England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		11th November 2002

1. MR JUSTICE FIELD: The appellant appeals by way of case stated against the decision of the Central Sussex Justices, sitting at Brighton Magistrates' Court on 21st May 2002, to dismiss informations laid against the respondent company by the appellant alleging offences contrary to regulations 4 and 13 Toy (Safety) Regulations 1995 and section 14 of the Consumer Protection Act 1987.
2. The background facts can be shortly stated. On 25th July 2001 the appellant laid nine informations against the respondent variously alleging offences against the Toy (Safety) Regulations 1995, section 14 of the Consumer Protection Act 1987 ("the 1987 Act") and section 1(1)(b) of the Trade Descriptions Act 1968. The offences related to the sale and exposure for sale by the respondent of a 900R TT Micro scooter at its stores in Filton (Gloucestershire), Brighton, Rye, Hastings and Enfield. In respect of three of the informations it was alleged by the appellant that at the time the scooter was sold, or exposed for sale, it was subject to a suspension notice preventing its sale and that the folding mechanism at the base of the handle bars did not comply with essential safety requirements. The suspension notice was addressed to the respondent at 242/246 Marylebone Road, London. Paragraph 23 of the notice reads:

"In pursuance of Section 14 of the above Act [that is the 1987 Act] you, Woolworths PLC 242/246 Marylebone Road, London, NW1 6JL are prohibited from supplying, offering, agreeing or exposing for supply the following goods from any of your outlets:

(i) Description of goods -- Micro Scooter model no 900R TT imported by Olop Leisure Group Limited.

(ii) Suspected grounds for contravention -- failure to comply with the Toys (Safety) Regulations 1995/General Products Safety Regulations 1994 due to an entrapment hazard as identified in test report."

3. At the commencement of the hearing the appellant council offered no evidence on the informations alleging offences under the Trades Description Act 1968 and they were dismissed.
4. At the conclusion of the prosecution case a submission of no case to answer was made on behalf of the respondent in respect of the three informations which alleged breaches of the suspension notice. It was contended, relying on section 14(3) and section 27 of the 1987 Act and regulation 14 of the Toy (Safety) Regulations 1995, that the offences relating to the respondent's stores in Filton, Rye, Hastings and Enfield were not made out as suspension notices issued under section 14 of the 1987 Act are effective only in the bailiwick of the issuing authority.
5. The justices were satisfied that in the absence of an express statuory provision for a suspension order to have effect outside the area of the enforcement authority by which it is served, the effect of the notice was limited to the area of the issuing authority.
6. The appellant purported to prosecute the relevant informations on behalf of the enforcement authorities for the areas of Filton, Rye, Hastings and Enfield, contending that those authorities had delegated their duty to enforce the Consumer Protection Act 1987 pursuant to section 111 of the Local Government Act 1972 ("the 1972 Act"). This was disputed by the respondent. The justices held that there was no strict admissible proof of delegation and dismissed the informations as disclosing no case to answer.
7. The case stated raises the following two questions for the opinion of the High Court. (1) Whether, on a proper construction of section 14 of the 1987 Act, a suspension notice served by an enforcement authority pursuant to that section has effect outside its area? (2) If the answer to (1) is in the affirmative, does the serving enforcement authority have power to prosecute an alleged breach of the notice committed outside its area in the absence of a properly delegated authority to do so granted by the enforcement authority for the area concerned pursuant to section 101 of the 1972 Act?

The First Question

8. The relevant parts of section 14 of the 1987 Act read:

"(1) Where an enforcement authority has reasonable grounds for suspecting that any safety provision has been contravened in relation to any goods, the authority may serve a notice ('suspension notice') prohibiting the person on whom it is served, for such period ending not more than six months after the date of the notice as is specified therein, from doing any of the following things without the consent of the authority, that is to say, supplying the goods, offering to supply them, agreeing to supply them, or exposing them for supply.

(2) A suspension notice served by an enforcement authority in respect of any goods shall --

(a) describe the goods in a manner sufficient to identify them;

(b) set out the grounds on which the authority suspects that a safety provision has been contravened in relation to the goods; and

(c) state that, and the manner in which, the person on whom the notice is served may appeal against the notice under section 15 below.

(3) A suspension notice served by an enforcement authority for the purpose of prohibiting a person for any period from doing the things mentioned in subsection (1) above in relation to any goods may also require that person to keep the authority informed of the whereabouts throughout that period of any of those goods in which he has an interest.

...

(6) Any person who contravenes a suspension notice should be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding level 5 on the standard scale or to both.

(7) Where an enforcement authority serves a suspension notice in respect of any goods, the authority shall be liable to pay compensation to any person having an interest in the goods in respect of any loss or damage caused by reason of the service of the notice if --

(a) there has been no contravention in relation to the goods of any safety provision; and

(b) the exercise of the power is not attributable to any neglect or default by that person."

9. By section 45 of the 1987 Act "enforcement authority" means:

"... the Secretary of State, any other minister of Crown in charge of a government department, any such department, then any authority, council or other person on whom functions under this Act are conferred by or under section 27 above."

10. Section 27(1)(a) reads:

"Subject to the following provisions of this section --

(a) it shall be the duty of every weights and measures authority in Great Britain to enforce within their area the safety provisions and the provisions made by or under Part III of this Act."

11. By section 45 "safety provisions" means:

"... the general safety requirement in section 10 above or any provision of safety regulations, a prohibition notice or a suspension notice."

Section 69 of the Weight And Measures Act 1985 provides:

"In England the local weights and measure authority shall be --

(a) for each non-metropolitan county, metropolitan district and London borough, the council of that county, district or borough."

12. When the matter was before the magistrates counsel for the respondent relied on the speech in Hansard of Lord Lucas of Chilworth when introducing the amendment to the Consumer Protection Bill that is now section 14(3) of the 1987 Act. In the course of his speech Lord Lucas of Chilworth said:

"My Lords, the House will recall that the noble Lord, Lord Gallacher, moved an amendment in Committee which was designed to ensure that goods subject to a suspension notice should not be moved. I said then that I thought the amendment went a little too far but that we ought to consider an amendment designed to ensure that an enforcement authority that lays a suspension notice can be kept informed of the whereabouts of the goods. This is such an amendment.

The amendment should assist enforcement authorities in a practical way in dealing with goods subject to a suspension notice. Normally such notices relate to goods held within the area of the authority concerned. As a result of this provision if the goods are moved either within the enforcement authority's own area or into the area of another enforcement authority the person upon whom the suspension notice is served will have to inform the original enforcement authority of the movement of the goods and their new whereabouts. Accordingly, the enforcement authority will, if the goods have been moved from its own area, be able to contact the enforcement authority of the place to which the goods have been moved and so to enable it to warn that the goods have been moved into that area."

13. Mr Haggan on behalf of the respondent Has attempted to repeat that submission to us today. The conditions which must be satisfied before reliance can be placed on a statement in Hansard as an aid to interpreting legislation were authoritatively stated by the House of Lords in Pepper v Hart [1993] AC 593 Three of those conditions are: (1) The legislation is ambiguous or obscure, or the literal meaning leads to an absurdity; (2) the statement must disclose the mischief aimed at by the enactment or the legislative intention underlying its words; and (3) the statement must be clear.
14. The importance of strictly adhering to these conditions was emphasised by the House of Lords in R v Secretary of State for the Environment Transport and the Regions and another ex parte Spath Holme Limited [2001] 2 AC 349 at 392 A to G.
15. In my opinion, for the reasons that I am going to come on to, section 14 of the 1987 Act, construed as it must be in the context of the 1987 Act as a whole, is neither ambiguous nor obscure; nor does its literal meeting lead to an absurdity. I also do not think that the statement of Lord Lucas of Chilworth discloses an intention that a local authority should have power to issue a suspension notice only in respect of its own area. Nor am I satisfied that Lord Lucas's statement clearly shows what the legislative intention was. I say this because Lord Lucas said in the course of his speech "normally such notices [i.e suspension notices] relate to goods held within the area of the authority concerned". He did not say that it was intended that the enforcement authority should only be able to issue a suspension notice which related to goods in its area.
16. Section 14(1) does not in terms limit the power of an enforcement authority, which is a local authority, to issue a suspension notice only in respect of its area. The power conferred by the subsection is conferred on an enforcement authority, which can be the Secretary of State, any other Minister of the Crown, or a council under the duty imposed by section 27(1)(a). It is common ground that the Secretary of State and any other Minister of the Crown are empowered by section 14(1) to issue a suspension notice with country wide effect. If this is so, the same must be true, in my opinion, as concerns a weight and measures authority.
17. In my view section 14(3) does not limit what would otherwise be the plain and ordinary meaning of section 14(1). Apart from anything else, like section 14(1) itself, it applies whether the enforcement authority is the Secretary of State, another Minister of the Crown or a weights and measures authority. Further, the subsection does not require a suspension notice issued by a weights and measures authority to apply only to goods within the authority's area for it to make good sense. This is because enforcement of a country wide suspension notice will obviously be assisted if the issuer of the notice is informed of the location of goods covered by the notices.
18. Mr Haggan contended that section 14(1) should be strictly construed because section 14(6) provides for a criminal penalty. In my opinion the fact that by section 14(6) it is a criminal offence for a person to contravene a suspension notice does not require that the plain and ordinary meaning of section 14(1) be departed from.
19. Mr Haggan in his skeleton argument also relied on regulation 14 of the Toy (Safety) Regulations 1995 which requires every authority and council under the duty imposed by section 27 of the 1987 Act to give immediate notice to the Secretary of State of any suspension notices served by it in respect of any toys subject to the Toys Regulations. He submitted that this regulation is designed to allow the Secretary of State to issue a prohibition notice under section 13 of the 1987 Act and would not be necessary if a weights and measures authority had power to issue a country-wide suspension notice.
20. With respect to Mr Haggan, there is nothing in this argument. The obligation to inform the Secretary of State of a suspension notice may equally be explained by a desire that the Secretary of State generally be kept informed, for instance, if there is to be a multiplicity of prosecutions, or because a suspension notice interferes with the free movement of goods in the European Union. Moreover, even if the intention behind regulation 14 was to allow for the issuance of a prohibition notice by the Secretary of State, this does not mean that a suspension notice issued by a weights and measures authority applies only to goods in the authority's own area. Prohibition notices are different from suspension notices. The former can only be issued by the Secretary of State, whereas the latter can be issued by the Secretary of State or a weights and measures authority. Thus, even if regulation 14 is designed to allow the Secretary of State to issue a prohibition notice, it does not follow that a weights and measures authority has a more circumscribed power to issue a suspension notice than does the Secretary of State.
21. Mr Haggan also relied on section 27(1)(a) of the 1987 Act. He argued that if a weights and measures authority only has a duty to enforce the safety provisions within its area, section 14(1) should be construed as conferring a power on such authority only to issue suspension notices which apply to goods within its area.
22. In my judgment, the scope of the power conferred by section 14 is to be found in section 14 alone. The only bearing that section 27 has on section 14 is that it assists in identifying the bodies upon which the power is conferred. Thus, for the purposes of section 14, the fact that a weights and measures authority is under the duty imposed by section 27(1)(a) means no more than it is to have the power which section 14 confers. It does not mean that the extent of the power conferred by section 14(1) is to be limited in the case of a local authority to issuing a suspension notice in respect of goods within its area.
23. Accordingly, for the reasons I have given, I would answer the first question raised by the case stated in the affirmative.

The Second Question

24. It is necessary to set out a little more of the factual background.
25. The informations were laid on 25th July 2001. By letter dated 9th August 2001 those acting for the respondent requested copies of the authority of the appellant to prosecute these proceedings. The authorities in whose areas it was alleged there had been a breach of the suspension notice were South Gloucestershire (Filton), East Sussex (Rye and Hastings) and London (Enfield). By letter dated 29th August 2001 those acting for the appellant disclosed documents relating to the authority of Clear Lloyd Jones, the informant and the solicitor for Brighton and Hove City Council, to lay informations on behalf of the appellant. No information was provided as to the authority of the appellant to commence proceedings in relation to the offences allegedly committed.
26. At a hearing on 31st January 2002 counsel for the respondent raised in open court the question of the appellant's authority to prosecute, indicating that the information that had been supplied by the appellant was inadequate to demonstrate that the properly delegated authorities to prosecute had been given by the three other local authorities concerned. By letter dated 13th February 2002 those acting for the appellant served a further statement from the investigating officer, Mr Raymond Moore. Attached to the statement were copies of letters from South Gloucestershire County Council and East Sussex County Council. These letters failed to provide any proper or admissible evidence to establish that a formal decision had been taken by the authorities concerned to delegate the power to prosecute to the appellant. No document of any sort was provided by Enfield.
27. On 20th May 2002, the first day of the trial, the appellant sought to prove that proper authorities had been given through the oral evidence of Mr Moore. It was accepted by the appellant that it had to show that it had delegated powers to prosecute the relevant informations under section 101 of the Local Government Act 1972. The justices held that such evidence was hearsay and inadmissible.
28. Before us today Mr Morris-Coole has submitted that, contrary to the position adopted by the appellant before the magistrates, it is not necessary for the appellant to show that the relevant informations were prosecuted under powers delegated by the authorities in whose areas the alleged breaches of the suspension order occurred.
29. Mr Morris-Coole's submission was as follows. South Gloucestershire, East Sussex and London had no right to prosecute for breaches of the suspension notice which occurred in their areas because they had not issued the suspension notice. Since they had no right to prosecute, they had no power to delegate the prosecution of those breaches. It was the appellant who had the right to prosecute all of the breaches of the suspension notices because it was the appellant who had issued the suspension notice.
30. Since one of the nine informations alleged an offence committed within the Brighton Magistrates' commission area, then, submitted Mr Morris-Coole, pursuant to section 2(6) of the Magistrates' Court Act, all of the other informations could be tried in the Brighton Magistrates' Court. Section 2(6) of the Magistrates' Courts Act 1980 provides that:

"A magistrates' court for any area by which a person is tried for an offence shall have jurisdiction to try him for any summary offence for which he could be tried by a magistrates' court for any other area."

31. Mr Haggan for the respondent argued that the enforcement authority for the area in which breaches of the suspension notice occur has a right to prosecute those breaches because under section 27(1)(a) of the 1987 Act it is under a duty to enforce within its area the safety provisions which include a suspension notice. Accordingly, contrary to Mr Morris-Coole's submission, each of South Gloucestershire, East Sussex and London did have a power to delegate to another authority the prosecution of the breaches of the suspension notice which occurred in their area, provided that, pursuant to section 222(1) of the Local Government Act, they considered the prosecution expedient for the promotion or protection of the interests of the inhabitants of their area. Mr Haggan also submitted that the appellant had no power to prosecute in its own right the breaches of the suspension notice outside its area, not only because of the wording of section 27(1)(a), but also because such a prosecution could not be expedient for the promotion or protection of the interests of the inhabitants of their area as required by section 222(1) of the 1972 Act.
32. In my opinion, Mr Haggan's submissions are correct. There is an important difference between the power to issue a suspension notice and the power to prosecute breaches of a suspension notice. As I have already held, the power to issue a suspension notice is conferred by section 14 of the 1987 Act and that power includes a power to issue a country-wide notice. The power to prosecute a breach of a suspension notice, however, is derived from the duty to enforce imposed by section 27(1)(a), and that duty is a duty to enforce within the area of the weights and measures authority.
33. It follows, in my view, that South Gloucestershire, East Sussex and London had the power to prosecute for the alleged breaches of the suspension notice which occurred in their areas and that the appellant had no such power. I also accept Mr Haggan's submission that the appellant had no power to prosecute in its own right breaches of the suspension notice which occurred outside its area because such a prosecution could not ex hypothesi be expedient for the promotion or protection of the interests of the inhabitants of its area as required by section 222(1) of the 1972 Act. If the appellant had no power in its own right to prosecute alleged breaches of the suspension notice which occurred outside its area, section 2(6) of the Magistrates' Court Act 1980 cannot assist the appellant's argument, since that provision is concerned with the jurisdiction of Magistrates' Courts rather than with the powers of weights and measures authorities.
34. Finally, I should deal with Mr Morris-Coole's argument that, if the issuing authority did not have power to prosecute breaches outside its area, enforcement of a country-wide suspension notice would be unduly cumbersome and this cannot have been the intention of Parliament.
35. In my opinion, enforcement will not be rendered unduly cumbersome if the power to prosecute is limited as contended by Mr Haggan. First, evidence of the breaches in outside areas is likely to be obtained by the authorities in those outside areas; and for those authorities to go on to prosecute for those breaches would not, in my opinion, be unduly burdensome. Secondly, if there is a multiplicity of breaches, the Secretary of State can take over the management of the prosecutions, so that there is one prosecuting authority rather than many prosecuting authorities. Accordingly, for the reasons I have given, I would answer the second question raised by the case stated no.
36. It follows that, in my judgment, this appeal must be dismissed.
37. LORD JUSTICE LAWS: I agree that the questions posed in the case stated should be answered in the manner proposed my Lord and for the reasons given by him. That being so, the Magistrates' Court were right to hold that there was no case to answer disclosed by the four informations as regards which that had been submitted, albeit for reasons now other than those given in the case. Accordingly, the appeal must be dismissed.
38. MR HAGGAN: My Lord, your Lordships do have power, the appeal having been dismissed, to make an order for costs in favour of the respondent. The order that I invite your Lordships to make is an order for a defendant's costs order, for the bill to be taxed from central funds if your Lordships feel that is an appropriate --
39. LORD JUSTICE LAWS: You only won on part of the case.
40. MR HAGGAN: My Lord, that is why I ask for a defendant's costs order, as opposed to a costs order against the appellants. It is, if I may say so, a recognition of the position that the respondent now finds itself in. The appeal to this court having failed, the respondent is in the same position as it was in the lower court, but additional costs have been occurred. It is for those reasons I respectfully submit it is right that a defendant's costs order should follow.
41. LORD JUSTICE LAWS: Yes. You are not concerned with such a submission are you, Mr Morris-Coole, because it is not directed at you?
42. MR MORRIS-COOLE: No, my Lord, it is a defendant's costs order. In the light of that may I indicate to your Lordships that, although the first part of the questions were answered, so to speak, in favour of the appellant, I make no application for costs against the respondent here. I think I have already explained the attitude of the appellants towards this.
43. LORD JUSTICE LAWS: So you have no application to make.
44. MR MORRIS-COOLE: I have no application.
45. LORD JUSTICE LAWS: Yes, Mr Haggan, you may have a defendant's costs order.
46. MR HAGGAN: Much obliged, my Lord.
47. LORD JUSTICE LAWS: Thank you. We are most grateful for counsels' assistance.