R v Shrewsbury Crown Court (ex parte Venables)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GLIDEWELL,MR. JUSTICE CRESSWELL |
| Judgment Date | 02 July 1993 |
| Judgment citation (vLex) | [1993] EWHC J0702-2 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO-140892 |
| Date | 02 July 1993 |
[1993] EWHC J0702-2
IN THE HIGH COURT OF JUSTICE
Crown Office List
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Before: Lord Justice Glidewell Mr. Justice Cresswell
CO-140892
MR. J. BLAIR-GOULD (MISS LLOYD-JACOBS) (Instructed by McMillan Bennett, Shropshire TF3 4HT) appeared on behalf of the applicant.
MR. A. THOMAS (Instructed by The Department of Trading Standards, Shropshire County Council) appeared on behalf of the respondent.
Friday, 2 July 1993
I will ask Cresswell J to give the first judgment.
MR. JUSTICE CRESSWELLOn 6 March 1992 the Shrewsbury Crown Court (His Honour Judge Mander sitting with a Magistrate) heard an appeal by the applicant against his convictions by the Telford Justices for having:
(a) between 1 April 1990 and 12 June 1990, in the course of a trade or business, applied to goods, namely, a Ford Escort motor car, a false trade description by altering or replacing the odometer, contrary to section 1(1)(a) of the Trade Descriptions Act 1968,
(This appeal was dismissed).
(b) on 12 June 1990, in the course of a trade or business, supplied the said car, to which the said false trade description had been applied, to Alan Thompson, contrary to section 1(1)(b) of the 1968 Act.
(This appeal was allowed).
In a helpful memorandum dated 7 March 1992, His Honour Judge Mander recorded the following:
"As the Magistrate and I were only able to identify the real issue and distinction between the two offences very much at the last moment, I think it helpful to expand upon the findings we made and the reasons for them, whilst the matter is freshly in memory, especially since it was the Respondent's case in good measure that the replacement of the odometer of the car in question amounted, in itself, to the application of a trade description.
We were satisfied as to the facts that:
1 The car in question was bought from Mr. Needle for an effective price of £4,300 and with a recorded mileage of 60,000+.
2 Even if it were bought with the Appellant's fiancée's money —we are not wholly sure about that —it was used as a car within the Appellant's business as it was never registered or insured in her name and was run on the business' trade plates for some time. She told us she hardly ever drove it and did not like it. The Appellant used it himself as a business vehicle and was so using it on the day the car was sold to Mr. Thompson. The Appellant, however, only used the car within the business and did not either offer it for sale or advertise it for sale.
3The Appellant subsequently replaced the odometer with one with a recorded mileage of 30,000 miles. We are unable to find that the Appellant replaced the odometer for any sinister reason, however suspicious we may have become. The Appellant and his fiancée both told us that the speedometer was defective and we cannot gratuitously reject that evidence as there is nothing to contradict it or with which to replace it, other than our own intuitive feeling that that is a convenient coincidence. We do not think that that is enough.
4As Mr. Needle had bought the car only on 5 April 1990 and the Appellant submitted it for a new MOT on 17 April 1990 and the lower mileage was then displayed, these events must have taken place, at most, within 12 days.
5The eventual sale of it to Mr. Thompson was purely fortuitous as the two men happened to meet at a third party location in June 1990 and the sale to Mr. Thompson was negotiated there and then.
6The car was sold at a small loss.
7Mr. Thompson told us in the clearest possible terms that he did not rely on the displayed mileage and that he knew, as a dealer, that he could not rely on it. It is plain that he did not as he subsequently made enquiries and checks. It follows that, so far as the offence of supplying a vehicle to which a false trade description had been applied is concerned, it is impossible to distinguish the case from Norman v Bennett [1974] 3 All ER 351 and we so find. The appeal was allowed so far as that charge was concerned.
It is as to the other charge of applying a false trade description that we had the greatest and very much a last-minute difficulty and that led to our returning to Court and seeking further argument and it is for that reason that I am drafting this memorandum.
We were satisfied that the Appellant did not apply the undoubted false description simply by replacing the odometer. If, having done that, he had advertised or offered the car for sale, it would have been a different matter, but he did not, he continued to use it within the business. The analogy used by the Appellant's Solicitor of a large garage undertaking having a vehicle which was used exclusively by its own employees was, we thought, an apt one. The mere replacement of an odometer, even on a vehicle used within a trade or business, cannot of itself, amount to a criminal offence —there must be more and that can only be the offering of the vehicle for sale.
Here the Appellant became guilty of that offence as soon as he offered the vehicle to Mr. Thompson. That was technical guilt only in view of the finding we make as to the supplying offence but it is nonetheless guilt. We thought it right to mark the technicality by imposing an absolute discharge as it would be absurd to punish him when, moments later, the logic of Norman v Bennett came into effect.
We are quite sure that there was no disclaimer. We did not find Mr. Thompson to be an impressive witness and would not ordinarily have taken his word against the Appellant's. However, having heard and seen them both, we are quite sure that no car dealer in the Appellant's position, negotiating a sale to another dealer in Thompson's position, would "dampen" the sale by making any comment on the mileage at all, least of all by revealing that he had changed the odometer, knowing, as is the logic of Norman v Bennett, that no trader relies on an odometer reading in any event.
We were unhesitatingly of the view that the moment the Appellant offered the car to Mr. Thompson he applied to it the false trade description which the replaced odometer represented. That was the pivotal event which transformed the thitherto innocent use of the car with a false mileage."
On 3 April 1992 the Crown Court refused to state a case for the opinion of the High Court. The grounds for the said refusal were that:
"(a) The said application is frivolous.
(b) The Court's decision depended and was based upon the specific findings of fact it made.
(c) The said question is not apt."
When refusing to state a case the Crown Court added:
"The Court expressly found that:
(i) A person who replaces the odometer of a vehicle and thereafter uses that vehicle within a trade or business, does not thereby commit an offence under section 1(1)(a) of the said Act although such a person may commit the offence when he ceases merely to use the vehicle and offers it for sale without disclaimer, thereby attaching a false trade description to it.
(ii) As to the offence under section 1(1)(b) of the said Act, the facts of this case as to the subsequent supply of the vehicle were indistinguishable from those of Norman v Bennett [1974] 3 All ER 351 and the appeal in respect of that offence had to be allowed.
(iii) Nevertheless, in offering the said vehicle for sale the Appellant had done something more than merely to use it and had, when he did so, committed the offence under section 1(1)(a) of the Act by applying a false trade description to the said vehicle, however momentarily, for the offer for sale was without disclaimer and the odometer had been replaced with one which bore a materially lower mileage.
(v) The principle of Norman v Bennett, although operating almost instantaneously when, as a matter of fact, there was a supply as between traders, did not prevent there being an actual application of a false trade description at the moment that innocent use of the said vehicle was terminated by its being offered for sale for, at that moment, it was not certain that there would be a supply and the offences under sections 1(1)(a) and 1(1)(b) of the Act are separate and distinct.
(vi) The Appellant's guilt was technical only and should be reflected in the granting of an absolute discharge.
(e) There is no question of law to be stated for the opinion of the High Court."
By notice of application for judicial review dated 26 June 1992 the applicant sought an order of mandamus directed to the Shrewsbury Crown Court requiring it to state a case for the opinion of the High Court in respect of its dismissal on 6 March 1992 of his appeal in relation to the offence contrary to section 1(1)(a) of the 1968 Act. On 15 July 1992 Otton J. refused leave. On 7 December 1992 the Divisional Court (Evans LJ and Macpherson J) granted leave to amend the application to include the relief of certiorari out of time and granted leave to move for both mandamus and certiorari.
We would ordinarily have required the Shrewsbury Crown Court to state a case. However, given that we have the memorandum to which I have referred (which sets out the Crown Court's findings as to fact and decision) we have proceeded to determine this application on the material before us so as to save time and expense (see in this connection R v. Brent 1992 Crown Office Digest 269).
The relevant provisions of the Trade Descriptions Act 1968
Section 1 provides:
"(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...
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