Surrey Trading Standards, R (on the application of) v Scottish and Southern Energy Plc [2012] EWCA Crim 539

Case No 2011/03009/B4[2012] EWCA Crim 539
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM GUILFORD CROWN COURT
(HIS HONOUR JUDGE CRITCHLOW DL)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16 March 2012
Before
LORD JUSTICE DAVISMR JUSTICE NICOLHIS HONOUR JUDGE KRAMER QC
Between
The QueenRespondentScottish and Southern Energy PLCAppellant
Andrew Mitchell QC and Jonathan Goulding (instructed by SSE Services plc) for AppellantNicholas Haggan QC and Timothy Moores (instructed by Surrey Trading Standards) for RespondentHearing Hearing date : 16 February 2012
JudgmentLord Justice Davis:Introduction
[1]On the 10th May 2011 after a trial lasting some 5 days before HHJ Critchlow and a jury the appellant company, then called Scottish and Southern Energy plc (“PLC”), was convicted of two counts, being counts 6 and 7 on the indictment, of engaging in a misleading commercial practice contrary to regulation 9 of the Consumer Protection from Unfair Trading Regulations 2008 (“the 2008 Regulations”). They were acquitted on the five other counts on the indictment charged by reference to the 2008 Regulations – in the case of two such counts on the direction of the judge. A co-accused, Crispin Pollak, was also acquitted on those five counts. Mr Pollak was not a co-accused in respect of counts 6 and 7.[2]PLC now appeals against conviction by leave of the Single Judge. We were told that sentence has been adjourned pending the disposal of this appeal.[3]PLC was represented before us by Mr Andrew Mitchell QC and Mr Jonathan Goulding. The respondent prosecutor, Surrey Trading Standards, was represented by Mr Nicholas Haggan QC and Mr Timothy Moores.

Background Facts

[4]The background facts can be shortly stated and are these.[5]Mr Leonard Britton was at his home in Waterside Road in Guildford on the morning of 26th February 2009. As it happened, his daughter, Mrs Walker, was with him at his home that day. It seems that a significant number of elderly people lived in that area. At all events it had been designated by the local Council as a “no cold calling zone”. There was a sign to that effect at the end of the street. By Mr Britton’s front door there were affixed two printed notices, one provided by the Council and one provided by the police. The first stated that the area was a no cold-calling area and that “we do not buy or sell at the door. Identification is required from unknown callers. Please push all mail though the letter box.” The second was shorter but to similar effect.[6]The door-bell rang. Mr Britton answered the door. There he found a man (the co-accused Mr Pollak), with a card identifying him as being from “Southern Electric”. Mr Pollak, as was not ultimately disputed, was an employee of a company called SSE Energy Supply Limited (“LTD”), who had been trained as a door-to-door salesman by LTD. This training required him to speak from, and adhere to, a sales script (called an Energy Script) which he had learned by heart. That set out the questions and statements the salesman was required to put. These included enquiring as to the occupant’s current arrangements and bills for electricity and gas. The questions detailed what was to be asked outside the house and then, if invited in, what to say inside the house. The script even included specific instructions as to when to nod the head, when to make small talk about the weather, when to wait for answers and so on.[7]Mr Britton talked to the man for a few minutes. According to Mr Britton he said he was not interested but the man would not leave. Mrs Walker then came out to investigate and, as she was to say, told the man that it was a no cold call area and asked him to leave. The man did so. She decided to report the incident to Mr Jones, a community safety warden in the area, who had himself been noticing what appeared to be cold calling in the area that morning. Mr Jones confronted Mr Pollak who said he should speak to his supervisor Mr Drewry, which in due course he did. Mr Drewry later called to apologise to Mrs Walker. It was common ground at trial that it was not in itself illegal to engage in door-to-door selling in the area, notwithstanding that the Council had designated it a no cold-calling area and notwithstanding notices such as those affixed by Mr Britton’s door.[8]The matter was, in the event, referred to Surrey Trading Standards. They entered into communication about it with what they understood to be PLC. In due course proceedings under the 2008 Regulations were commenced against PLC and Mr Pollak. At the Plea and Case Management hearing on 1st October 2010 the point was raised – for the first time so far as Surrey Trading Standards were concerned – that the correct corporate defendant should have been LTD (which had employed and trained Mr Pollak). If that was correct, then it was by now too late, by virtue of the time limit for prosecution stipulated by regulation 14 of the 2008 Regulations, to commence proceedings against LTD.[9]In due course, and prior to trial, PLC applied to the Judge seeking a dismissal or stay on the basis that, under the provisions of the 2008 Regulations, it had no case to answer as it was not a relevant “trader” for the purposes of the 2008 Regulations (although it was not disputed that LTD was itself capable of being a relevant trader). The judge, by reserved written decision handed down on 7th January 2011, rejected that application.[10]The first ground of the appeal is a challenge to the correctness of that ruling. The remaining four grounds of the appeal are to the effect that the Judge failed, in various respects, to direct the jury properly as to the considerations they needed to address in deciding whether or not PLC was the relevant trader; misdirected the jury as to whether Mr Pollak could be acting as agent for PLC; misdirected the jury as to whether a “transactional decision” was caused or likely to be caused by the alleged misleading practice; and last (although by no means least in Mr Mitchell’s submissions) that the Judge had failed to remind the jury sufficiently of the defence case.

The 2008 Regulations

[11]To make a little more sense of these points it is convenient to turn to the 2008 Regulations at this stage.[12]The 2008 Regulations came into force on 26th May 2008 (2008 SI No. 1277). They were made in consequence of Directive 2005/29/EC. As is customary in such Directives, there are extensive recitals explaining the purpose behind, and perceived need for, the directed regulations. It was (among other things) noted in the recitals to the Directive that there were “marked differences” in the laws of Member States relating to unfair commercial practices; and it was stated that the Directive “addresses commercial practices directly related to influencing consumers’ transactional decisions”; and so on. The Directive then, by a series of Articles, sets out what was required. Article 2 contains detailed definitions.[13]The 2008 Regulations, designed to give effect to the Directive, itself contains extensive definitions of the terms there used in language corresponding to – but by no means precisely the same as – the definitions used in the Directive. The following definitions contained in regulation 2 are particularly relevant for present purposes. “2(1) In these Regulations — …. “business” includes a trade, craft or profession; …. “commercial practice” means any act, omission, course of conduct, representation or commercial communication (including advertising and marketing) by a trader, which is directly connected with the promotion, sale or supply of a product to or from consumers, whether occurring before, during or after a commercial transaction (if any) in relation to a product; “consumer” means any individual who in relation to a commercial practice is acting for purposes which are outside his business; …. “trader” means any person who in relation to a commercial practice is acting for purposes relating to his business, and anyone acting in the name of or on behalf of a trader; “transactional decision” means any decision taken by a consumer, whether it is to act or to refrain from acting, concerning—(a) whether, how and on what terms to purchase, make payment in whole or in part for, retain or dispose of a product; or(b) whether, how and on what terms to exercise a contractual right in relation to a product. …. (2) In determining the effect of a commercial practice on the average consumer where the practice reaches or is addressed to a consumer or consumers account shall be taken of the material characteristics of such an average consumer including his being reasonably well informed, reasonably observant and circumspect.”[14]Regulation 3 prohibits unfair commercial practices and sets out the circumstances in which a commercial practice is unfair. Regulation 5 relates to misleading actions and is in these terms in the relevant respects. “5(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3). (2) A commercial practice satisfies the conditions of this paragraph—(a) if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and(b) it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise. (3) A commercial practice satisfies the conditions of this paragraph if— (a) it concerns any marketing of a product (including comparative advertising) which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor; or (b) it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if— (i) the trader indicates in a commercial practice that he is bound by that code of conduct, and (ii) the commitment is firm and capable of being verified and is not aspirational, and it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise, taking account of its factual context and of all its features and circumstances. ….” Regulation 9 is in these terms “9.

(b) ” Regulation 16, which is in these terms, may also be noted:

“16(1) This regulation applies where a person “X”— (a) commits an offence under regulation 9, 10, 11 or 12, or (b) would have committed an offence under those regulations but for a defence under regulation 17 or 18, and the commission of the offence, or of what would have been an offence but for X being able to rely on a defence under regulation 17 or 18, is due to the act or default of some other person “Y”. (2) Where this regulation applies Y is guilty of the offence, subject to regulations 17 and 18, whether or not Y is a trader and whether or not Y’s act or default is a commercial practice. (3) Y may be charged with and convicted of the offence by virtue of paragraph (2) whether or not proceedings are taken against X.”
Regulation 17 provides for a “due diligence” defence - which in fact Mr Pollak invoked. (a) if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and (b) it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise. (a) it concerns any marketing of a product (including comparative advertising) which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor; or (b) it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if— (i) the trader indicates in a commercial practice that he is bound by that code of conduct, and (ii) the commitment is firm and capable of being verified and is not aspirational, (a) commits an offence under regulation 9, 10, 11 or 12, or (b) would have committed an offence under those regulations but for a defence under regulation 17 or 18,

The Indictment

[15]Counts 1 to 5 on the indictment contained charges under the 2008 Regulations relating to the events of the 26th February 2009. Counts 6 and 7 on the indictment were framed by reference to regulation 9 and regulation 5. Count 6 is framed in this way:
“Statement of Offence MISLEADING COMMERCIAL PRACTICE contrary to regulation 9 of the Consumer Protection from Unfair Trading Regulations 2008, made under section 2(2) of the European Communities Act 1972. Particulars of Offence SCOTTISH & SOUTHERN ENERGY PLC being a trader, between the 30th day of September 2008 and 19th January 2009 did engage in a commercial practice which was a misleading action (by virtue of regulation 5(2) of the Consumer Protection from Unfair Trading Regulations 2008) in that its sales staff and agents were trained to deliver an “Energy Script” (version 4) for use in all doorstep sales to consumers which in its overall presentation, that is to say taken as a whole script and performance, deceived or was likely to deceive the average consumer in relation to:- (a) the motives for the commercial practice in implying that the visit by the representative of Scottish and Southern Energy Plc was simply to explain about de-regulation and get the consumer crossed off a list and not bothered in this way again. (b) The nature of the sales process by implying that the presentation was mostly about payment method and that all the consumer was committing to was getting a bill from a different office with a different logo, and applying for a discounted tariff rather than making clear they were signing a binding contract to switch energy supplier. (c) The existence of a specific price advantage by implying that the representative was in possession of a printout of information about the consumer’s current energy supply and tariff and that he could get the consumer on a lower tariff and save the consumer money, and thereby caused or was likely to cause the average consumer to take a transactional decision he would not have taken otherwise.”
Count 7 is identically worded, save that it relates to a different period (January 2009 to July 2009) and to version 5 of the Energy Script. Particulars of Offence

The Corporate Structure

[16]In order to understand the nature of the arguments advanced below and on this appeal it is essential to understand the corporate structure of the Scottish and Southern Energy group. There was no real dispute on that at the trial.[17]PLC is a holding company. It is a quoted company, its shares being listed on the London Stock Exchange. Its registered office is at Perth in Scotland. It had at the relevant time 4 executive directors (all employees of PLC) and 6 non-executive directors. It had no other employees, and was not itself a trading company.[18]PLC had a very significant number of subsidiaries and sub-subsidiaries. As already indicated, one such subsidiary was LTD. All of the shares in LTD were owned by PLC. Another wholly owned subsidiary was a company called SSE Services plc: that employed several hundred individuals dealing, among other things, with regulatory, human resource and legal matters and providing advice and service to the companies in the Group accordingly. The evidence was that within the Group as a whole at that time there were some 21,000 employees.[19]LTD was itself a trading company. It also itself had a number of trading subsidiaries. One was a company called Southern Electric Gas Limited. Others included companies called SWALEC Gas Limited and South Wales Electricity Limited which traded principally in Wales. There were also in effect a number of brands or trading names attached to the Group – including “Scottish and Southern Energy”, “Southern Electric(ity)” and “SWALEC”.[20]As explained in evidence to the jury, and as was not disputed, the areas of operation relating to energy companies such as PLC were (and were required to be in the aftermath of the Utilities Act 2000) divided into distinct operations, relating to generation, transmission, distribution and supply. For present purposes, supply is the relevant operation. Under the relevant legislation, a licence is required for the supply of electricity and gas. In the present case, the relevant licence for the supply of electricity had been issued to LTD. The relevant licence for the supply of gas had been issued to Southern Electric Gas Limited (LTD’s wholly owned subsidiary). Thus, as Mr Mitchell emphasised, there was no licence issued to PLC itself. Supplying electricity or gas without a licence is unlawful and a criminal offence; and companies who hold such a licence are themselves subject to potential sanction from Ofgem if any conditions of the licence are breached.[21]In terms of corporate governance and assumption of responsibilities, there was a Schedule of Matters Reserved for the Board of PLC (a document in the Jury Bundle at trial).[22]Paragraph 1.1. of that Schedule reserved to the Board “Responsibility for the overall management of the Group”. Paragraph 1.4 reserved “Oversight of the Group’s operations ensuring:1.4.1 Competent and prudent management1.4.2 Sound planning1.4.3 An adequate system of internal control1.4.4 Compliance with statutory and regulatory obligations” Paragraph 9 (titled “Regulatory”) reserved:
“9.1. Approval of tariffs and other related matters as required by the appropriate legislation 9.2. Approval of the electricity distribution and transmission price control reviews proposed by Ofgem.”
Paragraph 10 reserved to the Board approval of the Group’s policies and standards.[23]The evidence was that door to door sales was an important part of the Group’s activities at that time. Further, evidence was given on behalf of PLC at trial by Mr MacDonald (Managing Director for Regulation and Strategy and employed by SSE Services plc). He explained that the day to day running of LTD and Southern Electric Gas Limited was done by the individual businesses themselves: and that those companies were responsible for compliance with the conditions of the respective licences. He also confirmed that Southern Electric Gas Limited did not have its own separate sales force to sell gas: those doing so were employees of and trained by LTD. Thus – as indeed the Energy Scripts show – individuals such as Mr Pollak were aiming, where possible, to persuade potential customers to enter into gas contracts as well as electricity contracts. It follows, as Mr Donnelly (company secretary to PLC) confirmed in evidence, that while Southern Electric Gas Limited held the licence to sell gas the sales force (employees of LTD) were authorised on behalf of Southern Electric Gas Limited to arrange contracts for the sale of gas: as well, of course, as being authorised on behalf of LTD to arrange contracts for the sale of electricity.[24]It was an obvious inference that the introduction of the 2008 Regulations would have needed careful consideration, given the extent of the Group’s then door to door sales business. It is plain that the Group took, and understandably so, the matter seriously. Indeed a version of the Energy Script was supplied to, among others, Ofgem (the relevant Regulator). In a letter to Ofgem dated 11th July 2008, headed “Scottish and Southern Energy” and with the Perth address, Mrs Maclaren (described as Regulation Manager) stated that the script was “currently in use by all our sales agents (both directly employed and agency staff) for all of the SSE brands”. In subsequent correspondence between Ofgem and Mr Marchant, Chief Executive of PLC, Mr Marchant on 28th August 2009 – after Mr Britton’s complaint had surfaced – wrote, on notepaper with the same heading but identifying PLC at the foot, to say that there would be a “comprehensive review of our sales script (in the context of the new licence condition and other more general consumer protection legislation) and all of our existing sales processes, as well as our internal training, monitoring and disciplinary procedures. Following this review we will implement appropriate amendments to our sales script and processes….” The letter further indicated an intention to carry out a “strategic review of our overall approach to our sales activities, taking account of the shift in focus to the customer’s experience and the revised legal and regulatory framework….” (It had, it may also be noted, initially been the Group’s position that it had previously understood Ofgem to have approved the Energy Script. It was subsequently clarified - and evidence was read out to the jury to this effect – that Ofgem had not approved the script and that it was not its practice to approve scripts: although, in fairness, there was nothing to indicate that Ofgem had commented adversely on the script.)[25]This correspondence was perhaps illustrative of a certain flexibility as to which companies in the group were addressing these matters. Certainly it can be read as consistent with PLC regarding itself as having responsibility for, and control over, training of the sales force and use of the scripts. At all events, after Mr Britton’s complaint had been made and the matter was being investigated Surrey Trading Standards interviewed, under caution and in the presence of a solicitor, Mr Ceri Morgan, National Operations Manager of “Scottish and Southern Energy”, with regard to the prospective offences. Mr Morgan in effect identified “Southern Electric” with PLC, saying that PLC traded under several names; and he indicated that he had authority to speak on behalf of PLC on this matter. He also said that all sales staff were trained in the use of the Energy Script. The transcript of the interview, which was quite lengthy, was in the Jury Bundle.[26]Further, Mr MacDonald had also corresponded with Ofgem concerning licence matters on PLC notepaper. In addition there were a number of e-mails concerning this matter sent to Surrey Trading Standards where the individuals sending the emails identified themselves, on the face of them, as doing so on behalf of PLC. On 10th May 2007, moreover, there had been e-mail traffic circulating within the Group concerning proposed changes to the Energy Script: the footer gives the name and address of PLC. Such documents were also contained in the Jury Bundle.

The first ground of appeal

[27]In his pre-trial ruling to the effect that there was indeed a case to answer, and rejecting the argument that PLC had been the wrong entity to be prosecuted, the Judge carefully reviewed the prospective evidence (as briefly summarised above) and the relevant regulations. He also referred to parts of the Guidance on the 2008 Regulations issued by the Office of Fair Trading, which among other things said - in our view rightly – that whether or not a person was a trader in any particular circumstances must be assessed on a case by case basis. He also referred to a further aspect of the Guidance which indicated that there may be instances where a commercial practice could fall within the scope of the 2008 Regulations even though the trader did not himself deal directly with the consumer – again, in our view, an unobjectionable statement. He rejected the argument that the prosecution had ignored the difference between the legal entities of LTD and PLC. The Judge held that the definition of “trader” was a broad one, as contained in regulation 2. The Judge further held that a non-trading entity, such as a holding company, could be a “trader” for the purposes of the 2008 Regulations. It depended on the facts of the particular case as to whether it was; and that should be decided by the jury on the facts in the present case.[28]It is, we consider, important to emphasise one particular point. At some stages in its argument the appellant sought to identify the issue as being whether PLC, as opposed to LTD, was the “trader” for the purposes of the 2008 Regulations. That is in one sense correct but in another sense potentially misleading. The issue was whether PLC was capable of being a trader for the purposes of the 2008 Regulations. It is perfectly possible to have a prosecution of more than one person for the same alleged offence under the 2008 Regulations. The very wide definition of “trader” and of “commercial practice” demonstrates that: and that is also consistent with the provisions of regulation 16(2), which contemplates that both “X” and “Y” may be traders in relation to the same activity. Indeed Mr Pollak was, as was accepted, acting as salesman not only on behalf of LTD (who employed and trained him) but also on behalf of Southern Electric Gas Limited (who did not employ or train him). Both those companies were thus potentially amenable to prosecution within the prescribed time limits.[29]Accordingly that LTD could have been prosecuted as a trader does not of itself mean that PLC could not have been.[30]Mr Mitchell emphasised some elementary propositions of company law. Clearly PLC and LTD were distinct legal entities. Further, the acts and omissions of a subsidiary ordinarily are not, without more, deemed to be acts and omissions attributable to, or on behalf of, a holding company: that too, as a general proposition, is also clearly right. Clearly, too, PLC was indeed a holding company, not a trading company. But the fact that it was not a trading company does not, of course, necessarily mean that it could not be “trader” within the meaning of the 2008 Regulations. Nor does it mean that it could not have a “business”.[31]Mr Mitchell emphasised that PLC had no licence to supply electricity, and thus could not (lawfully) itself be in the business of supplying electricity. That is true. But to make PLC liable as a “trader” for the purposes of the 2008 Regulations, in circumstances such as the present and where the Particulars of Offence relate to training, in no way necessarily connotes that PLC will itself have acted unlawfully under the Utilities Act 2000 or Electricity Act 1989.[32]Turning to the particulars of the offence charged, Mr Mitchell said that PLC’s sales staff and agents were not trained to deliver the Energy Script: rather, PLC had no such staff or agents and it was LTD’s staff and agents who were so trained. But there was evidence (which was for the jury ultimately to assess) that that training was done with the involvement of and under the ultimate supervision and control of PLC, even if acting in conjunction with LTD and even if details were left to the trading subsidiary. That is consistent with the Schedule of Reserved Matters: indeed, it is understandable why PLC should have reserved to itself compliance with statutory and regulatory obligations, given the potential detriment to the Group as a whole, and the potential reputational damage, of any infringement. That is also consistent with PLC writing to Ofgem with regard to the Energy Script and with other such correspondence sent in the name of PLC contained in the Jury Bundle. Mr Mitchell submitted that all this correspondence “could not change the reality of the situation”. Another way of looking at it, however, is to say that all this correspondence illustrated the reality of the situation.[33]Mr Mitchell nevertheless maintained that the “trader” here in substance was LTD; and in so far as the definition includes anyone acting in the name of or on behalf of the trader, that involved, as he put it, “trickling down, not trickling up”. But that submission impliedly takes as its starting point that LTD, as the trading entity with the licence, is the relevant “trader”, or, rather, the only relevant “trader”. That is not an assumption necessarily to be made. Given the evidence as to the measure of involvement, supervision and control here with regard to training and script PLC was itself capable of being a trader; and there is no reason why, for the purpose of the 2008 Regulations, LTD could not itself in that regard be taken as acting on behalf of PLC as well as on its own behalf. Mr Mitchell’s argument comes close to saying that a trading subsidiary can not in this context ever act “on behalf of” a non-trading holding company: which is not a viable proposition. In our view, it is too narrow an approach to the 2008 Regulations to say that because the sales force were directly employed and directly trained by LTD (which had the licence) therefore there could not be any designation of PLC as “trader” under the 2008 Regulations.[34]It is important to bear in mind that “trader”, for the purpose of the 2008 Regulations, extends to any person who in relation to a commercial practice is acting for purposes relating to his business. The words “any”, “in relation to”, “acting” and “relating to” are all words of width and elasticity. As to the definition of “commercial practice” that is likewise broadly framed. It is amply sufficient to cover involvement in or supervision or control of training, in appropriate circumstances, as being directly connected with the promotion or sale or supply of a product; and it is also to be noted that the definition of “commercial practice” carefully avoids saying that the promotion or sale or supply has to be made by the trader itself.[35]Given the circumstances of this case, and given the breadth of the definitions of “trader” and “commercial practice”, we therefore conclude that the Judge’s ruling was a justified one. The evidence was there, in the circumstances of this case, to show that PLC was capable of being a “trader” for the purpose of the 2008 Regulations. Such a conclusion does not, with all respect to Mr Mitchell’s submissions, do a disservice to the language of the 2008 Regulations or drive a coach and horses through conventional corporate structures or wrongly rend corporate veils. On the contrary, it gives effect to the broad wording of, and purposive approach required to be applied to, the 2008 Regulations.

Ground 2

[36]Complaint is then made as to the way in which the Judge summed up to the jury on the issue as to whether they could be sure that PLC was a relevant trader in relation to the relevant commercial practices: particularly (in the context of counts 6 and 7) the sales staff and agents being trained to deliver an energy script. It is further complained that the Judge failed to emphasise to the jury the point that PLC was a separate legal entity, and not itself a trading company; and that it was LTD which employed the sales staff and trained them, which held the electricity licence and which entered into electricity contracts with consumers. It is yet further said that the Judge did not sufficiently identify to the jury the commercial practice in which PLC was alleged to be engaged.[37]It is to be observed that the Judge had prepared a detailed written Route to Verdict document which, quite properly, he discussed with counsel before providing it to the jury. That set out the essential questions in respect of each count which the jury needed to consider. With regard to counts 6 and 7 the Route to Verdict provided as follows:
“In Counts 6 and 7 answer the following questions. 1. Was the PLC a trader? If no return a NG verdict 2. If yes to Question 1 Did it engage in a commercial practice that was a misleading action as alleged in Count 6 (and/or as alleged in Count 7) in training the sales staff to deliver the Energy Script Version 4 (or Version 5 in Count 7)? If no return a NG verdict 3. If yes to Question 1 and 2 was the overall presentation of the whole script and sales performance likely to deceive the average customer in relation to either a or b or c of the Particulars of the Offence? You must all agree on any one of a, b, or c. If no, return a NG verdict. 4. If yes to Questions 1, 2 and 3 was the script and performance likely to cause the average consumer to switch energy supplier?”
If no return a NG verdict Did it engage in a commercial practice that was a misleading action as alleged in Count 6 (and/or as alleged in Count 7) in training the sales staff to deliver the Energy Script Version 4 (or Version 5 in Count 7)? If no return a NG verdict You must all agree on any one of a, b, or c. If no, return a NG verdict.[38]We reject this ground of appeal. The Judge sufficiently summed up to the jury on these aspects. He specifically identified in his summing-up the point that PLC was a holding company and that other companies had “different and specific roles”. He stated that it was LTD which dealt with the supply and sale of electricity - albeit, it is true, not specifically reminding the jury that it also held the necessary licence – and organised and trained the sales force (p.5 of the summing up). He carefully went through the relevant regulations with the jury, emphasising they had to be sure: saying “It is a matter for you to decide on the facts of this case whether PLC was a trader” (p.7). He made clear that PLC denied that it was a trader or that Mr Pollak was its agent: reemphasising that, at some length (at p.13). He also specifically (at p.19 of the summing-up), by reference to the Particulars of the Offence, referred to the alleged commercial practice involving the training of the staff and agents to deliver the Energy Script. He went through the evidence and documents, suggesting to the jury that the Schedule of Reserved Matters was a “very important document in this case”. There was, in our view, an abundance of evidence to indicate that PLC was involved in and exercised ultimate supervision and control over training and was aware of (and had approved) the Energy Script: which evidence the Judge duly summarised. Mr Mitchell complained that at one stage the Judge in his summing-up indicated that PLC was saying that “in effect it had delegated responsibility for sales to another company within the group”. That was not its case; but in our view, set in the context of the rest of the summing-up, the jury would not have been misled by that statement, and there was no material error. The statement of the Judge, we think, was designed to emphasise – even if clumsily worded – that PLC was saying that it had no responsibility for sales.[39]The Judge also reminded the jury of the central aspects of the evidence called by PLC on this point. Part of that evidence (from Mr MacDonald) was to the effect that PLC “would have an interest” in the subsidiary complying with the law and that PLC was obliged to see that its subsidiaries were managed in accordance with the law. The Judge, in summing up the evidence of Mr Donnelly, included reference to his accepting that the Schedule of Reserved Matters was to ensure that the board of PLC had a reasonable level of supervision over the activities of its subsidiaries; and to his agreeing that the Board were aware of the door to door sales strategy and aware of the importance of it; and to his accepting that use of the script was fundamental to the Group. The Judge also reminded the jury that Mr Donnelly indicated his own view that it was “stretching it” to say Mr Pollak acted on behalf of PLC or that PLC was a trader.[40]We reject this ground of appeal.

Ground 3

[41]It is then complained that the Judge misdirected the jury on the issue of whether Mr Pollak was an agent of PLC.[42]Although references to agency are contained in the indictment and the notion of agency is familiar to lawyers, it perhaps might have been better if, before the jury, the Judge had steered clear of delving into this concept: after all, the words in regulation 2 are “in the name of or on behalf of the trader”.[43]If anything, (as the respondent submitted), any confusion in this regard would have tended to favour the appellant. In any event, the specific reference to Mr Pollak being the “agent” of PLC was contained in the Particulars of Offence for counts 1, 2, 3, 4 and 5 – all being counts on which the appellant was acquitted. To the extent that reference is made to “its sales staff and agents were trained to deliver an Energy Script” in the particulars to counts 6 and 7, the jury had elsewhere in the summing up been made aware that the issue was as to PLC’s alleged involvement concerning training and whether that connoted that LTD and its employees were acting on PLC’s behalf for the purposes of the 2008 Regulations. It was not essential that the training be of PLC’s own employees or agents (in one strict sense of that word); and overall the point was sufficiently conveyed to the jury.

Ground 4

[44]The complaint here is that the Judge misdirected the jury on the “transactional decision” element of the offence: the need for the commercial practice to cause or to be likely to cause the average customer to take a transactional decision he would not otherwise have taken, for the purposes of regulation 5.[45]The Judge set out the elements required to be proved in this regard, quoting almost verbatim from regulation 5(2), at p. 10 of the summing-up, and elsewhere going through the various counts. In dealing with counts 6 and 7, at a later stage in the summing-up, he again directed the jury to consider with regard to the misleading practice alleged: “did it cause or was it likely to cause the average consumer to switch suppliers?” (thereafter developing the point). The point was also made in the written Route to Verdict.[46]That was amply sufficient. Mr Mitchell complained the Judge did not direct the jury on the significance or meaning of the causation element of the offence. This is not tenable: the Judge had made the point about the (necessary) element of causation clear in a number of places in his summing-up. Moreover for the Judge to introduce a “but for” exposition – as Mr Mitchell also suggested he should – would have been an unnecessary elaboration.

Ground 5

[47]The final complaint is that the Judge failed to remind the jury sufficiently (or at all) regarding the defence case.[48]This was a complicated case in which to sum up and it was the Judge’s task to try and sum up not only in a way comprehensible to the jury but also, preferably, concisely in what had been a relatively short trial. At the same time the defence case did of course have to be left sufficiently to the jury in the summing up; and that remained so even where Mr Goulding had himself comprehensively addressed the jury on PLC’s case and where the Judge had in terms directed the jury to consider counsel’s speeches.[49]Mr Mitchell maintained that the summing-up was unbalanced. He raised a number of points. He complained in particular that the Judge did not sufficiently emphasise the defence point that the appropriate corporate defendant was LTD and (in effect repeating what he had said on Ground 2) did not give them adequate directions as to why, on the defence case, PLC was not a “trader”. Nor, he submitted, did he remind them of the entire Energy Script or sufficiently emphasise the further part of the defence case that the customer was not likely to be deceived.[50]Mr Haggan accepted that the Judge might have said more. But he submitted that the Judge had said enough.[51]We agree with Mr Haggan on this. The Judge had drawn attention to the position of LTD at the outset of his summing up. He reminded the jury of the salient parts of the witnesses’ evidence, including those called by PLC, and he identified the issues: supplementing his guidance with the detailed Route to Verdict document. We have considered all Mr Mitchell’s various complaints. But having read and reread the summing-up we consider that the defence case was sufficiently put to the jury; and the summing-up was not unbalanced or unfair.

Conclusion

[52]Mr Mitchell has presented his arguments with his usual skill and force. But, considering the grounds advanced for this appeal both individually and cumulatively we are not persuaded that this conviction was unsafe. The appeal is therefore dismissed.

Cited in 1 later judgment