Court of Appeal
| Date | 01 November 1996 |
| DOI | 10.1177/002201839606000402 |
| Published date | 01 November 1996 |
| Subject Matter | Court of Appeal |
COURT
OF
APPEAL
DISCLAIMER OF TRADE DESCRIPTION
R v Bull
Amotor dealer was convicted of an offence under s 1(1)(a) of the Trade
Descriptions Act 1968, in that he had applied a false trade description to
amotor car by displaying a car showing a mileage of 47,000, whereas in
fact the correct mileage was over 87,000. A former owner had bought the
car with a mileage of 87,000 and had then sold it on at a motor auction,
endorsing the sale note with the words 'mileage not correct'. Upon a later
sale made by the defendant in R v Bull (1996) 160 JP 240, he claimed that
he had placed an effective disclaimer on the odometer by placing a sticker
on it (although he had not expressly drawn any customer's attention to
it); and he claimed that he had placed his disclaimer on the sale invoice,
for, although that invoice recorded the mileage as 47,000, he said that he
had simply copied that from the odometer and had accompanied it by the
statement that 'We have been unable to confirm the mileage recorded on
the odometer and therefore it must be considered as incorrect.' These
words were highlighted by an asterisk. The recorder none-the-less
convicted him, holding that he was at fault in copying the mileage from
the odometer without making any inquiry and that it was no defence to
say that the absence of a log book made such inquiry difficult. The
recorder also held that, as the charge was under s 1(1)(a), not under s
1(1)(b), the defendant could not rely on a disclaimer. On appeal, it was
held that the copying of the mileage from the odometer on to the invoice
could fall within the offence created by s 1(1)(a), so that the question
before the Court of Appeal was whether the recorder was right in holding
that in the circumstances the dealer could not rely on the disclaimer.
The sole offence of which the jury convicted the defendant was that of
'applying' a false trade description to the car, under s 1(1)(a). At the
conclusion of the case for the prosecution, it had been submitted that
merely to copy the figure on the odometer on to the invoice did not
amount to 'applying' it to the car, but this was (perhaps not unnaturally)
rejected by the recorder; and in the Court of Appeal this argument was
described as 'virtually an unarguable point'. The appeal, therefore, rested
on the question whether the description was a false trade description, of
which there was no effective disclaimer. The appellant submitted that
where, as here, there is no allegation that the dealer himself had altered
the odometer, the recorder was in error in holding that the disclaimer
made in the sales invoice was not available to negate the effect of the
notice on the odometer. He also submitted that the recorder was wrong in
holding that the disclaimer was not necessarily sufficient in itself to enable
the appellant to discharge the burden, which is placed upon him by the
1968
Act, of establishing the statutory defence made available by s 24 of
the
1968
Act, if he wishes to rely on that defence. The recorder took the
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Journal
of
Criminal Law
view that the disclaimer could be looked on only as part of the overall
circumstances in relation to that defence.
In Norman Garages v Phillips (1984) 148 JP 741, a defendant charged
with applying a false trade description sought to argue that that offence
involves an element of dishonesty, but the Divisional Court held that that
was not a necessary ingredient of the offence, which is one of strict
liability, so that all the prosecution has to prove is that the trade
description was applied within the terms of s 4 of the 1968 Act and that it
was false. The appellant submitted that, even if the completion of the
invoice by the insertion of the mileage was the making of a trade
description, this was not a false description, since it was made
simultaneously with the statement that the figure set out was incorrect.
That figure was claimed to be no more than that which physically
appeared on the odometer at the moment at which that fact was recorded
on the invoice. The statement that the figure was incorrect could not be
construed as a statement that it was correct, in the sense that it represented
the actual mileage covered by the car. The Crown sought to rebut this
argument in two ways. First, this was an ordinary 'disclaimer case', and a
disclaimer is not an answer to a charge made under s I(1)(a). Secondly,
the statement in the disclaimer that 'we have been unable to confirm' the
mileage was false, in that they had taken no meaningful steps to attempt
to do so (as, for example, by contacting the earlier owners through the
DVLA). This second argument was described by the court as 'unrealistic',
in that, with so old a vehicle, it was unlikely that confirmation of the real
mileage could ever have been obtained. Moreover, the words 'we have
been unable to' did not qualify the plain statement that the vendors
considered the stated mileage to be 'incorrect'. Thus, the success of the
appeal depended on whether the qualification of the figure on the invoice
(applied simultaneously by the appellant) was part of the trade description
or was a 'mere' disclaimer.
In Newman v Hackney
LB
[1982]
RTR 296, the defendants bought a
used car, altered the mileage on the odometer and attached to (without
obscuring) the odometer a sticker disclaiming the new mileage. The
Divisional Court held that the trade description had first been 'applied' at
the time of the alteration, not at the time at which the car had been
exhibited for sale with the new mileage. In the circumstances, the sticker
was regarded by the court as a 'rather naive way' of trying to evade the
provisions of the
1968
Act. In the instant case, however, the 'applying'
was at a time at which the 'qualification' was already there. Thus, the
proper ruling would have been that there was no case to answer, because
the prosecution had not established the falsity of the trade description.
Does this decision mean that a method had been discovered of evading
the terms of s 1(1)(a) of the 1968 Act? Waterhouse J was at some pains
to make clear that he would
'not
wish to give undue comfort to those who
might see in this decision a pointer to means by which the strict liability
of vendors of motor vehicles can be avoided'. Waterhouse J pointed out
that in a case in which the odometer reading is said to be incorrect, the
decision may depend on the particular facts, such as the actual positioning
of the disclaimer in relation to the odometer. The explanation of the
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Court
of
Appeal
decision in the present case appears largely to have depended on the fact
that the disclaimer was positioned immediately after the statement of the
mileage in the invoice and was highlighted by an asterisk. The success of
the appeal may well have depended on what Waterhouse Jtermed 'these
limited reasons'. The court added that the answer to the further question
which had been raised, namely whether the disclaimer made in what was
called the used vehicles sales certificate was a sufficient defence under the
Act, was a question for the jury, and not (as had been argued) a matter
upon which a ruling by the judge at the end of the prosecution's case
would have been appropriate.
RE-SENTENCING AFTER RESCISSION OF UNLAWFUL SENTENCE
R v Dunham
When the appellant in R v Dunham (1996) 160 JP 302 first appeared
before the Crown Court on charges of possessing drugs with intent to
supply, he pleaded guilty and was sentenced to various terms of
imprisonment, amounting to 15 months.
It
was not suggested that the
sentences were either wrong in principle or excessive; but it was objected
that they were unlawful. Although the offences were drug trafficking
offences contrary to the Drug Trafficking Offences Act
1986,
no
determination under that Act was made by the judge before he proceeded
to pass the prison sentences. The judge stated that he deliberately refrained
from dealing with the question whether a confiscation order should be
made under the 1986 Act of the money which the police had seized from
the person of the accused, his garage and his home; and he added that his
postponement of his consideration of this question was solely to enable
the offender to show, if he could, that part at least of that money was
lawfully in his possession when found. The judge's formal announcement
of the postponement of the drug trafficking question was therefore coupled
with an express explanation of the reason for that postponement. Although
s 2 of the Drug Trafficking Act 1994 now permits in some circumstances
the postponement of a drug trafficking inquiry in this way, the provisions
of that Act did not apply to the instant case, as the offences had there
been charged before the Act came into force. That meant that s 1 of the
1986 Act still operated to require the judge in this case to undertake and
complete the determination of any question under that Act, and to make
any confiscation order, before imposing a prison sentence. When (within
a week of his imposing sentence) this was drawn to the attention of the
judge, he rescinded sentence, for the (stated) reason that he did not have
the power to adjourn the drug trafficking part of the matter in the way in
which he had done. He ordered the case to be re-listed, on the ground
that s 4(2) of the Supreme Court Act
1981
empowers a judge to rescind a
judgment passed in error, not knowing (as here) that 'a new section of a
new Act' had not yet come into force. Counsel were invited to question
the lawfulness of the proposed step of re-sentencing, on that later occasion.
On that occasion, the appellant did in fact object that the judge could
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