TSOs vs IBDs: what are your rights?

Trading Standards Officers – TSOs – are employed by local authorities to enforce an extensive range of legislation. There are over 100 Acts of Parliament and over 600 regulations enforced by TSOs. TSOs have a wide range of enforcement powers at their disposal to enforce such legislation. However, despite this raft of legislation and the extensive range of powers used to enforce it, many retailers are unaware of their rights and unsure how to deal with a TSO investigation.

There are a number of different scenarios in which you may encounter a TSO during the course of a business. They are empowered to enforce laws relating to matters as wide ranging as advertisement and trade descriptions, pricing offences, consumer credit, product safety, weights and measures and food safety. This extensive range of enforcement responsibilities is often dealt with by a single department within a local authority and can result in a lack of resources and training or awareness in relation to particular issues. It may lead to inconsistency of approach across the country or the prioritisation of certain enforcement issues at the expense of others. There is also a significant risk that local authorities may, on occasions, focus on what they perceive to be “soft targets” in order to ensure that convictions are secured. Retailers should therefore be mindful of this final point and ensure that they are not perceived as that "soft target".

As a result of a lack of uniformity in approach from local authorities, the Trading Standards Service established a separate body known as the Local Authorities Co-ordinating Office on Regulatory Services (LACORS) whose purpose includes the assurance of uniformity of enforcement by all trading standards authorities in the UK.

The most senior officers of LACORS’ executive are ex TSOs and it also has a management board made up of elected members from the various types of local Trading Standards Authorities. LACORS also benefits from ongoing advice and assistance from regional groupings of Chief Trading Standards Officers.

Chief Trading Standards Officers within the regional groupings hold regular meetings in order to exchange views and ensure that policies are coordinated and that enforcement is uniform. In addition there are a number of specialist panels giving bespoke legal advice about particularly difficult trading standards law issues.

LACORS are also responsible for what has become known as the ‘Home Authority’ principle. This is the cornerstone of the uniform enforcement which LACORS seeks to achieve. In basic terms it means that each local Trading Standards Authority takes responsibility for ensuring that businesses based within their jurisdiction, but doing business over a much wider area, comply with all relevant trading standards law. It is in principle accepted that the advice given by the Home Authority to local businesses will be supported by all other Trading Standards Officers throughout the UK.

When the system is working it works extremely well. However, people are people and power is power. There are still a number of mavericks who, for a variety of reasons, will not follow the LACORS line.

TSO powers

TSOs enforcement powers are extensive. Unlike the police who derive most of their statutory powers from the Police and Criminal Evidence Act 1984 (PACE) alone, local authority officers derive their powers from the legislation which they enforce. Those powers, although varying slightly from one statute to the next, generally consist of the following: the power of entry; the power of inspection; the power to require information and assistance; the power of search, if necessary under a warrant; the power of seizure; the power of suspension of movement or prohibition of supply of goods; and the power to make test purchases. Most of these powers will be exercised during normal business hours and where ever possible TSOs will attempt to operate in a consensual atmosphere.

It is important to note that TSOs do not have the power of arrest.

Obligations

Retailers are under a duty to assist TSOs during the course of their investigation. Many Acts of Parliament make it an offence to obstruct a TSO in the course or execution of his duty. This offence may be committed where a person fails to provide reasonable assistance or information to a TSO. Retailers should be aware that they may also be prosecuted for acts of obstruction carried out by their employees and it is therefore essential that employees are trained in how to handle a TSO investigation.

Retailers should also be aware that the right against self incrimination in criminal proceedings, which is found in Article 6 of the European Convention for the Protection of Human Rights and is given full effect by the Human Rights Act 1998, has been watered down by the judiciary. The right can be qualified in the public interest, so long as this does not compromise the overall fairness of the trial. It has also been decided that the privilege does not extend to those who receive investigative information requests from regulators as they will still be under a duty to answer such questions. IBDs should also be aware that the right of privilege against self incrimination does not extend to providing employees with reasonable cause not to assist officers conducting an investigation.

Investigation

An investigation may take the form of an unannounced visit or an enforcement letter which alleges that an offence has been committed. In either scenario, given the extensive range of powers which are available to TSOs and the obligations which these place on retailers, being prepared is the key to avoiding a prosecution.

A retailer has the right to ask a TSO, who is exercising his powers, to explain under which statute those powers are exercised and may also ask for an explanation to some degree of precision. An officer who is not well prepared may be caused to think carefully about the statutory basis for the action which he proposes to take.

If an ‘enforcement letter’ is received which alleges that an offence may have been committed for example, as a result of a complaint/test purchase, it is likely to ask a list of questions. The response will vary accordingly. The only general rule is do not ignore it.

If necessary, acknowledge and promise a response in due course.

Generally you will need to consider the powers of the relevant enforcement officer, your obligations to answer and the possible liability for a failure to respond. Before any response is made you should ensure that you are in possession of all the facts.

Carry out a full investigation of your own records and obtain statements from relevant employees. If necessary, request further information from the officer.

Where a written or oral request for documents is received it is necessary to evaluate whether the officer has the power to require the documents. This may involve making an assessment of the officer’s state of knowledge. An unreasonable failure to comply with the request may lead to prosecution for obstruction or the officer obtaining a search warrant on application to the Court.

Where the officer does have evidence of an offence, retailers are entitled to the protection of Codes B and C of PACE. Under Code B, the officer is required to give notice of his powers, and state the purpose of the ‘search’ (providing, by implication, details of the alleged offence and the documents sought). Under Code C a caution must be given.

Nonetheless, evidence obtained in circumstances where there has been a material failure to comply with the Codes of Practice is still prima facie admissible.

However an attempt may be made at trial to render such evidence inadmissible under Sections 76 and 78 of PACE provided the evidence is prejudicial and has been unfairly obtained.

The most difficult situation to deal with is an unannounced visit at your premises. Again, in each case it is necessary to consider what the powers of the relevant officer are and what he is seeking to achieve.

Employees should be trained and instructed to contact the relevant director/manager upon receiving a visit.

You will need to establish: what offence is alleged; what information the officer has; the reason for the visit; whether he has a search warrant etc.

If possible, try and stall the officer and invite him to return at a prearranged time but beware of the possible offence of obstruction.

The officer may make a direct approach to an employee either as part of an unannounced visit, or possibly make a visit to an employee at home. Staff need to be trained on how to deal with such approaches and should normally refer all such approaches to their immediate manager without answering questions or providing any documentation.

Admissions made by junior staff will almost certainly not be used in evidence against the company but admissions made by managers who purport to speak “on the company’s behalf” may be, particularly if they have been cautioned. Once an officer has obtained information from staff he may be able to prove it in some other way in subsequent court proceedings even without formal admissions or calling the employee.

Cooperation

It is important to remember that TSO investigations are often policy driven and local authority priority areas will vary year on year. At present, many local authorities are focused on reducing the sale of age restricted products and minimising the sale of unsafe consumer goods. Most local authorities have signed up to the Enforcement Concordat which works on the basis that ‘prevention is better than cure’ and obliges local TSOs to work with business to ensure compliance. Retailers should always seek to work with their home authority in an attempt to be fully compliant with all relevant legislation. However, if an investigation should subsequently arise, being prepared for the unexpected investigation is the best way to minimise the chances of prosecution.

James Lowe is a solicitor in the Regulatory Department at DLA.

BIKEBIZ.COM SHOWED THE TSO ARTICLE TO ANNE KILLICK OF THE ACT. HERE’S HER RESPONSE:

Amongst the many benefits that ACT provides for members, one of the most highly utilised is the free 24 hour legal advice line, so that even in the unlikely case of an adverse visit from a TSO, members have immediate access to professional advice.

However, in addition to Mr Lowe’s comprehensive and chilling article, I think a word or two on statutory defences would not come amiss. ‘Strict liability’ in English criminal law means that an individual or business (the Defendant) can be taken to court and tried for a criminal offence without the Prosecution (in this case, a TSO) having to prove any intent or prior knowledge on the part of the defendant. The fact that a breach has been committed is sufficient in itself to bring a case. However, strict liability cases bring with it the Defendant’s right to a ‘Statutory Defence’. The Defendant has to prove to the court that ‘on the balance of probablity’ the statutory defence criteria have been followed. The defences are as follows: A genuine mistake or reliance on information provided by a third party.

Or some other cause beyond his control This might seem to be a doddle on the surface, but there remains a second part of the defence criteria which is crucial. The defendant must also prove that he took all reasonable precautions and he exercised all ‘due diligence’ to avoid the commission of the offence by himself or any person under his control (employees)

It all boils down to each individual business having sufficient checks and balances in place to avoid breaking the law, even inadvertently. Ignorance is no defence particularly if no effort has been made by the retailer to avoid the error occuring in the first place.