England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/07/2007

Mr Justice Nelson :

1. This is an application for judicial review against two decisions of District Judge Charles at Cardiff Magistrates' Court:-

i) on 12^th February 2007 when he determined that Informations laid against the Claimant for offences under the Trade Descriptions Act 1968 were laid in time, and that he therefore had jurisdiction to deal with them as an Examining Magistrate and commit them for trial to the Crown Court which he accordingly did, and

ii) on 9 March 2007, confirmed on 25 March 2007, when he refused to state a case on his ruling of 12 February 2007 for the opinion of the High Court. An application for an order requiring the district judge to state a case has not been pursued.

The Facts.

2. The Claimant and a Mr Carl Cummings are being prosecuted by Cardiff County Council, the Interested Party, in relation to a number of offences under the Trade Descriptions Act 1968 alleging the alteration of the odometer readings of a number of Hackney Carriage vehicles whilst in the ownership of Supatax 2000 Ltd., a company of which the Claimant was company secretary, and Mr Cummings, a director.
3. The proceedings were commenced by the laying of Informations before the Defendant Court. In committal proceedings before District Judge Charles on 12 February 2007 it was contended by the Claimant that the Informations had been laid outside the time limit prescribed by section 19(1) of the Trade Descriptions Act 1968 which states that no prosecution for an offence under the Act shall be commenced after the expiration of 3 years from the commission of the offence, or 1 year from its discovery by the prosecutor, whichever is earlier. This submission was based upon Newman & ors v London Borough of Hackney [1982] RTR 296 and R v Bull [1997] RTR 123. The District Judge rejected this submission, ruled that there was a case to answer and committed the Claimant and Mr Cummings to the Crown Court for trial. Mr Cummings has not applied for judicial review, but we are informed that the prosecution intend to give effect to the ruling of this Court to his case in so far as it is relevant.
4. The Claimant applied for a case to be stated for the opinion of the High Court pursuant to section 111 of the Magistrates' Court Act 1980. District Judge Charles declined to state a case, concluding, that as an Examining Magistrate, in the light of the decisions of Dewing v Cummings [1971] RTR 295 and Atkinson v United States of America [1969] 3AER 1319, there was no power to state a case in relation to committal proceedings. After the Claimant's solicitors had sought to persuade the District Judge by letter of 16 March 2007 that he did in fact have jurisdiction to state a case, he replied by letter of 25 March 2007 maintaining his refusal.
5. It is contended that the District Judge wrongly concluded that no offence was committed under section 1(1)(a) of the Trade Descriptions Act 1968 at the time the clocks were turned back, and that he wrongly concluded that the term 'prosecutor' in section 19 of the Act should be construed narrowly as the person laying the information, rather than the corporate body acting through the officer seized with the investigation of the offence. These errors of law went to the heart of the assessment of the statutory time limits and hence rendered the District Judge's decision as to when time started to run and whether the time limits had expired invalid.
6. I am satisfied that this Court has jurisdiction to deal with the Claimant's applications and that the Magistrates' Court could have stated a case. It is, as the District Judge ruled, correct to say that Examining Magistrates do not come to a final decision when committing a Defendant for trial and hence no case can be stated in respect of the decision to commit. See Atkinson and Dewing. Where however the magistrate is acting not as an Examining Magistrate, but deciding a preliminary issue as to jurisdiction, his ruling upon that is final and can properly be challenged by way of case stated or judicial review. R v Clerkenwell Metropolitan Stipendiary Magistrate ex parte DPP [1984] 2AER 193. The contrary has not been argued by the parties before this Court. However, the more expeditious procedure now is to determine by way of judicial review the questions on which the case would have been stated.

The District Judge's Ruling.

7. There is a brief note of the ruling of District Judge Charles. This records the finding that 'at the time the clocks are turned back no offence is committed'. The Judge accepted the evidence of Mr Stephen Hay who was the investigating officer acting on behalf of the County Council. Mr Hay told the Judge that he believed he had discovered the offence for the purposes of section 19 of the Act when it had been confirmed to him that the vehicle, the odometer of which had been altered, had been sold. The Judge's findings in relation to the date of knowledge were therefore, in accordance with Mr Hay's evidence, based on the date when the sale of the vehicles with the altered odometers which were the subject of the Informations, were confirmed by the auction house. No findings were made as to the dates when the odometers themselves were altered and indeed the statements before the Court do not make these dates clear. It appears that Mr Hay received information about odometers in the company's fleet of vehicles being altered from about June 2004 but a clear date is not available in respect of each vehicle covered by the Informations. The investigations were first set in train in relation to Mr Cummings, and the date when the County Council became aware of the Claimant's involvement is unclear.
8. The Judge found that the prosecutor under section 19 of the Act was Mr David Holland, who was the employee to whom the County Council had delegated authority to institute legal proceedings for breaches of the Act and who was responsible for laying the Informations against the Claimant. The investigating officer, Mr Hay, had no authority to issue proceedings.

The Submissions.

9. The Claimant submitted that the Judge's findings as to when the offence was committed and who was the prosecutor were both incorrect. As a consequence of the first error namely that the offence was committed when the vehicle was offered for sale rather than when the odometer was altered, it was only after knowledge of the date of sale that discovery of the commission of the offence under section 19 could occur. As a consequence of the second error, namely that Mr Holland was the 'prosecutor', the commission of the offence could not be discovered until immediately before the Informations were laid as it was only then that Mr Holland was given the papers.
10. The relevant sections of the Act are as follows:-

Section 1(1) of the Trade Descriptions Act 1968:-

"1. Prohibition of false trade descriptions

(1) any person who, in the course of a trade or business -

(a) applies a false trade description to any goods; or

(b) supplies or offers to supply any goods to which a false trade description is applied;

shall, subject to the provisions of this Act, be guilty of an offence."

Section 19:-

"19. Time limit for prosecutions

(1) No prosecution for an offence under this Act shall be commenced after the expiration of three years from the commission of the offence or one year from its discovery by the prosecutor, whichever is the earlier."

Section 26:-

"26. Enforcing authorities

(1) It shall be the duty of every local Weights and Measures authority to enforce within their area the provisions of this Act and of any order made under this Act."

Section 69 Weights and Measures Act 1985:-

"69. Local Weights and Measures authorities

..

(2) In Wales, the local Weights and Measures authority for each county shall be the county council and for each county borough shall be the county borough council."

11. As to the commission of the offence, Mr Yeo on behalf of the Claimant, relied upon Newman v Hackney LBC [1982] RTR 296 where Lord Justice Ormrod in considering the distinction between section 1(1)(a) and 1(1)(b) of the Trade Descriptions Act said:-

"In my judgment, there is world of difference between the two offences. It is perfectly true that the application of a false trade description must, in some way, be related to a sale or prospective sale but, looking at the Act itself, I am disposed to take the view that the offence is committed when the false trade description is applied to the vehicle or goods and that is at the time when the odometer reading is altered to read a meaningful figure like 21,000 miles."

12. Mr Yeo's submission that the District Judge was in error as to the date when the offence under section 1(1)(a) is committed was not resisted by Mr Williams on behalf of the Defendant. He accepted that under section 1(1)(a) the offence is indeed committed when the odometer is altered.
13. Mr Yeo submits that the prosecutor under section 19 of the Act is the public authority with the duty of enforcement under section 26 of the Act and section 69 of the Weights and Measures Act. In this case that is the Cardiff County Council. The responsibility must rest with the authority rather than any individual as it is the authority's duty to enforce the provisions of the Act under section 26. The word 'discovery' in relation to time limits was considered by Mr Justice McNeill in John Charles Brooks v Club Continental [1981] TRL 126 DC who said:-

"I think it is sufficient for the purposes of this case, to say that the word 'discovery' means no more in this context than all the faxed material to found the relevant charge under the Act were disclosed to the appropriate officer. The word 'discovery' here does not import any investigation by the officer. It is simply his knowledge from disclosure to him in some way, of the material facts which would found the offence."

14. This dictum was adopted by the Administrative Court in the case of Tesco Stores Limited v London Borough of Harrow [2003] EWHC (Admin) 2919 where Mr Justice Newman said:-

"The question to ask in these circumstances is whether the facts disclosed, objectively considered, would have lead the prosecuting authority to have reasonable grounds to believe that an offence had been committed by a person identified to it. Discovering the offence should be taken to mean discovering grounds sufficient to found a reasonable belief that an offence has been committed."

15. The use of the words 'prosecuting authority' and similar phrases in the Tesco give some support, Mr Yeo submits, to his submission that it is the public authority rather than an individual who is the prosecutor. Certainly the notion that the person who only comes in contact with the papers immediately before the Informations are laid is the 'prosecutor' cannot be correct as, unless he were deemed to have knowledge of all earlier activities carried out by his fellow employees, he would have no means of discovering grounds sufficient to found a reasonable belief that an offence had been committed until he read the papers. Furthermore Mr Yeo submits, the whole purpose of section 19 would be subverted if as a matter of chance the officer with conduct of the case changed part way through the investigation or if an organisation had a policy of rotating staff on an annual basis. In the latter case with a different person being responsible for the dealing with trading standards each year, the time limit might never expire.
16. The case of Wayne Swan v The Vehicle Inspectorate, Divisional Court 11 November 1996 relied on by the Defendant does not assist. In that case a traffic examiner, not authorised to take a decision to prosecute could not be the 'prosecutor' under section 6 of the Road Traffic Offenders Act 1988. But, Mr Yeo submits, the prosecutor in that case had to be a person authorised by the Traffic Commissioners, a Chief Officer of Police, or the Council of a County or District under the Public Passenger Vehicles Act 1981 section 69. This is different Mr Yeo submits, to the present case where the County Council is the enforcing authority and hence the prosecutor. The ratio in Swan is narrow and the relevant statutory definition is different. In Swan there was a specific statutory bar under section 69 of the Public Passenger Vehicles Act 1981 to a person prosecuting unless they were authorised under that section.
17. One of the duties of the prosecutor is to carry out timely investigations and that responsibility would be undermined if the prosecutor were an individual rather than a body corporate Mr Yeo submits.
18. As I have already indicated the Defendant does not support the District Judge's finding that no offence was committed when the clocks were turned back, but Mr Williams submits that the finding may have been caused by a misunderstanding of the submission then made to the court. This was that every time a vehicle was offered for sale a fresh representation was made to the auction house or purchaser that the odometer accurately reflected the mileage of the vehicle; it was not therefore necessary to investigate further back than the time of the sale. It is however, as Mr Yeo pointed out, relevant to note that the amended summons against the Claimant alleged that the false trade description was by means of altering the odometer not by making a representation at sale.
19. As to the 'prosecutor' Mr Williams submitted that the case of Swan was entirely similar. Applying it to the facts of the present case Mr Hay was the examiner and Mr Holland the only person authorised to institute legal proceedings. The case therefore applied.
20. If the public body rather than the person who laid the Informations was the prosecutor it would be difficult to ascertain the time limit but with Mr Holland as the 'prosecutor' time would only start to run when he got the papers. That had the merit of providing certainty. A city or county council was never the actual prosecutor although it was right to say that here the Defendant's own argument in response stated that Mr Holland had the delegated authority to prosecute from the county council.
21. It would, Mr Williams submitted, be difficult to ascertain when the time limit started if several different officers were investigating a complex set of circumstances. Thus for example here some 400 cars were at one stage being investigated.
22. Mr Williams submitted that it was the date of knowledge of the prosecutor which was important but acknowledged that it might be said in answer to the Claimant's point as to the yearly rotation of jobs, that knowledge would pass with the file. If Swan is correct however the date of knowledge only arises when the information passes into the hand of the actual prosecutor.
23. Mr Yeo noted in reply that Mr Justice McCombe in Tesco stated that the concept of the discovery of the offence should not be confused with the prosecutor's decision to prosecute. That was effectively what the Defendant's submissions amounted to here.
24. Both counsel accepted that the date when an offence is discovered is an issue of fact to be determined by the Court upon the evidence.

Conclusions.

1. The offence.

25. Section 1(1)(a) and 1(1)(b) create two separate absolute liability offences under the Trade Descriptions Act 1968. The use of the word 'applies' in 1(1)(a) and 'supplies' in 1(1)(b) marks the difference between the two offences. A false trade description can be applied to goods even before they are sold. This section is clearly designed to make it an offence to turn back the odometer and to supply or offer to supply a vehicle with an altered odometer. It may well be that in some cases it is only on sale or offer for sale that the altered reading is discovered but this does not affect the fact that to alter an odometer in itself is to apply a false trade description to a car, namely that it has been driven a lesser number of miles than it has in fact been driven. I am satisfied that the dictum of Lord Justice Ormrod in Newman is correct and that an offence is committed under section 1(1)(a) at the time when the odometer reading is altered. The District Judge therefore erred in his conclusion at law to the contrary.
26. It may be that confusion arose as to the effect of the prosecution's submission that when a sale took place a fresh representation as to the odometer reading was made so that an offence occurred under 1(1)(a) as well as 1(1)(b) at that time. That is not however of relevance to this case as the amended summonses make it quite clear that the allegations against Mrs Donnachie relate to the altering of the odometer and do not refer to the sale or any representation made at the time of sale.

'Prosecutor'.

27. I conclude that the prosecutor under section 19 of the Act is the County Council of the City and County of Cardiff. This is the body which is the enforcing authority under section 26 of the Trade Descriptions Act and section 69 of the Weights and Measures Act. This is to be contrasted with the Public Passenger Vehicles Act of 1981 which by section 69 prohibits prosecutions except by a person duly authorised. It seems to me that the case of Swan is, as Mr Yeo submits, based upon the statutory provisions relevant in that case; it does not assist in determining who is the prosecutor under the statutory provisions which apply here.
28. A body corporate can only act through its officials and hence it is the knowledge which is attributable to them which will lead to 'discovery' under section 19 by the County Council. This in itself means that Mr Holland cannot be held to be the 'prosecutor' with, on the Defendant's submissions, no knowledge until such time as he acquires the papers shortly before he lays the Informations. Firstly this would defeat the purpose of the alternative time limit in section 19 by making it inevitable in most cases that time would only start to run shortly before the Informations were laid. This situation would apply wherever substantial investigations are completed and the papers then handed to someone such as Mr Holland simply for the purpose of the laying of the Informations in respect of charges, the evidence for which has already been fully gathered. Secondly someone in Mr Holland's position will perforce be ignorant of all the facts which amounted to grounds sufficient to found a reasonable belief that an offence has been committed until such time as he receives the papers. Thus even though knowledge of the kind envisaged in John Charles Brooks and Tesco may have long been established in the minds of those in the organisation informed of the offences or investigating them, time would not simply start to run. Mr Holland's knowledge only acquired on reading the papers shortly before laying the Informations could not properly be described as 'discovery by the prosecutor' under section 19 when those working with him or for him have had such knowledge considerably earlier.
29. I am unimpressed by Mr Williams' submission that the choice of Mr Holland as 'prosecutor' gives certainty to what would otherwise be a difficult situation to ascertain. Such certainty is a dubious advantage when it defeats the very purpose for which the time limit is created by preventing it from starting to run in almost all cases.
30. I therefore conclude that the District Judge was wrong in finding that Mr Holland was the prosecutor under section 19; he should have found that the Cardiff County Council was the prosecutor under that section.
31. It will be necessary for new findings of fact to be made in accordance with the legal determinations that this Court has been made before the matter can be resolved. We contemplated the possibility of the matter being dealt with as a preliminary issue by the Crown Court but are persuaded that the better course of action is for the matter to be remitted to the District Judge for resolution as he has already heard evidence and is seized of the issue generally. It will be a simple matter for him to hear such further evidence as is necessary in order to determine the matter in accordance with this Court's ruling. I conclude therefore that:-

1. The decision of the District Judge on 12 February 2007 that the Informations were laid in time and that they should be committed to the Crown Court be quashed as wrong in law.

2. There be a declaration that the alleged offences were complete at the time the odometers were altered and a further declaration that the prosecutor under section 19 of the Act is the Cardiff County Council.

3. The case be remitted to the District Judge to determine in accordance with the declarations in 2.

32. These are the reasons for which, as indicated at the conclusion of argument, I would grant judicial review.
33. The Claimant's costs are to be paid out of Central Funds.

Lord Justice Sedley: I agree.