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
		12 November 2004

1. LORD JUSTICE THOMAS: This is an appeal by way of case stated from a decision of the Magistrates' Court at Houghton Le Spring on 19 March 2004.
2. The facts are simple. The respondent ("the proprietor of the shop"), who appears to be a pensioner running a small shop in a village, also was the licensee of that shop at Springwell Village, Washington. On 20 March 2003 Trading Standards officers made a test purchase of alcohol at the shop using a 15 year-old girl called Samantha. Samantha went into the shop and bought from the proprietor a bottle which was labelled as containing Lambrini, a slightly sparkling wine, for which she paid £2.44. The label clearly stated the alcohol content was 7.5 per cent by volume.
3. The proprietor of the shop did not dispute that she sold the bottle to Samantha, and she said in response to questions as to whether she had asked for ID:

"Well I don't always go by appearances, I just sort of go by and I looked at her and I thought, well in my opinion she is old enough. I look at her hands and everything. In my opinion she was old enough, so I didn't really think I had to ask for any ID."

4. At the close of the prosecution case, the submission was made in these terms on behalf of the proprietor of the shop:

"This bottle ... could contain anything because there was no certificate of analysis to show that it was, in fact, alcohol. Such certificates are now needed when drugs of any sort are seized to show that they are genuinely drugs therefore, the same could be held in relation to a bottle which albeit said on the outside that it was alcohol of 7.5% proof, without it being analysed, it could be 'anything'."

5. For some reason, though it is difficult to understand what reason there could possibly be, the prosecution said nothing. The justices acceded to the submission on the basis that the evidence for the prosecution had been discredited to such an extent that a reasonable bench, properly directed, could not find the defendant guilty.
6. The prosecuting authority, the Council of the City of Sunderland, applied for a case stated, and again for reasons it is difficult to understand, the justices' clerk was not as co-operative as he might have been in providing that case; certainly, it took some time to produce and hence the delay.
7. When the matter came for directions before this court, the learned judge, who considered it, granted a representation order, but observed that although the decision of the justices might seem manifestly ridiculous, the proprietor of the shop ought nonetheless to have such an order.
8. The law is, in my view, quite clear. Section 24(1) of the Criminal Justice Act 1988 provides as follows:

"a statement in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence would be admissible, if the following conditions are satisfied—

(i) the document was created ... by a person in the course of a ... business ... and

(ii) the information contained in the document was supplied by a person (whether or not the maker of the statement) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with."

9. Paragraph 5(1) of Schedule 2 to the Act defines a "document" as meaning anything in which information of any description is recorded; and "statement" means any representation of fact, however made. If that section was not clear enough, this court, in Department for the Environment, Food and Rural Affairs (DEFRA) v Atkinson [2002] EWHC 2028 Admin, had to consider its application in relation to the very point that has arisen in this case. In that case, the defendant was charged with selling veterinary medicinal products, which were saleable by prescription only. A submission of no case to answer was made to the magistrates and accepted by them on the basis there had been no analysis.
10. In considering the matter when it came to this court by way of case stated, Brooke LJ, in delivering the judgment of this court, said at paragraphs 29 and 30 of his judgment:

"29. In Foxley [1995] 2 Cr App R 523 Roch LJ, giving the judgment of the Criminal Division of the Court of Appeal, held that Parliament's intention clearly was that the court could draw such inferences as it thought proper from the documents themselves.

30. It follows that the prosecution produced admissible evidence to the effect that the products found on Mr Atkinson's property were what the prosecution contended and that they had a market authorisation in Ireland. Although section 28(1)(b) of the 1988 Act envisages that a court may in its discretion exclude a statement admissible by virtue of Part II of the Act (which contains section 24), it was not suggested to the justices that they should exclude evidence which was prima facie admissible, and it is not at all clear that in the absence of any suspicious circumstances there were any grounds for excluding it."

11. This is a case where not only was the law clear, but a moment's reflection by any responsible lawyer would have led to the conclusion that the submission made to these justices was one no responsible lawyer should have made. The law is clear. Even if the solicitor advocate (who appeared in the hearing before the Magistrates, but not before us) had not considered the terms of the Criminal Justice Act 1988, or did not know of the decision of this court, a moment's thought should have made any responsible defence advocate realise that everyone conducts business in a shop on the basis that labelled products produced by a manufacturer contain what they are labelled to contain, unless there is evidence to the contrary. Indeed, that is the very basis upon which the proprietor of the shop must have been selling goods in her shop.
12. The analogy of requiring an analysis for controlled drugs taken, as appears from the case stated, was manifestly absurd. It is, of course, true that courts do have evidence of analysis of drugs such as cannabis, cocaine or heroin. They are not sold as labelled products and, unless there is an admission as to the substance, it is often necessary to prove what it is.
13. In my view, therefore, it was extremely difficult to understand how any bench of justices could have reached this decision, and indeed extraordinarily difficult to understand how their legal adviser could have advised them to accept it. That is particularly so as, and it seems to me we should record this, that there seems to have been no suggestion on the part of the proprietor of the shop herself that this defence was something she put forward. It has, if we may say so, all the appearances of a ridiculous point, having been put forward by a lawyer who did not act with proper responsibility towards the court or the client.
14. In a Case Stated of this kind, it would normally be the position that the matter would be resolved without the necessity for a hearing before this court, the costs of which I shall refer to in a moment. It is unfortunate, to say the least, that that did not happen in this case. We have heard the circumstances that led to that and I need say no more about it, other than to say how grateful I am to counsel (who did appear before the justices) for the very frank way in which he has dealt with the matter. However, that does not mean that the taking of this point, the necessity of the appeal to this court and the hearing here today will have not cost a significant sum of money.
15. It must be recalled that counsel and solicitors for the City of Sunderland have had to come down from the north of England. They have had to be paid and their costs in this court amount to some £1,600. There is no reason why the rate payers of the City of Sunderland should pay that sum and, as it is obviously a reasonable sum, it must therefore fall to us to make an order against the proprietor of the shop to pay that amount. It is obviously a matter between her and her solicitor as to how the costs are dealt with.
16. Secondly, as I have said, the judge giving directions in this case made a representation order. A representation order these days means that a person is provided with the services of a solicitor and/or barrister, as the case may be, but is required to fill out a form setting out means. I have considered that form and it seems to me that this is a case where, as between the State, which is paying for this, and the proprietor of the shop, it is very unfortunate that we must order that she must pay the costs. We are told that those are in the region of £1,000, counsel having very properly waived his fee in this matter.
17. We order, therefore, with liberty to apply, that the proprietor of the shop should pay that amount on terms on which we will hear counsel subsequently. If it transpires that there is any difficulty in relation to that, we give her full permission to come back to this court. However, as between her and her solicitor, again that is a matter between them as to how the sum should be discharged.
18. I should add that, although it is necessary for us to remit this matter to the justices, it is difficult to see, in the light of the interview in which she accepted that she did not ask for an ID, what defence there can be to this charge. But that is a matter for the justices.
19. I would only observe that, if she is convicted by the justices, the fact that these very heavy orders as to costs are made against her must in no way engender sympathy. She must be treated on the basis that the offence which she has committed, if they find her guilty, is one to be punished in the ordinary course of events.
20. It is important that licensees who are found guilty of selling alcohol to those underage are dealt with sternly in the light of the fact that the sale of alcohol to those underage is a serious contributor to many social and criminal problems. I say that because it might, at first sight, appear hard upon the proprietor of the shop that the result of all of this is that very significant orders have been made against her, but no court can ignore the seriousness of the offence, if proved, that is committed by a person who fails to ask for an ID from a person -- a very simple precaution to take in any case -- and who thereon goes on to sell alcohol to someone underage.
21. MR JUSTICE FULFORD: I agree.
22. LORD JUSTICE THOMAS: Thank you both, very much, indeed. Mr Richmond, if there are any problems with her, please come back to us. We do not want her to suffer any individual financial penalty which can be avoided.