Adaway, R v [2004] EWCA Crim 2831

Case No 200400511/B4

[2004] EWCA Crim 2831

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Wednesday, 3rd November 2004

Strand

London, WC2

B E F O R E:

LORD JUSTICE ROSE

(Vice President of the Court of Appeal, Criminal Division)

MRS JUSTICE HALLETT DBE

MRS JUSTICE DOBBS

Between

R E G I N ACrown

-v-

Between

GLEN ADAWAY

Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR D W MAYALL appeared for APPELLANT

MR P COOPER appeared for CROWN

J U D G M E N T

[1]THE VICE PRESIDENT: On 18th December 2003 at Reading Crown Court, following a trial of several days before His Honour Judge Playford QC, the appellant was convicted on two counts of supplying goods with a false trade description contrary to section 1(1)(b) of the Trade Descriptions Act 1968, that was count 1, which related to roof vents, and count 2, which related to the roof of a conservatory. The jury acquitted on count 3, which related to the sides of the conservatory. The appellant was fined £250 on each of the two counts on which he had been convicted.

[2]He appeals against conviction by leave of the single judge.

[3]There was a co-accused, Mrs Adaway, the appellant's wife. She was acquitted on all three counts. The judge ordered that her costs be paid by the prosecution.

[4]The circumstances were that Mr and Mrs Adaway traded as a partnership called Quality Direct. They agreed to supply and install a conservatory at the home in Woodley in Wokingham of a Mr Byatt, who became the complainant. The contract provided that there should be two roof vents and sides of Pilkington K glass, but there was a dispute between the parties as to whether the roof itself should also be of K glass. Mr Byatt said "yes", the appellant and his wife said "no".

[5]The conservatory, which cost £18,000, was erected in early 2002. On completion there were no vents in the roof, the roof was not of K glass and nor were the sides. The appellant had agreed that there should be two roof vents and K glass in the sides. He said he had made a mistake when ordering the components from the supplier. But he did not believe that the contract provided for the roof to be made of K glass. If it did, then he was mistaken about that. The appellant offered to replace the glass in the sides with K glass, or to compensate Mr Byatt for the mistake and for the lack of roof vents. Mr Byatt refused that offer and went, as he was entitled to, to the Trading Standards Office. Eventually, on a basis to which in a moment we will come, that Office recommended the initiation of a prosecution of the appellant and his wife at the suit of the Wokingham District Council.

[6]It was the prosecution case that the conservatory was supplied without two opening roof vents and that the sides and roof were not of K glass. The written descriptions supplied were false. It was the defence case that the appellant had accepted that the conservatory should have two roof vents and K glass in the sides, but he had taken all reasonable precautions and exercised all due diligence in preventing the mistake and he relied on the statutory defence available to him in those respects by virtue of section 24 of the Trade Descriptions Act. The appellant did not accept that there had been an agreement for the roof to be of K glass; but, as we have said, he said that, if he had failed to notice that requirement, that was a mistake which he had made.

[7]Three grounds of appeal are advanced on behalf of the appellant. The first is that the judge was wrong in refusing to stay the proceedings as an abuse of process. The second is that the verdicts of the jury in acquitting on count 3, but convicting on counts 1 and 2, were inconsistent and inexplicably so. The third ground is critical in one respect of the summing-up in relation to the possibility of mistake. If the first ground is well founded, it will not be necessary to consider the second and third grounds.

[8]The submission which Mr Mayall makes in relation to the first ground is simply this. The judge had not merely the power, but the duty, to stop this prosecution if it were oppressive. Mr Mayall accepted that the onus was on the defence to show at the outset, when the submission was made, that the prosecution was oppressive. Mr Mayall submits that that was done evidentially, because no criterion to justify the prosecution in the prosecuting authority's Public Protection Enforcement Policy was established. To those criteria we shall, in a moment, return.

[9]Mr Mayall submits that there was, on the material before the judge, nothing other than bare assertion on behalf of the prosecution authority that the prosecution fell within the terms of the Policy document. At this point it is convenient to refer to the terms of that Policy document. Paragraph 7.1 is in these terms:

"There are two issues to determine. The first is what level of enforcement action to take. The second is that, if the first decision is to take formal enforcement action, then is that action viable and appropriate. There are two stages in determining whether formal enforcement action is viable and appropriate: - Stage 1: The evidential test, - Stage 2: The public interest test."

That sort of approach is familiar from the Code for Crown Prosecutors issued by the Crown Prosecution Service.

[10]However, there is in this Policy document a further paragraph of particular present significance. It is in these terms, so far as they are presently material:

"Prosecution 7.2. In order to take forward prosecution, the individual or organisation must meet one or more of the following criteria: - Engaged in fraudulent activity, - Deliberately or persistently breached legal obligations."

[11]The submission made by Mr Mayall is that there was no evidence of fraud, either at the outset, or in due course, although both Mr and Mrs Adaway were cross-examined on the basis that they had behaved fraudulently. Furthermore, submits Mr Mayall, there was no evidence of deliberate or persistent misconduct, although the prosecution asserted that that was their case. Mr Mayall submits that the judge should not, in making the ruling rejecting the application for a stay, have adopted the "wait and see process" which it appears he may have done.

[12]At that point it is convenient to rehearse certain passages from the judge's ruling rejecting the stay which was given on 1st September 2003. At page 3B there is a reference to a Mr Mitchell. It is to be noted that Mr Mitchell was never called to give evidence before the jury. The judge, having referred to the making of the complaint by Mr Byatt to the Newbury Trading Standards Office, said this:

"... Mr Mitchell saw the conservatory and thought that was a matter which should be resolved without recourse to the criminal law although he is recorded as telling the Byatts that 'he had had previous problems with Quality Direct' and that 'they had had a fair amount of court experience,' matters which have not been elaborated before me as yet."

[13]The judge went on to refer to a visit by Mr Mitchell to the premises where the conservatory had been erected where, apparently:

"... he was persuaded by Mr Byatt to change his mind."

In consequence the matter was passed to the Wokingham District Council and the present prosecution was instituted. The learned judge was referred to a passage in the judgment of Phillips LJ, as he then was, in Shropshire County Council v Simon Dudley Limited [1996] Trading Law Reports 69, at page 82, where Phillips LJ said:

"Trading standards officers must exercise discretion when deciding whether or not a particular case warrants the intervention of the criminal law ... The Trade Descriptions Act is essentially concerned with consumer protection. It does not seem to me that this case falls within the type of mischief against which the Act is directed."

The Divisional Court in that case, having allowed the appeal, imposed absolute discharges in relation to the breaches of the Trade Descriptions Act which had there occurred.

[14]The learned judge, having quoted from that judgment of Phillips LJ, which included a reference to it being easy to see that: "... a busy criminal court and a jury could become bogged down in a misplaced endeavour to resolve what are essentially civil disputes," went on to refer to Mr Mitchell's reaction, and the fact that he, Mr Mitchell, had seen no good reason to involve the criminal law, because there seemed to be nothing specially heinous about these offences that made the county court inappropriate.

The judge went on, at the top of page 5:

"However, I am not the prosecutor and I am not responsible for the decision to prosecute. I do not have power to stay a prosecution just because I do not like it."

[16]The judge went on to refer to DPP v Humphries

[1977] AC 1

, to Phillips LJ's judgment already cited and to the skeleton argument of Mr Cooper, on behalf of the prosecution.

[17]This contained an assertion that the defendants:

"... 'deliberately breached their legal obligation' and 'engaged in fraudulent activity' thus falling within those criteria."

That is a reference to the criteria we have already identified in 7.2 of the Policy document.

The judge went on at 5H:

"I really cannot say, and may never be able to say, whether these criteria are in fact satisfied and doubt whether it is realistic to reach a concluded view on such matters in advance of the trial and certainly without hearing evidence. All I can say is that there is nothing in the papers before me that supports Mr Cooper's bare assertion, save possibly from Mr Mitchell's cryptic comment noted above and a comment which at least initially did not cause him to recommend criminal proceedings. On the contrary, it rather looks to me as if the view of the man on the ground, Mr Mitchell, was initially that the criteria was not met and that he was persuaded to take a different view not by a consideration of the laid down criteria but by Mr Byatt's insistence."

[19]The judge went on to say that the criteria did not have statutory effect and that the decision whether or not to prosecute was a matter for the discretion of the local authority. Those observations are clearly correct.

The judge, however, went on towards the end of his ruling, at page 7, to say this:

"The views on the facts that I have expressed are entirely provisional. I have heard no evidence ... At the conclusion of the case, however it may end, I will have heard all the evidence and will have formed my own view of the matter in which the defendants carried on their business. If I then consider that there was no public interest served by this prosecution, none of the criteria having been met, especially if the reason for that failure was that Mr Mitchell's initial view was correct ... I shall certainly make my view clear and reflect it in any sentence or in considering costs or compensation."

[21]Indeed, when the learned judge came to impose the fines upon the appellant, to which at the outset we referred, and to make the order in favour of the female defendant as to her costs, the learned judge said this in a passage on which Mr Mayall places particular reliance at page 3 of the sentencing remarks:

"It is the responsibility of Wokingham District Council to ensure that they do not improperly or disproportionately use their powers of enforcement so as to cause oppression. They have, at their disposal, public funds and they should not mobilise the criminal law unless it is in the public interest to do so or when a warning or some form of caution would do as well. In particular, the criminal law should not be mobilised to secure the settlement of private disputes which should more appropriately be determined in the county court or by arbitration or by mediation."

[22]The judge went on to rehearse certain passages from his ruling of 1st September, by which he said he had reminded the District Council of their duties in this respect. He went on to say that, so far as Mrs Adaway was concerned, she had had nothing whatever to do with the contract and there was no reason for including her in the prosecution, save the purely technical one that she was her husband's partner:

"Still less was there any basis for cross-examining her on the basis of fraud or recklessness. In my judgment Wokingham District Council did not exercise the rigorous discretion required of them. According to their own guidelines, they had no good basis for prosecuting these defendants, especially Mrs Adaway, it was not in the public interest to do so."

[23]He went on to refer to the indignity of the defendants having been publicly and aggressively cross-examined on the basis that they been dishonest:

"... an allegation that, in my view, was made through a desire to continue, not to initiate these proceedings."

He then went on to make the award of costs to which earlier we have referred.

[24]In the light of those observations when passing sentence, Mr Mayall suggests that his submission to this Court is even more soundly based, because the learned judge was there recognising expressly that the local authority most not act in an oppressive way. In the light of the material available to the judge at the end of the trial, which was in substance no different from the material which was available to him at the beginning when he made his ruling, Mr Mayall submits that the judge should at the outset have concluded that this prosecution was oppressive and ordered that it be stayed.

[25]In the face of that forceful submission, the Court sought submissions from Mr Cooper, on behalf of the prosecution, as to the manner in which it could be said that the criteria identified in 7.2 had been met. He accepted that there was no evidence of fraud. He accepted, that being so, that neither Mr nor Mrs Adaway ought to have been cross-examined on the basis that they were fraudulent. He accepted that there was no material demonstrating persistent breach of legal obligations. He accepted that the only material capable of establishing a deliberate breach was the denial by the appellant in the course of the interview that any mistake had been made by him.

[26]As it seemed to us, as this appeal progressed, it became clear beyond per adventure that neither of the criterion identified in 7.2, and sought to be relied on before the learned judge, was capable of substantiation. It follows that Mr Mayall's submission, that the learned judge ought at the outset to have reached the conclusion that a prosecution was oppressive, which in the course of his sentencing remarks he hinted that he had by then reached, is well founded. In our judgment, it follows that the learned judge, albeit exercising a discretion in refusing a stay, exercised it in a way which was without foundation. It follows that this appeal must be allowed and the appellant's conviction quashed.

[27]We add this. We have no information as to how much these proceedings have cost this local authority. We suspect that it must be many thousands of pounds. We cannot emphasise too strongly that before criminal proceedings are instituted by a local authority, acting in relation to the strict liability offences created by the Trade Descriptions Act, they must consider with care the terms of their own prosecuting policy. If they fail to do so, or if they reach a conclusion which is wholly unsupported, as the conclusion to prosecute in this case was, by material establishing the criteria for prosecution, it is unlikely that the courts will be sympathetic, in the face of the other demands upon their time at Crown Court and appellate level, to attempts to justify such prosecutions.

[28]For the reasons which we have given, this appeal is allowed. The appellant's convictions are quashed.

[29]MR MAYALL: My Lord, as in the court below, there is an application for costs in this matter.

[30]THE VICE PRESIDENT: Are you privately funded?

[31]MR MAYALL: My Lord, yes.

[32]THE VICE PRESIDENT: You seek the costs against the prosecution?

[33]MR MAYALL: My Lord, as in the court below.

[34]THE VICE PRESIDENT: That would be the local authority, would it?

[35]MR MAYALL: Yes. (Pause)

[36]THE VICE PRESIDENT: Yes, Mr Mayall, you may have your costs.

[37]MR MAYALL: I am grateful, my Lord. There is one other matter which arose in the court below, in that the regulation allowing for costs to be awarded against the prosecution, as against out of central funds, require that your Lordships specify the amount.

[38]THE VICE PRESIDENT: You are quite right to remind us of that. Have you got a figure?

[39]MR MAYALL: My Lord, yes. I have got --

[40]THE VICE PRESIDENT: Has Mr Cooper seen it?

[41]MR MAYALL: My Lord, what we have is in relation to costs below. They are simply halved, half to represent Mr Adaway and half to represent Mrs Adaway. The local authority have paid their half in relation to that, so they are obviously aware of those costs.

[42]THE VICE PRESIDENT: What is the figure?

[43]MR MAYALL: My Lord, the figure is --

MRS JUSTICE HALLETT: So those are the costs of a four day trial?

[45]MR MAYALL: It was five days eventually, yes. Including the proceedings in the Magistrates' Court and the application, the total is £14,657.71.

[46]THE VICE PRESIDENT: £14?

[47]MR MAYALL: Plus VAT.

[48]THE VICE PRESIDENT: £14,6 and what?

[49]MR MAYALL: £57.71.

[50]THE VICE PRESIDENT: Is that the total or the half figure?

[51]MR MAYALL: That is the half figure.

MRS JUSTICE HALLETT: And that's the Crown Court proceedings and these proceedings?

[53]MR MAYALL: My Lady, no.

[54]THE VICE PRESIDENT: That is the proceedings before the Magistrates and in the Crown Court.

[55]MR MAYALL: Yes.

[56]THE VICE PRESIDENT: What is the figure you are seeking in connection with the appeal?

[57]MR MAYALL: In connection with the appeal, my Lord, the costs are -- solicitors' costs £4,901.05, that includes VAT.

[58]THE VICE PRESIDENT: We are not going into pence, Mr Mayall, I can tell you that.

[59]MR MAYALL: £4,901.

[60]THE VICE PRESIDENT: And counsel?

[61]MR MAYALL: My Lord, £6,750 plus VAT, which is -- the VAT is £1,181-odd. So the total figure for everything is £12,832.

[62]THE VICE PRESIDENT: I am not sure where that figure comes from.

[63]MR MAYALL: My Lord, it is £4,901, which is the solicitors, £6,750, VAT of £1,181 on that £6,750.

[64]THE VICE PRESIDENT: I see. So the total figure is?

[65]MR MAYALL: £12,832.

[66]THE VICE PRESIDENT: £12,832. Mr Cooper?

[67]MR COOPER: My Lord, I don't wish to raise any due argument with regard to the costs. That is in your hands. It is not for me to raise any argument, save to say it is in your hands, my Lord, whether the prosecution have to meet the costs, or whether they can be met from central funds.

MRS JUSTICE HALLETT: What about the amount, Mr Cooper, apart from the principle?

[69]MR COOPER: I was given a costs schedule two days ago with regard to today's hearing of some £3,000. I understand that has been revised to some £4,000-odd.

[70]THE VICE PRESIDENT: That sounds like the solicitor's costs, doesn't it.

[71]MR COOPER: That's right. I am not -- I have not seen any costs with regard to -- any other costs with regard to today. I can't obviously tax those, or deal with costs on a professional basis, because that is not really my argument to argue one way or another whether they are reasonable or not, so I can't offer any judgment. Clearly it is would be within the Court's jurisdiction to meet a costs demand as they think reasonable for the action taken.

[72]THE VICE PRESIDENT: I take it you can't have any comment to make so far as the costs in the Magistrates' Court and Crown Court are concerned because those have been the subject of examination before?

[73]MR COOPER: Yes, Mrs Adaway's costs have been met and paid.

[74]THE VICE PRESIDENT: But those were halved, so there can't be any argument, as I understand it, about the figure of £14,600 plus VAT for that.

[75]MR COOPER: No.

[76]THE VICE PRESIDENT: Thank you. (Pause). We shall order the local authority to pay in relation to the costs of the Magistrates' and the Crown Court the sum of £14,657 plus VAT. In relation to the costs of this appeal, we shall order the local authority to pay a total sum of £7,500 plus VAT. Thank you.