TS Review January 2018

t h e t r a d i n g s ta n da r d s j o u r na l

January 2018 Issue 13

Confidently choose Which? Trusted Traders for your community Consumer Champion for 60 years Which?

A national endorsement scheme where all assessors are trading standards professionals. Run by Which?, it gives your community - the Local Authority, consumers and traders - confidence.

Working with Local Authorities to help consumers find trustworthy traders Find out more at whichtrustedtraders-events.co.uk or email olivia.peck@which.co.uk

editorial board Our guide to who’s who

Leon Livermore Chief executive, CTSI After 25 years in local government, Leon joined the Chartered Trading Standards Institute as its chief executive in 2013.

What is your safety worth?

We all know the importance of investing in our future. But how about investing in our safety? How much is spent on that? In June 2016 we conducted another workforce survey, which showed the current level of investment in safety is inadequate to say the least. The consequences of this lack of investment have been

sara barry head of safer communities, Lincolnshire CC Sara has promoted risk reduction while guiding Lincolnshire Trading Standards Service through major budget cuts.

Welcome

Eleni Chalkidou // Editor-in-chief

dire, and have led to a Grenfell disaster, a Shepherd’s Bush fire, food-allergy deaths, dodgy hoverboards, chickengate, bird flu, dangerous white goods and some wealthy rogue traders – among other things.

We have just completed – and are in the process of analysing – our latest 2017 Workforce Survey. Its findings will show how much is spent, on average, nationally on local authority trading standards services per head. It will also offer a snapshot of the precarious position of UK trading standards services. The pressures on the profession, particularly in the face of Britain’s imminent departure from the EU in 2019, may worsen still further, as local authorities – which host trading standards functions – continue to be financially squeezed. Once the survey results are out, we will look to use the findings in the best interests of our membership.

Product safety continues to dominate the news and so does the question: ‘How

Phil Owen Assistant director, Regulatory Delivery, BEIS Phil is a committed trading standards professional with experience across the private, public and not-for-profit sector.

safe are our home appliances?’ Non-flame-retardant plastic-backed fridges, fridgefreezers and freezers have been passing existing safety standards for years. Surely, that should put our minds at ease? Think again. A recent Which? announcement reinforced what we have known for some time: these safety tests are insufficient and not fit for purpose, and enable manufacturers to sell products that could pose potential fire risks. CTSI will continue to call for more stringent safety tests and to urge government to put consumer safety first, swiftly and decisively. Matt Allwright gives his views on the matter on page 15.

Matt’s column also discusses how the Grenfell tragedy has made people wake up and rethink regulations. Please don’t miss our academic section on page 22, which goes into more detail about anti-regulation rhetoric.

Dr Louise M Hassan reader in managerial studies, bangor business school Louise’s research interests are international in nature, and focus on transformative consumer research.

Meanwhile, on page 7, we take a look at some of the promises made in the new UK Industrial Strategy, which suggests an ‘agile approach’ to regulation is needed.

With Christmas out the way, I’d like to wish all of you a happy new year filled with good health, success and happiness. Lastly, I would like to reiterate how proud I am to be surrounded by such gifted, devoted and steadfast individuals within our profession.

Thank you for reading.

3

editorial board Editorial enquiries: Carina Bailey // Tel. 0345 608 9468 // Email. tsreview@tsi.org.uk

Eleni Chalkidou editor-in-chief

Illustrations. Paddy Mills

Advertising enquiries: Judith Thurston // Tel. 01268 582221 // Email. advertising@tsi.org.uk

Carina Bailey Editor

Christine Heemskerk Independent consultant Christine is a self-employed consultant to the trading standards profession.

Mike Sewell Managing director, CPL Mike is MD of award-winning content agency CPL, which produces both TS Today and TS Review.

matt allwright columnist

Louise Parfitt writer

craig mcclue Lead Officer and Policy Executive

BEN RICHARDS Campaigns and Policy Executive

Adrian Simpson service director (commercial services) CTSI Adrian is a former trading standards officer with an academic background in journalism.

Kevin Reed ART DIRECTOR

TS Review is part of a family of publications published by the Chartered Trading Standards Institute.

It is written, designed and produced by CPL (Cambridge Publishers Ltd).

Tel. 01223 477411 // www.cpl.co.uk // @CPLCambridge ISSN 2058-3656

Gareth Walters Team Leader, Monmouthshire trading standards service Gareth is trading standards and animal health team leader for Monmouthshire CC. He became a CTSI Fellow in 2013.

See CTSI’s monthly TS Today magazine online at www.tradingstandards.uk/tstoday Download the app: search TS Today at

About the Chartered Trading Standards Institute: www.tradingstandards.uk // Tel. 01268 582200 1 Sylvan Court, Sylvan Way, Southfields Business Park, Basildon SS15 6TH The opinions expressed in editorial material do not necessarily represent the views of CTSI.

We encourage your feedback. Write to tsreview@tsi.org.uk or comment at

4

CharteredTradingStandardsInstitute

@ctsi_uk

Chartered Trading Standards Institute

/TeamCTSI

Contents 22

29

36

January 2018

22-28

6–10

digest trading standards in the news

t h e t r a d i n g s ta n da r d s j o u r na l

11

29-32

abstracts Quotes and stats from TS Today

12-14

analysis avoiding common prosecution errors viewpoint

15

broadcaster Matt allwright has his say

16-17

Policy round-up by Craig McClue

Academia: Regulation Perception after Grenfell, is the negativity around ‘red tape’ about to change?

Fine art failings Fake art case a first for dorset trading standards

January 2018 Issue 13

18 cover story False promises and fake discounts: are sales techniques the next big PPI-style scam?

33-35

disease control an uncertain future for animal health

36-40

spotlight: Jacqueline Minor the eU expert and former lawyer on brexit, battles and being a ‘bad’ consumer

41-44

CPPD training Spotting roofing rogues

46-49

Legal examining the evidence used in operation Cleo 2

50

DOWntime Quotes from 2017 – but who said what?

January 2018

5

digest

report criticises FSa and local authority inspection regimes A report has described the UK food accreditation system as ‘patchwork’, with a lack of joined-up intelligence and knowledge-sharing, which allows firms to hide infractions, including opting-out of unannounced visits. The report by the Environment, Food and Rural Affairs Committee was compiled following breaches identified at the 2 Sisters Food Group plant in West Bromwich, which were originally uncovered during a joint investigation by The Guardian and ITV News.

Private lettinGS

It will be compulsory for private sector landlords to sign up to a redress scheme, and a consultation will be held on establishing a new ‘housing court’, according to Sajid Javid, the Secretary of State for Communities and Local Government. Earlier this year, Citizens Advice called for a free, mandatory and independent way for tenants to make complaints across the private rented sector.

Select committee asks tough questions on product safety Whirlpool came under fire for being unable to answer key questions over its handling of the faulty tumble dryer fiasco when it appeared before the Business, Energy and Industrial Strategy Select Committee in October. MPs criticised the company for not sending the appropriate

ryanair boWS to PreSSUre FroM Caa

person to answer their questions, which led members to question its commitment to product safety.

Following pressure from the Civil Aviation Authority (CAA), Ryanair promised to offer more information to passengers after it cancelled thousands of flights because of a ‘staff holiday mix-up’. The CAA launched enforcement action against Ryanair after it persistently misled passengers with inaccurate information about their rights.

6

Sources: TS Today October-December 2017 www.tradingstandards.uk/tstoday

Digest

‘agile approach’ to regulation mooted for UK The government has

Regulators’ Pioneer Fund,

promised to develop

which will help regulators

an ‘agile approach to

develop innovative

regulation’ in its new

approaches aimed at

Industrial Strategy.

getting new products and

The 255-page document, published at the end

services to market.

Ben Richards,

‘Primary Authority will continue to play a large part in the business regulation landscape’ establish the post of Small

the strategy promises to

Business Commissioner.

‘go further’ on reforming

of November, wants

campaigns and policy

Paul Uppal was appointed

business rates. ‘On top

regulation to promote

executive at CTSI, said:

in October and will be

of the major reforms to

and support innovation

‘Next year it will be useful

responsible for sourcing

business rates announced

while ensuring effective

to gain clarity on many of

small business advice

at Budget 2016, worth

protections for consumers

the policies in this white

and helping firms with

approximately £9bn by the

and the environment.

paper that may involve

payment issues and

end of this parliament, we

It also promises a new

trading standards –

dispute resolution.

will improve the fairness

Ministerial Working

including the long-awaited

Group on Future

consumer green paper.’

Regulation to help

In addition, the

Primary Authority

of the system and provide

will continue to play a

a further £2.3bn of support

large part in the business

to businesses over the next

government with ‘horizon

government has worked

regulation landscape –

five years,’ it states.

scanning’ and says it will

with a number of small

with support offered by

support the new £10m

business organisations to

local Growth Hubs – and

To read the white paper in full, visit www.gov.uk

reSidential Care

A new ‘Care homes market study’ by the Competition and Markets Authority has discovered that many residents and their representatives find it difficult to make complaints and seek redress.

This is because the complaints system is perceived as ‘confusing and poorly signposted’, and residents and representatives fear reprisals. The CMA concluded that residents are more vulnerable to unfair practices. It is now recommending that consumer protections are strengthened and complaints and redress processes enhanced.

January 2018

7

Getting the Upper hand

Words. David Scott Images. iStock

digest: case study

Camden took on Foxtons estate agency over its unclear administration fees and secured a binding ruling that should bring consistency on the issue Camden Trading Standards’

campaign in the wake of the

for tenants and landlords

administration cost, must not

landmark victory in a recent

law change on letting agency

and Camden TS advised it to

be used.’

test appeal case should

fees in 2015.

supply a breakdown of any fees, to enable customers

continued to use

letting agents’ fees much

by the council’s housing

to see clearly the services

‘administration fees’ without

easier in future.

department to look into the

being offered.

clarification, so – in February

In its first major

issue and secured some

Martin Harland, Camden’s

2016 – Camden TS issued

enforcement action under

funding to do so. Around 50

principal trading standards

four Notices of Intent, each

section 83 of the Consumer

letting agencies were listed

officer, says the council also

for the maximum penalty of

Rights Act 2015, the local

as operating in the borough,

authority was successful at

but – after the investigation

an Upper Tribunal hearing

began – more than 300

against Foxtons’ use of the

were discovered.

term ‘administration fees’ in its lettings agency work.

The ruling has national

Camden wrote to them

‘It means letting agents should now make it clear to customers exactly what they are paying for’

all in June 2015 about the imminent law change, which

significance because it

came into effect in October

cited the Department for

£5,000. These covered each

creates a binding precedent.

2015. It followed this up

Communities and Local

branch in the borough and

It means letting agents

in December and began

Government guidance,

Foxtons’ website.

should now make it clear to

enforcement action against

Improving the Private

customers exactly what they

non-compliant agencies in

Rented Sector and Tackling

The response

are paying for, so they can

spring 2016.

Bad Practice – A Guide

Foxtons responded, saying

for Local Authorities. In

its administration fee

make proper comparisons

National estate agency

with other agents and come

Foxtons – with four

particular, it told Foxtons:

covered a range of activities.

to an informed choice.

branches in the borough,

‘The list of fees must be

‘It is not possible to break

plus websites – fell into this

comprehensive and clearly

these down to specific

non-compliant category.

defined; there is no scope for

elements,’ it added, ‘as each

Camden took action after

It was charging an

surcharges or hidden fees.

property and tenancy is

running a pro-active

administration fee of £420

Ill-defined terms, such as

unique – as is each tenant

First steps

8

However, Foxtons

The team was tasked

make enforcing the rules on

January 2018

An initial, brief report on this first appeared in the October 2017 edition of TS Today

criminal, so it’s much less formal and the costs don’t

wording also breached the

escalate so quickly,’ he says.

statutory requirements,

‘The tribunal system isn’t

but gave Foxtons a £500

that expensive, and you

reduction on each penalty in

don’t have to pay the other

recognition of its ‘attempt to

side’s costs.’ Harland adds

design a compliant revised

that it’s not a resource-

wording’. This meant a final

intensive process, either;

penalty of £4,500 for each

Camden had one officer

breach, totalling £18,000.

doing the enforcement side

‘If the Upper Tribunal had

and appointed a barrister

or tenants. In addition, the

Final Notices – Foxtons

ruled the other way, it would

from the start, because

scope of our administrative

had revised its literature

have made a mockery of the

the case involved a large

work is subject to

sufficiently to explain that

law. I would say it would

company. Usually, however,

considerable change at the

the fee included a number

have been unenforceable,

the council’s own lawyers

current time.’

of the services provided,’

and the government would

would be used.

says Harland. ‘This meant

have had to rewrite the law,’

modified its literature to

the fees no longer breached

says Harland. ‘But this is a

according to Harland,

explain that administration

the law and the judge

binding decision, which can

was keeping on top of

fees ‘can cover a variety of

consequently reduced each

be cited in lower-tier cases –

the in-house finances –

works’. It cited examples, but

Final Notice to £3,000.’

that was the idea; to get some

making sure he tied in

In a crowded and

consistency on the fees side.’

with Camden’s finance

Foxtons said it had

still failed to state explicitly the full fee breakdown.

fast-moving marketplace

Feeling this offered

The most difficult thing,

mechanisms. ‘You have to

such as property lettings,

Lessons learned

insufficient clarity for

Camden TS felt the First-tier

Pursuing the case against

until it has been challenged,

consumers, in April 2016

Tribunal’s decision failed to

Foxtons was, says Harland, a

so it’s vital to keep an eye

Camden TS issued four Final

offer the clarity required by

matter of fairness – not only

on the mechanisms – to

Penalty Charge Notices.

law. In June 2017, it appealed

for consumers, but also for

know if a notice has been

against the decision to the

the many smaller companies

discharged, or to reissue

Upper Tribunal.

in the borough that were

invoices. You have to

trying to comply with the

liaise with the correct

new rules.

departments to make sure

To tribunal In October 2016, Foxtons

In September 2017, Judge

withdraw a penalty notice

appealed to the First-tier

Levenson – at the Upper

Tribunal of the General

Tribunal – agreed with

Regulatory Chamber.

Camden TS, stating that the

taken an enforcement to

debts if penalties have

First-tier Tribunal had failed

the Upper Tribunal, so

been appealed.’

Foxtons was wrong to

to consider which services

Camden knew it would be

state “administration fees

the administration fee ‘might

a test case – but Harland

£420” when enforcement

not cover’. He set aside the

says it was a relatively

action began, he decided

decision ‘as it involved the

straightforward process.

that – when we served our

making of an error of law’.

‘While Judge Lane said

January 2018

No other authority had

‘It’s a civil system, not

digest: case study

Judge Levenson determined that the revised

people aren’t chasing

Jo Halpin is a writer for TS Review.

9

Local Authorities to benefit from practical online legislation guidance By offering legislative training to your retail business partners, you can now generate additional income.

Working in partnership with Virtual College under the joint ‘TradeSimple’ brand, CTSI has developed a suite of practical online courses which offer traders jargon free, step-by-step guidance to important legislation.

Courses currently available

As a local authority reseller, you will have the benefit of your own branded e-commerce site which can be used to promote the above courses.

This provides a simple way of generating income whilst adding value to your business partnerships.

• • • • • •

Prevention of Underage Sales Consumer Contracts – Distance Sales Consumer Rights Act 2015 Trading Fairly Storing and Selling Fireworks Safely and Legally Consumer Contracts – Off Premises Sales

Coming soon •

Alternative Dispute Resolution

For further details please visit www.tradesimple.org.uk or email productinfo@tsi.org.uk

Do not give in to pressure and threats from the rogue. This is just the way they are – shrug it off and get on with your job JAkE rAMPHAL, ‘THE CASE OF THE BuLLy BuILDEr’

When even the threat of death can’t make people change their lifestyle sustainably, it becomes clear that motivation based on avoiding something is simply not as effective as motivation based on achieving something

in 2015/2016, it cost more than £101m to control bovine tuberculosis in england alone – a figure that is not sustainable ANIMAL HEALTH ExPErT STEPHANIE yOuNG, ‘TruE COST OF BTB’

recent investigations have found as many as 94 per cent of tyres tested do not comply with current regulations, and 58 per cent have safetyrelated defects TyrESAFE, ‘WOrN OuT WArNING’

DETECTIvE INSPECTOr FrANk MCCANN, ‘THE BuTTErFLy EFFECT’

abstracts From TS Today

We have a situation where the product safety responsibility is split between 200 local authorities – cash-strapped doesn’t cover it. We need a… national skilled body of trading standards professionals with the expertise, in order that we have a product safety regime that’s fit for purpose CTSI POLICy DIrECTOr ADAM SCOrEr SPEAkING TO BBC NEWS

We only had four pieces of legislation to enforce, so that was a big difference compared to nowadays!

We were out every single day – there was very little time spent in the office, and very little paperwork INTELLECTuAL PrOPErTy ExPErT HANDLEy BruSTAD, ‘GAME ON’

When consumers connect their new home assistant, few appear to consider who else might be ‘talking’ to her, too – and what information they might be gleaning

action Fraud experienced a 12 per cent increase in referrals for online fraud in the 12 months up to September 2016; this translates into an additional 26,318 cases, many of which will have been passed on to tSos ACTION FrAuD, ‘PrOSECuTING

By NuMBErS’

local government will face a £5.8bn funding gap by 2020.

From april 2019, 168 councils will not receive any revenue support grant, and will have to contribute funding to the government instead LOCAL GOvErNMENT ASSOCIATION

‘CONNECT AND rEGrET?’

Source: TS Today October-December 2017 www.tradingstandards.uk/tstoday

11

What common errors lead to court cases being lost, and how can trading standards officers ensure their investigations are robust?

Words. Louise Parfitt Images. iStock, Getty

analysis

Case in point The ‘Vance Miller’* case is

good practice, but also

centres and says there can

approaches to disclosure in

one sure to send shudders

a number of concerns –

be a staggering amount

place. At the start of every

down trading standards

including a lack of council

of information for TSOs to

case: a disclosure officer

officers’ (TSOs) spines. The

resources for a case of that

process. ‘I’ve got a case at

should be named; important

2010 case cost the head of

size – and criticised the

the moment with 50 million

documents identified; digital

Oldham Trading Standards

lack of ‘effective corporate

text messages and 850,000

features known – and how

his job, and was described

examination and scrutiny’ of

call recordings,’ he says.

they will be handled; and

by Judge Jonathan Foster as

Oldham’s prosecution plan.

‘A case like that can take

teams prepped for legally

The irony that trading

multiple officers months

privileged material.

‘flawed from the start’.

standards now has far fewer

to review – and they need

£2m investigating Miller

resources than in 2010 will

proper resource to do it.’

after receiving numerous

not be lost on TSOs. But

complaints about sub-

why did this – and other less

from Gough Square

challenged, and an

standard kitchens. However,

notorious cases – fail?

Chambers, agrees disclosure

ad hoc approach allows

can make or break your

for defence attacks by

case. ‘Disclosure is one of

directly comparing trading

Oldham spent more than

the judge labelled its head

disclosure exercise is

of service an unreliable

Disclosure

witness when he could not

‘The 2010 Miller case fell

those things – like time limits

standards’ approach to

locate important emails,

apart because of disclosure

– where, if you get it wrong,

police standards, which

and subsequently dropped

– and it’s still the issue that

it can kill the case, regardless

are familiar to the court

all charges against Miller at

causes me most concern,’

of merit.’

and often considered best

Manchester Crown Court.

says Lee Reynolds, a

Reviewing the case, lawyer Stewart Dobson

barrister at Apex Chambers.

Cameron Crowe, also from Gough Square,

practice,’ Crowe says.

Another problem, says

advises trading standards

Reynolds, arises when TSOs

on cases involving call

teams to put standardised

haven’t seen the defence

Six months

£2.1m

Three years

50 million

the amount of time added to a recent consumer safety case because the defence queried the constitutional authority of the person who brought the prosecution

the amount oldham trading Standards spent investigating vance Miller’s business in the 2010 case, made up of £1.14m for the council’s own costs and just less than £1m for the contribution to defence costs

Under the Consumer Protection from Unfair trading regulations 2008, there is a statutory limit of three years from the commission of the offence, or one year from when the offence is discovered, to bring a prosecution

the number of text messages trading standards officers have to process in one on-going case

identified examples of

fast facts

12

Barrister Michael Coley,

‘In many cases – as in Oldham v Miller – the

Reynolds often works

January 2018

actually understands what

garage who had serviced the

them ignorant of issues

they should – or shouldn’t –

cars before he sold them and

they should be following

be doing.’

they had higher odometer

up, either by investigating disclosing more information,

Professional conduct

or amending the schedule of

A meticulous and

unused material.

professional investigation

further lines of enquiry,

Reynolds also warns

readings, too, so any defence to say he was completely ignorant of this went out the window.’

It sounds obvious, but

includes reasonably following

officers also need to check

officers to only use the

all lines of enquiry to avoid

they have the correct

schedule of unused material

being caught out by a good

defendant. For example,

for items relevant to the case

due diligence defence.

when investigating the

– and to update it if issues of

Jonathan Goulding, a

sale of counterfeit tobacco,

relevance change. ‘I can tell

barrister at Gough Square,

officers should not assume

within five minutes whether

says: ‘If someone gives an

the owner is the person

the person compiling it

excuse as to why they didn’t

found behind the counter.

knows what on earth they

do something, follow it up,

This can get trickier

are doing when it comes to

see if there’s anything in it,

when dealing with larger

disclosure,’ he says. ‘In one

and try to close it off during

companies, which may have

case, involving conspiracy

the investigation.’

several corporate identities,

to defraud, I was handed a

Coley refers to a car

such as a holding company

schedule of unused material

dealer accused of clocking,

that had been used as a list

who tried to claim he was

Goulding refers to a

of everything gathered that

the victim of a mis-selling

case in December 2005,

did not form part of the

offence himself. ‘We cut off

brought against J Sainbury’s

prosecution case – there

the due diligence defence

plc, trading as Sainbury’s

seemed to be no application

by going back to the auction

Supermarkets Ltd – which

of a relevance test at all.

where he had purchased

was incorrect, as there is no

[This document] opens the

the cars and obtaining the

such company. However, J

defence’s eyes to whether

auction sheet, which clearly

Sainsbury’s plc, a holding

or not the officer in control

showed higher mileage

company, and Sainsbury’s

of the disclosure regime

scores. We also spoke to the

Supermarkets Ltd, a retail

and a retail company.

company, were the correct defendants in the case.

‘Double check you have the right defendant because you can’t remedy it later,’ Goulding adds.

He also advises TSOs to take heed of statutory time limits. Under the Consumer Protection from Unfair JUdGe JonatHan FoSter QC, MANCHESTEr CrOWN COurT, 2010

‘The investigation was flawed from the start. Mr Allen’s initial desire to close the business down coloured his thinking thereafter. It led him to lose his objectivity’ January 2018

Trading Regulations 2008, there is a statutory limit of three years from the commission of the offence, or one year from the date the offence is discovered to bring a prosecution. ‘It is

GloSSary oF terMS Constitutional authority: the decision-making powers of members within a local authority, as stated in its written constitution.

Defence case statement: a statement presented by the defence following the prosecution’s disclosure, concerning the materials and witnesses they wish to rely on during the trial.

Disclosure: the stage of the litigation process when each party is required to disclose the documents that are relevant to the issues in dispute to the other party.

analysis

case statement, leaving

Disclosure/relevance test: assessment of the material that might reasonably be considered capable of undermining the case for the prosecution, or of assisting the case for the accused.

Due diligence defence: a defence used by the defendant to show that they reasonably believed in a mistaken set of facts which, if proved, would render the prohibited act or omission innocent, or they took reasonable steps to avoid the particular prohibited event.

Schedule of unused material: compilation of potential evidence that is relevant to the investigation, but which does not form part of the case against the accused and which the prosecution does not intend to produce in court.

13

prove what you’ve seized

analysis

came from a particular best to be prudent and not

place – especially in more

take any risks with time

complicated cases where

limits,’ he says. ‘Take your

there has been a raid.’

time as starting from the

Coley refers to a recent

earliest possible date the

trademarks case, where

crime was discovered.

officers entered a shop

This could even be a

and seized counterfeit

tip-off or a referral from

items, including t-shirts,

a third-party agency –

hoodies and phone cases,

such as Citizens Advice

without properly logging

– because generally that

them. There were so many

point tends to contain

evidence bags opened

sufficient information to

and resealed several

TSOs have no powers

makers are properly

amount to discovery.’

times – to log what each

under the Fraud Act but,

documented.’

contained and how many

Crowe says: ‘I’ve seen

items each held, and to

letters purporting to use

legal advice early can

Poor exhibit management

‘If there were no bad people, there would be no good lawyers’

Crowe says seeking

send samples to brands –

powers under Schedule

save costs in the long

Another common reason

that officers lost track of

5 of the Consumer Rights

run – especially in a

for a case to fail is the

what came from where.

Act, yet include a Police

large or complicated

prosecution’s lack of

Some numbers were also

and Criminal Evidence

case – because counsel

‘continuity of evidence’

incorrectly transcribed.

Act caution at the bottom,

can help local authorities

to prove elements of the

It became impossible to

demonstrating that they’re

ensure the right things get

offence. Goulding says:

trace the continuity of the

not sure whether they’re

investigated in the right

‘The devil is in the detail,

evidence, so the authority

utilising powers, or asking

way for the right purpose.

and checking that you can

was unable to prosecute.

questions under caution.

‘If you’ve properly

‘The officers swept

That’s the sort of thing the

undertaken your tasks –

everything off the shelves

defence will pick apart.’

especially with regard to

into a bag and then tried

‘MUSt dos’

Get your chain of evidence right ● Be aware of time limits ● Disclosure – be thorough and allocate proper time and resource ● Be sure of your powers to prosecute and investigate ● Make sure you’ve identified the right person or entity ● Seek legal advice early in large or complicated cases ●

14

CHarleS diCKenS (1812-1870) BrITISH NOvELIST

Reynolds says

disclosure – then you’re

to sort it out later,’ he says.

‘constitutional authority’

going to come across

‘But every time a bag is

has appeared in two of

as someone who is

opened and re-sealed,

his cases recently. Both

competent and diligent,’

a new complication is

arguments failed, but

says Reynolds. ‘So the

introduced. So keep the

were a costly oversight –

prospects of the technical

opening and closing of

adding six months to one

side of the case failing are

evidence bags to

consumer safety case.

massively reduced.’

a minimum.’

‘It’s always a desperate

Crowe adds: ‘Keep

defendant clutching at

[exhibit] numbering

straws when they come

simple, have a standard

up – and in 99 cases out

approach, and once an

of 100 you can overcome

exhibit has a number,

them – but it delays

don’t change it.’

everything and is costly.

Correct powers

And really, it’s just a matter of local authorities

TSOs should also be

updating their constitution

aware of their powers,

and making sure the

says Crowe. For example,

powers of the decision-

Sources: www.bbc.co.uk www.cps.gov.uk www.chesterchronicle.co.uk committees.oldham.gov.uk www.liverpoolecho.co.uk www.brainyquote.com www.judiciary.gov.uk www.telegraph.co.uk *In a separate case in November 2017, vance Miller was ordered to pay £2.3m under the Proceeds of Crime Act, following a National Trading Standards team investigation.

January 2018

Product safety kicked into the long grass It seems crazy where we are right now with product safety.

lawsuits from global brands, which would bring TS Review to

If you can bear to, let’s revisit the horrific Manchester

its knees. That same fear is writ large on tiny trading standards

Woolworths fire of 1979, in which 10 people died when

offices across the country. Taking on a major manufacturer

polyurethane sofas caught alight. After that, everything

is outside their expertise, potentially financially ruinous,

changed. Furniture became flame retardant and shops took

and something they have to combine with their many daily

bars off their windows. Then Lynn Faulds Wood’s fantastic

duties, such as protecting residents from dodgy tree surgeons

work convinced me that things

and the hooky booze sold in

really would get better: oven

corner shops.

doors wouldn’t burn me, pen

Super Lynn did brilliant

tops would no longer choke

work on this subject a couple

kids, and never again would

of years ago, producing a

I mis-wire a used plug when

report with three simple

buying something electrical.

recommendations to build

The improvement curve could

a robust national response

only continue skywards.

to product safety failures.

What went wrong?

She’s just talked me through

Why am I still reporting on

what’s happened since then

exploding electrical products,

and it’s a sorry tale of shirked

toxic cosmetics and flammable

responsibility, crab-like

sofas? Was the progress made

ministerial side-stepping and

in the 80s and 90s just a dream?

It’s not hard to identify one part of the problem: a flood of products from the Far East, which don’t seek to meet the

endless circular meetings. It’s one reason she turned down an honour she richly deserved.

The result? Product safety has been kicked well and

standards developed by conscientious men and women in

truly into the long grass. Until, that is, Grenfell Tower, and

white coats. And I don’t need to tell you that most council

the suspicion brought to bear on a fridge in a flat in north-

trading standards departments are so skeletal they could

west London. Of course, we are still waiting for a verdict on

serve as Hallowe’en decorations.

exactly what happened and why, but if this is our generation’s

But we’re not just looking at the failure of product safety as it applies to container loads of unbranded

viewpoint

Words. Matt Allwright // Illustrations. Paddy Mills and Will McPhail

catastrophic version of Manchester 1979, we shouldn’t let the moment to act slip through our fingers.

Chinese hoverboards. There is enough evidence that major manufacturers are not only producing failing products, but also brazening it out when widespread failures are found. I would mention names, but here’s the rub: doing so could bring

January 2018

Matt allwright is a television presenter and journalist. He presents bbC programmes including Watchdog, Rogue Traders, The Housing Enforcers, and Saints and Scroungers.

15

The final countdown viewpoint

Words. Craig McClue // Images. iStock

Four hundred and seventy-three days and nine hours;

This theme, of ‘mutual interconnections’ potentially being

that’s the countdown to our departure from the EU – at

lost, also became clear when Consumer Minister Margot

the time of writing, at least – if the planned amendments

James gave evidence to the EU Justice subcommittee: we

to stamp the Withdrawal Bill with the exact moment we

can’t just go back to splendid isolation.

Another hugely worrying ‘countdown’ is that of the

leave the EU are approved. The issues of the divorce bill and EU Citizens’ rights are apparently settled, and the

skilled officers and resources available to local trading

word ‘alignment’ in relation to regulating the Northern

standards services. As CTSI continues to monitor this

Irish border seems to propose a Brexit

situation through our workforce

on the softer side. However, early

surveys, the early indications are

noises suggest the trade deal will be

that the erosion of capacity hasn’t yet

the tricky part – and with the UK’s wish

reached its nadir. The downward trend

for a transitional period not yet agreed,

has seen more than 50 per cent gone in

our future regulatory world remains unclear.

Amid the fast-approaching deadline of 29 March 2019 (11pm), the call for clarity for consumers and businesses rises daily. If you’ll pardon the pun, that is our countdown conundrum.

Despite the time pressures, noises from government are positive and reassuring; strong consumer rights and high standards are core threads of discussions around the EU Withdrawal Bill and embedded in the text of the Industrial Strategy – which, incidentally, was published on the day Prince Harry’s engagement to Meghan Markle was officially announced.

However, two sides make for negotiations and – as our Brexit Think Tank initially concluded – ‘reciprocity’ will be key to retaining the EU crossborder networks that offer protections.

16

ProMiSeS, ProMiSeS According to the new Industrial Strategy white paper: ‘The government believes it is overwhelmingly in our mutual interest to agree a comprehensive and ambitious UK-EU economic partnership that enables the most free and frictionless trade possible, with minimal disruption to business. We should be optimistic and ambitious about what we can achieve, as we share the same beliefs in free trade, rigorous and fair competition, strong consumer rights and high standards.’

less than a decade, with no obvious end to the recruitment problems. Serious questions now exist as to whether local trading standards can continue to meet the market surveillance requirements and burgeoning statutory obligations placed upon them.

Chancellor Philip Hammond’s November Budget did at least offer funding for Brexit contingency planning. We must remain hopeful that some of this will find its way to help train and prepare – perhaps even recruit – our consumer protection frontline officers for the new regulatory future we face.

The review of trading standards services in Scotland finally got somewhere, with Convention of Scottish Local Authorities (Cosla) leaders agreeing a set of recommendations – including, crucially,

January 2018

proposals to stop the haemorrhaging of the workforce.

While the recommendations fell short of the regional

and Industrial Strategy in the coming months.

So, government hasn’t quite ground to a halt to fret

reorganisation wished for by many, it did advocate

over the ticking Brexit clock. However, while we’re in

alignment with other regional economic models. It also

counting mode, there is no doubt the Department for

committed Cosla to working with the Scottish and UK

Exiting the European Union has the toughest task ahead

governments to produce a resourced ‘Brexit ready’

with the EU Withdrawal Bill. At the last count, there were

consumer protection system.

378 amendments and 75 new clauses proposed, as the bill’s

Meanwhile, rumours that Whitehall is ‘Brexit obsessed’, to the exclusion of all else, are apparently unfounded. For example, a Home Office consultation targeting online knife

correcting powers and apparent retention of policy on devolved matters gets closely scrutinised by MPs. Some argue the bill represents a naked ‘power grab’

sales and the selling of powerful acids acknowledges, and

by Westminster of devolved powers. This is countered

strengthens, trading standards’ supply-side role in curbing

by claims that the correcting powers are necessary to fix

violent crimes.

the statute book and that there should be no re-creation of

The ability of scammers to target pension pots

barriers to trade by differing UK policies for repatriated EU

has also been curbed, with the announcement by the

laws. We, in trading standards, need to keep a close eye

Department for Work and Pensions that cold calling for

on the bill’s progress to ensure the ‘correction’ of EU laws

pension transfers is to be banned. There are also plans

doesn’t become a diminution of hard-won protections.

to severely restrict people’s ability to set up fraudulent pension schemes.

Next year, our proud system of animal welfare will be

viewpoint

Despite the time pressures, noises from government are positive anD reassuring

For all the soundbites and predictions around Brexit, perhaps the last words should be the prescient lyrics of a Swedish rock band – called Europe – from 1986: ‘We’re

strengthened further by the Department for Environment,

leaving together. But still it’s farewell. And maybe we’ll

Food and Rural Affairs’ announcement that CCTV will be

come back to Earth, who can tell? I guess there is no-one to

mandatory in all slaughterhouses in England – a move

blame. We’re leaving ground. Will things ever be the same

strongly supported by CTSI experts in this area.

again? It’s the final countdown.’

We also remain very hopeful of a positive consumer green paper from the Department for Business, Energy

January 2018

Craig McClue is lead officer and policy executive at CtSi.

17

Misleading sales

Words. Chris Fay Images. iStock

Old tricks, new scandal? are the high-pressure

tactics commonly used by the directsales industry about to be exposed as the next PPi-style scandal?

Anyone who has ever been sold a big-ticket household item has probably heard their salesman say: ‘Let me just have a word with my manager.’ It’s a common tactic used to make the buyer feel like they’re about to receive a brilliant, discounted deal. But have such ploys brought the direct-sales industry to the brink of a PPI-style scandal?

Steve* had long since resigned himself to the fact he had been ripped off by rogue traders, who conned him into taking out a 10-year finance deal. Then an unsolicited letter landed on his doormat in autumn 2016, from Barclays Partner Finance. Although Steve had complained to the trader before without success, it looked like its finance company was ready to listen.

18

January 2018

a result of an unlawful and misleading criminal sales process. Dudley TS established that Summit arranged

directors of Summit Roofguard. The home improvement

1,152 Barclays finance agreements over a three-year

firm had arranged Steve’s finance and carried out shoddy

period, but Summit had been offering Barclays finance

work on his Birmingham home in 2013.

for nine years.

‘The letter indicated Barclays were going to help, but

During the Summit trial, the defendants were

it wasn’t clear how,’ said the disabled grandfather. ‘It said

incredulous. Director Sarah Beadle said she had spent

Summit had been “trading disruptively” and fraud may

her entire adult life working in the glazing and roofline

have occurred, so I wrote back, but I didn’t hear anything.

industry, and had always followed the same sales method.

‘I chased it, but I got nowhere. It wasn’t until I went

Misleading sales

Something had changed, and that something was a 17week trial that delivered 64 guilty verdicts against staff and

Another director, Martin Evans, said the technique

down to the branch and said “I’m not leaving until

was used throughout the industry and named six other

it’s sorted” that things started happening. Eventually,

firms that used it. The pair were found guilty of unfair,

Barclays wrote off the credit and sent a contractor to fix the guttering, but this had taken almost five years.’

Steve had originally taken out a 10-year finance deal for more than £2,000 to repair the guttering. Had his finance agreement run its full term, he would have paid back almost £5,500.

‘When Summit first came to the house I got all this “let me phone the manager”, but I knew it was all crap,’ says Steve. ‘I just said, “What’s your bottom line?” I needed the work doing, I had damp in the house and I didn’t have the cash.

‘The work they did was terrible and I would have ended up paying three times as much over 10 years, which they never explained properly. They said I wouldn’t start the repayments until I signed the job off, but I never did, so that was a load of crap as well.’

It is now understood by TS Review that Barclays has accepted Summit’s sales tactics fell short of its standards and it is believed to have offered recompense on a number of occasions.

The 14 Steps to a Sale The Summit prosecution centred on a training manual its staff were required to follow, to trick victims – often the elderly and vulnerable. Entitled The 14 Steps to a Sale, the scam involved falsely stating the necessity of the work, establishing an inflated reference price and then inviting victims to apply for a ‘feature-home subsidy’ – a discount for allowing their home to be featured in future marketing material. Victims were worn down by hourslong pitches that included numerous calls to a sales manager. Eventually, the price would drop by thousands – but only if the customer signed on the spot. The judge said it was a sham.

By proving the case in March 2016, Dudley Trading Standards had shown that everyone who went into a Barclays finance agreement with Summit did so as

January 2018

19

feels they have been affected by this matter, then they should contact Barclays Partner Finance to discuss their misleading or aggressive commercial practices and jailed for two-and-a-half years each. Evans later had his

concerns.’

The case for wholesale pre-contractual

sentence cut to two years on appeal. Four of their staff

misrepresentation would have been much clearer but for

received suspended sentences for similar offences.

all the other fraudulent activity taking place at Summit.

It could not be reported at the time because it was

The firm, which claimed to have a £4m turnover, had

already subject to a criminal investigation, but one of the

incentivised offering finance and would take the top

six firms named by Summit was Zenith Staybrite. The

sales staff on trips to New York and Monaco. It led to

firm had caught the attention of Buckinghamshire and

a culture of maladministration. John Campbell-Muir, a

Surrey Trading Standards, and had been using precisely

former Summit salesman who gave evidence at the trial,

the same technique as Summit, right down to the finance.

said staff would frequently fake signatures and change

Evans is a former Zenith Staybrite sales manager and

personal details on the credit applications. He told TS

the trial heard that he took the 14 Steps training manual

Review: ‘I watched staff altering documents on a daily

from Zenith Staybrite to set up Summit, in 2005. It was a

basis. I kept saying to them “you are breaking the law”,

cut-and-paste job.

but they didn’t care. I stood up to them in court and told

Four months after the Summit trial ended, Zenith

them what a bunch of crooks they were.’

Staybrite was prosecuted for using inflated reference prices and supposedly time-limited discounts, but there had been some divergence from the 14 Steps in the years since Evans had left. The firm went bust in August, soon after it was fined.

Evans’ and Beadle’s claims that these practices were industry standard were starting to look more credible.

Indeed, Companies House records link the pair to seven other home-improvements firms, not identified in the trial, and similar allegations of unfair, misleading or

Misleading sales

aggressive commercial practices were uncovered in Birmingham, Warwickshire, Staffordshire, Leicestershire, Gloucestershire and Herefordshire by Dudley TS during its investigation of Summit.

So, is this the sort of wholesale pre-contractual

Lee Reynolds, a barrister who specialises in prosecuting rogue traders, said: ‘All the criminality seems to be based within the company [Summit]. In one sense,

misrepresentation and mis-selling that has been seen

Barclays is a victim, just like everyone else, but if there

in other parts of the finance industry? Dudley TS said it

is a routine or even semi-routine changing of details,

can only confirm it reported the matter to the Financial

Barclays should have picked that up.

Conduct Authority (FCA), which has a policy of neither

‘What happened at Summit is sadly just very typical

confirming nor denying anything unless it has made

of fraudsters. It’s a widespread practice throughout most

a formal decision. Other regulatory and consumer

high-pressure sales industries. Deliberately inflating the

protection agencies were reluctant to comment when

price, knowing you are going to come down, is quite

approached by TS Review.

simply illegal.

When TS Review first put the issue to Barclays, it said

‘All this rubbish about feature-home subsidies is just

it had followed the correct policies and procedures. ‘Full

fraud, but it’s the type of rubbish that is prevalent in a lot

checks were undertaken for Summit Roofguard in 2005.

of the cases I do.’

When we were alerted by the trading standards office in

Reynolds was involved in a prosecution against a UK

early 2014, we investigated the concerns and terminated

bed firm, which sold products to elderly people. He says

the relationship immediately,’ a spokeswoman said.

they used a very similar sales technique, with a vastly

When pressed on what action Barclays took after the

20

Deliberately inflating the price, knowing you are going to come Down, is quite simply illegal lee reynolds

inflated opening price, a conversation with the sales

Summit prosecution, and if there was a programme of

manager from the consumer’s phone, with a discount

redress taking place now, she added: ‘If any customer

offered because they have completed a survey.

January 2018

‘The cases that I’m involved in, 99 per cent of them arise from consumer complaints,’ says Reynolds. ‘Unless you have a whistleblower, or you get someone to go undercover, it’s very difficult.

‘But everyone seems to be doing it. Just look at the Black Friday sales; you can guarantee that the vast majority of those discounts are not genuine discounts, and these are supposedly reputable high street brands. Very few people are making complaints because it is just accepted. It has become the norm for these companies to get ignored.’

But not everyone has ignored the wider issue. About 10 years ago, the Finance and Leasing Association (FLA) set up the Specialist Automotive Finance (SAF) scheme.

Last year, about 33,000 sales staff took the annual SAF test. The scheme is funded by the FLA’s members – these are lenders and finance companies, including Barclays Partner Finance, and not the dealerships themselves – but the scheme is offered free of charge to frontline sales staff in car showrooms.

Adrian Dally, head of motor finance at the FLA, would not be drawn on the Summit case and rejected any suggestion of mis-selling in the motor finance sector. However, he recognised there had been a ‘process of change’ and said FLA members could claim some of the credit.

‘Finance is a critical part of the economic and social infrastructure and must stay sustainable,’ he said. ‘If you go into a responsible dealership and look up on the wall, customer-facing member of staff has passed an annual test. The test is essentially about 35 hours of study a year, and provides the relevant product and regulatory information that someone who is talking to a consumer needs to know.

‘It’s about how motor-finance products work, who they are suitable for, what the FCA regulatory requirements are,

Misleading sales

you should see a SAF plaque, which shows that every

and whether they [sales staff] can advise or sell.’

He added: ‘As a sector, we stand for responsible lending, because morally and legally it’s imperative.

‘But also because, commercially, responsible credit means a finance company only lends if they know that money will come back to them, otherwise they don’t have a business.’

Chris Fay is a freelance journalist and former editor-in-chief of TS Review.

Footnotes *Steve’s name has been changed because he believes publicity could put his warranty at risk, while others – who have not got any help – fear speaking out means they never will.

January 2018

21

22

Torn down the middle January 2018

introduced under the disarmingly uncontroversial

Words. Steve Tombs Images. iStock

rubric of ‘better regulation’ – who, on earth, would want worse regulation?

In a recent book,1 I have traced four key mechanisms through which Labour, Coalition then Conservative governments embedded this new regulatory agenda.

First, a constant stream of reviews of specific regulatory agencies and of the practice and purpose of regulation in general; second, the establishment of a plethora of institutions within – and of – government; third, various legal reform initiatives that have delivered both deregulation and re-regulation; and, fourth, a long-term rhetorical assault on regulation as ‘burdensome’, ‘red tape’ and so on.

Anti-regulation rhetoric, 2004-2010 This, in many respects, continued a low-level rhetoric that could be traced back at least through to the Thatcher government, which cast regulation as burdensome, red tape and a barrier to enterprise. But it was in the early

With public protection slowly

years of the second New Labour administration that

being ripped to pieces by years of

if by design, across a plethora of political and media

systematic cuts to ‘red tape’, could

Hampton Review.

sources, precisely to accompany the establishment of the This period saw a key series of high profile speeches decrying the anti-entrepreneurial effects of regulation,

that allows us to rethink regulation

the dangers of risk averseness and the need for a new,

as it was originally conceived?

regulation. These were played out against the backdrop

‘sensible’ debate about the relationship between risk and

academic research

Grenfell be a watershed moment

this ideological attack on regulation was increased – as

of a considerable ratcheting up of the anti-regulation thematic of print and broadcast media. Underlying much of this was often a more or less thinly disguised antiOn the morning that Grenfell Tower burnt, I was

European – or EU – sentiment, the latter being seen as

speaking at an event at Liverpool University on

the source of a whole plethora of attempts not just to

‘emotions and politics’. There I spoke about the

over-regulate Britain, but also to undermine Britishness

contempt – the virtual hatred – with which the term

– a theme that ultimately played out to dramatic effect in

‘regulation’ had come to be used by politicians, the

the referendum decision to leave the Union in June 2016.

media, and more popularly.

For almost three decades, the work of regulators

Finally, anti-regulation rhetoric cohered with populist railing against so-called political correctness – another

– not least in terms of enforcement – has been

instance of being told by the state what to do, think, feel

undermined by politicians of all parties, the very idea of

or say.2

regulation ridiculed to the point that its equation with

It is worth emphasising that, in isolation, many of

‘red tape’ has become established within political and

these rhetorical interventions might appear irrelevant,

popular consciousness.

spurious, or even downright silly.3 But it is their ubiquity

Since the Hampton Review of regulation and

that is significant. From Tony Blair as Prime Minister and

enforcement was launched by then-Chancellor

Gordon Brown as Chancellor of the Exchequer, across

Gordon Brown in 2004, the regulatory landscape has

The Guardian – notably via Simon Jenkins and Simon

changed dramatically in the UK. These changes were

Hoggart – to the Daily Mail and Daily Telegraph,

January 2018

23

been hanging there. A village in the Cotswolds was required to pull up a seesaw because it was judged BBC Radio 5’s Drive show and Jeremy Clarkson’s

a danger under an EU Directive on Playground

Top Gear, there was a constant drip, drip of undermining

Equipment for Outside Use.5 (Blair, 2005)

the very idea of regulation. In effect, it was the sound of a new common-sense being constructed, within which

These kinds of stories may be frivolous, lacking objective

regulation was already illegitimate, irrelevant, nanny

seriousness and have a derisive tone but, in combination,

state-ish, counter-productive, burdensome, pernicious,

they raise the spectre of regulators enforcing in over-

anti-entrepreneurial and, even at the personal level,

zealous ways, focus attention on the inappropriateness

antithetical to ‘normal’ human development.

of regulation, and reinforce the spectre of ‘a powerful,

Many of the regulatory myths propagated during

academic research

this period tended to focus particularly on health and

impersonal regulatory bureaucracy’.6

safety, the bête-noire of the over-regulation mantra, but

Anti-regulation rhetoric, 2010 onwards

had the effect more generally of undermining regulation

In 2010, Labour made way for a Coalition government.

and regulators. It is no coincidence that two of the most

But, if the political balance of power was changed

infamous stories can both be dated back to 2004, the year

radically, the rhetorical assault on regulation proceeded

in which Hampton was appointed to undertake his major

as before. Just three weeks into the new government,

review of regulation: one, the claim that local councils

Vince Cable established a Reducing Regulation

had begun to ban hanging baskets; and the other, that

Committee when installed as business secretary. Its aim

some schools had started to ban the use of conkers in

was to ‘put an end to the excessive regulation that is

their playgrounds.

stifling business growth’. As he put it, ‘the deluge of new

4

Then, in 2005, Prime Minister Tony Blair made a key

regulations has been choking off enterprise for too long.

speech in which he recycled well-worn myths, which – by

We must move away from the view that the only way to

that time – had attained the status of truths.

solve problems is to regulate’.7

• You may recall the stories of the girl who sued the Girl Guides Association because she burnt her leg on a sausage, or the man who was injured when he failed to apply the brake on a toboggan run in an amusement park…

• Public bodies, in fear of litigation, act in highly risk-averse and peculiar ways. We have had a local

The rhetoric against regulation was consistent, and often coming from the highest level of government, notably from then-Prime Minister Cameron.

A few highlights suffice to make the point of the level of vitriol aimed at regulation and regulators. On 6 August 2011, disorder broke out in Tottenham, North London, following a demonstration at the police shooting

authority removing hanging baskets for fear that

of a young black man, Mark Duggan. Within three days,

they might fall on someone’s head, even though no

riots followed across many London boroughs, towns

such accident had occurred in the 18 years they had

and cities in the West and East Midlands, as well as in Bristol, Liverpool and Manchester. Two men were killed in Birmingham, one in Croydon, hundreds of millions of pounds of damage was caused to businesses and homes,

reD tape also means regulations that protect citizens, at a certain cost to companies that otherwise have little incentive to sacrifice some profit to mitigate risk steven Poole 24

shops were looted, police lost control for periods of major urban centres and, within a week, more than 1,000 people had been arrested. This was a major series of incidents.

Nine days after the first outbreak of disorder in North London, the Prime Minister made his first major, set piece speech to comment upon these events. In that speech in Birmingham on 15 August 2011, Cameron announced that the government would ‘review every aspect of our work to mend our broken society’, including focusing on ‘the obsession with health and safety that has eroded people’s willingness to act according to common sense’.

Indeed, what he went on to call ‘the human rights and

January 2018

Business Regulatory Solutions Managing risk, protecting business Business Regulatory Solutions (BRS) provides businesses with the confidence required to follow current best practice, ensuring reduced risk and compliance. It is a central regulatory control system with legal advice, guidance and resources covering the following regulatory areas: • Health and Safety • Food • Fire • Product Safety • Fair Trading

• Environment • Licensing • Dealing with Customers • Generic Legal Advice

BRS reseller opportunities now available to trading standards services.

Find out how you can support your business community and increase revenue for your organisation. Email elainaj@tsi.org.uk

BRS is a perfect solution for businesses of any size and clients will benefit from: • Guidance on a number of regulatory areas in one secure and customised place • A tailored and co-ordinated package focusing on the regulatory requirements specific to each business. Supporting them in reducing risk and working towards compliance

• Up-to-date content maintained by experts • A cloud based system which can be accessed on all devices with internet connection • Consistent, easy-to-understand information, taking the complexity out of regulation

BRS is brought to you by The Chartered Trading Standards Institute working in partnership with Ashfords LLP. A national provider of legal and professional services.

For more information visit www.brs.uk or email info@brs.uk

In partnership with

health and safety culture’ was a source of ‘damage [to] our social fabric’.8 Weeks later, at the Conservative Party Conference, he continued the theme. ‘One of the biggest things holding people back is the shadow of health and safety. I was told recently about a school that wanted to buy a set of highlighter pens. But with the pens came a warning.

Not so fast – make sure you comply with the Control of Substances Hazardous to Health Regulations 2002.

Including plenty of fresh air and hand and eye protection.

Try highlighting in all that. This isn’t how a great nation was built. Britannia didn’t rule the waves with armbands on... At long last common sense is coming back to our country.’9 Then, in January 2012, Cameron made a new year’s resolution ‘to kill off the health and safety culture for good. I want 2012 to go down in history not just as

academic research

Olympics year or Diamond Jubilee year, but the year we get a lot of this pointless time-wasting out of the British economy and British life once and for all.’10 It was a resolution to be repeated the following January, when he derided the fact that health and safety rules stop children getting work experience in companies.11 More latterly, he invoked regulatory myths as he previewed a new Deregulation Bill, enacted in 2014.

Thus, he told the Federation of Small Businesses: ‘This government has already stopped needless health and safety inspections. And we will scrap over-zealous rules that dictate how to use a ladder at work, or what nosmoking signs must look like.

‘We’ve changed the law so that businesses are no longer automatically liable for an accident that isn’t their fault. And the new Deregulation Bill will exempt 1 million self-employed people from health and safety law altogether.’12 The high-point of anti-regulation sentiment was

projects of visionary governments.13 Bleak times for social protection indeed. Perhaps that momentum shifted on 14 June, when Grenfell burnt.

Grenfell changes everything?

perhaps reached in the seismic political shock of 2016,

Now, one of the phrases heard regularly in the immediate

which saw the UK vote for Brexit. Anti-regulation

aftermath of the tragic fire, which took at least 70 lives, is

hostility was central to the campaign against the EU

that ‘Grenfell changes everything’. This is in relation to

– everyone loves to hate red tape. The EU rules and

fire service funding, tower block design and maintenance,

regulations that supposedly restrict Britain’s freedom

public safety – and, not least, in terms of how we think

were a primary theme of the non-racist wing of the

and speak about regulation.

‘Leave’ campaign during the referendum.

Brexit, we continue to be told by its champions, is

26

businesses to individuals’ job prospects and the grand

Indeed, as commentator Steven Poole has reminded us: ‘Red tape also means regulations that protect citizens,

a golden opportunity to make a ‘bonfire of red tape’.

at a certain cost to companies that otherwise have little

Red tape supposedly hurts everything from small

incentive to sacrifice some profit to mitigate risk. It is

January 2018

it is because of reD tape that you cannot buy a flammable sofa, anD that you are very unlikely to Die in an air crash steven Poole January 2018

27

academic research

because of red tape that you cannot buy a flammable sofa, and that you are very unlikely to die in an air crash.’

Poole added: ‘Much red tape is, indeed, the frozen memory of past disaster.’14 Indeed it is. Grenfell might be the event to create a new memory.

The trauma of witnessing the fire, depression and survivor guilt – and feeling unable to cope with the loss of loved ones – has already generated suicide attempts, and will continue to do so, blighting the lives of individuals, families and communities for years to come.

The UK had the world’s first system of social protection, put into place from the 1830s onwards, initially in relation to worker health and safety, unadulterated food and pollution control. We must reclaim the language of social protection to refer to regulation, and we must recognise that the men and women who staff our regulatory agencies are not meddlesome bureaucrats, but people who have chosen to spend their life in vital public service.

If Grenfell can contribute to the terms of debate being changed, then those 70 lives will not have been lost completely in vain.

28

Steve tombs is a professor of criminology at the Faculty of arts and Social Sciences for the open University. He also works with the Hazards movement in the UK and is a trustee and board member of inquest.

References 1. Tombs S, Social Protection After the Crisis, Policy, 2015.

2. Heffer S, Postperson Pat and His Ethnically Diverse Cat!, Daily Mail, 21 July 2004.

3. Clarkson J, Health and safety and the death of television, Sunday Times, 11 April, 2004.

4. Almond P, The Dangers of Hanging Baskets: ‘regulatory Myths’ and Media representations of Health and Safety regulation, Journal of Law and Society, 36 (3), 2009, pp354-60.

5. Blair T, Full text: Tony Blair’s speech on compensation culture, The Guardian, 26 May, 2005.

7. Department for Business, Innovation & Skills, New rules to Hand Over Powers To Individuals and Companies by Cutting red Tape and Bureaucracy, 5 August 2010.

8. Conservative Home, Cameron post-riots speech in full, http:// conservativehome.blogs.com/thetorydiary/2011/08/cameron-post-riots-speechin-full.html, 2011.

9. BBC News, Full text: David Cameron’s Conservative conference speech, bbc. in/2zwvnZM, 2011.

10. Politics.co.uk, David Cameron Pro-Business Speech in Full, 23 February 2012, bit. ly/2k8bNQy, 2012.

11. Cited in Hope C, Health and safety rules stopping children getting work experience in companies, say David Cameron, The Telegraph, 3 January 2013.

12. Prime Minister’s Office, 10 Downing Street and Department for Business, Innovation and Skills, Supporting Business: David Cameron announces new plans, news story, 27 January 2014.

13. Poole S, ‘Deadlier than terrorism’ – the right’s fatal obsession with red tape, The Guardian, 20 June 2017.

14. Poole, 2017

January 2018

Faking

it Words and images.

Stuart knight

a look at dorset trading Standards’ first foray into

I had never heard of Alfred Wallis when, in September 2016, Dorset Trading Standards received information from colleagues in Cornwall that suspected fake art by him was on sale in our county. Officers in Cornwall received a tip-off that the Alfred Wallis ‘Perkin Collection’ – being advertised in a painting and furniture fine art sale by an auctioneer in Dorchester – was not the real deal.

The auctioneer, Duke’s, had been operating for many years and was held in high regard, locally and regionally.

investigating art crime

the world of art fraud

Every couple of months, it held fine art sales at its rooms in Dorchester, advertising them through a printed catalogue and online.

There were more than 1,000 lots on this occasion, with the 11 Wallis works being a major feature. One of the works even adorned the front cover of the catalogue, and the items were introduced with an article written by an expert on the works of Wallis, explaining the connection between Emma Perkin – the niece of Wallis’ carer – and the painting. These were high-value items, with guide prices ranging from £2,000 to £50,000.

January 2018

29

August 1960 – more than a decade after the artist’s death.

This gave us enough suspicion to doubt the authenticity of the rest of the collection.

Several items, of pencil drawings on card, were impossible to date, having no discernible features. Seven paintings – on media ranging from tobacco-tin lids and the panel of a Lipton’s tea chest, to an old blow torch, reminiscent of the type of material Wallis would have used – were submitted to an expert in the history of art technology for forensic testing.

Concerned about their possible value – just in case we really were in possession of a prized collection – and the potential for damage, we notified our council insurance The fake exhibits included drawings on cigarette tins and packets

team and an officer drove the exhibits to the laboratory for examination. The expert concluded that they were not authentic works by Wallis, and were produced at a much

investigating art crime

later date in emulation of his style.

The Player’s Navy Cut pack was also sent to a

Handle with care

cigarette-packet expert, who corroborated Imperial

Duke’s is a prestigious and prominent local company, so it

Tobacco’s timeline, adding that there were certain font

was important to get things right. In a low-key operation,

changes to the lettering on the packaging in the 1950s

trading standards officers attended the showroom a

too, which were consistent with this packet.

few days before the auction date and the Wallis works were seized – using powers in the Consumer Protection

Due diligence failings

from Unfair Trading Regulations 2008 (CPRs) and the

Unfortunately for Dukes, the emails we seized revealed

Consumer Rights Act 2015 – and secured, along with

that they had understood the attribution of the works to

associated paperwork.

Wallis was in doubt before it chose to advertise them for

The main thrust of suspicion was on one lot: a

sale. Significantly, there were key moments when they

pencil drawing on the back of an old Player’s Navy Cut cigarette packet, which is a type of artwork associated with Wallis. However, the packet is believed to have been manufactured in the 1950s – and Wallis died in 1942.

Having examined photographs from the auctioneer’s website, the cigarette manufacturer, Imperial Tobacco, confirmed that the trademark on the packet had been applied for in 1955 and the design for the pack was approved in December 1956, with a revision approved in

Just in case we were in possession of a prizeD collection, we notifieD our council insurance team anD an officer Drove the exhibits to the lab for examination 30

The Player’s packet dated from the 1950s. Wallis died in 1942

January 2018

failed to do so. For example: • A senior auctioneer had been advised by an officer from Cornwall TS that he had doubts about the provenance of the collection, and that forensic examination in these circumstances would be wholly appropriate, in line with due diligence • Duke’s made enquiries about testing with a forensic art lab in London, which advised that there were fake Wallis artworks in circulation. It was also told that testing would cost £650 per item • Duke’s was invited to an open evening where Wallis’s works were being discussed in a case study, but it declined to attend All it would have taken was the examination of one of the painted items to discover they were fake – an appropriate action considering the lot guide prices and the potential reputational damage to the business.

Another significant, damning discovery from the emails was that – several months before the auction – a Wallis expert advised the same senior auctioneer, and one of the partners, about their misgivings over the Perkin Collection, having taken photos of what they believed

inveStiGatinG art FraUd A good working relationship with other authorities helped us greatly – for example, colleagues in Cornwall gave us the names of experts they had used before, which saved us having to search for appropriate people to examine the works.

investigating art crime

had opportunities to demonstrate due diligence, but

Without that luxury, I would be inclined to contact authors who have written about the artist, or large auction houses and galleries. They often house a particular artist’s collection and have – or may know – an expert on the person in question.

It is crucial that, before taking such advice, any person relied upon for expert opinion is clear about their responsibilities under the ‘Expert’s duty to the court’ in the Criminal Procedure Rules.

FAKE PRODUCT–REAL THREATS. Product piracy, from spare parts to accessories and lifestyle merchandise, seriously affects the automotive industry. quality imitation, and the loss caused to the consumer by counterfeit products is usually greater than the expected saving.

Counterfeit BMW products have far reaching consequences for the brand and can seriously damage the values we stand for. More importantly, our customers expect top quality products, and product piracy can jeopardise the trust they place in us. It is the aim of the BMW Group to minimise the consequential risks and dangers associated with counterfeit goods.

Genuine BMW parts and accessories adhere to stringent quality and environmental testing and are the result of intense development.

By far, the greatest number of cases of illegal use by third parties relates to the use of the BMW trademark.

BMW Brand Protection Page.indd 1

Cases involving the MINI trademark are also known, and are also likely to increase in the future.

testing should be expected.

In order to protect our brand, and help pave the way for increased parts sales, the BMW Group has a worldwide network of Brand Protection Managers who work in conjunction with the border systematically tackle the growing problem of counterfeit goods. together as a team. BMW Group UK is committed to tackling the growing problem of counterfeit goods and believes education and team work is the key to success.

If you come across BMW Group counterfeit products, email details to Brand.Protection.Team@bmwgroup.com or contact Joanne Walsh, Brand Protection Manager for BMW Group UK on 01252 921588, email Joanne.Walsh@bmw.co.uk.

The “M logo” (as well as the protected colour combination) is mostly used in conjunction with the piracy of accessory parts, but sometimes also for signage on workshops.

The Rolls-Royce brand is often used for counterfeits of accessory parts and Merchandising & Lifestyle articles.

09/09/2013 14:06

31

the auction, and were offered the contact details of an expert. Putting the expense of forensic examination

email recorDs of the senior auctioneer’s anD two senior partners’ internal Discussions about the works showeD they were aware of concerns

aside, this would – for the cost of a phone call – have cast enough doubt for Duke’s to withdraw the items. Another opportunity missed.

On 30 October 2017, during the first hearing at Weymouth Magistrates’ Court, Duke’s pleaded guilty to eight misleading actions under the CPRs. This related to advertising for sale at auction works of art purported to be by the Cornish artist Alfred Wallis, when they were not by that artist and were in fact paintings produced

investigating art crime

after his death. The company was fined £6,300 and had to pay all costs of £11,800. items appeared in this collection. They, too, suggested

of £70,000 to £125,000 for these eight items. A

that forensic testing would show whether the paints used

significant loss to consumers was avoided by

in them were available in Wallis’s lifetime.

trading standards’ intervention.

We have continued with

Furthermore, email records

enquiries about the forgers,

of the senior auctioneer’s and

but – to date – this has proved

two senior partners’ internal discussions about the works showed they were aware of concerns, but the decision was taken to go ahead with the sale regardless.

More missed opportunities In the end, the cigarette packet became the most crucial evidence in the case. Again, email evidence showed that Duke’s had been made aware of concerns about the packet by the Cornish expert before

32

The auction catalogue gave a total price range

was the whole collection in 2010. None of the auction

alFred WalliS 1855-1942

inconclusive, given the burden of

Cornish artist Alfred Wallis began painting in his 70s. He was well known in his local area for painting and drawing on any available material, and for giving away these works of art. He was later lauded by artists Ben Nicholson and Christopher Wood, the latter describing Wallis as a modern-day Paul Cézanne, a French artist and postimpressionist painter, whose work laid the foundations for the radically different art of the 20th century.

Unfortunately for Wallis, it was only after he died that his work became recognised and became valuable.

venture into the art world

proof required.

It has been an interesting – an area of which I had no previous knowledge. The case demonstrated the value of a good working relationship with other authorities, something that is key to the success of our profession.

Stuart Knight is a senior trading standards officer at dorset County Council.

January 2018

Words. Stephanie young Images. iStock

Disease COnTrOl

the new animal Health law regulation in a

As we move into an era of uncertainty after the EU

linked: better animal health promotes animal welfare, and

referendum, it remains unclear how the Animal Health Law

vice versa.

Regulation (EU) 2016/429 will be applied after its expected implementation in 2020.

This new law covers transmittable animal diseases and gives consideration to the links between animal and

The regulation offers disease-specific rules covering foot and mouth, classical swine fever, African swine fever, highly pathogenic avian influenza and African horse sickness.

In addition, it gives disease-control rules for a further 39

public health, the environment, food and feed safety, animal

animal health diseases, including some zoonotic* diseases,

welfare, food security and the impact these have on the

such as bovine tuberculosis, anthrax and rabies. All of these

economy. While the regulation does not contain provisions

diseases are currently notifiable in accordance with the

that regulate animal welfare, animal health and welfare are

Animal Health Act 1981.

animal health

post-brexit future

A significant feature of the new animal health law is the requirement, under Article 11, for ‘operators’ and ‘animal professionals’ to have ‘knowledge’ of animal health. This

When costs from the Bse crisis, foot anD mouth, horsemeat scanDal, Bovine tuBerculosis anD control measures for other notifiaBle Diseases run into Billions of pounDs, We cannot afforD to Be complacent January 2018

knowledge will cover: animal diseases, including those transmittable to humans; bio-security principles; the interaction between animal health, animal welfare and human health; good practice of animal husbandry for the species under their care; and resistance to treatments, such as antimicrobial resistance, and its implications.

The knowledge required will depend upon the type of production and tasks performed. However, as a minimum, it must be acquired by professional experience or training, through existing programmes in agriculture that are relevant for animal health, formal education or any other experience or training that results in the same level of knowledge.

33

animal health

neW laW: aiMS The Animal Health Law Regulation will support the EU livestock sector to achieve a competitive, safe market. Ambitions include: ●

●

●

●

●

●

●

Streamlining legal acts into a single law Creating simpler and clearer rules, enabling authorities – and those who have to follow the rules – to focus on key priorities: preventing and eradicating disease

states. The competent authority for animal health must

Allowing greater use of technology for animal health activities – such as surveillance of pathogens, and identification and registration of animals

required by the regulation.

Enabling better, early detection and control of animal diseases, to reduce the occurrence and effects of animal health epidemics

veterinary authority of a member state responsible

Creating more flexibility to adjust rules to local circumstances and emerging issues, such as climate and social change Setting out a better legal basis for monitoring pathogens resistant to antimicrobial agents, supplementing existing rules and two proposals before the European Parliament and Council on veterinary medicines and medicated feed

Source: European Commission, ec.europa.eu

34

Article 13 of 2016/429 also places obligations on member

Clarifying responsibilities of farmers, vets and others who deal with animals

demonstrate it has the capability to take necessary and appropriate measures to carry out the animal health activities The Department for Environment, Food and Rural Affairs (Defra), which has responsibility for implementing the regulations, has confirmed that local authorities fall within the remit of ‘competent authority’.

This is defined in the regulation as: ‘The central for the organisation of official controls, and any other official activities in accordance with this regulation (2016/429), or any other authority to which that responsibility has been delegated.’

To be compliant with the provisions of Article 13, the competent authority must ensure it has qualified personnel, facilities, equipment, financial resources and an ‘effective organisation’ covering the whole territory of the member state.

This would be a challenge even before austerity; however, with increasing demands on local councils and central government resource, it does raise questions about what would constitute ‘qualified’ and ‘effective’ in future.

The regulation aims to implement the commitments and visions contained within the EU animal health strategy. It also aims to consolidate the current EU legislation governing disease control and livestock traceability into a single, simplified and flexible framework.

Animal health law converges with the OIE (World Organisation for Animal Health) standards. As a result, the UK will still have to demonstrate it has consideration for,

trade, regardless of its status as it leaves the EU. For the impact of disease on the UK economy to be minimised, there has to be robust enforcement of the legislation, to ensure there is no compromise on public health or food-safety standards.

animal health

and compliance with, recognised international standards for

Recent experiences have shown the major impact that animal health – probably more than any other area of legislation enforced by trading standards – can have on the UK economy.

When costs from the bovine spongiform encephalopathy (BSE) crisis, foot-and-mouth outbreak, horsemeat scandal, bovine tuberculosis and control measures for other notifiable diseases run into billions of pounds, we cannot afford to be complacent.

We must challenge what ‘qualified’ and ‘effective’ will look like for local government in future, for compliance with Regulation (EU) 2016/429. *Zoonotic relates to a disease that normally affects animals but can infect humans.

Stephanie young is a CtSi lead officer for animal health.

35

SPotliGHt JaCQUeline Minor

It’s

COmPliCaT the complexity of brexit for consumer and trading standards legislation is laid bare by former eU heavyweight Jacqueline Minor

36

Jacqueline Minor confesses she is a ‘bad consumer’.

The youthful 61-year-old admits she has never switched anything – not even her bank account or energy company – despite encouraging people to do precisely that while

Spotlight

Words. Carina Bailey Images. George Fairbairn

working in the European Commission.

And just like any other ‘regular person’ (who may also have neglected their ‘good consumer’ duties), she enjoys the simple things in life: her garden, her new

eD

puppy – a dachshund-lab mix – and trips to the theatre and cinema. What perhaps makes her different, though, is her commitment to consumer issues – despite her recent retirement.

After being approached by CTSI’s ‘leading lights in policy’ early last year, Minor couldn’t refuse the invitation to advise the institute’s Brexit Think Tank (BTT) – a service she is giving for free. ‘I would be the designated “rapporteur” in EU jargon,’ Minor laughs. ‘I’m just an adviser… there to give them the benefit of my very limited wisdom. I just sort of float in and float out.’

Her self-deprecation belies her wealth of knowledge on all things EU. A lawyer by training, Minor has spent a lifetime working in various guises at the European Commission, dealing with consumer and intellectual property issues and becoming director for consumer policy in 2008. In the early days she even acted as official translator for Baron Cockfield – an ‘architect’ of the single market – and former trusted adviser to Thatcher, whom colleagues later claimed had gone ‘native’. But it’s perhaps for her role as Head of Representation in the UK that Minor is best known. Dubbed the toughest job in the country – and a ‘poisoned chalice’ by some – David Cameron appointed her

37

Spotlight

sharing that expertise is valuable, and you can put in place bilateral arrangements. But the great strength of working to the role just before announcing his intention to hold an in-out EU referendum in 2013.

Having weathered that storm, she retired from the post

Two EU-wide networks that Britain will no longer have access to alert officers to dangerous products and unsafe

early last year and is now enjoying her new role working

food. ‘The UK would no longer have the benefit of those

with trading standards experts on the BTT.

systems, although the goods might well still be reaching

The issues involved are legion and complex. Take the example of mobile roaming charges on mainland Europe.

It’s one of the many reciprocity issues that Britain could

[supermarket] shelves, whatever the arrangements,’ explains Minor.

Britain’s access to other types of networks for enforcing

lose out on – depending on which type of withdrawal

consumer rules has also been thrown into doubt. For

agreement is struck. As Minor points out, the UK could

example, if a UK citizen travels abroad and experiences a

allow EU members to roam on our networks but, without

consumer problem, the Consumer Protection Cooperation

an agreement, there’s no guarantee it will work the other

Network ensures the enforcement authority in that member

way. It’s the same for air passenger rights: we can embody

state will take on board their complaint and act upon it.

current rules in UK law, but that won’t help a UK citizen

However, instigating a similar system post-Brexit is not

who’s travelling with Air France if there’s not an agreement

guaranteed. This way of working also generates ‘know-

with the 27 remaining member states to reciprocate. As

how’, with people sharing how they approach problems.

Minor says: ‘There’s a whole range of rules that depend

That, too, could be lost in a post-Brexit world.

upon everybody participating, and if we move out [of the EU] then there’s no guarantee. It might work, we don’t

Playing by the rules

know yet.’

Fundamentally, Brexit’s success will boil down to

Much will depend on the type of deal we get but,

how seriously other large producers view the UK market;

according to Minor, resolving these types of issues –

will they kowtow to any new UK rules on, say, the height

and more – will be difficult, because many of those

from which toys can be dropped without smashing?

raised by Brexit are ‘part and parcel’ of being part of the

Personally, Minor thinks not. ‘In reality, if you’re a big toy

single market.

manufacturer, you’re going to look at the UK market and

On a personal level, Minor thinks the government

say “we don’t want to change our rules just for a market

is ‘throwing an enormous amount away’ by saying,

that size”, so probably EU rules will apply [to Britain] but

from the off, that we’re not going to be in the Customs

we’ll no longer have a role in shaping them. And CTSI

Union or the single market, without having done a

won’t be able to feed back its on-the-ground-experience

thorough exploration of the consequences of that.

to UK government representatives [within the EU].’

She adds: ‘They’re throwing away all the benefits of

About 95 per cent of toys that reach the EU market now

size and shared expertise, shared understanding – scientific

come from China, so, as Minor puts it: ‘It’s good to have the

understanding in terms of health, hygiene, safety of food

kind of elbow power of a body as big as the EU to say to a

stuffs and consumer products. It’s all done on the basis of

Chinese manufacturer “these are the rules you will apply”.’

the best scientific evidence distilled from scientists working in 28 countries. They’ll no longer have access to that.

‘In terms of enforcement, just sitting around a table and

38

within the EU is that people get to know each other.’

However, Brexit shouldn’t just be viewed in terms of its threats, says Minor. It presents opportunities, too. To explain, she takes the example of a Chinese toy

January 2018

dropping toys from set heights – usually one for the EU, one for the US and, sometimes, one for Australia. Minor says that, if some large manufacturers are already catering for

Spotlight

manufacturer which currently has three testbeds for

a market the size of Australia’s – which is smaller than the UK’s – there is hope that they may create a fourth testbed for bespoke UK rules. This is why Minor advises that Brexit shouldn’t only be characterised as a threat. ‘That’s why Brexit, in some ways, is not a one-way street,’ she adds.

Clout and agility

JaCQUeline Minor

But the fact remains that no-one actually knows how seriously the UK’s eventual new rules will be applied, if at all. She says: ‘If you’re doing something as a group of 27,

liveS: London and Northamptonshire

you have a lot of trading strength. The downside is you have to get 27 [member states] to agree on what those rules

loveS: Political gossip. ‘I miss the fun side of being in an office standing by the kettle gossiping, and some of the intellectual debate, because although it wasn’t our job in the UK, we all loved British politics.’

should be, and that can be time consuming. As the UK, you

CoMMitMentS: Varied and many, including to CTSI Brexit Think Tank, the National Consumer Federation, the Senior European Experts group, the board of the University of Brighton, and other consultancy work.

policy. And, to be fair, the UK has always had a fairly good

won’t have the clout, but you will have the agility.’

Fears that Britain’s consumer protection laws will be diluted are played down by Minor, who describes that scenario as ‘unlikely’. She explains: ‘Everything the government has said in its white paper – which everybody has now forgotten – did say they intended to maintain the highest possible standards of consumer reputation in terms of consumer policy, it’s not a country where government… views [it] with great suspicion as

QUiCK QUote: ‘Curiosity drives me, thinking about how things will work. That’s why Brexit is fascinating because we’re all finding out about it as it happens.

Everybody is just living this in real time.’

ProUdeSt MoMentS: ‘Working on consumer policy was one of the best parts of my career, but I think I’m most proud of the number of people I have mentored who have subsequently gone on to have brilliant careers.

bureaucratic, obstructive and cost creating. I don’t think the British government has ever seen it like that.’

A particular pressure of being a member state at present is the increasing lobbying from business to create more ‘maximum harmonisation’ of legislation across the EU, which effectively shapes laws in favour of business and erodes consumer rights. Maximum harmonisation This interview took place at the Imaginative Papers Studio, a paper mill in London, courtesy of Fedrigoni uk.

means every member state applies the same laws to an issue, regardless of local conditions, whereas minimum harmonisation sets a threshold that members can improve upon. ‘There has been fairly constant pressure from business to move from minimum to maximum because, for

39

business, it’s much easier if you have a standard set of rules to apply throughout 27 or 28 countries,’ says Minor.

‘The difference I think – which is a problem throughout consumer policy – is that business is well organised, well equipped and well funded to make its voice heard. It’s much harder for the consumer voice to be heard because a large part of it is voluntary, so it’s not as well funded. They can’t hire the skilled lobbyists in the same way.’

Spotlight

Ironically, while Minor was working for the EU she

tHe CUtS Explaining her personal thoughts on the cuts to UK trading standards, Minor says: ‘I thought the UK had a brilliant set-up in terms of consumer enforcement when it had the Office of Fair Trading (OFT) to do the grander, big market-based stuff, and trading standards officers (TSOs) to do local enforcement.

‘They got rid of the OFT for reasons I’ve never really bought into and pushed a lot more work down to TSOs. To me, that would be more logically organised by a national agency. And then you cut down the resources available at local level as well! So, inevitably, the whole thing suffers instantly.’

Citing the example of when the Italian ‘consumer police’ took on Apple over its terms and conditions, Minor adds: ‘You can’t imagine any individual TSO, however devoted, however expert, having the resources to take on a company like Apple.’

40

was partly responsible for a recent attempt to standardise laws across all member states, which would have created a universal ‘hierarchy of remedies’ for defective goods – and taken away the consumer right in the UK for an automatic refund. ‘I think UK consumer bodies were always among the strongest in saying “why should we sacrifice our better situation in the name of harmonisation and to facilitate pan-European trading by businesses? Why should we consumers in the UK give up some of our rights?”

they’re throwing away all the benefits of size anD shareD expertise In this instance, the UK held out to preserve its citizens’ rights. ‘We got beaten. We went back to minimum harmonisation – having a threshold, but allowing different countries to be more generous in granting rights to consumers. It was quite a battle. But there are new proposals on the table now about online sales, where the arguments are perhaps stronger for saying we should have a single set of rights.’

While the pressure for greater maximum harmonisation will disappear, Minor says leaving the EU won’t eradicate pressure from business on ministers to ‘redress the balance between consumers and businesses’. ‘But at least you won’t get that pressure to harmonise, which inevitably means some bits of the traditional package of consumer rights might be eroded,’ she adds.

Minor accepts the referendum delivered a result that now has to be acted upon, but she wouldn’t be surprised if we end up queuing to rejoin the EU in five or 10 years’ time – particularly if we leave without a deal. By the time you read this, we should all know how much closer we are to achieving that elusive trade agreement.

January 2018

SPonSored by

ProFeSSional develoPMent WitH TS REviEW Members of CTSI and other professional bodies are required to maintain their professional competence throughout their careers.

Continuing Personal Professional Development (CPPD) means the systematic maintenance, improvement and broadening of your knowledge and skills, and is therefore a long-term commitment to enhancing your competence. CPPD is a requirement of CTSI. TS Review is pleased to offer a free CPPD module in each issue. Simply study the module and complete the questionnaire on the final page, following the instructions for its submission.

If you have any questions, please email training@tsi.org.uk

roofing scams the telltale signs that a rogue builder is at work

Having acted as an expert witness for several trading standards services and police forces over the past decade, I’ve learned the ‘tricks of the trade’ when it comes to

Words and images.

Charles Leigh-Dugmore FCIOB FCABE

Often, it starts with a cold call, offering to clear gutters or secure a roof tile or two, for a charge of a few pounds.

The matter then escalates to major works, involving many

CPPd

spotting scam works on pitched roofs.

thousands of pounds – sometimes in several stages – in what I think of as the ‘It’s worse than I thought’ process.

Discovering that the felt is rotten is often the first step in the escalation of the roofing scam, and can work at two levels: scammers say the eaves felt has rotted, or the felt to the whole roof needs replacement. Sometimes, these two steps are sequential in the scam, with the occasional ‘It’s worse than I thought’ process thrown in.

Modern roofs have felt under the tiles, called sarking felt. This is what we see when we go into our lofts to retrieve the Christmas decorations. On older roofs, you can see the underside of the slates or tiles because there is no felt.

Felts used many years ago were susceptible to the effect of ultra-violet light, so they would become brittle with age. This was particularly the case at the bottom edge of the roof – the eaves – where the felt was exposed when it extended beyond the tiles and was tucked into the gutter.

This exposed margin would rot away quite quickly after the roof was finished, often in as little as three to four years. This was recognised in the 1980s by the National House Building Council (NHBC), which amended its

January 2018

41

CPPd

SPonSored by

standards to require eaves felt to be finished with a

An example of how poor repairs quickly fail

material less susceptible to the effects of ultra-violet light.

But even if damage from ultra-violet light occurs, is any remedial action required? No. The fascia may be more susceptible to decay if the felt has rotted away, but a significant number of roofs have this fault without suffering any ill-effects.

If any work to the sarking felt is needed, it is not urgent. The property owner should merely be given a price and left to make up their mind at their leisure – and to take other advice if they wish.

Could the felt to the whole roof need replacement? It’s very unlikely.

Typically, a pitched roof is expected to have a design life of 60 years – but this is a pessimistic view. If it was accurate, properties built in the 1950s would now need re-roofing and, generally, this is not the case. A roof may well give 80 years of life.

It is not unusual to see properties built in the 1930s that have been re-roofed; however, I have just seen to a building where the roof lasted 120 years before it needed to be replaced.

If the roof is felted, the felt will generally last as long as the roof covering, or at least 60 to 80 years.

Again, even if it does need replacing, it would not be

the property.

A roof will not suddenly become structurally inadequate unless something has changed. If a roof has been structurally inadequate for a long time, it will have distorted slowly – if not actually collapsed.

It is incredibly rare that such a matter would be

an urgent job. Any reputable trader would give a quote

urgent, needing immediate action. The property owner

for the work, and allow the customer to shop around and

should merely be given a price for the job and left to take

come to a decision in their own good time.

other advice before making up their mind to proceed with

Often linked with the ‘your felt is rotten’ tale is the

the work.

line that your battens are rotten, too. You can get some rot

It is quite common for fraudsters to pick tiles off the

in roof battens, but, generally, it’s at the roof’s edges, such

roof and use them as evidence that it needs repair for a

as at chimneys or in verges – the edge of a roof that has a

health and safety reason.

gable.

Battens in the main body of the roof do not rot, unless

On an older roof, it is very easy to lift off ridge or hip tiles by hand, or with minimal leverage using something

there are some major long-term defects, or the tiles have

like a screwdriver. It does not show that action is required,

become porous. This will not be an urgent matter

but is an easy way to scare a property owner into having

requiring instant, major action.

work carried out.

It is not unusual for the next step in the ‘It’s worse

When work is carried out, look at whether the old

than I thought’ saga to be that the roof structure has

ridge/hip tiles have been lifted, or whether mortar has

failed, because the timber has rotted or because the

merely been smeared over the top of the existing

structure is too weak. Theoretically, either mode of failure

mortar to make it look as if the ridge or hip tiles have been

is possible; however, it is unlikely that the property owner

lifted or relaid.

– even an unobservant one – would be unaware of the roof’s condition.

42

Roof timbers do rot, but there would need to be water ingress for a long time, and that would be evident within

Manufacturers have created dry-verge systems to speed up the process of building roofs and to make up for

January 2018

a lack of skilled labour. Hopefully, they also make the edge

CPPd

SPonSored sponsored by by

of the roof last longer.

To be truly effective, a dry-verge system needs to be built into the roof at the same time as the roof is constructed. It is claimed that some systems can be fitted at a later date, but these rely on the integrity of the fascia to work.

In many instances, the wrong type of dry verge is used and is fitted by screws into the mortar verge pointing, which is probably already breaking up. If it wasn’t, there would be no reason to fit the dry verge in the first place. Often, the bottom end of the verge is screwed to the end of the gutter.

Often, part of the scam is to create a sense of urgency by claiming there are major faults with the roof that need immediate attention to prevent damage or injury. It is very rare – other than with storm damage – that immediate, major works are required. Reputable contractors will simply leave a price and allow the property owner to make up their mind in their own time, as well as to get other prices and seek advice.

Dry-verge systems should be fitted as the roof is built

January 2018

43

SPonSored by

CPPd

JanUary 2018

It is very rare for a roof to require urgent repair

ModUle 13: rooF SCaMS Boost your personal and professional development by completing this short questionnaire – worth one hour of CPPD. Answer the questions listed below at www.tradingstandards.uk/cppdtest

1. What is often the first step in the escalating roof scam?

2. What makes sarking felt become brittle?

3. When did the National House Building Council change its requirements for eaves felt?

4. What is the typical design life of a pitched roof?

When talking to victims, I will often give four pieces of advice: • Take your phone with you when you answer the front door • Don’t buy from anyone on the doorstep and don’t let them into your house • Be firm. Telling people to go away is not rude.

Practise doing so in the mirror, as it can be hard to be firm with someone who is being polite and friendly • Dial 999. Many elderly or vulnerable people are frightened to call 999. It is OK to do so, if someone will not go away and is pressurising you

Charles leigh-dugmore FCiob FCabe is a Fellow of the Chartered institute of builders and a Fellow of the Chartered association of building engineers. He runs his own consultancy, giving advice to companies, individuals and solicitors. He has acted as an expert witness for several trading standards and police forces since 2008. He is also currently non-executive vice-chair of red Kite Community Housing, and non-executive director of Golding Homes.

44

5. What will fraudsters often do to the ridges or hips to create evidence that the roof needs repair?

6. What is sometimes done to make it look as if ridge or hip tiles have been lifted and relaid?

7. How will the bottom edge of a badly fitted dry verge be secured?

8. What four key bits of advice can help victim’s defend themselves? applicants who complete the module successfully will be given a certificate. the test must be taken by 23 March 2018.

Module 12 answers (October 2017): 1. BS EN 60335-2-27: 2013; 2. 1 April 2009; 3. 0.3W/m² 4. No, there is no such thing as a compliant lamp/tube; 5. A combination of the sunbed and lamps. Adjustments may also be required to facial tanners, ballasts and some of the embedded software in the sunbed; 6. To reduce significantly the risk of burning; 7. No, it applies to all sunbeds traded new, secondhand or reconditioned since 1 April 2009; 8. Inform – convince – enforce.

From the bar

e b s y a W al D e r a P e Pr ones ouglas-J D n e B . s cken Word olina Bra and Car iStock Images.

46

r make fo s t n ie d e r What ing se? We a c t r u o c sful a succes flagship a e in m a ally ex s forensic tandard S g in d a l tr nationa e was mad it w o h trial and r court ready fo

January 2018

Week after week, a well-known Sunday newspaper published articles that said three men were responsible for illegal copycat ‘government’ websites. The men in question ran a series of websites offering ‘check and send’ services or ‘nested’ technology to help people complete government forms – for example, tax returns, European Health Insurance Card applications, Driver and Vehicle Licensing Agency documents, and applications for passports.

On the first page of their websites were very prominent comparison tables, which showed the different levels of service offered by their sites, compared with the equivalent government portal. The newspaper reported that they were acting illegally, so people began to believe this – and consumers who had, ostensibly, been happy with the

the three men haD their WeBsites approveD By traDing stanDarDs authorities, the aDvertising stanDarDs agency, hm revenue anD customs, government officials anD search-engine operators

number of complaints was significant, although paled into insignificance alongside the number of people who had used the services without any dissatisfaction.

Ironically, the same newspaper had also published

As has been recognised by the Law Commission, and cases such as R v Rimmington and R v Goldstein [2005] UKHL 63, conspiracy to defraud is a vestigial common law

an article extolling the virtues of one of the websites run

charge that should be reserved for cases where statutory

by the trio, on the basis that it was far simpler to use than

fraud does not work, or where there are a number of

the government’s. The three men had had their websites

‘species’ of statutory fraud. The practical importance is

approved by trading standards authorities, the Advertising

that it is more difficult to prove conspiracy to defraud.

Standards Agency, HM Revenue and Customs, government

It is a more nebulous concept, and harder for a jury to

officials and search-engine operators, such as Google,

understand. It allows focus on the issues in the case to be

through which they advertised. In the course of dealing

lost.

with these agencies, they cooperated to the letter.

However, because of the attritional quality of the

When considering charges in a consumer case, thought should be given to charging offences under the Consumer

complaints generated by the press coverage, the perception

Protection from Unfair Trading Regulations 2008 (CPRs). In

of a valid complaint emerged – which developed into

this case, the second charge was a conspiracy to defraud,

the flagship National Trading Standards investigation

referable to a breach of the Distance Selling Regulations.

Operation Cleo 2. As part of this operation, material

This meant there was a hybrid charge, infused with

was collated from all of the sites operated by the men,

unnecessary complication and additional hurdles in terms

amounting to tens of thousands of pages of evidence.

of the mental element of the offence.

Almost all of this ended up being served as part of a

The preparation by the prosecution evolved in such a

prosecution. The investigation and the prosecution

way that they said there would be a second trial, where the

subsequently raised significant didactic points about

defendants would face CPR allegations after the fraud trial.

forensic judgement.

However, that would have been unnecessary and a waste of

Charges

public resources.

Had there been any merit in the allegation, the case

It is crucial to assess what charges should be levelled

cried out for a straightforward statutory fraud charge

against defendants to reflect the alleged criminality. In

for each website before the jury, with an alternative CPR

this case, the defendants were charged with conspiracy

allegation.

to defraud in circumstances where, on one level, there was insufficient reason to depart from statutory fraud or a

Evidence

statutory conspiracy.

In a case involving hundreds of consumers – hundreds of

The Attorney General’s guidelines prescribe when it is

thousands if you count those who did not complain – it is

appropriate to charge conspiracy to defraud. In essence, it

inevitable that the investigation will generate a significant

is rarely appropriate to do so.

volume of material. When preparing a case, it is crucial to

January 2018

From the bar

service they had originally received began to complain. The

47

ensure that the evidence is stripped down so only material needed to prove the case – that is, material pertaining to the facts – is served. The remainder should be retained as unused material and disclosed only in accordance with the Criminal Procedure and Investigations Act (CPIA).

Whittling down the evidence to make the case manageable happened only after around 70,000 pages of evidence had been served. The case could probably have been presented by serving 5,000 – 10,000 pages. This had profound implications for the length and cost of the case.

To manage the volume of evidence served, the prosecution instructed three junior barristers. Had the case been reduced to 10,000 pages, this would have been a twojunior case.

Witnesses In a case where a fraud is said to be demonstrable on the face of a document – in this case, a website – a consumer will simply add gloss to the facts, to explain how they were defrauded. This is only of secondary relevance to whether or not the alleged fraudster intended to act fraudulently.

Where tens of people have been defrauded through oral misrepresentations, different considerations apply.

From the bar

However, in cases allegedly involving fraud on the face of documents, it will almost invariably be possible to schedule the complainants’ evidence on the basis that –

The bundle should, in almost all cases, not exceed one

even if it is not accepted that they were defrauded – they

lever arch file – that is, 400 pages. In an exceptional case,

might think they were. That subtle distinction will almost

it might extend to two lever arch files. However, in this

always avoid the need for calling many witnesses who say

case, documents were uploaded onto iPads.

the same thing. In that way, it should be possible to call no more than about 15 witnesses to explain how they were

Other evidential tools

defrauded.

Some complex frauds warrant electronic presentation

The prosecution initially sought to call more than 100

of evidence. The jury can be given important – but non-

consumers. They then resolved to only call a handful. By the

essential – documents electronically, so the paper jury

time that decision had been made, the only way for those

bundle is kept small and focused. Money movements can

changes to be put into effect in a meaningful way was to

be illustrated graphically, so the jury can easily digest an

adjourn the case, so that all parties could be ready for trial.

overview of how the fraud operated.

The case had to be adjourned for a year.

Jury bundle

In a case involving website fraud, it will almost invariably be necessary and helpful for a jury to see a graphic representation of the way in which the site

In any fraud, the jury bundle is a very important tool.

operated, both in terms of how it was coded and how it

The index itself is a critical document, as it can be agreed

worked in practice for a consumer.

as an admission that will prove many of the essential

48

its date; and where it appears in the bundle.

However, there has to be a good forensic reason for

components of the underlying evidence. It is important

uploading documents onto an iPad. Often, the quality of the

that the index is structured to include: the witness

document, and how it appeared to the consumer, is lost. If

producing the document; where the witness works (for

evidence is being presented electronically, it is far better

professional witnesses); the provenance of the document;

that the jury sees the same thing at the same time.

January 2018

Trial management

proactive, it will enable the prosecution and defence to

Good trial management will be informed by getting

ensure the case includes only the necessary evidence and

the matters set out above correct from as early a stage

proceeds smoothly.

as possible. In this case, there was no opening note, admissions or jury bundle at the start of the first trial listing,

Conclusion

including after a jury had been sworn.

It is a common misconception that consumer frauds are

It is necessary to timetable prosecution and defence

complex and complicated. They are usually straightforward,

deadlines for dealing with issues that will impact on trial

albeit possibly substantial. If early thought is given to

management, including: legal argument; admissions and

these cases in a methodical and considered way, forensic

schedules; objections to admissions and schedules; the

judgement can be used effectively to keep cases short and

opening note; witness requirements; and batting order.

factually simple. They can be presented with a minimum

Assisted by those directions and early identification of

From the bar

it is a common misconception that consumer frauDs are complex anD complicateD

of evidence, without the fairness of proceedings being

issues, it is always possible to streamline the presentation

affected, and costs can be kept vastly lower than a case such

of a consumer fraud through cooperation between

as this, where tens of thousands of pages were served as

prosecution and defence. The parties are obliged to

evidence. In this instance, with adequate case management,

cooperate by virtue of the interplay of the directions

they might have been retained as unused material.

timetabled, and the general obligation of cooperation imposed on all parties by Part 3 of the Criminal Procedure Rules.

If a draft jury bundle index, draft admissions, and a draft batting order are before the court, that will enable a proactive court to put its stamp on trial management in a way that will help both parties. Where the court is not

January 2018

ben douglas-Jones and Carolina bracken are barristers at 5 Paper buildings.

Footnotes All defendants involved in this case were acquitted.

49

1 ‘Are you relevant to today?’

Downtime

3

‘We are going to leave, but we are going to do so in a smooth and orderly way’

The year that was As a new year stretches before us, we cast a glance back at quotes describing important events of 2017. Can you spot which two are related to trading standards?

2

4 ‘Just do it’ Source: ‘Power of persuasion’, TS Today, April 2017 www.tradingstandards.uk/tstoday www.reuters.com www.bbc.co.uk ‘Just do it’, TS Today, August 2017, www.tradingstandards.uk/tstoday www.theguardian.com

50

‘I thought it would be easier’

5

‘We cannot be guided by bitterness or revengefulness’

Picture credits: Cover and page 21: MHJ Page 6: iStock.com / andresr Page 6: iStock.com Page 6: franckreporter Page 7: iStock.com / Wenjie Dong Page 9: iStock.com / Nicola Ferrari Page 11: iStock. com / Arkadivna / sabelskaya / FrankRamspott / pseudodaemon Page 13: UPPA / Photoshot Page 14: iStock.com / Grafissimo Page 17: iStock.com / LPETTET Page 18: iStock.com / retrorocket Page 19: iStock.com / retrorocket Page 21: iStock.com / MHJ Page 22: iStock.com / STILLFX Page 34: iStock.com / Modfos Page 46: iStock.com / AlexRaths Page 48: iStock.com / yulkapopkova Page 50: iStock.com / PeterSnow Page 50: iStock.com / LEOcrafts Page 50: iStock.com / solar22 Page 50: iStock.com / plherrera Page 50: iStock.com / susaro

ANSWERS: 1. John Baradell, town clerk and chief executive of City of London Corporation, speaking at the CTSI and Association of Chief Trading Standards (ACTSO) leadership conference in January 2017, on how trading standards can engage effectively with politicians, while ensuring services have an impact in their communities. 2. Donald Trump, reflecting on life as President of US, April 2017. 3. Theresa May, speaking after an agreement was reached to move on to the next phase of Brexit talks, December 2017. 4. Wendy Martin, programme director for National Trading Standards and director of policy for ACTSO, giving the annual College of Fellows lecture at CTSI Conference in June 2017. 5. Robert Mugabe, speaking live to television, when he failed to announce his expected resignation, November 2017.

Please keep sending your trading standards gags to us at tsreview@tsi.org.uk for use in future issues of TS Review!

www.businesscompanion.info Business Companion - a free information resource for business.

This government sponsored information website provides free impartial legal guidance to help business owners untangle what is sometimes a complicated and confusing world of trading standards and consumer protection legislation.

Designed to offer a basic understanding of how the law views businesses that sell goods and or services to consumers. Quick guides provide the answers and direct you to more in-depth and specific guidance that delivers the detail.

The Business Companion website provides an invaluable free and easy to use resource to help companies remain compliant that’s not only good for business but reassuring for consumers too.

Visit Business Companion today for quick and easy legal guidance to help your business keep on top of laws and remain compliant. www.businesscompanion.info

Nominate a Colleague Fellowship Do you know someone who has ‘gone the extra mile’ for our profession?

Any member with suitable support can nominate another for consideration by the college and CTSI council

Do you know a colleague like this?

We rely on your support by way of donations to enable this support.

If you are interested please contact us at college@tsi.org.uk

CTSI Symposium 2018 The Chartered Trading Standards Institute’s Annual Professional Development Event 4-6 June 2018 East Midlands Conference Centre, Nottingham

Stronger together

Get involved and help shape policyJoin our interactive plenary debates: Highlighting CTSI’s professional development commitment, the Symposium plenaries will address the key issues that concern us all.

CPPD HOURS AVAILABLE

Monday 4 June

Tuesday 5 June

Wednesday 6 June

Influencing decision makers in seeing the impact of Trading Standards work

What does it take to be a 21st century Trading Standards Officer?

Best Practice Plenary

This plenary will ask: How can we showcase the value of Trading Standards work to local decision makers?

Can our profession do more to draw attention to how vital their work is?

The rapid development of commerce in the 21st century has consumers, businesses, and regulators in a never-ending race to keep up:

Share your trading standards work experiences and highlight successes, innovative approaches and partnerships that led to consumer protection accomplishments.

Hosted by CTSI Chief Executive Leon Livermore.

How are trading standards officers adapting their skills to modern commerce and technology?

What is needed to protect the consumers of the future?

www.tradingstandards.uk/symposium2018 #CTSISYMPOSIUM

Main Sponsor