ÖйúPÕ¾

Page contents

1. Introduction
2. Enforcement policy
3. Aggravating factors - examples
4. Mitigating factors - examples
5. Forms of actions
6. National Enforcement
7. National Trading Standards Scams Team
8. Partnership working
9. Complaints,compliments, appeals and comments
10. Statutory Guidance in relation to financial penalties
11. Single Use Vape Enforcement Policy

Introduction

Buckinghamshire Council and ÖйúPÕ¾ operate a joint trading standards service (The Trading Standards Service). This policy sets out what businesses and others being regulated can expect from Buckinghamshire and ÖйúPÕ¾ Trading Standards officers.

ÖйúPÕ¾ is also the host for the National Trading Standards Scams Team. This Team’s investigations are subject to the same best practice principles found in legislation and codes that are outlined within this Enforcement Policy.

The Trading Standards Service aims to create an environment of confident consumers and trusted traders by providing advice and guidance to consumers and businesses.

There will be occasions when a range of different actions may be necessary to deal with cases where trading standards laws have been breached by businesses or others. Each case will be considered on its own merits.

This enforcement policy is intended to promote efficient and effective approaches to regulatory inspection and enforcement, improving outcomes without imposing unnecessary burdens on business.

Enforcement policy

The Trading Standards Service will not respond to individual complaints or address every non-compliance with business.

Service demand is managed through a process designed to target resources effectively and focus activity on those businesses who cause the greatest harm to consumers and legitimate business.

Trading Standards follows the principles and objectives of the statutory Code of Practice for Regulators (‘the Code’) made under the Legislative and Regulatory Reform Act 2006. The service believes all enforcement should be risk based, transparent and proportionate.

In certain instances it may be decided that a provision in the code is either not relevant or is outweighed by another provision. If the Trading Standards Service departs from the code, the decision will be reasoned, evidenced and documented.

Where an intervention occurs, consideration will be given to the most justified, appropriate and proportionate methods for dealing with the issues raised.

If enforcement powers are exercised, eg seizing goods, equipment or documents, written notice will be given to the business explaining the extent of those powers and the nature of any equivalent rights which the business may have.

A range of sanctions will be considered according to the associated risk and seriousness and of the matter.

Sanctions include:

• Securing an undertaking from a business that they will comply with their legal obligations.
• Taking action in the civil courts to seek orders.
• Issuing written warnings.
• Issuing simple cautions.
• Prosecuting offenders in the criminal courts.
• Restraint, confiscation and forfeiture of assets under the Proceeds of Crime Act 2002
• Account Freezing Orders under the Proceeds of Crime Act 2002
• Exercising forfeiture of goods provisions.
• Issuing Suspension Notices, Improvement Notices or other such statutory notices and documents.
• Issuing of Penalty Charge Notices.
• Revocation or suspension of a licence, registration or approval.
• Instituting a license review (e.g. alcohol sales).
• Instituting a product recall/withdrawal.
• Issuing financial penalties.
• Seeking a banning order under the Animal Welfare Act.
• Having animals removed from their owners/keepers.

The aim of any intervention is to:

• Respond proportionately to the nature of the issue and the harm caused.
• Protect consumers and legitimate businesses.
• Change the behaviour of the offender.
• Eliminate any financial gain or benefit from non-compliance;
• To secure justice for victims, witnesses, defendants and the public.
• To deter future non-compliance.

All enforcement activity undertaken under this policy will have regard to the Human Rights Act 1998 and Equality Act 2010.

Consideration will be given to matters which aggravate or mitigate the seriousness of the offence so that the most appropriate and proportionate method of disposal is chosen.

Aggravating factors - examples

• The impact, or potential impact, of the offence is so serious that prosecution is the only suitable method for disposal.
• Whether the offence continued over a long period of time or involved a series of offences against the same or different victims.
• Degree of pre planning.
• Age and/or vulnerability of the victim(s).
• Amount of gain for the offender or the amount of loss to the victim relative to the victim's status.
• Impact of the crime on the victim.
• Prevalence of the offence and its impact on the community.
• Where there is any evidence of the crime being motivated by hate (hate crimes).
• Any attempt by the offender to conceal their identity, whether directly or indirectly, such that the victim and/or investigating agencies, cannot easily identify or trace the person.
• Lack of remorse.
• The offender's history including previous advice, warnings, cautions and convictions.
• There is evidence of significant and/or continuing consumer or public detriment.
• There is risk to public health and safety, animal health and welfare or to the environment.
• The offender has acted fraudulently or is reckless or negligent in their activities.
• The offender deliberately obstructs an officer.
• The offender disregards the needs for animal health and welfare or disease control legislation.

Mitigating factors - examples

• Prompt acknowledgement of guilt.
• Making timely and appropriate compensation to the victim(s).
• Previous good character.
• Age and /or lack of maturity where it affects the responsibility of the offender.
• Degree of culpability.
• Any other factor which, considered objectively in relation to the offence, tends to diminish the seriousness of the crime even though it does not provide a defence to it.

Forms of actions

Prosecution

The Trading Standards Service recognises that a prosecution has serious implications for all involved and have developed this policy so fair and consistent decisions are made in all cases.

The Trading Standards Service will have regard for this policy, the Code for Crown Prosecutors and consideration will be given to the Code made under the Legislative and Regulatory Reform Act 2006, in particular:

• whether there is sufficient evidence that a criminal offence has been committed; and
• whether there is a realistic prospect of conviction; and
• whether the prosecution is in the public interest.

In some cases, prosecutions may be taken concurrently with civil proceedings

Fixed Penalty Notice, or a Penalty Notice for disorder

Where there is sufficient evidence to provide a realistic prospect of conviction (if the offender were to be prosecuted) and / or the offender recognises the offence, if available, the offender may be offered a fixed penalty notice or penalty notice for disorder.

If a fixed penalty notice or a penalty notice for disorder is rejected the Trading Standards Service reserves the right to consider instigating prosecution proceedings.

Actions under the Proceeds of Crime Act 2002

The Trading Standards Service will consider and, if appropriate, utilise powers under the Proceeds of Crime Act 2002 (POCA), to ensure the defendant is deprived of the proceeds of their criminal conduct. Where investigations identify money laundering offences, the Trading Standards Service will consider prosecuting for those offences.

The Trading Standards Service will consider using restraint powers under POCA to prevent the dissipation of assets from satisfying a confiscation order and to compensate victim(s).

The Trading Standards Service will consider using Account Freezing Orders under the Civil Recovery in Summary Proceedings to repatriate identifiable funds back to victims.

Undertaking

The Trading Standards Service takes a staged approach to civil redress.

Where the matters investigated are not so serious as to justify immediate civil or criminal proceedings, a formal undertaking may be sought from the offender to stop or continue doing the matters complained of, where the offender is willing to enter into an undertaking.

A breach of the undertaking will normally result in proceedings being issued.

Injunctions

Where an individual or business operates in such a way that it harms consumers, an application may be made to the civil courts for an injunction to stop the detrimental activities.

An application will not be made unless the detrimental activities have been explained (or attempted to be explained) to offenders with advice on how to operate legitimately, unless the detrimental practices create a threat to human safety, when an urgent application may be made.

Simple Caution

Where there is sufficient evidence to provide a realistic prospect of conviction (if the offender were to be prosecuted), and the offender admits their guilt, consideration may be given to dealing with the case by way of a caution.

If a simple caution is rejected the Trading Standards Service reserves the right to consider instigating prosecution proceedings.

Written warnings

Where consideration of the case and this enforcement policy suggests that future compliance can be achieved without resorting to legal proceedings the Trading Standards Service will consider issuing a written warning or specific instructions as appropriate.

A written warning will not be considered unless there is reliable evidence to support an assertion of offending.

Suspending goods from sale

Where it is considered necessary to protect the public, goods suspected of being unsafe or non-complaint with safety legislation will be suspended from sale.

Seeking a banning order under the Animal Welfare Act

Where an owner/keeper of an animal has subjected it to unnecessary suffering and this behaviour is likely to continue, the Trading Standards Service will consider applying for a banning order preventing that individual from keeping animals or animals of a particular type or number.

Having animals removed from their owners/keeper

The Trading Standards Service will consider removing animals from their owners/keepers where:

• They are illegally landed in the UK and are required to be quarantined.
• On the grounds of welfare.

Refusal, termination or variation of a licence/registration

The refusal, revocation or variation of a licence or registration will be considered where the conditions attached to a licence or registration, or the legal requirements to hold such a licence, registration or approval have not been met.

Dealing with offences at licenced premises

In the case of offences committed at a licensed premises, including the illegal sale of age restricted products, consideration will be given to instituting a review of the premises licence in addition to all other enforcement options.

Closure orders

The Trading Standards Service may consider providing evidence of offences for another council or enforcement agency to seek a closure order.

National enforcement

The Trading Standards Service act as the prosecuting authority for investigations carried out by the Advertising Standards Authority (ASA) via commissioning from the National Trading Standards Scams Team (NTS), covering England and Wales.

The role of ASA is to ensure responsible advertising. Where ASA is faced with advertisers who persistently break the Advertising Codes, it will refer these cases to the Trading Standards Service.

The Trading Standards Service uses its own legal powers to assess, investigate and take action (where appropriate) on any matters ASA refers to it, subject to the same best practice principles found in legislation and codes that are outlined within this Policy.

The purpose of the Trading Standards Service in undertaking this work is to ensure that breaches of the law are addressed and that the integrity of the ASA system is supported by taking appropriate formal action against those who do not comply via the self-regulatory means.

Referrals from ASA are limited to areas of the law covered by the NTS grant as outlined in the grant agreement.

The Trading Standards Service may make agreements with other Primary Authority businesses to act as the host and prosecuting authority for offences which impact on the economic prosperity and consumer confidence in that businesses brand.

The geographical coverage for each agreement may include provisions for England, Scotland and/or Wales.

Investigations initiated by referrals under any such agreements are subject to the same best practice principles found in legislation and codes that are outlined within this Enforcement Policy.

National Trading Standards Scams Team

The National Trading Standards Scams (NTS) Team covers the United Kingdom and is financed by Government grant via National Trading Standards.

The National Trading Standards Scams Team targets criminals involved with scams, mass marketing and consumer fraud and related crime. They investigate cases which have regional or national significance. In such cases the team will provide evidence to relevant local authorities, which may include ÖйúPÕ¾, or other enforcement bodies who will make a decision on how to proceed based on their own enforcement policies.

Partnership working

Wherever practicable the Trading Standards Service will endeavour to liaise with other relevant agencies that have a joint or complementary enforcement role to ensure a consistent and coordinated approach.

Before instigating formal action, the Trading Standards Service will liaise with all relevant agencies where a joint or complementary enforcement role is identified. The Trading Standards Service subscribes to the principles of the Primary Authority Principle under the Regulatory Enforcement and Sanctions Act 2008.

The Trading Standards Service will share intelligence with other enforcement agencies where this is practicable, beneficial and cost effective (in accordance with the requirements of the Data Protection Act 1998, and any other relevant legislation)

Data sharing will be conducted through appropriate information gateways.

Complaints, compliments, appeals and comments

If you are unhappy with the service you have received or feel that we have not followed the policy outlined above, you can make a complaint through ÖйúPÕ¾’s complaints policy.

Alternatively, if you are happy with the service you have received and would like to tell us please do so using the contact details below.

Appeals

If you wish to appeal against a notice served on you, please contact us as per the details below.

Comments

If you have any comments concerning this policy, please write to the Assistant Director of Trading Standards at:

Buckinghamshire & ÖйúPÕ¾ Trading Standards, Woodhatch Place, 11 Cockshot Hill,  Reigate, ÖйúPÕ¾ RH2 8EF

or email: trading.standards@surreycc.gov.uk

Policy review

This policy will be reviewed every 12 months.

Statutory Guidance relating to financial penalties

Trading Standards have a statutory obligation to publish guidance in respect to specific legislation that enables the Service to issue financial penalties. Please see the links below:

Examples of where legislation provides that the Trading Standards Service can issue a financial penalty is provided for under various relevant Food legislation (e.g. Calorie Labelling Regulations). The Trading Standards Service can issue a fixed monetary penalty of £2,500 for breaches of this legislation. The following Government guidance and separate enforcement policy will be followed when the Trading Standards Service is considering issuing a fixed monetary penalty in this way.

Single use vapes enforcement policy

Guidance on the Use of Fines, Notices and other Civil Sanctions by Buckinghamshire and ÖйúPÕ¾ Trading Standards When Enforcing the Environmental Protection (Single-use Vapes) (England) Regulations 2024.

Introduction

Buckinghamshire and ÖйúPÕ¾ Trading Standards Service is a regulator for the purposes of enforcing the Environmental Protection (Single-use Vapes) (England) Regulations 2024 (referred to as the Regulations in this guidance). As a regulator the council is required to publish guidance on our use of the fines, notices and other penalties contained in the Regulations.

This guidance should be read in conjunction with the Regulations.

The criminal offence of supplying a single-use vape

If a person, as a business, supplies a single-use vape they commit a criminal offence.  A single-use vape is a vape which is not intended to be re-used. A legal vape must be refillable and rechargeable and the coil (heating element) must be able to be replaced by the consumer.   provides more detail on what each of these terms mean.

Supply includes giving such vapes away.  It is also an offence for a person to offer to supply such vapes or for a person to have them in their possession ready to supply.

In line with our enforcement policy, Buckinghamshire and ÖйúPÕ¾ Trading Standards Service may take legal action against a person who supplies, offers to supply or possesses for supply a single-use vape. Legal action may include, but is not limited to, prosecuting someone in the magistrates’ court, applying to review a premises licence under the Licensing Act 2003 or using the penalties explained in this guidance.

[The Criminal Offence of Failing to comply with an enforcement requirement
If a person without reasonable excuse, fails to comply with any requirement imposed in the exercise of an enforcement officer’s powers or otherwise obstructs an enforcement officer in the exercise of powers under the Regulations, they are guilty of an offence.

In line with our enforcement policy, Buckinghamshire and ÖйúPÕ¾ Trading Standards Service may take legal action against a person who fails to comply with an enforcement requirement. Legal action may include, but is not limited to, prosecuting someone in the magistrates’ court, applying to review a premises licence under the Licensing Act 2003 or using the penalties explained in this guidance.]

Publication of information about enforcement action

Where we use the penalties under these Regulations, we must from time to time publish details of the cases in which the penalties have been used.

Withdrawing or amending a notice

Penalties in the Regulations include the use of various notices.  The council may at any time withdraw a notice, reduce the amount of any penalty in a notice or change the steps in a notice required to ensure compliance. Where we do this, we will do so in writing.

Fixed monetary penalties and compliance notices

Where a person commits an offence under these regulations Buckinghamshire and ÖйúPÕ¾ Trading Standards Service may issue a fixed penalty notice.  This is a fine issued by the council and is a penalty of £200.  Details of how to pay the fine are included in the notices. Failure to pay a fine will result in a prosecution in the Magistrates’ Court who have the power to issue unlimited fines.

When will we issue a fine?

Buckinghamshire and ÖйúPÕ¾ Trading Standards Service has a zero-tolerance approach to the supply of single-use vapes. Unless there are aggravating circumstances, we will issue a penalty where there is evidence to show that a person has committed an offence under these Regulations, even if it their first offence.

Where there are aggravating circumstances we might take other action, even for a first offence. Examples of aggravating circumstances would include the supply of a single-use vape to a child or if someone commits a second offence or where a person is in possession of a large quantity of single-use vapes.

We will not issue a fine where a business can show it has taken all reasonable steps to avoid committing an offence. We will not issue a fine where we have issued a compliance notice and the business have carried out the tasks detailed in that notice.

When will we issue a Compliance Notice?

This is a notice that we may issue to a person telling them what action they must take to ensure that no further offences are committed. The notice will tell the person how long they have to comply with our instructions. A compliance notice will be used where the authority considers it the most appropriate way to ensure further offences are not committed. Failure to comply with a notice will lead to a person being issued with a fine or the authority may take legal proceedings against them.

Notice of Intent

If we are considering issuing a fine or a compliance notice on a person we must issue them with a notice of intent. This tells the person what action we propose to take and why we intend to take it.  The notice must include either the value of the fine or the details of the action we require the business to take.

A person who is given a notice of intent may offer to put right any damage or compensate another person who has been affected by the offence. This is known as a third-party undertaking. Buckinghamshire and ÖйúPÕ¾ Trading Standards Service will consider whether to accept any offer of such an undertaking on a case-by-case basis.  We must consider any third-party undertakings made before we issue any final notices.

Rights to Make Representations and Objections

A person who is issued with a notice of intent has 28 days to make any objections or representations.  These should be made in writing to the Assistant Director - Trading Standards, Buckinghamshire and ÖйúPÕ¾ Trading Standards Service, Woodhatch Place, 11 Cockshot Hill, Reigate, ÖйúPÕ¾, RH2 8EF.

In the case of a fine a person can clear their liability by paying £100 with 28 days of the issue of the notice.

Final Notice

28 days after we issue the notice of intent, and having considered any objections or representations, we must decide whether or not to issue the fine or compliance notice.  The notice will include the grounds for imposing the penalty, the amount to be paid, how payment may be made and the period within which payment must be made. It will also include how to appeal and the consequences of failing to pay the fine or comply with the notice.

Right to Appeal

The person receiving the final notice may appeal against it if they think we made an error in the facts, we didn’t apply the law properly or that our decision was unreasonable.  Anyone wishing to appeal a final decision should do so in writing to The First Tier Tribunal General Regulatory Chamber

Failure to pay the fine or to take the action detailed in the compliance notice will result in the person to whom it was issued being prosecuted. Details of how to pay a fine are detailed in the final notice.

Stop notices

Where Buckinghamshire and ÖйúPÕ¾ Trading Standards Service considers it appropriate, we may serve a stop notice on any person whom we reasonably believe is carrying on an activity that is an offence under these Regulations and which is causing, or where there is a significant risk of it causing serious harm to the environment (including the health of animals). We can also issue a Stop Notice if the activity will involve or will be likely to involve the commission of an offence under Regulations.

The notice must explain the steps required to remove or reduce the harm or risk of harm to the environment.  It must also include the reasons why we’ve issued the notice, how a person can appeal the notice and the consequences of failing to comply with the notice.

Failure to comply with a Stop Notice is a criminal offence punishable by up to 2 years in prison.

Completion certificates

Once we are satisfied that the person issued with a Stop Notice has taken the steps specified in the notice, we must issue a certificate confirming this. This is called a “completion certificate”.  Once we have issued this the stop notice ends.  A person who has been given a stop notice can ask us for a certificate at any time and we must decide as to whether to issue one within 14 days. We must give a written answer to the person if we decide not to issue the certificate.

Appeals against stop notices and completion certificates

The person receiving the stop notice may appeal against it if they think we made an error in the facts, we didn’t apply the law properly, that our decision was unreasonable or that they had not committed an offence under the Regulations.  Anyone wishing to appeal a final decision should do so in writing to The First Tier Tribunal General Regulatory Chamber

Compensation

If the stop notice is later withdrawn or amended by us because the decision to issue it was unreasonable or any step specified in the notice was unreasonable or the person successfully appeals against the stop notice because the issue of the notice was unreasonable we must compensate that person. If we unreasonably refuse to issue a Completion Certificate we must also compensate that person.

Appeal against compensation decision

A person may appeal against a decision not to award compensation or the amount of compensation awarded on the grounds that our decision was unreasonable or that the amount we offer is incorrect.

Enforcement undertakings

Where we think a person has committed an offence under these Regulations they can offer to take some action to ensure offences are not committed in the future. They can also offer to act to put right any damage caused to another person or to compensate them for that damage. They can also offer to correct any damage caused to the environment by their actions. This offer is known as an Enforcement Undertaking. Buckinghamshire and ÖйúPÕ¾ Trading Standards Service will consider whether to accept any offer of such an undertaking on a case-by-case basis.

If we have accepted an enforcement undertaking, we cannot prosecute for the offence to which it relates, nor can we issue a fine for that offence.

Completion Certificates

Once we are satisfied that the person has taken the steps specified in the undertaking, we must issue a certificate confirming this. This is called a “completion certificate”.  A person who has given an undertaking can ask us for a certificate at any time and we must decide whether to issue one within 14 days. We must give a written answer to the person if we decide not to issue the certificate.

Appeals against a decision to not issue a completion certificate

A person may appeal against our decision to refuse a completion certificate it if they think we made an error in the facts, we didn’t apply the law properly or that our decision was unreasonable.  Anyone wishing to appeal a decision should do so in writing to The First Tier Tribunal General Regulatory Chamber.

Non-compliance with an enforcement undertaking

If a person does not take the action agreed in the undertaking we can either take action to issue any of the other notices in the regulations, we can issue a fine or we can prosecute the person.  If a person has complied partly but not fully with an enforcement undertaking we must consider this before we take any further action.

None-compliance penalties

If a person fails to comply with a compliance notice, a third party undertaking or an enforcement undertaking, Buckinghamshire and ÖйúPÕ¾ Trading Standards Service may recover any costs from that person by issuing them with a penalty.

We will seek 100% of all costs incurred by Buckinghamshire and ÖйúPÕ¾ Trading Standards Service of fulfilling the remaining requirements including any costs of clean up or disposal costs.  Where more than one person has been identified as being responsible for the non-compliance Buckinghamshire and ÖйúPÕ¾ Trading Standards Service will treat all persons as being jointly and individually liable for all of the costs.

The council must issue the person with a notice which tells them why we are imposing the penalty, the amount to be paid, how payment may be made, the period in which payment must be made and their right to appeal.   It must also tell them the consequences of non-payment and the circumstances in which the council might reduce the amount of the penalty.

If the requirements of the compliance notice or the third-party undertaking is complied with before the deadline for payment is reached then the penalty will be cancelled.

Appeals against non-compliance penalties

A person may appeal against our decision to issue a penalty if they think we made an error in the facts, we didn’t apply the law properly, that our decision was unreasonable or that the amount of the penalty was unreasonable. Anyone wishing to appeal a decision should do so in writing to The First Tier Tribunal General Regulatory Chamber.

Enforcement cost recovery notices

The Council may serve a notice (an “enforcement cost recovery notice”) on a person on whom a compliance or stop notice has been served which requires that person to re-pay what it has cost the Buckinghamshire and ÖйúPÕ¾ Trading Standards Service to enforce the law before the notice is issued.

There is no limit on what types of costs apply but they will include investigation costs, administration costs and the costs of obtaining expert advice (including legal advice). We can only recover costs that were necessary for us to enforce the law.

The enforcement cost recovery notice must tell a person how payment may be made, the amount required to be paid, the period in which payment must be made, why the notice has been issued, how a person can appeal and what the consequences of a failure to comply with the notice might be. The person can ask the council to provide a detailed breakdown of the amount.

Appeals against enforcement cost recovery notice

The person required to pay the costs may appeal against the Council’s decision to require them to pay costs or against their decision about the amount of those costs. Anyone wishing to appeal a decision should do so in writing to The First Tier Tribunal General Regulatory Chamber

How we enforce payments

Buckinghamshire and ÖйúPÕ¾ Trading Standards Service may choose to recover unpaid penalties as a civil debt (by registering a claim in court) or by applying to a court for an order so we can enforce the payment through:

• a warrant of control, allowing a county court bailiff to take control of goods or money to the value of the amount being recovered
• a charging order, placing a charge on property so that the debt due is paid from the proceeds of sale before the debtor receives them
• a third party debt order, requiring a third party to pay the outstanding debt directly to the creditor from the debtor‘s money. Court fees can also be recovered from the debtor.