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. Many are unaware of their rights and unsure how to deal with a TSO investigation.
TSOs 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.
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-ordinators of Regulatory Services (LACORS) whose purpose includes the assurance of uniformity of enforcement by all trading standards authorities in the UK.
LACORS are also responsible for what has become known as the "Home Authority" principle. 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.
TSOs enforcement powers are extensive and they 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. TSOs do not have the power of arrest.
Traders 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. Traders should be aware that they may also be prosecuted for acts of obstruction carried out by their employees.
Traders should also be aware that the right against self incrimination in criminal proceedings has been watered down by the judiciary. Also the right of privilege against self incrimination does not extend to providing employees with reasonable cause not to assist officers conducting an investigation.
The Investigation and Traders' Rights
An investigation may take the form of an unannounced visit or an enforcement letter which alleges that an offence has been committed.
A trader has the right to ask a TSO to explain under which statute those powers are exercised and may also ask for an explanation to some degree of precision.
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. 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, traders are entitled to the protection of Codes B and C of the Police and Criminal Evidence Act 1984 (PACE). Under Code B, the officer is required to give notice of his powers, and state the purpose of the "search". Under Code C a caution must be given.
The officer may make an 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 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.
James Lowe is a solicitor in the Corporate Defence Department at DLA.