Consumer Protection from Unfair Trading Regulations 2008—What Constitutes a Commercial Practice?
| Author | Siobhan McConnell |
| DOI | 10.1350/1740-5580-77.5.365 |
| Published date | 01 October 2013 |
| Date | 01 October 2013 |
| Subject Matter | Court of Appeal |
[30]). Lord Hughes explicitly agreed (at [30]) with Lord Woolf CJ’s
judgment in Lambert, Ali and Jordan, where his Lordship had stated that
a provision requiring a defendant to prove an essential element of the
offence is more difficult to justify than a provision requiring the defen-
dant to establish a special defence or exception (Lambert, Ali and Jordan
at [16]). This ‘justified distinction’ is supported by the judgment of Sir
Brian Kerr LCJ in R v McQuade, which dealt specifically with diminished
responsibility (McQuade at [24]–[25]). In the present case, the court
relied upon the decision in McQuade and the Scottish cases of HM
Advocate vDingwall (1867) 4 SLR 249, HM Advocate vMaclean (1876) 3
Couper 334 and Kirkwood vHM Advocate (1939) JC 36 to support its
assessment that diminished responsibility, and s. 2(2), require a defend-
ant to establish an exception or excuse rather than disprove an element
of the offence (at [22]).
Fourthly, the court cited the Scottish Law Commission’s Report on
Insanity and Diminished Responsibility (Scot. Law Com. Report No. 195
(2004)) which recommended that the reverse burden of proof was
necessary to the operation of diminished responsibility (at paras
5.17–5.28). This recommendation was enshrined within s. 51B(4) of the
Criminal Procedure (Scotland) Act 1995. Subsequently, in Lilburn vHM
Advocate [2011] HCJAC 41, it was held that the reverse burden creates a
legal rather than an evidential burden and that, in applying Salabiaku v
France, a legal burden was proportionate. The Scottish Law Commis-
sion’s recommendation was echoed by the English Law Commission,
which articulated the view that the burden of proving diminished
responsibility should remain with the defendant (Partial Defences to
Murder, Law Com. Report No. 290 (2004) para. 5.92 and Murder, Man-
slaughter and Infanticide, Law Com. Report No. 304 (2006) para. 5.105).
Consequently, the amendment to the defence of diminished responsibil-
ity, pursuant to s. 52 of the Coroners and Justice Act 2009, does not alter
the burden of proving the defence. Parliament has ensured that the legal
burden remains on the defendant.
Peter Coe
Consumer Protection from Unfair Trading Regulations
2008—What Constitutes a Commercial Practice?
R v X Ltd [2013] EWCA Crim 818
Keywords Commercial practice; Consumer Protection from Unfair
Trading Regulations 2008; Consumer; Transactional decision
This case concerned an appeal by the prosecution against a ruling of the
Crown Court that there was no case for X Ltd (X) to answer. X was
charged with engaging in unfair commercial practices in breach of the
Consumer Protection from Unfair Trading Regulations 2008 (SI 2008
No. 1277) (‘the Regulations’). The Regulations came into force on 26
Consumer Protection from Unfair Trading Regulations 2008
365
To continue reading
Request your trial