Kenworthy (t/a K-Play International) v The Council for the Borough of North Tyneside [2007] EWHC 434 (Admin)

[2007] EWHC 434 (Admin)Case No CO/7490/2006
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Date: 7 th March2007
Before
LORD JUSTICE MAURICE KAYMR JUSTICE GOLDRING
Between
SCOTT KENWORTHY t/aAppellantK-PLAY INTERNATIONALAppellantTHE COUNCIL FOR THE BOROUGHRespondentOF NORTH TYNESIDERespondent
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Fergus Randolph (instructed by Mackrell Turner Garrett Solicitors) for AppellantBrian Kennelly (instructed by North Tyneside Borough Solicitors) for RespondentHearing Hearing dates: 15 February 2007
Judgment

Introduction

[1]The Appellant in this case stated seeks to quash the decision of the Justices sitting in the Local Justice Area of North Tyneside. On 20 February 2006 he was convicted on the following information:
“That Phillipa Bowler trading as Selling Smiles, did on 3 June 2004…supply a child’s toy, namely a painted toy hammer bench, which failed to satisfy the essential safety requirements applicable to it pursuant to Regulation 4 and Annex II of Schedule 2 of the Toys (Safety) Regulations 1995, contrary to Regulation 13 of the Toys (Safety) Regulations 1995 and Section 12(1) of the Consumer Protection Act 1987, the said offence being due to the act or default of [the appellant], trading as K-Play International, pursuant to section 40(1) of the Consumer Protection Act 1987.”
[2]The Appellant was conditionally discharged for 6 months. The statutory provisions The Toys (Safety) Regulations 1995

The statutory provisions

[3]Regulation 4 requires that, “Toys to which these Regulations apply shall satisfy the essential safety requirements.”[4]Regulation 13 provides that, “No person shall supply any toy in respect of which the [essential safety] requirement of Regulation 4 is not satisfied save that a person other than the manufacturer or his authorised representative established in the Community (or where neither the manufacturer nor his authorised representative are established in the Community, the importer into the Community) may supply any toy, provided that the toy would not jeopardise the safety or health of users or third parties when used as intended or in a foreseeable way, bearing in mind the normal behaviour of children.”

The Consumer Protection Act 1987

[5]By section 12(1) of the Consumer Protection Act 1987 “Where safety regulations prohibit a person from supplying or offering or agreeing to supply any goods or from exposing or possessing any goods for supply, that person shall be guilty of an offence if he contravenes the prohibition.”[6]By section 39 of the Consumer Protection Act 1987 “(1)…in proceedings against any person for an offence to which this section applies it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid committing the offence… (4) It is hereby declared that a person shall not be entitled to rely on the defence provided by subsection (1)…by reason of his reliance on information supplied by another, unless he shows that it was reasonable in all the circumstances for him to have relied on the information, having regard in particular-(a) to the steps which he took, and those which might reasonably have been taken, for the purpose of verifying the information; and(b) to whether he had any reason to disbelieve the information.” (a) to the steps which he took, and those which might reasonably have been taken, for the purpose of verifying the information; and (b) to whether he had any reason to disbelieve the information.”[7]By section 40(1) of the Consumer Protection Act 1987 “Where the commission by any person of an offence to which section 39…applies is due to an act or default committed by some other person in the course of any business of his, the other person shall be guilty of the offence…whether or not proceedings are taken against the first-named person.”[8]Given the narrow basis upon which I am able to decide this case it is not necessary to set out the provisions of the Council Directive of 3 May 1988 “on the approximation of the laws of the Member States concerning the safety of toys” which forms the background to the Regulations.

The facts

[9]As the information makes plain, the allegation was that the bench supplied by Phillipa Bowler failed to satisfy the essential safety requirements as required by Regulation 4 and Annex 2 (which I need not set out). It contained, as was agreed, excessive levels of lead and chromium. Phillipa Bowler was not prosecuted. The Appellant alone was pursuant to section 40(1) of the Consumer Protection Act 1987.[10]A number of facts are clear.[11]The appellant was the sole UK agent for Handelshaus, a German company. He worked on his own account as K-Play International. Phillipa Bowler, on the basis of the Handelshaus catalogue distributed by the Appellant, ordered the hammer bench from him. He passed on the order to Handelshaus. Handelshaus had the bench made in Bulgaria (then outside the Community). It imported it into Germany and sent it direct from its warehouse in Germany to Phillipa Bowler. Handelshaus invoiced Phillipa Bowler on K-Play International notepaper. Payment was in sterling to a K-Play International client account at National Westminster Bank. VAT was charged at the German rate (16%). Once Phillipa Bowler had paid for the bench Handelshaus paid the Appellant a commission.[12]The agreement between the Appellant and Handelshaus stated that, “[Handelshaus] guarantees the [Appellant] that it will observe all the relevant regulations in regard to the safety of the end user, among other things the composition…of products. Any claims made in regard to and consequences arising from infringement of these regulations will be the sole responsibility of the represented company.”[13]The Court made the following further factual findings:
“k) The toy bore a [European Certificate] marking together with the name and address of Handelshaus. l) Handelshaus maintained technical files and accepted responsibility for ensuring that a proper testing regime was in place to ensure that their products met essential safety requirements. m) Handelshaus relied on the producer in Bulgaria to manufacture the toy in accordance with a specification so as to ensure the toy complied with the Regulations. n) The article…was not tested. o) The batch of 900 of which it formed a part was not tested. p) The proprietor of Handelshaus…was unable to say when or with what result toys of this particular model and specification from the particular supplier had been tested before the problem with this toy came to light. q) Tests conducted in Germany after the event revealed similar results from other similar toys. [The proprietor] was satisfied that a defective batch of paint had been to blame and was unable to say how many toys had been affected. r) [The Appellant] did nothing to satisfy himself that the toys he exposed for supply satisfied the safety requirements applicable to them. s) He relied entirely on his agreement with Handelshaus. He believed Handelshaus was a reputable supplier with an excellent reputation and that he was justified in relying on his previous dealings with them. t) Copies of technical files and information from them were available to [the Appellant] free of charge on request. u) He sought no information from Handelshaus concerning its compliance with the Regulations in connection with this toy, or any other, except when he was asked to do so by a customer of Trading Standards…”
[14]The Court found that by exposing the hammer bench to Phillipa Bowler for supply, the Appellant was a supplier for the purposes of section 12(1) in that he was “exposing it for supply” within the meaning of Regulation 3. He had a legal responsibility to ensure that toys he exposed for supply met the safety requirements applicable to them.[15]Given that the guilt of the Appellant depended wholly upon that of Phillipa Bowler who undoubtedly exposed the bench for supply, I am not sure what the relevance of that was. However, it is an aspect which I need not consider.

The legal advice to the justices

[16]The Magistrates were advised in the following terms.[17]First, it was agreed that the bench did not satisfy the essential safety requirements, contrary to Regulation 4.[18]Second, the only issue was that raised by section 39: whether the Appellant could prove on the balance of probabilities that he took all reasonable steps and exercised all due diligence to avoid the commission of the offence (by Phillipa Bowman).[19]The Justices came to the following conclusions set out in paragraphs 6-8 of the Case. “We were of the opinion that, given the nature of is business, it would not be reasonable for Mr. Kenworthy to do nothing to satisfy himself that the toys he exposed for supply complied with the…Regulations unless there were no reasonable steps he could have taken… On the facts of this case we found that there were reasonable steps which Mr. Kenworthy could have taken, at no cost to himself, to satisfy himself that the Regulations were in fact being complied with… We decided that Mr. Kenworthy had not proved to us that he had, on the balance of probabilities, taken all reasonable steps and exercised all due diligence to avoid the commission of the offence and convicted him.”[20]In explaining their decision in court, the Justices said, “We have heard all the evidence and the submissions on the relevant case law put before us today. We have considered your case on its individual facts. We have come to the conclusion that you have not made out the defence of due diligence on the balance of probabilities. We feel that there were further steps you could have taken to verify the assurance given in your contract with Handelshaus. We feel that relying entirely on Handelhaus to ensure compliance, and requesting sight of the certification after it has been requested by another source, is not sufficient to make out the due diligence defence in this particular case. Specifically we feel you could have been more proactive in this respect, perhaps requesting the results of testing or inquiring as how often the products were to be tested. We therefore convict you of the offence.” We therefore convict you of the offence.”

Subsequent events

[21]The Justices were asked to state a case. They were of the view that the request to do so was frivolous. As will become apparent it raised many issues never canvassed before them. They decided not to. In the course of assisting them in drafting their certificate of refusal to state a case, the Justices’ clerk (who had not been the legal advisor in court) advised them that for reasons not advanced before them the case had not been made out. Their attention was drawn to Regulation 13, which they had not previously considered. In particular, they had not considered whether the toy bench “would…jeopardise the safety or health of users…when used as intended or in a foreseeable way, bearing in mind the normal behaviour of children.”[22]The Justices state that they did hear undisputed evidence that there was lead and chromium in excess of that laid down by the Regulations. They say this however. “25. Unlike sharp points or edges the defect in this product is not apparent on examination…It would be impossible to identify the nature or extent of the hazard or risk to which a user or third party would be exposed without evidence… …28. We received no evidence to explain to us how the presence of a particular level of soluble lead…or chromium…would translate to a bioavailabilty (sic)… 30. We heard nothing to tell us what effect the concentrations of lead and chromium in the paint could have on a child playing with the toy or anyone coming into contact with it… …32. We regret to say that, had it been suggested to us that we needed to be satisfied beyond a reasonable doubt that the toy would jeopardise the safety or health of users or third parties when used as intended or in a foreseeable way, bearing in mind the normal behaviour of children, we would have been unable to make that finding on the evidence we heard. 33. In deciding that [the appellant] was responsible for the commission of the offence due to his default…we believed he was under a duty to expose for supply only toys which satisfied the essential safety requirements.”

Questions posed by the Justices

[23]The first question posed is this. “Were we correct to find that Phillipa Bowler had committed the alleged offence?”[24]The other questions are based on the original application to state a case. They are as follows. “Was the prosecution an abuse of process? Is the conviction contrary to EU law? Did the defendant “supply” the toy within the meaning of the Regulations? Were we entitled to find the defendant had not taken all reasonable steps and exercised all due diligence to avoid committing the offence?” Is the conviction contrary to EU law?

Did the defendant “supply” the toy within the meaning of the Regulations?

[25]The Justices state they “…were minded to refuse [the application to state a case] on the grounds that it was frivolous in that 1) we heard no argument that the prosecution was an abuse of process 2) we heard no argument that the conviction of Mr. Kenworthy would be contrary to EU law 3) we found that Mr. Kenworthy was a “supplier” on the basis of his own admission in evidence to us that he accepted that he had exposed the goods for supply to Mrs. Bowler, in the course of his business, and that his activities fell within section 12… 4) we did not find that Mr. Kenworthy was obliged to hold test records and technical files and did not reach our conclusion on that basis.” 1) we heard no argument that the prosecution was an abuse of process 2) we heard no argument that the conviction of Mr. Kenworthy would be contrary to EU law 3) we found that Mr. Kenworthy was a “supplier” on the basis of his own admission in evidence to us that he accepted that he had exposed the goods for supply to Mrs. Bowler, in the course of his business, and that his activities fell within section 12… 4) we did not find that Mr. Kenworthy was obliged to hold test records and technical files and did not reach our conclusion on that basis.” The point raised by the Justices’ clerk Regulation 13

The point raised by the Justices’ clerk

[26]As we made plain to counsel in argument, it seemed to the court that before embarking on the many issues now raised by the Appellant, we should first consider the point raised by the Justices’ clerk. If she is right, the conviction cannot stand. It would not then be necessary or appropriate to deal with those issues. Although at first anxious to argue the European points, Mr. Randolph on behalf of the Appellant, having taken instructions, accepted that should the court find in his client’s favour on the Regulation 13 point he would not wish to pursue the European points.[27]The meaning of Regulation 13 is agreed. Mr. Kennelly on behalf of the Respondent accepts it was relevant to the charge faced by the Appellant. The position as it seems to me is this.[28]The Appellant’s guilt is wholly dependent on the guilt of Phillipa Bowler. She was the supplier of the toy bench. She was not its manufacturer in the Community or the manufacturer’s authorised representative or the importer. By the Regulation, the obligation upon those other than the manufacturer in the Community or his authorised representative or the importer, is not to supply a toy which would jeopardise the safety or health of users or third parties when the toy is used as intended or in a foreseeable way, bearing in mind the normal behaviour of children. In other words, what Mr. Kennelly described as the proviso to Regulation 13 is material to the charge.[29]How then does Mr. Kennelly seek to uphold the conviction on this aspect?[30]His submission has essentially three aspects.[31]First he relies upon section 101 of the Magistrates Court Act 1980. That states, “Where the defendant to an information…relies for his defence on any exception, exemption, proviso, excuse or qualification…the burden of proving [it] shall be on him…”[32]Second, that part of Regulation 13 relating to jeopardising safety or health amounts to a proviso. It was therefore for the appellant to prove it on the balance of probabilities. He did not.[33]Third, not only did he fail to advance the defence, it could not on the evidence found by the Justices succeed. That evidence was all one way. There was excessive lead and chrome on the paint of the bench. It is inconceivable that it could not jeopardise children using the toy.[34]In short, submits Mr Kennelly, the failure by the Justices to consider Regulation 13, on the facts of this case, does not matter. Consideration would make no difference. The appeal should fail on that basis.[35]I cannot accept that. This was a criminal prosecution resulting in a criminal conviction. The case was put to the justices on a false basis. They considered and decided it on that basis. They assumed that non compliance with Regulation 4 meant guilt. Their whole approach was flawed. Even assuming that Mr. Kennelly is right regarding the burden of proof (which it is not necessary to resolve), it is impossible to say how the magistrates would have decided the case if correctly advised as to the law. There could well have been further facts adduced by both sides going to the issue raised by the proviso. In such circumstances it does not seem to me a conviction can stand.[36]I have therefore concluded that I am unable to say the Justices were correct in their decision given the basis upon which the case was put to them. The answer to their first question must be no.[37]It is not suggested the case should be remitted to the Justices for their further consideration. The conviction is therefore quashed.[38]It is agreed that in such an eventuality the Appellant should have his costs from Central Funds. That is the order I would make.[39]I agree. In view of the way in which the Appellant was charged, any conviction of him could only be parasitic on the guilt of Mrs Bowler. She could only be guilty if the toy in question jeopardized the safety or health of users or third parties when used as intended or in a foreseeable way, bearing in mind the normal behaviour of children. (Like my Lord, I do not find it necessary to address the burden of proof on that issue). Her guilt could not be established simply on the basis of non-compliance with the essential safety requirements. As the Justices were not advised to consider this crucial stage at trial and were unwittingly misled as to the foundation of any guilt on the part of Mrs Bowler, I too would answer the first question in the negative. Only if the answer to the first question was in the affirmative would it be necessary or appropriate to consider the additional questions. I agree that no question of remission arises.[40]The appeal is allowed.