England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th January 2004

Mr Justice Beatson:

1. This is an appeal by way of case stated from a decision of the South East Northumberland Justices on 23^rd May 2003. The Applicant is the prosecutor, the Northumberland County Council Trading Standards Department. The Respondent, PR Manufacturing Limited trading as Paul Roscoe, is a large scale manufacturer of foam filled cushions based in Telford. The Respondent was charged with offences concerning the cushions of two garden relaxer chairs purchased by Trading Standards Officers. The first was purchased on 16^th May 2002 from Wilkinson's Hardware Stores in Cramlington, and the second on 27^th May 2002 from Poundstretcher's Hexham shop.
2. Two charges were of false trade description contrary to Section 1(1)(A) of the Trade Descriptions Act 1968, namely that the labels attached to the cushions respectively stated "this article contains CM foam which passes the specified test" and "all foams, fillings and composites have been tested by our suppliers to ensure compliance with the relevant ignitability test". The Respondent was found guilty on both these counts. No issue arises in respect of them.
3. The other two charges were that the products did not satisfy the requirements of Regulation 6(1) of the Furniture and Fittings (Fire) (Safety) Regulations 1988, SI 1988 No 1324, as amended in that the filling material in the cushion failed the ignitability test contrary to Regulation 15(1) of the said Regulations and Section 12(1) of the Consumer Protection Act 1987. The informations stated that the commission of the offences was due to the act or default of the Respondent by virtue of Section 40(1) of the Consumer Protection Act 1987. The Respondent was found not guilty of these charges. The tests of the cushions had been conducted on behalf of the prosecution by BTTG Wiratec, an independent testing centre in Leeds. The Respondent attacked the test results as flawed. It relied on subsequent tests on different cushions selected by the Respondent's local Trading Standards Officer which were tested by West Yorkshire Materials Testing Service and passed the ignitability test. BTTG Wiratec's procedure was manually to feel the cushion in order to ascertain the density of the crumb foam within the cushion. West Yorkshire Materials Testing Service calculated the density of the crumb foam by measuring the volume of the cushion and dividing the cushion's weight by the volume. The issue in this case concerns the reliability of the method used by BTTG Wiratec to determine the density of the crumb foam within the cushions.
4. When delivering their verdicts, the Justices stated:-

"We have listened to the evidence regarding the method of testing employed in order to achieve the conditions as stated in Part II [of Schedule 1 to the Regulations] which is that the test rig is stuffed to the density used in the furniture as intended. We are aware that the B[ritish] Standards do not lay down specific guidelines as to how this is achieved. Although Wiratec are an accredited testing laboratory from the evidence given in the hearing we are not satisfied that the test can be relied upon in order to bring a guilty verdict in respect of the two charges brought under the Consumer Protection Act Section 40."

5. The Applicant submits that the Justices erred in law in concluding that the test result could not be relied on in order to bring a guilty verdict. Mr Finch, on behalf of the Applicant, submits that this appeal raises an important issue as to the reliability of the method of testing used by the prosecution. Exactly the same method of determining density for ignitability tests has been used in previous prosecutions and pending prosecutions against other companies. Previous convictions have resulted on the evidence of BTTG Wiratec where the results and the methodology were not challenged. Further prosecutions have been adjourned pending the outcome of this appeal.

The Law

6. This is to be found in the Consumer Protection Act 1987 ("the 1987 Act") and the Furniture and Furnishings (Fire) (Safety) Regulations 1988 SI 1988 Number 1324 as amended ("the 1988 Regulations"). The 1988 Regulations in turn refer to British Standard 5852: Part 2 ("BS 5852") which deals with methods of testing the ignitability of upholstered composites for seating by flaming sources.
7. Regulation 6(1) of the 1988 Regulations provides:

"(1) Subject to paragraphs (3) and (4) no furniture shall include any filling material which fails the relevant ignitability test.

(2) No furniture shall include as filling any foam in crumb form unless both –

(a) the foam from which the crumb is derived passes the ignitability test specified in Part 1 of Schedule 1 to these Regulations; and

(b) the foam in crumb form itself passes the ignitability test specified in Part II of that Schedule."

8. By Regulation 15(1):

"Subject to paragraph (2) below, no person shall supply any furniture or other article in respect of which any of the requirements of these regulations is not satisfied."

9. Section 12(1) of the Consumer Protection Act 1987 provides:

"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."

10. The prohibition in Regulation 15 thus applies to the supply of any article in respect of which any of the requirements of the regulations, including the ignitability test referred to in Regulation 6(2)(b), are not satisfied. In turn Section 12(1) of the 1987 Act renders any supply of goods which is prohibited by safety regulations, including the 1988 Regulations, a criminal offence, subject to the defence of due diligence specified in Section 39 of the 1987 Act. It was not argued that the defence of due diligence arises in this case.
11. The ignitability test specified in Part II of Schedule 1 to the 1988 Regulations is that:-

"1 The foam shall be tested in accordance with the method set out in BS 5852: Part 2 using fabric corresponding to the specification set out in paragraph 2 below."

….

"3 The test rig panels are aligned with the fabric specified in paragraph 2 above. Sufficient crumb foam shall be placed upon the seat and back panels so that when the cover fabric piece is placed over them, both are stuffed to the density used in the furniture as intended. The test is then carried out in accordance with BS 5852: Part 2 using ignition source 2 as specified therein." (emphasis added)

12. BS 5852: Part 2 sets out detailed specifications as to the method of testing the ignitability of upholstered composites for sealing by flaming sources. The only aspect of the specified method which is in dispute in this appeal concerns the method of achieving the density used in the furniture as required by paragraph 3 of Part II of Schedule 1 to the 1988 Regulations. BS 5852: Part 2 does not specify how this is to be achieved. Paragraph 8.3, dealing with upholstery fitting, states inter alia that:

"… some kinds of loose packing materials (e.g. foam crumb, feathers) may be evaluated by this method of test. In these cases the loose packing is built up beneath the covering materials to reproduce the 75 mm thickness of the assembly as a realistic packing density" (emphasis added).

The facts found by the Justices

13. The Justices heard evidence by Mr Hird, an employee of BTTG Wiratec, who had supervisory responsibility for the prosecution's tests, Judith Shewan, the Trading Standards Officer who made the second of the two test purchases, Mr Brockbank of West Yorkshire Materials Testing Service, who conducted the tests for the defendant, and Mr Nicholas Venezia, a Director of the Respondent. They were given copies of Judith Shewan's interview of Paul, Nicholas and Stephen Venezia, Directors of the Respondent, on 8^th October 2002. The facts found by the Justices and set out in the case stated are:-

"(a) That a test purchase was made at Wilkinson Hardware Store, Manor Walks Shopping Centre, Cramlington on the 16^th May 2002 by Philip Tait, Fair Trading Officer employed by Northumberland County Council. The purchase was a relaxer chair, manufactured, and supplied by PR Manufacturing.

(b) That a test purchase was made at Poundstretcher, Fore Street, Hexham on 27^th May 2002 by Judith Shewan, Fair Trading Officer employed by Northumberland County Council. The purchase was a relaxer chair, manufactured and supplied by PR Manufacturing.

(c) Both of these purchases were undertaken for the purposes of enforcing the Consumer Protection Act 1987 and Trade Description Act 1968.

(d) The cushions from the test purchases were sent by Northumberland County Council Trading Standards Department for testing to BTTG Wiratec, an independent testing house in Leeds in order to determine whether the cushions complied with the Furniture and Furnishings (Fire) (Safety) Regulations 1988 as amended by the Furniture and Furnishings (Fire) (Safety) (Amendment) Regulations 1993.

(e) Both cushions failed the ignitability test under Schedule 1 Part II for polyurethane foam in crumb form as conducted by BTTG Wiratec on 18^th June 2002.

(f) Judith Shewan subsequently interviewed the directors of PR Manufacturing under caution on 8^th October 2002.

(g) Following contact by Northumberland Trading Standards PR Manufacturing contacted their local Trading Standards Officer Mr Alex Rankin who visited the factory and selected a number of cushions for testing. West Yorkshire Materials Testing Service tested the two cushions on behalf of PR Manufacturing on 20^th August 2002. Both cushions passed the ignitability test under Schedule 1 Part II for polyurethane foam in crumb form. Documentation in the trial bundle also confirms a test was undertaken by Mobeltest Quality Services on behalf of PR Manufacturing, also on 20^th August 2002, again using cushions selected by Mr Rankin, these also passed the ignitability test.

(h) The Furniture and Furnishings (Fire) (Safety) Regulations 1988 Schedule 1 Part II sets out the method to be adopted for the ignitability testing of polyurethane foam in crumb form. Paragraph 3 of Schedule 1 Part II specifies that the test rig must be stuffed to the density used in the furniture as intended. However it does not specify how this is to be achieved.

(i) The independent testing houses undertook different methods of achieving the correct density. BTTG Wiratec's procedure was to manually feel the cushion in order to ascertain the density of the crumb foam within the cushion. The cushion was then cut open and the test rig filled with the crumb foam from the cushion to replicate the density of the cushion. The volume of the test rig was smaller than that of the cushion therefore not all the filling from the cushion is placed in the test rig. The amount of crumb foam put into the test rig was dependent upon the judgment of the person filling the rig. (It is accepted that all test rigs are of a standard type and dimension)

(j) From the evidence we heard we were satisfied that the crumb foam contained in each of the cushions tested came from the same batch.

(k) The West Yorkshire Materials Testing Service procedure is to calculate the volume of the original cushion by measuring as accurately as possible, bearing in mind the shape of the cushion, the height x width x length of the cushion. Then the density of the cushion was calculated to a reasonable accuracy by dividing the cushion's weight by the volume. They replicated the density of the crumb foam into the test rig by calculating the weight of crumb foam required to fill the volume of the test rig to the same density of the cushion. The test documentation for Mobeltest Quality Services also contained density calculations.

(l) The subsequent procedures of undertaking the ignitability tests were consistent with all testing companies and performed in accordance with the regulations and the British Standards: 5852: Part 2: 1982.

(m) BTTG Wiratec, West Yorkshire Materials Testing Service and Mobeltest Quality Services are UK accredited independent testing houses.

(n) That PR Manufacturing had not complied with Regulation 6(2)(b) of the Furniture and Furnishings (Fire) (Safety) Regulations 1988."

The Justices' Conclusion and the questions for the High Court

14. The Justices considered the test method employed by Wiratec in order to ascertain whether the crumb foam in the two recliner cushions complied with the Regulations. They stated:-

"We listened to the evidence regarding the method of testing employed in order to achieve the conditions as stated in Schedule 1 Part II of the Regulations which is that the test rig is stuffed to the density used in the furniture as intended. We were aware that the British Standards do not lay down specific guidelines as to how this is to be achieved.

We found the method employed by West Yorkshire Materials Testing Service to be more scientific and precise in its application.

There were two methods demonstrated for conducting the ignitability test. Each method gave a different result. Therefore we had to examine the test methods used.

We found the test methods used by Wiratec (for the prosecution) relied upon the judgment of the tester in feeling the density of the cushion and then packing the test rig to the same density of the original cushion.

The method adopted by West Yorkshire Materials Testing Service (for the defendant), was more scientific in its approach because it involved measurement of volume and weight and a calculation was conducted to arrive at the original cushion density which was replicated in the test rig by reference to the rig dimension.

As the cushions passed the ignitability test conducted by the defendant, which was in our opinion a more scientific method, we could not rely on the tests achieved by Wiratec i.e. the prosecution.

Although Wiratec are an accredited testing laboratory from the evidence given in the hearing we were not satisfied beyond reasonable doubt that the result could be relied upon in order to bring a guilty verdict in respect of the two charges brought under the Consumer Protection Act.

We therefore dismissed informations 2 and 4."

15. The questions on which the opinions of the High Court are sought are:-

(a) Whether on the evidence of the prosecution's expert (Mr Hird) and on the evidence of the defence expert (Mr Brockbank), the Justices were entitled to conclude that the test undertaken by the prosecution was not reliable.

(b) Whether there was any evidence that there had been a breach of Regulation 15 and/or Schedule 1 Part II of the Regulations.

(c) Whether upon the evidence of Mr Hird and Mr Brockbank, the Justices could have come to a conclusion other than that there had been a breach of the Regulations by the defendant company.

(d) If the Justices reached the conclusion that there had been no breach of the Regulations, insofar as the provisions for the testing was concerned, then were they entitled to reach the conclusion that they could not rely upon the prosecution's test result.

(e) Were the Justices entitled to compare the subsequent testing by the defendants of a different cushion, not proved to be from the same batch, approximately three months post the article tested by the prosecution against the test result obtained by the prosecution.

(f) Whether the Justices were entitled to reject the evidence of the prosecution's expert (if that is what they have purported to do) without providing any written reasons as to why they have so rejected his evidence.

Reasons:

16. I shall deal with the last of the questions posed - whether the Justices were entitled to reject the evidence of the prosecution's expert without providing any written reasons - before turning to the grounds of appeal. No submissions were made by either Mr Finch on behalf of the Applicant or Mr Callan on behalf of the Respondent on this question, save that Mr Finch doubted that the written statement by the Justices when announcing their verdicts (an extract from which is set out at paragraph 4 above) constituted reasons. Since this issue is not central to the appeal and in the absence of submissions by the parties, I can deal with it briefly. Whatever the former position, since the enactment of the Human Rights Act 1998 and the required recourse inter alia to Article 6(1) of the European Convention on Human Rights it is a requirement of a fair trial that a court should give reasons for its judgment (see e.g. the decisions of the Strasbourg Court cited in Stone's Justices Manual 2003, vol 1, paragraph 1-2124 note 1). The extent of the duty varies according to the nature of the decision and the deciding body. Thus, while recognising that lay Justices are advised on the law by legally qualified clerks, more might be expected from legally qualified Judges. In the case of Justices, statutory provision has been made for the giving of reasons in family proceedings and the Divisional Court has given guidance as to the recording of reasons in such cases (Magistrates Courts Act 1980, Section 74, and see Stone's Justices Manual 2003, vol 1, paragraph 4-40). In the context of the present case, where a case is stated by Justices, the reasons for the decision will be found in the case stated. In general terms, what is required is for the deciding court to demonstrate that it has identified the main contentious issues and to show how it has resolved them. What is required of reasons is that they enable the parties to understand why a decision has been reached. Some guidance, albeit taking account of the different position of Justices, can also be obtained from the cases on the duty of the Crown Court to give reasons when sitting in its appellate capacity (Archbold 2004 paragraph 2-202) and on the duties of specialist tribunals to give reasons (e.g. on the Special Educational Needs and Disability Tribunal's duty, see Lucie M v Worcestershire CC [2002] EWHC Admin 1292, at paragraphs 10-11).

The Grounds of Appeal

17. The grounds of appeal are that in rejecting the prosecution's test results which demonstrated a breach of the ignitability test of the relevant products, the Justices erred in the following respects:

"(a) They wrongly sought to compare the test results of the foam, the subject of the prosecutions, against the results of foam from different cushions;

(b) They reached a conclusion that the cushions (foam) tested by the Respondent's expert came from the same batch of cushions which formed the subject matter of the prosecution which no reasonable Bench of Justices, properly directing themselves upon the evidence, could have reached. In particular, no evidence as to the origin of the cushion (foam) subsequently tested by the Respondent's expert had been established or that there existed any continuity evidence called to enable the Justices to be satisfied of the fact they purport to make.

(c) That in the premises, they rejected the prosecution's test results when there existed no good and proper basis for doing so."

Submissions on behalf of the Applicant

18. Mr Finch submitted that the grounds of appeal raise three issues. The first is whether the Justices were entitled on the evidence before them to reject the prosecution evidence as unreliable because of the way density was determined; i.e. by "feel". The second is whether, in view of the fact that the prosecution's test did not breach the 1988 Regulations or the British Standard but only used a different method to that used by the Respondent's test, the Justices were entitled to reject the prosecution's test results as being unreliable. The third is whether on the evidence before them the Justices were entitled to conclude that the foam cushions tested by the Respondent's expert came from the same batch of cushions as those which were tested by BTTG Wiratec and formed the subject of this prosecution.
19. Mr Finch submitted that, on the facts the Justices found, they were not entitled to conclude that the prosecution's test results were not reliable. He relied on their finding ((h)) that while the Regulations specify that the test rig must be stuffed to the density used in the furniture as intended the Regulations do not specify how this is to be achieved. He also relied on the conclusion of the Justices that the procedures were performed in accordance with the 1988 Regulations and British Standard 5852: Part 2 (finding (l)). He submitted that in view of those findings in respect of the Regulations and the tests conducted by BTTG Wiratec, it was not relevant to ask, as the Justices had asked, whether the method employed by West Yorkshire Materials Testing Service was more scientific and precise. The issue is whether the test complies with the Regulations. He submitted that unless there was evidence showing that the prosecution test was unreliable either because of a procedural failure or because of an error as to the density used in the test rig it was not open to the Justices to find that the prosecution's test is unreliable. In this case he submitted that, even if the foam used in the Respondent's test had come from the same batch as that used in the prosecution's test, there was no evidence that the prosecution's test was unreliable. The Justices only had before them the different results produced from the different tests. Both experts had agreed that it was possible to have different results without either being wrong. The Respondent's expert, Mr Brockbank, did not dispute the prosecution's test and stated that a UKAS accredited laboratory, which BTTG Wiratec was, should not be doubted. Although Mr Brockbank believed his method to be more accurate he accepted that the two methods may well have produced the same result. He stated that he was not saying that Mr Hird's method was wrong or that his result was wrong.
20. Mr Finch alternatively submitted that, it was not open to the Justices to conclude that the prosecution's test was unreliable because the foam tested by the Respondent was from different cushions and there was an insufficient evidential basis for the Justices to conclude, as they had, that the foam from the cushions tested by the Respondent came from the same batch as those tested by the prosecution (finding (j)).
21. The evidence relating to this, the third issue, came from Mr Nicholas Venezia. Mr Brockbank's evidence was that he did not know whether the item he tested came from a different batch. He tested the item he had been given. Nicholas Venezia's evidence was that he knew the cushions tested by West Yorkshire Materials Testing Service came from the same batch as those tested by the prosecution because they were selected from the same area of cushions at random by the Telford Trading Standards Officer. He also said that the cushions tested by West Yorkshire Materials Testing Service had the same identity label as those on the cushions that formed the subject matter of the prosecution. He stated that while he couldn't say that there was the same percentage of foam in each of the cushions he knew that the foam came from YR102 Run which was manufactured using foam supplied by Reticel in 2002.
22. Mr Finch submitted that this gave no evidential foundation for a conclusion that the foam came from the same batch. First, Mr Venezia's interview by Judith Shewan showed that the identity labels referred to the fabric covering rather than the foam and that the fabric covering with the identity label had been used over a significant period of time from October 2001 to January 2002. It was not, accordingly, possible, given the size of the Defendant's business, to say that foam from the same batch would have been used to fill the fabric. Secondly, he relied on the lapse of time between the test purchases on 16^th and 27^th May 2002 and the selection of the foam by the Telford Trading Standards Officer following the outcome of the tests conducted by BTTG Wiratec for the Trading Standards Department. The foam was received by the West Yorkshire Materials Testing Service on 13^th August 2002.

Submissions on behalf of the Respondent

23. Mr Callan, on behalf of the Respondent, submitted that it was not irrational of the Justices to prefer the test conducted by West Yorkshire Materials Testing Service which was more scientific. They were entitled to act on the criticisms made of the prosecution's test in cross-examination of Mr Hird of BTTG Wiratec. If they concluded that this shed doubt on the prosecution case this was sufficient material for them to be entitled to conclude that they were not sure that the Defendant was guilty of the offence under Section 12(1) of the 1987 Act and to acquit. He also submitted that in view of BTTG Wiratec's method of relying on "feel" when comparing the sample purchase cushion and the test rig the Justices were entitled to conclude that there was no certainty that the crumb foam used in the prosecution's test was packed to the density used in the cushions as required by the 1988 Regulations. His skeleton argument relies on the fact that "feel" is a subjective concept and not appropriate to scientific method and on the fact that the prosecution test does not involve the feeling of a cushion and the immediate feeling by comparison of the test rig because the tester first feels the supplied cushion and then cuts it open, empties the foam and inserts the foam into the test rig. This delay, it is submitted, weakens the reliability of the method as an accurate testing of density.
24. On the "same batch" issue, Mr Callan also submitted that there was evidence in support of the Justices' conclusion. He submitted that they were entitled to conclude on the evidence of Mr Venezia (summarised above) that the crumb foam in the cushions tested by West Yorkshire Materials Testing Service came from the same batch as those tested by BTTG Wiratec. They were also, he submitted, entitled to rely on the fact that the cushions tested by West Yorkshire Materials Testing Service had the same identity labels as those test purchased by the Trading Standards Department.

Conclusions:

25. Although the evidence on the "same batch" issue is thin, Mr Callan's submissions have force. It does not appear from the case stated that the point that the identity labels referred to the fabric rather than to the foam was taken and Mr Finch was unable to confirm that it was. The Justices were entitled to rely on Mr Venezia's evidence in concluding that the crumb foam in the cushions tested by West Yorkshire Materials Testing Service came from the same batch as those tested by BTTG Wiratec.
26. I have, however, concluded that Mr Callan's argument on the first two issues is not sustainable and that this case will have to be remitted to the Justices. Mr Callan submits, given the subjective elements in the prosecution's "feel" test, the Justices were entitled to conclude that they were not satisfied that the test rig was stuffed to the "density used in the furniture". Had this been in the case stated, there might have been force in this point, although it is not, in itself, conclusive. It was accepted that the Respondent's expert's method of testing also involves an element of subjectivity when dealing with an item, such as a buttoned cushion, which is not susceptible of a precise determination of volume. This appears to be recognised by the British Standard which, in paragraph 8.3 of BS 5852: Part II, refers to the loose packing being built up beneath the covering materials on the test rig "at a realistic packing density".
27. The Justices, however, do not state that they were not satisfied that the test rig was stuffed to the "density used in the furniture". That would, moreover, have been inconsistent with their finding (l) that the prosecution's test satisfied the 1988 Regulations and the British Standards because paragraph 3 of Part II to Schedule 1 of the 1988 Regulations specifies that "sufficient crumb foam shall be placed upon the seat and back panels so that when the cover fabric piece is placed over them, both are stuffed to the density used in the furniture as intended". The Justices also found (finding (n)) that the Respondent had not complied with Regulation 6(2)(b); i.e. was in breach of it. Had the Justices not been satisfied that the test rig was stuffed to the "density used in the furniture", they could not have found that the Respondent was in breach of Regulation 6(2)(b).
28. Findings (l) and (n) have a further significance. I have concluded that findings (l) and (n) are inconsistent with the dismissal by the Justices of the informations. Accordingly I find that they erred in law in concluding that notwithstanding these findings they were not satisfied beyond reasonable doubt that the prosecution's test result could be relied upon and consequently in dismissing the two informations under Section 12(1) of the Consumer Protection Act 1987.
29. My reasons for concluding that the findings are inconsistent with the dismissal of the informations are as follows. It is not disputed that the cushions containing the crumb foam tested by BTTG Wiratec were supplied by the Respondent to retailers and then purchased by Trading Standards Officers. It is also not disputed that the cushions did not pass the ignitability test conducted by BTTG Wiratec. It necessarily follows from the Justices' finding (l) that BTTG Wiratec's tests were performed in accordance with the 1988 Regulations and the British Standards that, as indeed the Justices also found in their finding (n), the Respondent had not complied with Regulation 6(2)(b) of the 1988 Regulations. The cushions that were indisputably supplied by the Respondent and ultimately purchased from Wilkinson's Hardware Stores in Cramlington and the Poundstretcher store at Hexham by Trading Standards Officers were thus in breach of Regulation 6(2)(b) because they included as filling foam in crumb form which had not passed the specified ignitability test. This breach of Regulation 6(2)(b) in turn necessarily triggered the prohibition in Regulation 15(1) of the 1988 Regulations. Regulation 15(1) prohibits any person supplying any furniture or other article in respect of which any of the requirements of the 1988 Regulations is not satisfied. Once Regulation 15 is engaged and is broken, the Consumer Protection Act 1987 is engaged, and, subject to the defence in Section 39, the offence specified in Section 12(1) is committed. So, subject to the statutory defence (which is not relevant in the present case), the findings by the Justices that the prosecution's ignitability test complied with the 1988 Regulations and that the Respondent was in breach of Regulation 6(2)(b) triggered both Regulation 15 and Section 12(1) of the 1987 Act. It is inconsistent and an error of law to conclude that the prosecution's test satisfied the 1988 Regulations and the British Standards and that the Respondent had not complied with Regulation 6(2)(b) but that the result of the test could not be relied upon in order to bring in a guilty verdict in respect of the charges brought under Section 12(1) of the Consumer Protection Act.
30. This does not mean that there can be no defence once a product has failed a test. Apart from Section 39's due diligence test, there may be evidence that there has been a procedural failure in the prosecution's test, for example an error as to the density of the material tested as compared to the product offered for sale. If such evidence is accepted, as Mr Finch recognised, the prosecution's test would not satisfy the requirements of the 1988 Regulations. Accordingly, Regulation 15 and in turn Section 12(1) of the 1987 Act would not be engaged. Such evidence might consist of the result of another test on crush foam from the same furniture or from furniture of the same design which used foam of the same specification.
31. In principle the evidence concerning the test undertaken by West Yorkshire Materials Testing Service could constitute evidence of such a procedural failure in the prosecution's test provided there was evidence upon which the foam tested came from the same batch and the cushions in which it was put were filled to the same density. My finding that, although thin, in this case there was evidence upon which the Justices were entitled to conclude that the foam tested came from the same batch does not, however, remove the inconsistency I have identified in their findings. Notwithstanding that evidence, the Justices did not conclude that there was a procedural error in the tests conducted by BTTG Wiratec so that those tests did not comply with the 1988 Regulations and the British Standards. They held that BTTG Wiratec's tests complied with the Regulations and that the Respondent had not complied with Regulation 6(2)(b) of the 1988 Regulations. Moreover, it does not appear that in the present case there was in fact evidence that the test conducted by BTTG Wiratec did not conform to the Regulations. Mr Brockbank, while believing his method was more accurate, did not challenge the validity of BTTG Wiratec's method.
32. If there is no procedural failure or error in the prosecution's tests, notwithstanding the existence of another test with a different result, the prohibition in Regulation 15 and consequentially the offence in Section 12(1) of the 1987 Act are engaged. Accordingly, the inconsistency which I identify in paragraphs 28-29 is not removed .
33. This conclusion means that the case must be remitted to the Justices irrespective of whether they were entitled to conclude that the crumb foam contained in the cushions tested by West Yorkshire Materials Testing Service came from the same batch as the foam contained in the cushions that are the subject of the prosecutions.

The questions on which the Justices seek the opinion of the High Court:.

34. I turn to the questions on which the opinion of the High Court is sought.

(1) Whether on the evidence of the prosecution's expert (Mr Hird) and on the evidence of the defence expert (Mr Brockbank), the Justices were entitled to conclude that the test undertaken by the prosecution was not reliable:- For the reasons given above I have concluded that the Justices' factual findings (l) and (n) are inconsistent with the conclusion that the prosecution's test was not reliable.

(2) Whether there was any evidence that there had been a breach of Regulation 15 and/or Schedule 1 Part II of the regulations:- If goods that do not comply with Regulation 6(2)(b) of the Regulations have been supplied it follows that Regulation 15 has been breached. On the assumption that the reference to Schedule 1 Part II of the Regulations is to the requirement in paragraph 3 that the crumb foam in the test rig panels should be "stuffed to the density used in the furniture as intended", again the findings in (l) and (n) are inconsistent with a finding that the test rig panel was not stuffed to the density used in the furniture as intended.

(3) Whether upon the evidence of Mr Hird and Mr Brockbank the Justices could have come to a conclusion other than that there had been a breach of the Regulations by the defendant company:- For the reasons given in paragraph 31 above, while in principle the evidence concerning the test undertaken by West Yorkshire Materials Testing Service could constitute evidence of a procedural failure in the prosecution's test provided there was evidence upon which the foam tested came from the same batch and the cushions in which it was put were filled to the same density, findings (l) and (n) are inconsistent with a conclusion that there was such a failure and no breach of the Regulations by the Defendant company. Moreover, it does not appear that in the present case there was evidence that the test conducted by BTTG Wiratec did not conform to the Regulations since Mr Brockbank, while believing his method was more accurate, did not challenge the validity of BTTG Wiratec's method.

(4) If the Justices reached the conclusion that there had been no breach of the Regulations, insofar as the provisions for the testing was concerned, then were they entitled to reach the conclusion that they could not rely upon the prosecution's test result:- The answer to this question is "no".

(5) Were the Justices entitled to compare the subsequent testing by the Defendants of a different cushion, not proved to be from the same batch, approximately three months post the article tested by the prosecution against the test result obtained by the prosecution:- The answer to this question is "no"

(6) Whether the Justices were entitled to reject the evidence of the prosecution's expert (if that is what they have purported to do) without providing any written reasons as to why they have so rejected his evidence:- I have dealt with this question in paragraph 16 of this judgment.

35. For the reasons given above I order that the verdict of "not guilty" be set aside and the matter be remitted to a differently constituted Bench for a new trial.