Back to top
General guidance
Trading Standards legislation aims to protect consumers while creating a fair trading environment for business. While breaches of the law are thoroughly investigated, prosecution is only carried out as a last resort with a range of actions available including advice and cautions.
Nearly all Trading Standards legislation contains 'strict liability' offences where a criminal offence may be committed even though it was not intended. To balance this, the law recognises genuine efforts made to comply with the legislation by including a legal defence commonly known as a 'due diligence' defence. It requires that the business or person has:
- taken all reasonable precautions or steps, and
- exercised all due diligence to avoid the commission of the offence.
This means that the person or business must have a system to ensure compliance with the law (reasonable precautions or steps) and a method to ensure that the system is followed correctly (due diligence). Both parts of the defence must be proved to be successful.
Back to top
Advice for a successful defence
None of the laws which provide 'due diligence' defences describe in detail what systems will satisfy the defence. Ultimately, a court of law will decide on the facts in each case.
We offer the following general points as guidance.
- Where it is reasonable to take a particular precaution then it must be carried out to achieve a successful defence.
- Positive action is necessary - doing nothing will not provide a defence.
- It is necessary for a business to be aware of the law and the requirements which are relevant to them.
- All the activities of the business which may cause a breach of the law should be identified, controlled and checked by a system of working, for example:
- selection of appropriate raw materials and components processes
- staff experience and training
- suitability of premises and equipment
- specifications (including orders) having regard to legal requirements
- production or service delivery
- storage, delivery and packaging methods
- labelling, instructions, brochures and advertising.
- The procedures employed must ensure that the system is being followed correctly.
- The system should include provision for proposing and carrying out effective remedial action where things are found to be wrong.
- The system must be appropriate to the size of the business and its position in the supply chain, ie importers, manufacturers and other large companies will be expected to implement more thorough systems than small retailers.
- The system must be appropriate to the possible consequences of non-compliance, ie more thorough systems will be needed where serious or widespread consequences are possible.
- Documented records should be kept of procedures followed and checks carried out to demonstrate that the system is operating correctly.
- The operation of the system must be reviewed regularly and amended if necessary to ensure it is still appropriate and effective.
- Simple and common-sense ways of examining and/or testing goods and services to determine compliance should be used whenever possible.
- Where batch sampling and/or testing is involved an appropriate number of items examined or tested should be decided with reference to the:
- seriousness of the consequences of non-compliance or failure
- volume of product supplied
- complexity of product
- cost of each item
- size of batch
- frequency of testing
- size of business
- previous test results
- cost of testing
- Steps should be taken to ensure awareness of complaints and any other information about problems with goods or services and this should feed into a remedial action process.
Back to top
Liability of others
It may also be possible to pass the liability for an offence to another named person. To do this you must show that you have carried out 'due diligence' as above and that the offence was either:
- due to the action or inaction (act or default) of that other person, or
- due to reliance on information provided by another person
In order to be able to pass liability it must be reasonable to believe and rely on any information received and where possible simple checks should be carried out to verify the information or action taken.
Passing the liability to another will not automatically remove your own liability but will allow action to be taken against those others, whether or not it is taken against you. The final decision as to which person is subject to formal action will depend upon the particular facts in each case.
Back to top
Quality management systems
Many of the principles and procedures involved in establishing a defence of 'reasonable precautions and due diligence' are similar to those in a quality management system (QMS). This department would encourage businesses to adopt a documented QMS, whether or not it ultimately seeks third party certification of the system.
Care should be taken to ensure that any QMS includes reference to and implements controls to ensure compliance with legislative requirements. The establishment of a QMS (even if certificated to BS EN ISO 9000) which does not refer to legal requirements will not provide a defence.
General documents
Back to top
Fair trading legislation
Back to top
Weights and measures
About our county Buy with Confidence scheme to help businesses comply with the law by providing a list of checked and approved businesses to consumers. Apply online to be added to the trader list.
Back to top
Labelling
Advice on labelling requirements for retailers. See more information about labelling in food.
Back to top
Off licences
Guidance on the sale of alcohol for the off-trade is available on our underage sales page.
Back to top
Property descriptions
An introduction to the Property Misdescriptions Act, and how to avoid contravening it.
Back to top
Builders and allied trades
Helping builders find out what their rights and obligations are.
Back to top
Vehicles and traffic
Advice on a range of legislation that we enforce in relation to vehicles and traffic.
Click here to use Read Aloud by Insipio. Page reloads with controls for text to speech.
Click to go to the Easy read section. Note: this section doesn't have this menu. Use the back button or click the Oxfordshire County Council logo link in the header to return.
Print
Feedback
