Criminal offences by businesses in Chelmsford are a real concern for my clients. To date, a number of my clients have been in touch seeking assistance with regard to what they need to do to guard against their businesses potentially committing criminal offences.
With this in mind, I have decided to provide a follow-up post with some general comments about what steps you could take by way of precautions against committing potential criminal offences (please note this post is NOT a substitute for first-hand advice).
Regulation 17(1)(b) of the Consumer Protection from Unfair Trading Regulations 2008 needs for a defendant business to have taken all reasonable precautions and exercised all due diligence to avoid the commission of such a criminal offence by either themselves or any of their employees.
Two questions are immediately raised by the content of this Regulation that any business should ask itself with regard to any of the products and/or services that it has for consumers –
(1) Has the defendant taken all reasonable precautions to avoid the commission of an offence?
(2) Has the defendant acted with due diligence in putting those precautions into practice, so as to avoid the commission of an offence?
However, to effectively answer these two questions you need to have a clear understanding of what a reasonable precaution is. This understanding is considered a question of fact which will be affected by the circumstances of each particular case. By way of illustration, different precautions may be necessary according to whether you are a manufacturer, a retailer or a supplier of services and according to the factual nature of the unfair commercial practice that the defendant is alleged to have engaged in. What is required is for the defendant to take all reasonable precautions so regard will be had to matters such as general trade practice regarding the accompanying need for professional due diligence.
That this has proved to be necessary in practice is because it is insufficient just to look to set up a procedure for checking goods. This is because, in order to be able to effectively comply with the need for due diligence in providing your goods and/or services to a business, steps must also be taken to ensure that your system of compliance system works in practice. Therefore, this effectively means that if employees are given the means to identify goods which fail to comply with relevant regulations, but are not told why identified defective goods should be rejected, then your checking procedure would clearly be inadequate..
Additionally, since precautions must be taken to avoid the commission of an offence, the precautions must have been put in place before the offence is committed (although it is also to be understood that standards may vary according to whether the defendant is a large enterprise or a small corner shop). This is because what happens after the offence has been committed is relevant only in mitigation of sentence otherwise it would like effectively looking to close the stable door after the horse has bolted!
Here are some examples of possible precautions for retailers –
- Is your source of supply reputable?
- Have steps been taken to verify the truth of information from another source (e.g. a car dealer could accidentally sell a second hand car that has had its odometer reading tampered with)?
- Have you devise a sufficient training programme for your employees so that they know what must be done to comply with all legal requirements relating to your business’ dealing with consumers?
Contact Andrew Douglas Wills and Legal Services today via www.andrewdouglaswills.co.uk to see how we could help you with the problem of the committing of criminal offences by businesses in Chelmsford and throughout Essex.
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