution.
Experience shows that it is likely that prosecution will be pursued in cases where there is a serious breach (in terms of disadvantage to customers or to other businesses through unfair competitive practices) or where informal attempts to secure compliance have failed.
A precursor to Criminal Prosecution will normally be an interview under caution where the suspect will be given an opportunity to comment upon the allegations made against them. This is a vital stage and if properly conducted can avoid real problems later on down the line. If you are invited to attend an interview under caution in a trading standards case, you should seek specialist legal advice as a matter of urgency.
What are the Court’s powers in Trading Standards cases?
If prosecution is pursued, then offences can be prosecuted in either the Magistrates' or Crown Court dependent on the offence in question. ‘Summary only’ cases will be heard exclusively in the Magistrates Court, ‘either way’ cases can be heard in either the Magistrates Court or the Crown Court and ‘indictable only’ cases can only be tried in the Crown Court. The decision over the venue for holding a trial in ‘either way’ cases is crucial and a specialist lawyer will be able to properly advise on the pros and cons of each venue and which venue is most suitable depending upon the facts of your case.
The consequences of conviction can be severe; the defendant will have a criminal record and will be sentenced. The sentence passed will depend upon the offence and its seriousness but it is not unusual for prosecutions for fraud to take place in addition to or as an alternative to trading standards offences, or for offences under intellectual property law (trade marks and copyright) and in such cases maximum penalties can be up to 14 years' custody.
The court also has the power to make what is known as ‘ancillary orders’ upon conviction, which include the power to award compensation to victims, costs to the prosecution, disqualification of individuals as company directors, the confiscation of assets under the Proceeds of Crime Act 2002 and orders for the forfeiture and destruction of illegal goods and equipment. Your lawyer will be able to tell you about whether these ancillary orders apply to your particular case and what the effects of such an order would be upon you.
As a result, if you are accused of a trading standards offence you should take the matter very seriously and it is wise to seek specialist legal representation.
Quentin Hunt is a Criminal Barrister who accepts instructions directly from members of the public at any stage in the case from pre-charge advice to representation at Court. Quentin has been involved in some of the largest trading standards cases and has a reputation as an expert in the field. Quentin is available to contact for a free, no obligation conversation about any case.