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
		14th December 2004

1. MR JUSTICE FIELD: This is an appeal by way of case stated by the justices for the county of Northamptonshire acting in and for the petty sessional division of Wellingborough in respect of their adjudication when sitting as a Magistrates' Court on 16th May 2002. On that occasion they dismissed two informations laid by the appellant against the respondent, three other informations having been withdrawn. The charges were laid under the Trade Descriptions Act 1968 ("the 1968 Act") and alleged that false trade descriptions had been applied to two bottles, respectively, of cranberry and blackberry juice drink that had been supplied by a retailer to a trading standards officer employed by Northamptonshire County Council.
2. The labels on the bottles shared a common format. In the centre there was a picture of the fruit in question under the words "blackcurrant juice" or "cranberry juice", as the case may be, with the word "burst" under underneath. To the left of this representation was a box in which was specified typical values per 100ml, and underneath that some wording that included the words "a refreshing juice-based drink" and a list of ingredients that included the particular fruit juice, blackcurrant or cranberry, followed by a percentage; 13 per cent in the case of the blackcurrant drink and 25 per cent in the case of the cranberry drink. If a purchaser were looking at the centre of the label, he would have to rotate the bottle somewhat to read the ingredients list. An analysis of the drink showed that the percentages were correctly stated.
3. The informations charged that the trade descriptions applied to the drinks were "Blackcurrant Juice" and "Cranberry Juice", that these were false, and that the supply of the drinks under such false descriptions was due to the act or default of the respondent who was responsible for the manufacture of the drinks and contents of the labels (see section 23 of the 1968 Act). The appellant contended that these trade descriptions signified that the drinks were one hundred per cent fruit juice and were false or misleading because the fruit juice ingredient of the drinks was less than one hundred per cent.
4. The justices acquitted the respondent. They found that the trade descriptions were respectively "Blackcurrant Juice Burst" and "Cranberry Juice Burst" and that the word "Burst" qualified the prior words and indicated that the drinks were not necessarily one hundred per cent juice. The justices also found that they were entitled to read the label as a whole. They held that the doctrine of disclaimer did not apply to mandatory labelling under a statutory regime. They further held that, even if the trade descriptions were "Blackcurrant Juice" or "Cranberry Juice", those descriptions were not false because a reasonable consumer faced with these products would expect to read the label as a whole, including the ingredients list, and would be familiar with the idea that the ingredients list is likely to appear on the label. The justices also held that the trade descriptions "Blackcurrant Juice" and "Cranberry Juice" were not misleading. The relevant parts of the case stated read:

"Even if the Appellant was right, and the trade description consisted only of the words 'Blackcurrant juice' and 'Cranberry Juice' and the doctrine of disclaimer applied, no offence under the Trade Descriptions Act 1968 had been committed, for the following reasons:

"i) The trade description was not false. A reasonable consumer faced with this product would, from our experience, expect to read it as a whole including the ingredients list and would be familiar with the idea that the ingredients list is likely to appear on the label. The ingredients list would therefore be effectively brought to the notice of the person to whom the goods may be supplied. We do not therefore consider that 'the doctrine of disclaimer' prevented us from looking at the ingredients list which provided accurate information as to the contents of the products;

"ii) The trade description is not misleading. We considered what a reasonable consumer could interpret from the wording on the label -- that is, from the use of the word 'Juice' taking into account the definition in regulation 4 of the Fruit Juices and Fruit Nectars Regulations 1977. We concluded that a reasonable consumer would not be misled and would take into account that these particular juices cannot be palatable in an undiluted form.

"e) Further, our opinion was that it is a well-known matter that both cranberries and blackcurrants are bitter fruits, and that we were entitled to take this factor into account as requested by the Respondent."

Regulation 4 of the Fruit Juices and Fruit Nectars Regulations 1977 provides:

"(1) Subject to the following paragraphs of this regulation, for the purposes of the [Food Labelling Regulations 1996] the name used as the name of the food in the labelling of any fruit juice, concentrated fruit juice, dried fruit juice or fruit nectar shall be 'juice, 'concentrated juice, 'dried juice' or 'nectar', as is appropriate, accompanied in each case by an indication of the type of fruit from which the food is prepared."

The questions stated by the justices to this court are:

"a. Were we right to conclude (a) that the food labelling regime applying European Directives set only minimum standards and (b) that it was appropriate to prosecute under the Trade Descriptions Act 1968.

"b. Were we right (a) to conclude that 'the doctrine of disclaimer' did not apply to mandatory labelling and (b) to read the label as a whole (including 'juice burst' as being attached to the fruit name and in particular the ingredients list), taking into account the consumer's likely understanding/expectation?

"c. In finding that the trade descriptions were not misleading, were we entitled to consider information not given with the goods, such as judicial notice of the nature of the fruits in pure form/definition of 'fruit juice', and did we apply the correct test for a consumer?

"d. Where a person has applied a false trade description, is it open for a person to rely on a disclaimer if charged under s1(1)(b) and s23 of the Act."

5. It is submitted by Mr Croxford QC for the appellant that the justices erred in finding that the word "Burst" was part of the trade description. It is his contention that this word is meaningless and cannot have the qualifying effect that the justices found. Mr Croxford also submits that the fact that the precise juice content was indicated elsewhere on the label was an immaterial consideration, to which the justices should not have had regard in deciding that the trade descriptions were not false and/or not misleading.
6. In my opinion, it was for the magistrates to determine what was the trade description under which the bottles of drink were sold. They found that "Burst" was part of the description and I think that this finding was open to them. However, I think that the justices erred in law in concluding that the word "Burst" was a qualifying word signifying that the drink was not one hundred per cent juice. It seems to have been common ground at the hearing that the word "drink", when used with the description "juice", is a sufficient indication for labelling and trade description purposes that the drink is not pure juice. The justices appear to have reasoned from this that "Burst" was to be equiparated with "drink". There is no other discernible basis for their conclusion.
7. However, in my opinion, their conclusion does not follow from the premise from which they worked. For their conclusion to be sustainable in law, there had to have been some evidence before them that the public would understand the word "Burst" to have the signification that they held it to have. But there was no such evidence. Accordingly, this part of their finding cannot stand.
8. However, they held in the alternative that, even if "Burst" was not part of the trade description, they were entitled to look at the ingredients list, and on that basis conclude that the trade description was not false. Mr Croxford contends that this approach was impermissible. First, he argues that the justices adopted a wrong approach in basing their conclusion on their finding that a reasonable consumer faced with this product would expect to read the label as a whole, including the ingredients list, and would be familiar with the idea that the ingredients list is likely to appear on the label, so that the list was effectively brought to the notice of consumer.
9. Second, he argues that the justices erred because the ingredients list was not part of the trade description and was not incorporated by reference into the trade description and, further, being in the nature of a disclaimer, was not sufficiently prominent to negate the falsity of the trade description.
10. In my judgment, Mr Croxford's submissions must be rejected. In my opinion, the justices were not required to place the wording of the label in watertight compartments, which is what Mr Croxford is submitting they should have done. The justices were effectively sitting as a jury and, in deciding whether the goods had been supplied under a false trade description, they were entitled to look at the evidence as a whole; see R v Hammertons Cars Ltd [1976] 1 WLR 1243, at 1247 H to 1248 B. Further, sitting as a jury, the justices were entitled to approach the issue of falsity by having regard to what, in their experience, is the expectation of consumers that the label should be read as a whole. Further, in my view, the justices' finding that the ingredients list was not a disclaimer is unassailable. An example of a disclaimer is afforded by the well-known case of Norman v Bennett [1974] 1 WLR 1229. There, the odometer of a used car disclosed a mileage of 23,000 odd miles, when in fact the car had done 68,000 miles. The sale contract contained a clause that read, "Speedometer reading not guaranteed." This court held that the clause was a disclaimer because it contradicted or negated the false trade description and that, as such, it would not be effective to neutralise the false trade description unless it was as bold, precise and compelling as the trade description itself.
11. The ingredients list was wholly different from the clause in Norman v Bennett. The list was required to be included in the label by the Food Labelling Regulations 1996, and it positively added information rather than disclaiming a false trade description. Accordingly, for the reasons I have given, I uphold the justices' finding that the trade descriptions were not false.
12. Mr Croxford next contends that, having found that the trade descriptions were not false and having gone on to consider whether they were misleading under section 3(2) of the 1968 Act, the justices applied the wrong test. Section 3(2) provides:

"A trade description which, though not false, is misleading, that is to say, likely to be taken for such an indication of any of the matters specified in section 2 of this Act as would be false to a material degree, shall be deemed to be a false trade description."

13. In Mr Croxford's submission, the justices asked themselves whether a reasonable consumer could have understood the trade description in a manner which was accurate, whereas they should have asked themselves whether a reasonable consumer could have read the trade descriptions in such a way that he would have been given a false or misleading understanding. In support of this submission, he relies on Doble v David Greig Ltd [1972] 1 WLR 703. That was a case where, as the factual part of the headnote records:

"The defendants displayed bottles of Ribena in their self-service stores priced at 5s 9d with manufacturers' labels worded, 'The deposit on this bottle is 4d refundable on return.' A notice was displayed at the cash desk reading, 'In the interests of hygiene we do not accept the return of any empty bottles. No deposit is charged by us at the time of purchase.' They were charged with two offences of offering to supply goods with an indication that the goods were being offered at a price less than that at which they were in fact being offered, contrary to section 11(2) of the Trade Descriptions Act 1968. The magistrate found that the marking on the notice that there was a refund was an indication that they were being offered at a price less than that at which they were in fact being offered but it was vitiated by the notice displayed at the cash desk and he dismissed the informations."

In the course of his judgment, Ashworth J said:

"Mr Haines' second point, as I understood it, was that this was not truly an indication of the type mentioned, and he relied, and with some force, on the principle expressed in the often quoted statement that a person should not be convicted upon an ambiguity. What he said was that anyone with common sense reading the label about the refund would see that it is ambiguous, that it is capable of the meaning alleged by the prosecution, but no less capable of the meaning for which he contended, and therefore it was not a false indication of the type covered by subsection (2). I am fully in agreement with him, that the principle that persons must not be convicted on an ambiguity should be upheld, but at the same time I venture to repeat what I have already said, that this section was so worded as to cater for cases where possibly the wording, strictly construed, might admit of two constructions. The whole point in my view of including in subsection (2) the words 'likely to be taken as an indication' show that Parliament was intending to protect people who might otherwise be met by a defence that on its true construction the offending words meant something different from that which he had thought. For these reasons, in my view the magistrate, if indeed he did come to the conclusion that prime facie the offence was made out, was right; certainly it is the view that I take."

14. Mr Croxford also relied on this passage in the judgment of Forbes J:

"It seems to me that the words 'the deposit on this bottle is 4d refundable on return' are equivocal; they might be interpreted to mean that the price marked on the bottles included 4d earmarked as deposit; alternatively that an additional 4d over and above the price marked would be asked for as a deposit. Speaking for myself, I would prefer the latter interpretation, but the former is quite clearly a possible one. The offence is giving 'an indication likely to be taken as an indication' of the kind described in the Act. If it is reasonably possible that some customers might interpret the label as an indication of that kind, it seems to me that an offence is committed, even though many more customers might in fact take the opposite view. In other words the Act requires a shopkeeper, and this seems to me to be important, to take pains to resolve possible ambiguities, and if they are not adequately resolved an offence is committed."

15. Mr Croxford also cited Dixons Ltd v Barnett [1998] 153 JP 268. The first part of the headnote to that report reads:

"The appellants, who were high street electrical retailers, sold to the buyer a telescope which bore the statement 'Up to 455 x magnification'. The telescope, however, only had a maximum useful magnification of 120 times; beyond that level the image became less clear and became no clearer with higher magnification. The justices found that, although the statement as to magnification was a true, scientific description of the telescope, it was also a misleading and hence false statement within s3(2)(2) of the Trade Descriptions Act 1968, and accordingly convicted the appellants of supplying goods to which a false trade description had been applied contrary to section 1(1)(b) of that Act. The appellants appealed, contending, inter alia, that the statement as to magnification, which was scientifically accurate, said nothing about the possible uses as to which the telescope might be put and that the statement was not misleading because the buyer could see everything he wanted to with the magnification which was available."

16. As Bingham LJ recorded, the prosecutor's contention, both before the justices and on appeal, rested on two simple propositions. The first was that the description used, although not false, was nonetheless misleading. In reliance on section 3(2) of the 1968 Act and the authority of Fowler v Cripps, it was submitted that scientific accuracy was not enough. Secondly, it was submitted that, since there were two available ways of describing the magnification of the telescope, either by giving the maximum magnification or the maximum useful magnification, the justices were entitled to conclude that the use of the more extravagant expression was likely to confuse ordinary shoppers.
17. In the course of his judgment, Bingham LJ said this:

"So, I then ask myself whether the justices have reached insupportable conclusions of fact. To that question I feel bound to give the answer No. It was for them to put themselves in the position of the ordinary high street shopper and decide as a matter of fact whether this trade description was misleading or not. They decided that it was, and, in so deciding, they did have one powerful practical consideration on their side, namely that the particular purchaser in question undoubtedly did expect to get something which he found he did not get, and, as a result, felt aggrieved."

18. Ms Andrews for the respondent accepts in her written submissions that if a meaning is a likely meaning, albeit that it is held by a smaller number of consumers than would have understood the label in an alternative way which would render the label accurate, then an offence may be made out. She submits, however, that the statutory test is not whether a reasonable consumer could have understood the labels differently; rather, the test is one of likelihood and not of conceivability. I agree with that submission and do not find anything to the contrary in the judgments to which Mr Croxford referred.
19. In my opinion, the words used in the case stated by the justices do not demonstrate that they used the wrong test. I repeat the relevant words:

"The trade description is not misleading. We considered what a reasonable consumer could interpret from the wording on the label -- that is, from the use of the word 'Juice' taking into account the definition in regulation 4 of the Fruit Juices and Fruit Nectars Regulations 1977. We concluded that a reasonable consumer would not be misled and would take into account that these particular juices cannot be palatable in an undiluted form."

20. In my view, and Mr Croxford did not dissent from this, the justices were asking themselves a question that was implicit in the test that the appellant had submitted was the appropriate test, namely whether it was reasonably possible that some consumers might interpret the label incorrectly: the test is not what reasonable consumers would think, it was what reasonable consumers could think.
21. In my opinion, it is clear from the justices' conclusion that the test they applied was whether a reasonable consumer would be misled, and I can see nothing wrong with such an approach. The answer they gave to the question was one which, in my opinion, they were entitled to give. Effectively, they were adopting the same approach as that sanctioned by Bingham LJ in the Dixons case.
22. Mr Croxford also contends that, in deciding whether the trade descriptions were misleading, the justices were not entitled to read the label as a whole. I have already given my reasons for rejecting this submission when dealing with the justices' finding that the trade descriptions were not false and I do not repeat them.
23. Finally, Mr Croxford submitted that the justices erred in taking judicial notice that blackcurrants and cranberries are bitter fruits and that this is known by the public. Ms Andrews has informed the court, and I accept, that it was agreed before the hearing in front of the justices that the respondent could advance, without calling supporting evidence, the contention that cranberries and blackcurrants are small bitter fruits. In the light of this, no objection can be taken to the justices proceeding on this basis, and in my view they were equally entitled to conclude that consumers would know this. There is, accordingly, nothing in this final submission and I reject it.
24. It was submitted to the justices by the respondent that the relevant legislation by which the labelling was to be judged was the harmonised labelling legislation contained in the Food Labelling Regulations 1996 and the Fruit Juices and Fruit Nectars Regulations 1997, and not the 1968 Act. The justices rejected this submission and held that a prosecution could be mounted under the 1968 Act. If the appeal were to be allowed, the correctness of this decision would be relevant. No doubt it was in the light of this that the justices amended their case stated with the agreement of the parties so as to ask the first question. However, since I find that the respondent was lawfully acquitted, it is unnecessary to answer the first question and I decline to do so. Indeed, in the light of the reasons I have given for upholding the acquittal, I do not think it necessary or helpful to give specific answers to any of the questions posed.
25. LORD JUSTICE TUCKEY: I agree.
26. MS ANDREWS: My Lords, in the light of those findings, may I ask for the costs of this hearing and also costs of this case. Also, may I draw to your Lordship's attention the position in relation to the judicial review proceedings. Your Lordships are aware that, initially, the justices refused to state a case in this matter and my learned friend sought permission to apply for judicial review.
27. LORD JUSTICE TUCKEY: And he succeeded.
28. MS ANDREWS: Indeed.
29. LORD JUSTICE TUCKEY: What was the order for costs made?
30. MS ANDREWS: The question of costs was reserved to your Lordships. May I explain briefly why that occurred. The respondent --
31. LORD JUSTICE TUCKEY: So you are going to submit that you should get those costs as well, is that right?
32. MS ANDREWS: Yes, if I may make that submission.
33. LORD JUSTICE TUCKEY: Go on.
34. MS ANDREWS: The significance of the position was this: Purity had put in a skeleton argument at the stage where the application for permission was dealt with purely on the documents and that permission was granted. That being so, Purity, for largely financial reasons, was not minded to appear on the judicial review application as a whole. My learned friend put in a skeleton argument on 4th January 2004 setting out the way in which the case would be put, and on 20th January 2004 he served a supplementary skeleton in which he indicated that he was going to seek hearing of the full matter without the need for a case to be stated, and relying on an authority which he produced as part of that skeleton argument. That raised the spectre that the court would then hear the whole matter on the application for judicial review itself.
35. I sent a note on receipt of that indicating that that would have some consequences for the time estimate and also putting in a skeleton argument opposing both the application to proceed without the case being stated and also on that basis on the merits.
36. In the second paragraph of the skeleton argument, I made clear that, although the interested party as we were would not have pursued its objection to the order compelling a statement of case in the light of the grant by Davis J of permission, it had changed its position in the light of my learned friend's skeleton argument indicating his intention to --
37. LORD JUSTICE TUCKEY: Just remind me, did you say that permission to move to judicial review was granted on paper?
38. MS ANDREWS: Permission to apply was granted on paper.
39. LORD JUSTICE TUCKEY: That is what I meant, yes. Then there was to be a hearing, which you were not going to contest, until you were told by the appellant that they would try and have the merits determined on the judicial review application?
40. MS ANDREWS: Yes.
41. LORD JUSTICE TUCKEY: Right.
42. MS ANDREWS: And, in fact, the proceedings -- I think you have the order that the Administrative Court made on that date in your Lordships bundle of documents. I think it is page 17.
43. LORD JUSTICE TUCKEY: Pages 17 and 18.
44. MS ANDREWS: Yes. In fact it did not take very long at all, notwithstanding that a whole day had been set aside for it, but the costs were reserved as a result of my having raised that argument. So I would invite your Lordships also to award those costs.
45. LORD JUSTICE TUCKEY: Right, thank you. Mr Croxford?
46. MR CROXFORD: My Lord, I am not sure whether my learned friend is asking that my client, the county council, should pay or whether there should be an order for costs out of central funds.
47. LORD JUSTICE TUCKEY: I think she was asking that you should pay it.
48. MR CROXFORD: This is criminal cause or matter, my Lord, and, of course, there is a power for the court to awards costs out of central funds. If that was the application, I would have nothing to say about it. Certainly we would resist any suggestion that we have improperly brought this appeal. We regard this as a matter of substance.
49. LORD JUSTICE TUCKEY: Are you asking for costs out of central funds, Ms Andrews?
50. MS ANDREWS: As far as the judicial review proceedings are concerned, those cannot come out of central funds, because that was not a criminal cause or matter. As far as these proceedings are concerned, then I imagine that the respondent will be content with costs out of central funds.
51. LORD JUSTICE TUCKEY: Right.
52. MR CROXFORD: My Lord, may I assume that I have to deal only with the question of the judicial review costs?
53. LORD JUSTICE TUCKEY: Yes, I suppose so, yes.
54. MR CROXFORD: It is a bold assumption.
55. LORD JUSTICE TUCKEY: Let us hear you on that first, then.
56. MR CROXFORD: Well, my Lord, it is right that my learned friend, or those instructing her, decided to appear, the position being, of course, that there is authority in this court -- see R v Devonshire Justices -- to suggest that in cases in which judicial review has to be sought, and they are simple cases, then the sensible thing is to try and dispose of the whole thing in one go. I think Buxton LJ certainly disposed of the application for judicial review in very short order, but he declined in equally short order to hear the matter on the merits.
57. I would invite your Lordship to say that, in fact, the just result in respect of the judicial review application should be no order for costs. After all, my clients did have to come to court to force the justices to state a case. We got that relief very, very quickly without argument of any sort of any substance on my part. I hope your Lordship will accept that there is a serious point here, which clearly should have been ventilated and a case should have been stated.
58. In circumstances where we then follow the guidance of this court -- see R v Devonshire Justices -- we should not be criticised if, at the end of the day, the court decides to take, with respect, a more cautious view and, more importantly, we should not be penalised in costs for that.
59. MR JUSTICE FIELD: But was the judicial review hearing going to be confined simply to the question as to whether a case should be stated?
60. MR CROXFORD: My Lord, no. As my learned friend has said, a day was set aside, we having raised beforehand the question of all the substantive merits and pointed out that on the authority in particular, Daventry Justices, it was open to the court to resolve the matter on the merits. Both sides then set out their arguments. With respect to my learned friend, she set out substantially the same arguments that you have seen here, as indeed did I in my skeleton. A day was set aside. We certainly came, and I am sure my learned friend came also, geared up if necessary to argue the case. I expect --
61. LORD JUSTICE TUCKEY: It was not in the week before Christmas either.
62. MR CROXFORD: It was not, and we were over in ten or fifteen minutes, my learned friend -- well, we were over very shortly, and, accordingly, my Lord, we did what we understood to be appropriate, and in those circumstances the just result would be no order for costs in respect of the judicial review. As I say, we should not have had to apply in the first place, because the justices clearly should have stated a case. It would be pretty harsh if the county council then has to pick up the bill for requiring the justices to state a case in order to ventilate the matters, which are matters of substance, as I will come back to in a moment.
63. MS ANDREWS: My Lord, as far as the presence of both counsel to argue the full merits having put in full skeleton arguments, that was completely the application that my learned friend -- completely the reason why we were both in attendance there.
64. LORD JUSTICE TUCKEY: Well, it sounds as if you were frustrated by the court. You were ready to argue everything. Are you saying it should not be argued then?
65. MS ANDREWS: My position was that it would be right for the case to be stated, because it would have been, in the circumstances, an unrealistic exercise of the court's decision-making function in circumstances where it was not apparent what the magistrates had done, and that was the basis upon which Buxton LJ --
66. LORD JUSTICE TUCKEY: I follow. All right, I shall just speak to my Lord. (Pause). Well, we are only halfway there. We think it is six of one and half a dozen of the other on the judicial review, and the right order would be, as Mr Croxford asks, that there should be no order for costs of those proceedings. But, Mr Croxford, you will have to tell us what our powers are, because I am not sure that we have them, but why should these costs -- or maybe it is not a question for you. Well, it is a question for you because the alternative is to order costs out of central funds, which I appreciate is an order which this court often makes on cases stated generally, but here we are concerned with a county council who wished to establish an important point, upon which they have lost. Why should the county council rather than central funds not bear the costs of the successful party?
67. MR CROXFORD: May I put it round the other way, my Lord? In the ordinary course, the defendant's costs order in criminal case should be made out of central funds. That is the normal expectation. To order that a prosecutor should pay those costs is pregnant with some form of criticism of the prosecutor, in just the same way as to deprive a successful defendant of his costs is to criticise the defendant.
68. LORD JUSTICE TUCKEY: Where do we find that principle? As you know, these rules change about every ten minutes. Needless to say, I do not think I have any of the relevant books.
69. MR CROXFORD: I am sorry, my Lord.
70. LORD JUSTICE TUCKEY: Last week we had Archbold and we needed the White Book, this week we have the White Book and we do not have Archbold. There we are, that is life.
71. MR CROXFORD: My Lord, the guidance that is given is given in the circumstances of depriving a successful defendant. That does not arise here. That would be unusual. Your Lordship will find this dealt with under Chapter 6 and the power is at 6.6, page 856, if you are looking at the 2005 edition.
72. LORD JUSTICE TUCKEY: I am only in the 2004 edition.
73. MR CROXFORD: I suspect therefore you have Chapter 6, Costs and Criminal Defence Service. You will then find the Prosecution of Offences Act at 6.3. Then over the page at subsection 5, dealt with at marginal note 6.6, I hope:

"(5) Where --

"(a) any proceedings in a criminal cause or matter are determined before a Divisional Court of the Queen's Bench Division;

"(b) ...

"(c) ...

"(d) ...

"the court may make a defendant's costs order in favour of the accused."

74. So that is the power. My Lord, I would respectfully submit that to require a prosecutor to pay costs when there is this mechanism for costs to be paid out of central funds is pregnant with criticism of the prosecutor. This is a case in which there is a point -- which I am going to try and persuade you in a moment or two -- of general public importance in this question of reading labels as a whole and reading trade descriptions in the context of a label. It is a matter which, with respect, we have taken as being a very serious development and a matter which, subject to your Lordship's leave presently, we would like to see if we can take elsewhere.
75. Your Lordship put to me this morning a question about whether there is not some other authority in respect of something which must be an everyday event multiplied millions of times over, as I have described it. I took the opportunity to do another Lexis search over the short adjournment and I found no authority yet again, and there were none in either of the standard O'Keefe works. My Lord, notwithstanding the sheer number of these transactions, it clearly indicates, in my respectful submission, that the idea of reading any trade description within the context of the label as a whole is an important matter.
76. LORD JUSTICE TUCKEY: Well, you have started your next submission.
77. MR CROXFORD: I do not intend to, my Lord. I trespass on it only to the extent of showing why we are here. This is not a case which is concerned with the selling of a very few items of juice in a sweet shop in Northamptonshire. That is a comparatively trivial matter by itself. There is a much broader issue, both as to the qualification of these Purity goods and the principle upon which the justices then disposed of this.
78. Your Lordship, in my submission, should regard the conduct of the prosecutor in bringing the appeal as being justified and leave the position, as far as the prosecutor is concerned, in an entirely neutral fashion, such that the defendant has its costs out of central funds. Now, my Lord, Tuckey LJ is ahead of me in looking in the book.
79. LORD JUSTICE TUCKEY: Well, you have shown us the defence costs. I am trying to see about prosecution costs.
80. MR CROXFORD: I am not asking for my costs out of central funds, my Lord.
81. LORD JUSTICE TUCKEY: I know.
82. MR CROXFORD: The prosecutor does not usually have -- Mr Smith tells me that the prosecutor cannot get his costs out of central funds. That is certainly my recollection. When I first came to the Bar, my Lord, it was a form D, I seem to recall. It was reformed, if not before, then certainly by the time of the Costs in Criminal Cases Act. So it is a one-sided transaction under the Act.
83. MR JUSTICE FIELD: I ought to know this, but help me. The prosecutor is employed by the Northamptonshire county council, as well as the Trading Standards Officer who did the test purchase, so to speak? The prosecutor too is employed by that council.
84. MR CROXFORD: Yes. The nature of laying an information properly, I think, most of us would say that to lay an information requires an act by an individual, and it is conventional, as your Lordship will know -- it used to be done sometimes in the name of the chief constable, for example, but sometimes it is done in the most junior officer on the police force.
85. MR JUSTICE FIELD: It would be -- in the ordinary way it would be in the council's budget to finance the bringing of a prosecution like this.
86. MR CROXFORD: Yes.
87. MR JUSTICE FIELD: Well, why should the council not have to pay the costs?
88. MR CROXFORD: My Lord, let me take a step back for a moment. The prosecution of all manner of offences and the duty to prosecute falls upon councils, county councils, district councils, and other bodies and authorities, for example the police, Crown Prosecution Service, Customs and Excise and so forth. The position in the ordinary case, I would venture to suggest, my Lord, is that none of those bodies is usually penalised in costs if it is unsuccessful in bringing that prosecution.
89. When a defendant walks away, as he is entitled to, he expects to get his costs out of central funds, and defendants commonly walk away in courts the length and breadth of the country from prosecutions brought by various types of Government bodies. There is no special rule applying in respect of trade descriptions obviously, in my submission. The ordinary expectation in prosecutions is that, unless the prosecutor has acted for motives which are colourable, the prosecutor should not be penalised for doing his job. Central government makes funds available through this mechanism of the Prosecution of Offences Act for just this circumstance, in order that the defendant is protected. But the expectation is not that the prosecutor should bear costs.
90. If your Lordship's observation with respect to the county council were then to simply be rolled forward, in much the same way as we might do in ordinary litigation, to every other council or non-Government body which prosecutes -- as I say, the Crown Prosecution Service, Custom and Excise, Inland Revenue and so forth -- it would have a huge effect. The ordinary expectation is costs out of central funds and that then compensates the defendant and allows the public purse to pick up the bill one way or another.
91. LORD JUSTICE TUCKEY: Thank you. Ms Andrews, can you help us as to -- Mr Croxford has referred us to section 16.5 of the Prosecution of Offences Act 1985, which provides that the court may make a defendant's costs order in your favour. Undoubtedly we have the jurisdiction to do that. Are there other provisions now which empower the court or any authority, which you may have been able to find in the time we have had to look for it, which indicates the power to make an order against the prosecutor, and, if so, on what principles such power should be exercised? I have not been able to find it in my book.
92. MS ANDREWS: No, but I have Stone's Justices Manual here, and it does not necessarily assist me on this point.
93. LORD JUSTICE TUCKEY: Nor does Archbold at a glance.
94. MS ANDREWS: My learned friend has Archbold. I think there is some guidance about certain circumstances in which costs can be ordered against the prosecutor.
95. LORD JUSTICE TUCKEY: Not in the one I have.
96. MS ANDREWS: Would your Lordship give me a moment to borrow my learned friend's book and see if I can assist? (Pause). My Lord, I think it appears at 6-113, which is part of the Practice Direction, Costs in Criminal Proceedings 2004. That is on page 893.
97. LORD JUSTICE TUCKEY: Well, I expect as we have the 2004 book we will not have that. Read us the bit you have in the latest volume.
98. MR JUSTICE FIELD: Presumably, Mr Croxford, if it had gone the other way before the magistrates, and all of the payment of the prosecutor's costs could have been sought, the costs would have been paid to the prosecutor and not into central funds?
99. MR CROXFORD: My Lord, yes, because there is no power to look to the central funds to pay those costs. It would fall in the normal way and the justices would consider whether or not there would be any order against the defendant, no doubt looking at the thing in the round, as the overall burden of whatever fine had been imposed. That would be the normal expectation.
100. LORD JUSTICE TUCKEY: Well, Ms Andrews, are you having any luck with the 2004 practice direction?
101. MS ANDREWS: Not as much as I would like, no.
102. LORD JUSTICE TUCKEY: I think we will have to give up. The normal practice, we are told, and it certainly is a practice, whether it is an invariable practice, is that the successful appellant in such a case should have its costs out of central funds, and that is the order which we will make in your favour, Ms Andrews.
103. MS ANDREWS: Thank you very much.
104. LORD JUSTICE TUCKEY: So we need not bother about this any more. Now, Mr Croxford, you started to soften us up on certification and permission.
105. MR CROXFORD: Yes. My Lord, may I soften you up to this extent. What I am going to invite you to do is to look at the principle of certification but to give me a short period of time, some time this week, to come back if you are satisfied that there is a point, with some properly formulated form of words.
106. LORD JUSTICE TUCKEY: Speaking for myself, I think it is impossible to decide whether there really is a point without seeing it in black and white.
107. MR CROXFORD: May I indicate what it is that I think, having listened to your Lordships' judgment. I think it is this: justices or a jury are not required to look at the wording complained of on a label in isolation in deciding whether or not there is a false trade description, but are entitled to look at the evidence as a whole, including all the other information contained on that label. That is a sort of paraphrase of what I think my Lord Field J said in the material part, and I take time now rather than --
108. LORD JUSTICE TUCKEY: What I was going to invite you to do -- I mean you have indicated the type of question -- we are sitting together until the end of this week. We would not invite you to come back. We will hear you now as to why we should give permission, and we will look at your question to see whether it is worthy of certification. How about that?
109. MR CROXFORD: I am grateful.
110. LORD JUSTICE TUCKEY: Let us have you on why you should have permission.
111. MR CROXFORD: Permission should be given on the basis, of course, that it must be assumed that you have certified --
112. LORD JUSTICE TUCKEY: Of course.
113. MR CROXFORD: On that basis, it is a point of general public importance. More importantly even than that is that, with the greatest of respect to my Lords, you have looked at a number of authorities which are unassailably accepted as being cases of principle, and there is a total lack of any suggestion than one can do what the justices appeared to have done in this case; read labels as a whole. That is a matter which, assuming that there is a point worth certifying, actually even if there was not, with the greatest respect, is something that ought to be looked at again, because it is radically different, as I would submit, from the approach which has been in favour and widely adopted since the enactment of the TDA in 1968.
114. With the greatest of respect, your Lordships' disposal of this case opens the door to an entirely new way of looking at labelling and compliance with the Trade Descriptions Act. Whereas hitherto it has been possible, indeed commonplace, to look at the word or phrase which is said to be inaccurate, and say, well now is that false, is that phrase misleading, and if it is either of those, is there a disclaimer? That has been the conventional approach in this field. The endorsement which this court has given to reading that word or that phrase within the context of a label -- and there must be countless millions of labels in circulation in this country at any one time -- the sanction that appears to be given if one reads the word or phrase in the context of the label as a whole and does not have to go down the route of looking for a disclaimer, is a radical departure. I cannot put it any other way.
115. LORD JUSTICE TUCKEY: Yes. Do you want to say anything, Ms Andrews?
116. MS ANDREWS: Very briefly, my Lords, I would simply submit this. My learned friend has not put before you any authorities which indicate that the court has approached the case in a different fashion.
117. LORD JUSTICE TUCKEY: So you say we are right, he says we are radically wrong.
118. MS ANDREWS: Yes and your Lordships have referred to the decision and the extract from the decision in the R v Hammertons Cars Ltd, which specifically makes reference to looking at the evidence as a whole in this context.
119. LORD JUSTICE TUCKEY: Right. (Pause). Well, I hope we have made clear what it is that we are going to do. Mr Croxford, you will submit the point which you say should be certified. We will consider that in writing or on paper and either say it is not fit for certification or that it is, and, if it is, whether or not you should have permission. You will get the decision on both points, but we must have your point for certification -- where are we at now -- we must have it by preferably midday on Thursday, can you do that?
120. MR CROXFORD: I shall be pretty disappointed if I can not.
121. LORD JUSTICE TUCKEY: Well, you have it fresh in your mind. If you can get it to us sooner, then do it.
122. MR CROXFORD: I have to do it as I recall the judge -- but I assume that your Lordship is content to take it only in writing and all you are looking for is the point, no more submissions on permission.
123. LORD JUSTICE TUCKEY: No, we have had the submissions on permission. We simply want to see which point you want to have certified because, as I said, you have to see these things in black and white. You can send it to my email and I will reply, having consulted with my Lord, by the same means.
124. MR CROXFORD: I will get the email address off your clerk, my Lord, through the usual channels.
125. LORD JUSTICE TUCKEY: I can never remember where the dots are.
126. MR CROXFORD: Well, we will get it to you. I am obliged.
127. LORD JUSTICE TUCKEY: Thank you all very much.