Scottish High Court of Justiciary Decisons

OPINION OF THE COURT.—The appellant Michael Beveridge Ford was charged in the sheriff court at Kirkcaldy with an offence under sec. 1 (1) (b) of the Trade Descriptions Act 1968. There were a number of charges in the complaint but at the end of the day he was found guilty of charge 3 which was to the effect that in the course of the trade or business of supplying motor vehicles which he himself was carrying on, he had supplied to another a Ford Escort motor vehicle to which a false trade description as to its mileage history had been applied by means of its odometer reading. The precise figures do not matter but there was a substantial difference between the reading as shown on the date of the supply and the true position if that had been revealed to the purchaser. As I have said, he was found guilty of that charge and fined a sum of £400 and he has appealed against the conviction, the grounds of appeal being based upon two of the defences which are available under sec. 24 of the 1968 Act. These defences are to be seen in sec. 24 (1) (b) which relates to the taking of all reasonable precautions and the exercise of all due diligence to avoid the commission of the offence, and in subsection (3) which provides that it shall be a defence for the person charged to prove that he did not know and could not with reasonable diligence have ascertained that the goods did not conform to the description.

The circumstances of the present case are somewhat complicated but briefly the motor car in question had been the subject of two sales in August and September 1986. The mileage at the time of the second sale was recorded in an invoice as being 72,300 and that information ultimately was available to the trading standards officers when they came to make enquiries. About a year later the same vehicle was the subject of an inspection in the appellant's forecourt where it was displayed for sale and the mileage recorded on the odometer at that time was very substantially less, that is just over 32,000, and there was no disclaimer as to mileage. Further enquiries revealed that this vehicle had been the subject of various transactions. It had been sold by a purchaser in September 1986 to a man called James Wilson at Buckhaven and it had passed from his hands apparently to a man called James Brown to whom certain mystery attaches. Ultimately it came into the possession of a man Dalrymple, who claimed to be the owner and, on 7th October 1987, sold the vehicle to the appellant. It was on the following day that the appellant sold the vehicle to the ultimate purchaser for present purposes who was David Brown.

The conviction was for a breach of sec. 1 of the 1968 Act; this is a section which provides that it is an offence for a person in the course of a trade or business to apply a false trade description to any goods or to supply any goods to which a false trade description is applied. In the present case the facts narrate that when the transaction took place, that is the transaction which led to the acquisition of the vehicle from Dalrymple, the appellant asked for certain information and was provided with it. The findings indicate that the appellant was provided with a document, which is production no. 4, which contained a declaration that the milometer reading then applied to the car was correct. Finding 8 tells us that the appellant thought that the mileage was slightly above average but that it tallied with the vehicle's condition and age, that the bodywork was good and there were no tears in the upholstery. He saw Dalrymple's driving licence and was told that the mileage was correct and he saw no reason to distrust Dalrymple. On the other hand, we have information in finding 6 which tells us that the appellant did not in fact know Dalrymple, who had been unsure about the date of his purchase of the vehicle. He said that he had to go away at short notice and did not produce any service documents, and when the appellant was asked about the previous owner all the information he received was that it was a Mr James Brown of an address 42 Hill Street, Broxburn which the appellant noted in his own handwriting in production 4. It is that Mr James Brown to whom the mystery attaches, because it appears that the address given does not exist and enquiries by a Mr Mitchell, an officer of the department of trading standards and consumer protection of Fife Regional Council failed to trace Mr Brown.

The argument for the appellant concentrated in the first instance on the defence available under sec. 24 (1) (b). No question arises about the defence available under sec. 24 (1) (a) which requires that the person charged with the offence should prove that he relied on information supplied to him, for the simple reason that information was supplied by Dalrymple which obviously the appellant relied upon when it was given. The question then is whether the onus of establishing the defence under sec. 25 (1) (b) was established. It is as well to remind ourselves of the terms of that sub-section [Their Lordships thereafter quoted the terms of the sub-section and continued:] The argument at this stage drew particular attention to what is found in finding 8, namely that the vehicle was inspected by the appellant, the mileage tallied with the vehicle's condition and age, there was nothing apparently wrong with it, a warranty as to mileage was taken from the seller and, shortly put, the facts there were not such as to put a reasonable man on his guard.

We were referred to the case of Naish v. Gore [1971] 3 All E.R. 737 where, on similar facts, the justices had come to the conclusion that reasonable precautions had been taken and therefore that the defence was made out. In considering that case we have had particular regard to the following passage from the opinion of Lord Widgery C.J. at p. 742B–C:

"Accordingly, it seems to me that the proper disposal of this case is to observe that the justices with some evidence of reasonable precautions and due diligence before them were satisfied that that was sufficient to satisfy the terms of sec. 24. In the end, if the justices properly directed themselves as to the law and appreciated the onus that rests on the respondent, the question of whether the precautions taken were all reasonable precautions is a matter for them and, on the facts of this case, I am not disposed to say that they reached other than the conclusion which was open to them."

In our opinion, that passage correctly sets out the basis upon which we should approach the decision in which the sheriff took upon this matter.

Before we come to what the sheriff says on the point, we should mention that we were also referred to a number of English authorities: Simmons v. Potter [1975] R.T.R. 347;Wandsworth London B.C. v. Bentley [1980] R.T.R. 429; and Crook v. Howells Garages (Newport) Ltd. [1980] R.T.R. 434. We have not found particular assistance in these cases for present purposes. It is sufficient to say that the case of Simmons is complicated because, although it appears that the court might well have sustained the decision of the justices in that case, the basis upon which it decided to interfere with the decision is one which the learned advocate-depute did not seek at this stage to support. That was introducing the notion that a disclaimer, the effect of which would be that no false description at all was applied to the goods, would nevertheless provide a defence to the person charged on the assumption that an offence had been committed.

So far as Wandsworth London B.C. v. Bentley is concerned it is not of particular assistance here because it was a case in which it appears from the facts that no proper enquiry was made at all, whereas in the present case we have findings to the effect that at least a question was asked to establish the name and address of the previous owner. In the end of the day however, the question is whether the sheriff in considering this particular defence having all the facts before him reached the conclusion which he was entitled to reach. We have examined therefore not only finding 8 but also finding 6, which makes the point that Dalrymple did not produce any service documents and that he had to go away at short notice. There was therefore a comparative absence of information from Dalrymple apart from the one fact that the previous owner was said to be James Brown of 42 Hill Street, Broxburn. It is significant, and the sheriff has relied upon this, that no further enquiry was made to check whether James Brown existed and indeed whether he was in fact the true owner. Taking account of finding 6 therefore, we are of opinion that the sheriff was entitled to come to the conclusion which he reached on this particular matter. We would stress that the test here is not simply whether the facts were such as to put a reasonable man on his guard but whether all reasonable precautions and all due diligence were taken to avoid the commission of the offence. We also accept the submission of the learned advocate-depute that when considering sub-sec. (1) (b) and comparing it with sub-sec. (1) (a) of sec. 24 it is proper to regard these matters as separate, and it is not sufficient just to look at the information on which the reliance was based. There should be a separate and independent enquiry as to whether, notwithstanding the reliance on that information, all reasonable precautions were taken and due diligence was exercised.

We pass now to the other matter which is before us which is the defence under sec. 24 (3) and again I quote the relevant passage:—[Their Lordships thereafter quoted the terms of the subsection as set out supra and continued:] In the present case there is no question about actual knowledge, it not being suggested that the appellant had actual knowledge that the mileage was false. The question is whether the sheriff was entitled to come to the conclusion that the defence was not made out. In submitting his argument on this chapter, counsel for the appellant laid particular emphasis on the practical problems which the appellant would have faced in tracing the matter back to reach the ultimate position which is revealed in finding 2, that the mileage stated was incorrect. He made the point, which is perfectly correct, that the previous owners, if traced, were under no obligation to provide information to the appellant. Only the trading standards officer has the statutory authority to require information, and it may well be that the appellant would have faced practical difficulties in obtaining information over a tract of time. In the balance also he reminded us of the findings about the facts on enquiry and examination of the motor car itself. Reference was made to Simmons v. Ravenhill [1983] Crim L.R. 749 where there had been an exceptionally low mileage for the age of the car, so although the decision was reached there that some enquiries should have been made the facts in the present case were not of that character.

In reply on this chapter the learned advocate-depute has stressed that the important point is this: that in fact no enquiry whatever was made to trace the motor car back from Dalrymple himself. If the enquiries had gone simply to the first stage, that is to say to seek to identify James Brown of 42 Hill Street, Broxburn, they would have revealed at once that the address did not exist and no doubt Mr Brown himself would not have been traced. The fact of the matter is that there were available other sources from which the true position about mileage could have been obtained and, while it was accepted that there was a lack of statutory powers available to the appellant, the fact that he had not even attempted to make enquiries and been met with a refusal was a matter which should be taken into account.

We accept these submissions and consider that the approach which the sheriff took to this matter at p. 8 of his note cannot be faulted on the basis that he directed himself incorrectly as to the law to be applied. Bearing in mind the passage from the Lord Chief Justice in Naish v. Gore to which we referred earlier, therefore, we conclude that he was entitled to reach the decision on this matter which he did. For these reasons we have come to be of the opinion that the proper answer to be given to the two questions before us in each case is in the affirmative, and the appeal will be refused.