B e f o r e :
(Vice President of the Court of Appeal, Criminal Division)
MRS JUSTICE HALLETT DBE
MRS JUSTICE DOBBS
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MR P COOPER appeared on behalf of the CROWN
Crown Copyright ©
"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.
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."
"... 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."
"... 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  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.
"... 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.
"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."
"... '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.
"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."
"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."
"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."
"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."
"... 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.