Trading Standards Prosecutions

Specialist Trading Standards Prosecutions Law Firm

Olliers are able to provide specialist legal representation in Trading Standards prosecutions as follows:

Food Safety
Food labelling
Product safety
Product recall
Trade descriptions
Counterfeit goods
Advertising and sales
Weights and measures
Licensing
Consumer credit and contracts
Supply to minors of age restricted products

Our Trading Standards Expertise

Olliers Solicitors have successfully defended Trading Standards prosecutions for many years. We have a wealth of experience across the firm when dealing with the defence of such prosecutions. We have offices in both Manchester and London but are able to deal with cases across England and Wales.

An investigation by Trading Standards or a similar prosecuting authority can have an immediately detrimental effect on your business, the initial investigation and dawn raid itself can cause significant disruption to how your business operates.

Prosecuting authorities will often in the course of their investigation contact suppliers, distributors and retailers which can impact on how your business operates, they also have the power to seize and test goods. Such activity can often result in a detrimental impact in your business’ ability to operate as a going concern.

What type of Trading Standards cases can Olliers assist with?

Producer Obligations

The main obligation on a producer is to supply a safe product. There is an obligation for producers to provide consumers with relevant information to enable them to:

assess the risk inherent in a product throughout the period of its use (where such risks are not immediately obvious)
take precautions against those risks

This in essence, means clear, legible durable warnings and instructions.

Producers must also allow for traceability by indicating on the product or its packaging:

the name and address of the producer
the product reference or, where applicable, the batch of products to which it belongs

Also, to enable producers to become aware of risks the product they should:

sample test marketed products
investigate and if necessary keep a register of complaints concerning the safety of the product
keep distributors informed of the results of such monitoring where a product presents a risk or may present a risk

The Regulations state that Producers should be proactive, where they discover that a product they are placing on the market or have already supplied poses risks to the consumer and is unsafe, they immediately, in writing, notify their local trading standards. The authorities will advise on actions aimed at removal of the risk and work with Producers on completing the notification.

Risk assessment is a procedure for identifying and assessing hazards, consisting of three steps:

identify the hazard that is intrinsic and determine how serious it is (injury scenario)
determine the probability of injury
combine the hazard with the probability to determine risk

Using the model the resultant risk level may be ‘serious’, ‘high’, ‘medium’ and ‘low’

Enforcement action by the authorities

Where producers have not fulfilled their obligations under these Regulations, enforcement authorities have access to a range of measures that can be employed in removing risk to consumer safety. These are known as safety notices. They are only used when voluntary actions have not removed the risk.

Suspension Notices

Where there may have been a breach of the Regulations, these notices temporarily ban the placing on the market or the supply of a product while tests are undertaken and the results are awaited.

Requirement to mark /Requirement to warn

These powers allow an enforcement authority to order the marking of a product with suitable warnings where it could pose risks in certain conditions, or require that specific warnings be given to certain persons considered to be at particular risk from a product (for example, young children, the elderly, etc).

Withdrawal Notices

Enforcement authorities can issue a withdrawal notice to permanently prevent a person from further supplying a product that is believed to be dangerous where it is already on the market (if the voluntary action taken by producers and distributors is insufficient or unsatisfactory).

Recall Notices

Where an enforcement authority has reasonable grounds for believing that a dangerous product has already been made available to consumers and voluntary action falls short of that considered necessary and sufficient to remove the risk, a last resort (that is, no other measure available to the authority will suffice) power to serve a recall notice exists. This will require the person it is served on to take such steps as are identified in the notice to organise the return of the product from consumers.

Forfeiture and Destruction

Where products are dangerous the enforcement authority may apply to the court for an order for their forfeiture and destruction. However, as an alternative to destruction the court may, on condition that any order to pay the costs and expenses of the proceedings is complied with, permit the supply of the product to a person for repair or reconditioning or for scrap.

Distributor Obligations

Different obligations under the GPSR apply to retailers and wholesalers of consumer goods whose actions do not affect the safety of the goods (termed a ‘distributor’ under the Regulations).

GPSR Offences

It is an offence under the GPSR not to fulfil these obligations. Under s20 of the regulations a person, producer or distributor who is convicted of an offence could face up to 12 months imprisonment and up to a £20,000 fine.

Here at Olliers Solicitors we bring experience and understanding in giving advice on how best to handle being prosecuted under this legislation. We will be able to minimise the impact on yourself and your business in a cost effective way.

Olliers Solicitors are able to defend all manner of food safety prosecutions including:

Any business working in the Food Sector is required to comply with Food Safety Standards as found in the above legislation. The specific requirements depend on the type of business that is operated.

For larger businesses involved in the importation and distribution of food, regulations manage the safe importation, traceability, safe handling and labelling.

For smaller food retailers the regulations cover the safe management of food, staff training and cleanliness.

Offences under the Food Safety Act 1990

The main food safety and consumer protection offences created by the Food Safety Act 1990 include:

Section 7 Food Safety Act 1990 – rendering food injurious to health by:

adding an article or substance to the food
using an article or substance as an ingredient in the preparation of the food
abstracting any constituent from the food
subjecting the food to any process or treatment
with the intention that it shall be sold for human consumption

Section 14 Food Safety Act 1990 – selling to the purchaser’s prejudice any food which is not of the nature or substance or quality demanded by the purchaser.

Section 15 Food Safety Act 1990 – falsely describing or presenting food.

Under section 20, if the commission of an offence is due to the act or default of another person, the other person is guilty of the offence.

Under section 21 in proceedings for an offence under the provisions of Part 2 of the Act – which includes the offences listed above – it is a defence for a food business operator to prove that he took all reasonable precautions and exercised due diligence to avoid the commission of the offence.

Effect of Prosecutions

The impact of prosecutions can include applications to restrain the property of your business or your personal property. Olliers have significant experience in dealing with restraint orders and are often able to obtain a variation to an order to allow a business to continue to operate or to exclude assets which should not be part of any order.

An investigation can often result in a local authority or government department bringing a criminal prosecution against an individual, a director a business, or all three. In addition to the impact on a business a criminal prosecution has far reaching implications including possible confiscation proceedings, or employees being disqualified as directors. Successful prosecutions can potentially lead to prison sentences or unlimited fines depending on the allegation. It is crucial to get good advice at an early stage to protect your position.

Early Intervention

We would recommend contacting us at an early stage to protect yours and your company’s position and formulate a crisis management plan. Initially the actions of the investigative body need to be scrutinised to ensure they don’t act outside of their remit.

When an investigation has commenced damage limitation can be considered. An informal meeting with the prosecution could be arranged to discuss all issues, what faults need to be remedied (if any) and the way forward discussed to potentially avoid a prosecution.

A letter of representation can be drafted on your (or the Companies) behalf, setting out your position, what action has taken place to remedy any problem, and an offer of payment towards costs of the investigation. Sometimes matters can be settled without going to Court. Read here for more information in reliant to cautionable correspondence.

If the worst happens and you or your company (or both) are taken to court then we can provide expert representation both at the Magistrates’ and Crown Court to deal with the case effectively. We are able to focus on the real issues at the heart of the case and negotiate with the prosecution to potentially resolve the case in the best and most cost effective way possible.

Fees

Olliers Solicitors are able to operate on a privately funded or fixed fee basis. When you contact us we will be able to provide an accurate quotation in relation to your specific case. We can also work on an insurance funded basis if you have cover under a legal expenses policy and would suggest you contact us to discuss the same. Many clients that come to us think that if they are utilising the benefit of their legal expenses insurance then they need to use their insurer’s recommended ‘panel solicitor’. This is not correct. Section 6 of The Insurance Companies (Legal Expenses Insurance) Regulations 1990 makes this explicitly clear. It is our experience that insurers sometimes refuse to accept that the regulations apply in an attempt to impose their own panel of lawyers so as to control the supply and cost of legal advice. If you encounter any difficulties with your insurance company insisting you use their panel solicitor we would suggest you contact us as we are extremely experienced at successfully challenging decisions of insurers as to freedom to choose your own lawyer.

Recent Trading Standards cases

Operation Koukla representation of a suspect allegedly involved in Operation Koukla, a National Trading Standards investigation, concerning management of car insurance claims. Customers were allegedly misled into believing they were dealing with their own insurance but it was actually a third party claims management company. https://www.nationaltradingstandards.uk/uploads/annual%20report%202019-20%20.pdf
Operation Gilbert – Bradford Crown Court. We acted for a defendant involved in Operation Gilbert a National Trading Standards prosecution, at Bradford Crown Court. The investigation concerns an alleged multi-million pound fraud connected with several model agencies and photography studios. Applications for European Arrest Warrants have been made in this matter. https://www.nationaltradingstandards.uk/uploads/annual%20report%202019-20%20.pdf
2016 Operation Gallion Liverpool Crown Court representation of defendant in allegedly bogus advertising sales fraud involving publication ‘Emergency Service News’ with losses of in excess of £5 million. After lengthy negotiations and agreed basis of plea, a non-custodial sentence was imposed https://www.bbc.co.uk/news/uk-england-merseyside-35373234
2017 Preston Crown Court, Blackpool representation of client facing Trading Standards prosecution under the Trade Marks Act 1994. Read more
Olliers represented a substantial IT part seller with a multimillion pound turnover. The company was subject to a Trading Standards investigation into the authenticity of computer accessories. A significant number of items were seized and notices were served under schedule 5 of the Consumer Rights Act 2015. This was a complex investigation which subsequently focused on General Product Safety Regulations 2005. Following a lengthy and protracted dialogue with the Trading Standards Team and the Local Authority Legal Department the investigation came to an amicable conclusion with our clients not even being interviewed under caution.
Represented a businessman at Manchester Crown Court for trading standards offences. He was prosecuted for selling children’s chairs on ebay which didn’t pass the necessary safety standards and also used trademarked logos.
Represented an individual alleged to have been involved in manufacturing and selling counterfeit goods in the Cheetham Hill District of Manchester. The case was dropped against him after negotiations with the prosecuting authority and co-defendants.
Represented a client at the Police Station for allegations of unlicensed pharmaceutical drug importation and sales, and money laundering. The client and her partner were alleged to be responsible for importing generic Viagra from India and selling it through various companies on ebay. This was a complex case involving large amounts of financial and transactional records.