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Allied Domecq Leisure Ltd v Cooper (West Yorkshire Trading Standard Service) [1998] EWHC Admin 936 (9th October, 1998)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/1998/936.html
Cite as:
(1999) 163 JP 1,
[1998] EWHC Admin 936,
[1999] Crim LR 230
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ALLIED DOMECQ LEISURE LIMITED v. PAUL GRAHAM COOPER (WEST YORKSHIRE TRADING STANDARD SERVICE) [1998] EWHC Admin 936 (9th October, 1998)
IN
THE HIGH COURT OF JUSTICE
CO/2336/98
QUEEN'S
BENCH DIVISION
(THE
DIVISIONAL COURT
)
Royal
Courts of Justice
Strand
London
WC2
Friday,
9th October 1998
B e f o r e:
LORD
JUSTICE BROOKE
and
MR
JUSTICE SEDLEY
- - - - - - -
ALLIED
DOMECQ LEISURE LIMITED
-v-
PAUL
GRAHAM COOPER
(
WEST
YORKSHIRE TRADING STANDARD SERVICE
)
- - - - - - -
(Computer-aided
Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited,
180 Fleet Street,
London EC4A 2HD
Telephone No: 0171-421 4040
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
- - - - - - -
MR
FA PHILPOTT
(instructed by Edgle and Ellison, Birmingham 17) appeared on behalf of the
Appellant.
MR
R GIOSERANO
(instructed by Henry Hymans and Company, Leeds
LS1
5QX) appeared on behalf of the Respondent.
J U D G M E N T
(As approved by the Court)
Crown copyright
1. LORD
JUSTICE BROOKE: This is an appeal by the Defendants, Allied Domecq Leisure
Limited, by way of Case Stated from their conviction at the Bradford
Magistrates' Court, on 24th February 1998, of two offences committed by virtue
of section 32 of the Weights and Measures Act 1985. The first information,
which the Justices found proved, contended that on 24th July 1997 at Bradford
in the County of West Yorkshire the Appellants:
"Committed
an offence in that Jacqueline Burgon, the licensee of The Fates and Firkin,
Upper Millergate, Bradford, in selling goods, namely Fates bitter beer by
capacity measurement, did cause to be delivered to the purchaser, Derek Rimmer,
a lesser quantity, namely 18 fluid ounces, than that purported to be sold,
namely 1 pint, Contrary to Section 28(1) of the Weights and Measures Act 1985
and the commission of the offence by Jacqueline Burgon was due to the act or
default of you, whereby you are guilty of an offence by virtue of Section 32 of
the Weights and Measures Act 1985."
2. A
second information, which the Justices also found proved, was in identical
terms except that it referred to 18 and a quarter fluid ounces, not 18.
3.
The Case Stated shows that although the justices heard certain live
evidence, the appellant and respondent agreed the following facts:
"1
On 24th July 1997 two trading standards officers visited the 'Fates and Firkin'
public house in Upper Millergate, Bradford One. Mr Derek Rimmer asked a member
of the bar staff for a pint of 'Goddess' and a pint of 'Fates'. They later
ascertained that the bar person was Daniella Lewis.
2.
M/s Lewis pulled the beer into pint 'to brim' glasses and placed them on the
bar counter. Both glasses of beer had large heads and were left to settle.
The officer paid for the beer. The trading standards officer did not ask for
the beer to be 'topped up'. The barmaid did not offer to top up the glasses or
inquire if the officers wanted the glasses topping up.
3.
The officers asked to see the Licensee. They were told she was not available,
but were introduced to Kirsty Tickle who was described as the relief manageress.
4.
Mr Rimmer informed M/s Tickle that he had bought the beer and that he was
going to measure the quantity of beer in each glass. He measured each glass
separately by pouring the beer into a wetted glass measuring cylinder and
adding a drop of anti-foaming agent; this collapsed the head. The glass of
Goddess beer contained 18.25 fluid ounces; the glass of Fates contained 18.00
fluid ounces.
5.
The public house was at this time owned by and run by Allied Domecq Limited,
the Appellants, they employed the Licensee Jacqueline Burgon, the relief
manageress, Kirsty Tickle, and the barmaid Daniella Lewis.
6.
There were no signs inviting customers to ask for a top up if they wished.
7.
The company had employed the Licensee for several years. She started work at
the Fates and Firkin, Bradford when it opened in November 1996 as manager and
licensee. Prior to 24th July she had been off work sick for 3 to 4 months, and
during that period had only been into the premises on one occasion when she
collected some personal belongings. She had tendered her resignation on 17th
July, but continued to be the licensee until 7th August when a protection order
was made in favour of Kirsty Tickle.
8.
Daniella Lewis had been employed as a barmaid at the Fates and Firkin since
January 1997. Jacqueline Burgon the licensee had given Miss Lewis some
training in how to pull a pint of beer.
9.
The Brewers and Licensed Retailers Association has issued a document entitled
'Guidance Notes on the Dispense of Draught Beer By Free Flow and Hand Pull'.
This document was first produced in October 1993 and revised in November 1995.
Both the appellant and the respondent referred to this document in
correspondence and in representations.
10.
Mr Rimmer sent Statutory notices to Allied Domecq Leisure Limited and to
Daniella Lewis. He also wrote to the appellants asking questions relating to
the ownership of the business, the name of the licensee, and whether the
company had adopted the 'Guidance Notes on the Dispense of Draught Beer by Free
Flow and Hand Pull'. The Company co-operated fully and answered all
questions, acknowledging that they were the owners, Ms Burgon was the licensee
and that they had adopted the Guidance Notes.
11.
On 19th July Kirsty Tickle the relief manageress identified that Daniella
Lewis had a training need, and that training began the day after the trading
standards officers visited. Miss Tickle identified that Daniella required
structured training in accordance with the company policy.
12.
A survey was conducted over the weekend of 14th and 15th February 1998 in
three 'Firkin' pubs in West Yorkshire. Two were in Leeds and the third was the
Fates and Firkin in Bradford. Those surveyed were Bitter Drinkers and either
lived or worked in Leeds or Bradford. The survey did indicate that if a head
were too large then
83
% of beer drinkers would ask for a top up.
13.
Notices under S 83 of the Act, ie Statutory Notices, were served on the
Appellants and on Daniella Lewis. No such statutory notice was served on the
licensee, Jacqueline Burgon.
14.
A pint is 20 fluid ounces.
15.
No mention was made as to what the cost of a pint of beer was in the Fates and
Firkin in July 1997 or at the time of the survey."
4.
After referring to the contentions of the parties and the cases to which
they were referred, the Justices continued:
"We
were of the opinion that:
1
In the long term absence of the licensee, Jacqueline Burgon, her employer, the
appellant, could be guilty of the commission of these offences.
2
This court was entitled as a matter of fact to conclude that, where the volume
of liquid, which included the volume in a collapsed head, amounts to 18.25
fluid ounces and 18 fluid ounces, that the head in full to brim pint glass was
excessive.
3.
The latest and most important in respect of the volume of beer for us to
consider was
Bennett
v Markham
.
4.
The bitter buying public of Bradford while requiring a head of beer also
require value for money when buying a pint of beer. In the case of the 18
fluid ounce 'pint', if a further 10% of liquid had been served the volume
served would have been 98% of a pint leaving sufficient space for the modest
head in a pint glass and a reasonable head allowing for some of the froth to
stand proud of the glass.
5.
The current case is distinguished from the Leeds case of 17 years ago, in that
that involved a beer specially brewed for local consumption and dispensed in a
special way for a local demand. This court has heard of no special qualities
of the beers in the cases before it or of any special instructions as to the
dispensing of 'Goddess' or 'Fates' beers.
6.
The following of the 'Guidance Notes on the Dispense of Draught beer by Free
Flow and Hand Pull' offers the trade a very good 'best practice' and if
followed should not result in any prosecution for short measure.
7.
On 24th July 1997 this 'best practice' was not followed.
8.
The evidence showed that there were clearly two separate cases, involving a
pint of 'Goddess' with a shortfall of 1.75 fluid ounces which represents a
shortfall of 8.75% and a pint of 'Fates' with a shortfall of 2.00 fluid ounces
which represents a shortfall of 10.00%. Under s 123 of the Magistrates' Courts
Act the defect in the information that said that both pints were 'Fates' could
not be held to be misleading. Evidence had been served long before the hearing
and all sides were aware of the position.
9.
In view of the long-term absence and the subsequent resignation of the
licensee, the respondent acted appropriately in not serving a s 83 notice on
the licensee whom it was never intended to prosecute.
10.
The person who served the beer was responsible for the commission of the
offence, and should have been trained by the licensee and in the absence of the
licensee by the relief manager appointed by the appellant.
11.
The company employed all the staff in this case. The company was aware that
Miss Burgon was on long-term sick. They had taken steps to employ relief
managers, who were aware of the company policy on training. The Company
therefore through the management were responsible to ensure that all staff were
properly trained. We find that the training programme had failed."
5.
Accordingly the Magistrates say they found the two informations proved and
imposed a fine of £250 in respect of each offence with an Order for
payment of costs of just under £1,500.
6.
In those circumstances the Magistrates posed the following six questions
for the opinion of the High Court:
"1.
Whether we were justified in concluding that the admitted deficiencies of one
and three quarter fluid ounces and two fluid ounces of beer resulted in a sale
of a lesser quantity than one pint when the pint glasses had been filled with
beer and a head of froth?
2.
Whether we were correct in not taking into account the contents of the
'Guidance Notes on the Dispense of Draught Beer by Free Flow and Hand Pull'
dated October 1993?
3.
Whether we were correct to take no account of the fact that both informations
alleged a deficiency of 'Fates' bitter when the evidence relates to one pint of
'Fates' and one pint of 'Goddess' beer?
4.
On the basis that both parties agreed that only the licensee can sell alcohol,
were we correct to find that the appellant was responsible for the actions of
Daniella Lewis?
5.
Whether the alleged failure properly to train a relief manager constituted an
act of default which led to the commission of the offences?
6.
Whether the absence of the service of a Notice under Section 83 of the Act on
the principal offender nevertheless permitted us to convict the appellant?"
7.
In essence, four points are taken by Mr Philpott: two of a technical nature,
one relating to the facts of the case, and the fourth raising an interesting
point of law as to the potential criminal liability of his clients in the
circumstances as held by the Justices.
8.
I will come to the two technical points first. The first, which relates to
the third question posed by the Justices, arises out of the fact that although
everybody knew that the offence in question related to the ordering of one
pint of Fates bitter and one pint of Goddess beer, the information referred to
Fates on each occasion. The evidence, on which the prosecutor relied, had been
served by him on the Defendant and this had led, before the case started before
the Justices, to the parties agreeing the facts. Nevertheless, Mr Philpott has
submitted that having agreed the facts his clients were entitled to sift
through the prosecutor's case and then, at the end of the prosecution evidence,
to say: 'I huff you. You have charged Fates in the second information where it
should be Goddess and there has been no application to amend and therefore we
can only be convicted of one of these offences.'
9.
Mr Philpott did not suggest that at any stage anybody had been misled in
any way, but he submitted that this was not a mere triviality but was a
complaint of substance and accordingly the Justices should not have convicted
on the information which mentioned a Fates rather than a Goddess.
10.
Mr Gioserano, who appears for the prosecutor, has drawn our attention to
the summary in [1996] Crim L.R. 334 of the recent decision of this Court in
New
Southgate Metals Ltd v London Borough of Islington
,
in which the Court identified three types of error which occurred in an
information and in the summons based on it. The first was:
"An
error so fundamental that it cannot be rescued by any appropriate and
reasonable amendment will cause the prosecution to fail without more."
The
second:
"Where
the defect is substantial enough to require amendment [in such a case] then
magistrates have power to allow an amendment (provided that an adjournment
should be granted if the defence are placed at any disadvantage by the
adjournment.) If the prosecution fail to detect such an error, any conviction
obtained upon the defective information is at risk of being quashed by the
Divisional Court."
And
the third:
"If
the error is so trivial that no amendment is required [and the Defendant is]
always aware of the true basis of the complaint, then the conviction may be
upheld even on an unamended information."
11. Mr
Gioserano submits that the mistake in this case could properly be placed in the
third category. I agree with him. I would give to the third question posed by
the Justices:
"Whether
we were correct to take no account of the fact that both informations alleged a
deficiency of 'Fates' bitter when the evidence related to one pint of 'Fates'
and one pint of 'Goddess' beer"
the
answer "yes".
12.
The other technical point arises in this way: as the case shows, the
prosecutor served notices under section 83 of the Act on the bar tender,
Daniella Lewis, and also on the company. Section 83 of the Act provides, so
far as is material, by subsection (3):
"Provisions
for an offence under any provision contained in, or having effect by virtue of,
Part IV or V of this Act... shall not be instituted-
(a)
unless there has been served on the person
charged a notice in writing of the date and
nature of the offence alleged..."
13. Mr
Philpott's point is that the prosecutor had never served such a notice on the
licensee, who was
prima
facie
guilty of the offence under section 28 (on which the charges, under section
32, were parasitic), and that in those circumstances his clients could not
properly be convicted under section 32. He relied in this context, in
particular, on the decision of this Court in
Cottee
v Douglas Seaton (Used Cars) Limited
[1972] 1 WLR 1408.
14.
Mr Gioserano submits in response that section 32 expressly provides as
follows:
"Where
the commission by any person of an offence under this Part of this Act ... is
due to the act or default of some other person, the other person shall be
guilty of an offence and may be charged with and convicted of the offence
whether or not proceedings are taken against the first mentioned person."
15.
He submits that in this statutory scheme there is no need for the prosecutor
to serve a section 83 notice on somebody they have no intention of charging and
that they are able to bring the secondary offender before the Court under
section 32 and show that an offence under Part IV of the Act has been committed
without having to charge, what I will call, the 'principal offender'.
16.
Of course it is the law that if the prosecution cannot show that the
principal offender has committed an offence then the offence under section 32
cannot have been committed. However, I can see nothing in this statutory
scheme to require the prosecutor to serve a section 83 notice on the principal
offender, particularly if they have no intention of prosecuting her (which
appears to be the case in relation to this absent sick licensee) in order to
succeed against the secondary offender. In my judgment there is nothing in
this technical point either and I would answer the question:
"6:
Whether the absence of the service of a Notice under Section 83 of the Act of a
principal offender nevertheless permitted us to convict the appellant?"
with
the answer "yes".
17.
I now turn to the third issue which relates to the facts. Before I come to
the argument on the facts of this particular case it is necessary to go back
and review, briefly, the previous history in relation to the law on the sale of
beer with heads on it. In
Marshall
v Searles
[1964] Crim L.R. 667 the facts were that:
"An
inspector went to the defendant's public house and ordered two pints of draught
Guinness. He was handed pint glasses each containing, in addition to the
liquid, the ordinary head of froth. The total liquid content of each glass was
thus about 6 per cent below a standard pint. The defendant was charged that he
had sold what purported to be pint measures of Guinness, the contents of which
were less than one pint of liquid, contrary to section 1 of the [Sale of Food
(Weights and Measures)] Act of 1926. The justices dismissed the informations
and the prosecutor appealed.
[This Court] Held, dismissing the appeal, that reference to Guinness
advertisements showed that what a member of the general public expected when a
pint of Guinness was ordered was a composite article of liquid and gas."
18. Therefore,
what was being sold was that which purported to be sold. This was purely a
decision justifying the Justices' finding in that case on the facts before
them. Those facts revealed what the expectation of the general public was when
they ordered a pint of Guinness.
19.
Next there is the Scottish case of
Dean
v Scottish & Newcastle Breweries Limited
1978 SLT 24. In that case the sale in question was of:
"two
pints of draught beer in a hotel owned by Scottish and Newcastle Breweries
Limited. Each glass of beer had a head of about a [quarter of an] inch from
the rim of the glass down to the liquid."
20. In
dismissing the appeal, the Court of Session held:
"(1)
that the liquor including the added carbon dioxide was a description of beer or
sold as a description of beer within the meaning of section 307 of the Customs
and Excise Act 1952; and
(2)
that there was nothing in Sch. 4, Part VI, of the Weights and Measures Act 1963
to indicate that the definition of beer in section 307 of the 1952 Act (which
was the meaning applied to beer in the 1963 Act for the purposes of the 1952
Act) was the meaning of the word beer for the purposes of the 1952 Act
generally, even if it could be shown that 'for the purposes of' certain
provisions of the Act it must have a more limited meaning."
21.
There was therefore a technical argument before the Court which observed:
"that
there was nothing in either the Customs and Excise Act 1952 or the Weights and
Measures Act 1963 to suggest that for present purposes beer was a liquor the
constituents of which were finally fixed when it passed through the brewery
gates or that if anything was added to something which was already beer, the
mixture could not also be beer in its entirety."
22.
So far as the facts were concerned, the issue before the Court turned on
the Sheriff's finding 11. The Lord Justice-Clerk said:
"It
appears that the issue before the Sheriff was whether the volume of the head
was or was not to be discounted in measuring a pint. He held that it was not
to be discounted broadly because, as stated in the finding 11 and elaborated in
other findings and in his note, 'In Scotland the head is regarded by brewers,
retailers and consumer alike as an integral part of a pint of beer.'"
23. In
those circumstances the higher court held that this was a finding of fact which
the Sheriff was entitled to make, adding:
"If,
as stated in finding 11, the head is regarded by brewers, retailers and
consumers alike as an integral part of the beer and if, as we infer from the
findings, the gaseous content of the head wholly or partly consisted of the
added carbon dioxide, then it follows in our opinion that the liquor, including
the added carbon dioxide, is a description of beer or at least is sold as a
description of beer."
24. Again
this was a finding of fact which was upheld when a challenge to it was made on
a point of law on the basis that the lower Court was entitled to make the
findings that it did.
25.
The third and last case in this series is
Bennett
v Markham
[1982] 3 All ER 641, a decision of Donaldson LJ and Webster J sitting in this
Court. That was, as the Justices in the present case observed, a rather
special case. The facts are set out in the headnote at page 641:
"An
inspector of weights and measures ordered two pints of bitter beer at the
licensee's public house in Leeds. A pint was 20 fl oz and the barmaid served
the beer in two 20 fl oz stamped brim measure glasses (ie containing 20 fl oz
when filled to the brim, as distinct from pint line measure glasses which were
capable of holding more than 20 fluid ounces but were marked with a line to
indicate 20 fl oz). The glasses were full but the beer had a head of froth of
about half an inch and the liquid content of each glass was only 18.25 fl oz.
Informations were preferred against the licensee and the barmaid alleging that,
in selling bitter beer by measurement, they had 'delivered' to a customer a
lesser quantity of bitter beer (18.25 fl oz) than that purported to be sold (20
fl oz), contrary to s 24(1) of the Weights and Measures Act 1963. At the
hearing of the informations the magistrate found that customers in the Leeds
area demanded beer with a tight creamy head, served within the glass, that the
licensee's brewers specially brewed a type of bitter beer intended to carry and
retain a head of froth in order to meet the preference of customers in the
area, that the licensee had instructed the barmaid to serve beer with a creamy
head in order to satisfy the demand of his customers and that beer was often
sold in 20 fl oz brim measure glasses, as opposed to pint line measure
glasses, in Leeds public houses."
26. In
those circumstances the Magistrates dismissed the informations. Again the
Magistrates' findings of fact were dispositive of the matter and this Court
declined to interfere. In his judgment Webster J set out the evidence and the
special demand, particularly in the Leeds area, for
"beer
with a tight creamy head, served within the glass, so that it does not
disappear but follows the liquid down the inside of the glass as the liquid is
drunk" and the way in which the brewery had complied with their customers'
local wishes. At page 644g-645a he said:
"On
the facts found, there can be no doubt but that the respondents purported to
sell a pint of something. The question is: of what? If all pint glasses
normally used in public houses were pint line measure glasses, that is to say
glasses capable of holding 20 fl oz of beer as well as some froth on top, it
might be the case that when any customer orders a pint of beer the publican
purports to sell him a pint of liquid beer, with any additional froth there may
be. But according to the facts found, at least in West Yorkshire where the
survey was carried out, not all glasses normally used are pint line measure
glasses; many of them are pint brim measure glasses which can only hold either
a pint of liquid beer without any froth, or less than a pint of liquid beer
with some froth. The glasses used in this case were, as we have said, pint
brim measure glasses. Moreover, on the facts found, 'customers' demand a beer
with a head. It is not entirely clear from the facts as found whether the
reference is to all customers or to the normal customer. But it can certainly
not be taken as a reference to some only, or a few, customers. In our
judgment, in the light of those facts, when a customer in that area orders a
pint of beer which is offered in a pint brim glass, the publican or his barmaid
purports to sell not a pint of liquid beer or a full pint glass containing
liquid beer and tight creamy head. On the evidence it was the practice of the
respondent to top up the glass if the customer so required, but this involves a
recognition that in such a case the customer's order had been misinterpreted
and not an admission that less liquid had been delivered than was purported to
be sold."
27. In
those circumstances, this Court held that the question whether or not a head of
froth was excessive or unreasonable was a matter for the Tribunal of fact to
determine.
28.
Against that background of law we have been shown that in the Weights and
Measures Act 1985, which followed soon after the decision in
Bennett
v Markham
,
Parliament enacted section 43 entitled "Beer and Cider". This section
provided, so far as is material:
"(1)
In ascertaining the quantity of any beer or cider for any of the purposes of
section 25 or sections 28 to 31 above, or of the Weights and Measures Act 1963
(Intoxicating Liquor) Order 1984, the gas comprised in any foam on the beer or
cider shall be disregarded..."
29. By
subsection (2) it was provided that:
"This
section shall come into force on such date as the Secretary of State may by
order appoint, and different dates may be appointed for different purposes."
30.
We have been told that, in the event, the Secretary of State did not bring
section 43 into force and it was repealed from 3rd November 1994 onwards under
the De-regulation and Contracting Out Act 1994, section 14. Although the former
government at one time announced its intention to bring the section into force,
it then changed its mind and announced its intention to repeal the section as
part of its de-regulation exercise.
31.
Our attention has been drawn to a private members bill which was
unsuccessfully introduced in the last session of Parliament with the intention
of reintroducing into our law a provision similar to that which was in section
43 of the 1985 Act. That bill failed, however, and statute law correctly
makes no express provision in relation to beer. Accordingly the Courts have to
determine these matters on the evidence before them, and the three cases, which
I have cited, show that the Court is under a duty to take into account the
facts of the case and any local evidence of particular customer preference, and
then to determine whether what is being sold is what is being described.
32.
Mr Philpott submits that although there was no evidence of any special
quality of the beer in question in this case, there was really no difference
between this case and the
Bennett
case, because the only special feature in that case was that the beer contained
and retained the head as the liquid was drunk, and, in the present case, the
Justices acknowledged that the bitter public of Bradford required a head of
beer. In my judgment the
Bennett
case is clearly different. The present case can be decided on its particular
facts and the Justices were wholly entitled to take the view, as they did, that
the facts of
Bennett
were distinguishable.
33.
Mr Philpott then made submissions based upon the guidance notes. The
effect of the guidance notes is, on the material before us, confused. They are
not exhibited to the case so we do not know their terms, although we are told
that both the Appellant and the Respondent referred to this document in
correspondence and representations. We are told by the justices that if the
guidance notes were followed there should not be any prosecution for short
measure and that on 24th July 1997 best practice, as set out in the guidance
notes, was not followed.
34.
Mr Philpott has told us, although it does not appear in the Case, that the
guidance notes have some reference to the whole process of selling beer not
being completed until such time as the purchasers have asked for a top up or
not, as the case may be. One of the submissions made under the Appellant in
the Court below was that if the guidelines were relevant the transaction in
question had not been completed since the officers did not ask for a top up.
Although it appears on the face of it that the Justices took the guidance notes
into account when they said that best practice was not followed, the second
question they ask us is:
"Whether
we were correct in not taking into account the contents of the 'Guidance
Notes..."
35. Mr
Philpott has told us that this was a question inserted in the case under the
Justices themselves changing the draft that was submitted to them under his
client's solicitors. It is not altogether clear what view the Justices took of
the evidential status of the guidance notes. As I have said, they have not
been exhibited to the case.
36.
However all this may be, it appears to me that there was ample evidence on
which the Justices were entitled to find that the beer, as sold, did not meet
the description of the beer purported to be sold. In particular, the Justices
said that there was a survey of three public houses (two in Leeds and one
being the public house in question in Bradford) and that of the bitter drinkers
who were surveyed, who either lived or worked in Leeds or Bradford, 83% would
ask for a top up if the head was too large. There is no evidence as to the
state of mind of the other 17 per cent. It is quite clear from this evidence of
local preference that what may or may not have been the case in Leeds in the
time of
Bennett
v Markham
and in Dunbarton in the time of
Dean
v Scottish Newcastle Breweries
was not what was reflected in customer preference and customer wish in Bradford
in 1997. Accordingly, in my judgment the Justices were entitled to reach a
finding of fact adverse to the Appellants and in relation to the first question
they asked:
"Whether
we were justified in concluding that the admitted deficiencies of one and three
quarter fluid ounces and two fluid ounces of beer resulted in a sale of a
lesser quantity than one pint when the pint glasses had been filled with beer
and a head of froth?"
37.
I would answer the question "yes".
38.
I am a little bit reluctant to answer the second question at all because,
as I have said, it is not clear to me whether the justices did or did not take
into account the guidance notes. In my judgment they would have been entitled
to take their contents into account as part of the evidence of fact which they
were to consider, although if there had been evidence that, whatever the
guidance notes said, on the facts of this particular case the customers in this
particular area of Bradford had some peculiar preference, then they might have
been entitled to find that the statute had not been broken.
39.
I turn finally to the fourth issue, which is an issue of law. The
difficulty I find in considering this issue is that in the Court below, where
Mr Gioserano did not appear, it does not appear that any particular care was
taken in identifying for the Justices what the act or default was which led to
the appellants being guilty of the offence in addition to the licensee.
Nothing is said in the information which would cast any light on this. After
the findings of fact are set out in the Case, we see that it was contended
under the Respondent that because the licensee was employed under the
Appellants and the premises were owned under the Appellants, they were
responsible for the offence of the licensee. Mr Gioserano accepts that this
wide proposition could not have given the Justices very much help in
identifying what it was that the Appellants did, or what it was that they
failed to do, which was causative of the commission of the offence under the
licensee.
40.
When one turns to the facts, it is hardly surprising that against this
unpromising background the Justices' findings are not wholly clear. In the
reasons they gave for their conclusion that the Appellants were guilty of an
offence under section 32, they said, and I repeat:
"10.
The person who served the beer was responsible for the commission of the
offence[that appears to be Daniella Lewis] and should have been trained under
the licensee and in the absence of the licensee under the relief manager
appointed under the appellant.
11:
The company employed all the staff in this case. The company was aware that
Miss Burgon was on long term sick. They had taken steps to employ relief
managers, who were aware of the company policy on training. The Company
therefore through the management were responsible to ensure that all staff were
properly trained. We find that the training programme had failed."
41.
It is not very easy to determine from those findings quite where the
failure relied on under the Justices can be identified. On the face of it it
is a failure under the company management, in other words its central
management, for a failure to provide such training as would ensure that a
barmaid in a pub, which was being run under one of their employees as licensee,
did not do what Miss Lewis did on this occasion. The justices referred to the
company's policy on training. They then say:
"The
Company therefore through the management were responsible to ensure that all
staff were properly trained. We find that the training programme had failed."
42.
The fifth question they asked us was:
"Whether
the alleged failure properly to train a relief manager constituted an act of
default which led to the commission of the offences?"
43. Mr
Gioserano has accepted that if from the way the Justices expressed themselves
and posed their question, the default they found was of the company's
arrangements for training their staff, and particularly training those of their
staff whom they would put into public houses as licensees or relief
mangeresses, then there was no evidence before them to justify a finding that
those arrangements, set up as a matter of policy and which are described in the
case as structured training, had failed. In those circumstances, Mr Gioserano
bravely tried to rescue from the case a concept that it was not Miss Lewis on
whom the Justices were concentrating, and it was not the company on whom the
Justices were concentrating. Rather, it was the relief manageress who had
arrived at the public house five days before the incident in question and had
apparently immediately spotted that the barmaid should have some training and
had arranged that she would start her training, as indeed she did, the day
after the Inspectors called.
44.
In those circumstances Mr Gioserano has submitted that if what the Justices
found was that the offence was due to the default of the relief manageress,
Kirsty Tickle, in failing to ensure that the minute she arrived at that public
house she personally trained the barmaid, then her employers, Allied Domecq
Leisure limited, would be vicariously liable for her failure. He drew our
attention to certain passages in the speeches of Lord Reid and Viscount
Dilhorne in
Tesco
Supermarkets Limited v Nattrass
[1972] AC 153, and the well-known judgment of Viscount Reading CJ in
Mousell
Brothers Limited v London North-Western Railway Company
[1917] 2 KB 836, and submitted that in these particular circumstances there was
a statutory duty on Allied Domecq Leisure Limited not to commit a default which
was causative of an offence. They failed in that statutory duty, through the
relief manageress's failure, and she was their agent who should have ensured
that their statutory duty was complied with.
45.
In my judgment, brave though this attempt was to rescue the case, it is
not the way that it was put before the Justices, it is not the way the Justices
themselves approached it and it has no link with the two relevant questions
which the Justices asked us. I have referred to question 5:
"Whether
the alleged failure properly to train a relief manager constituted an act or
default which led to the commission of the offences?"
Question
4 is:
"On
the basis that both parties agreed that only the licensee can sell alcohol,
were we correct to find that the appellant was responsible for the actions of
Daniella Lewis?"
46. Neither
of those questions picked out the default on which Mr Gioserano now relies
which was an alleged default of the relief manageress. Interesting though Mr
Gioserano's submissions were, in my judgment they are of no relevance to
anything we have to decide. I have great sympathy with the Justices who were
clearly doing their best, in the absence of the help that they ought to have
received from the prosecutor, in identifying what was the default of Allied
Domecq on which the prosecution relied under section 32. It may very well be
that the prosecutor found himself in unfamiliar water because of the particular
nature of sales made under a licensee.
In
Goodfellow
v Johnson
[1966] 1 QB 83 this Court applied
Hotchin
v Hindmarsh
[1891] 2 QB 181 in holding that in relation to an offence, contrary to section
2 of the Foods and Drugs Act 1955, in licensed premises a brewery company
could not lawfully perform the act of handing over the liquor on the licensed
premises, through their servant, the barmaid. The only person who could do so
was the defendant licensee who was therefore responsible for her act. This has
led to the position in which, although the present Appellants are the employers
of the licensee, it is the licensee and not the Appellants who is the party who
carries out the relevant sale for the purposes of legislation like that with
which we are concerned. This, in turn, makes the scheme of relating section 32
of the Act to section 28, and of bringing in, where relevant, the statutory
defence contained in section 34, which enables:
"the person charged to prove that he took all reasonable precautions
and exercised all due diligence to avoid the commission of the offence"
rather
more complicated than it is in a case where a major company, of the type with
which we are concerned in this case, and with which the House of Lords were
concerned in the Tesco case, was unquestionably the company which was
responsible for the sale in question and which
prima
facie
committed
the offence. It appears to me that much more care needs to be taken under
prosecutors in the particular circumstances of sales on licensed premises -
where the person who performs the sale is not the major company (if I can use
this expression) but the licensee on the spot - in the way that they bring
charges under section 32. They would be wise, in future, to particularise with
more care than was done on the present occasion, the default on which they
rely, so that the confusion which, unquestionably, occurred in the minds of the
Justices deprived of that help, would not occur on a future occasion.
47.
Turning to the last two questions the Justices asked us:
"4.
On the basis that both parties agreed that
only the licensee can sell alcohol, were we
correct to find that the appellant was
responsible for the actions of Daniella
Lewis?"
48. In
my judgment that question does not really arise because this does not appear to
have been the way that the Justices decided the case, which seems to have been
a concern about a training failure rather than a concern about the bar tender
herself.
"Whether
the alleged failure properly to train a relief manager constituted an act of
default which led to the commission of the offences?"
50. I
would answer that there was no evidence before the Justices to justify a
finding, if they made one, that the company had failed properly to train the
relief manager. Accordingly, if the Justices' finding related to a head office
failure in implementing training policy, then that finding was not supported
under the evidence before them.
51.
In these circumstances, while, as I have said, I have great sympathy for
the Justices in the circumstances in which the case was put before them, I
would, for my part, having answered the questions along the lines that I have
suggested, and set aside the conviction.
52. MR
JUSTICE SEDLEY: I agree that this appeal must be allowed and the conviction set
aside, for the reasons given under my Lord. I wish, however, to add two
observations. One is that I found disturbing the repeated submission under Mr
Philpott, for the Appellant, that it was a material fact that people, including
the complainant, could, but did not always, ask for a top-up if they felt that
the head on their beer was excessive. The person who orders a pint is entitled
to a pint. If a pint (including, if legally proper, a head) is not supplied,
there is no onus on the customer to demand full measure before an offence is
committed.
53.
My second reservation I express briefly and tentatively. We have heard
very little argument upon it because Mr Gioserano has had to live with the
concession made below that the Appellant could be liable, if at all, only under
way of vicarious liability for an "other person" under section 32, namely the
relief manageress. I simply wish to put on record my doubts about what appears
to be the accepted approach to Part IV of the Weights and Measures Act 1985.
54.
The primary offence of giving short measure created under section 28 is
committed under any person who sells beer under the pint. The concession made
before the Justices reflected the conventional view that the decision of this
Court in
Goodfellow
v Johnson
[1966] 1 QB 83, precludes any prosecution of the owners whose beer the
licensee is selling on the ground that it is the licensee alone who may sell
beer. I have been concerned whether it follows from the proposition that only
a licensee may sell beer that the company which owns the premises, provides the
beer and employs the licensee to sell it is not equally selling beer. I have
also asked myself whether the decision in
Hotchin
v Hindmarsh
[1891] 2 KB 181, on which the Divisional Court founded in
Goodfellow
v Johnson
and which holds that the forbidden act in this context is the parting with
possession and not with title, truly negatives this possibility.
55.
If the true position were that a company in the Appellant's position is
selling beer though the licensee, then the only relevant question would be
under section 34 whether each had exercised due diligence in order to prevent
the bartender giving short measure. If this were the statutory scheme, then
absent a defence of due diligence neither the brewer nor the licensee could
escape liability under blaming the bartender. Indeed section 32 makes it clear
that the bartender may also be prosecuted. There would then be no need for the
artificiality of trying, as Mr Gioserano has skilfully but unsuccessfully
tried, to bring in the Appellant under the device of common-law vicarious
liability, a doctrine which distributes civil liability on grounds of legal
policy without regard to fault, pinning such liability on the default of
someone not (so far as we know) before the Court as a Defendant.
56.
The problem of slotting a due diligence defence into a vicarious liability
case is evident. The defence either exonerates the licensee or fails
altogether, but cannot help the owner. This cannot be right. These
considerations, however, cannot directly arise here because the conceded basis
on which the case proceeded below makes them immaterial. Given this, I agree
that the appeal has to succeed upon the single ground explained under my Lord,
Brooke LJ
57. MR
PHILPOTT: I ask for three Orders: firstly, that the appeal be allowed and the
convictions be quashed; secondly, that the Respondent pay the Appellants' costs
of the appeal; and thirdly, in the Court below the Defendant have a Defendant's
Costs Order out of Central Funds?
58. MR
GIOSERANO: My Lord, I accept it is somewhat difficult to respond to those
applications, save to say this: this Court has expressed sympathy not only with
the Magistrate but some recognition of the complex nature of the way in which
this case was put in the lower Court. I can only ask that this Court have some
sympathy also of the prosecutor in those circumstances.
59. LORD
JUSTICE BROOKE: We are sorry for everybody in the present state of the law. I
hope we may have helped, I am not sure we have. However, we feel constrained
to adopt what Mr Philpott has suggested, that the Respondent should pay the
Appellant's costs in this Court and there should be a Defendant's costs Order
in the Court below.
60. MR
PHILPOTT: I am obliged to your Lordships.
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