R v X Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leveson |
| Judgment Date | 23 May 2013 |
| Neutral Citation | [2013] EWCA Crim 818 |
| Docket Number | Case No: 201206485/B5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 23 May 2013 |
[2013] EWCA Crim 818
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Leveson
Mr Justice Foskett
and
Sir Geoffrey Grigson
(Sitting as an additional judge of the Court of Appeal)
Case No: 201206485/B5
Richard Atkins Q.C. and Ben Mills for the Crown
Jonathan Kirk Q.C. and Jonathan Goulding for the Respondent, X Ltd.
On 22 October 2012, in the Crown Court, X Ltd ('the company') faced trial on an indictment containing four counts each of which alleged engaging in an unfair commercial practice in contravention of different provisions of the Consumer Protection from Unfair Trading Regulations 2008 ('the Regulations'). On 1 November 2012, in relation to each count, the judge acceded to a submission that there was no case to answer. Mr Richard Atkins Q.C. for the Crown (instructed by the relevant local authority) thereafter intimated that leave to appeal would be sought from this court and provided the required undertaking pursuant to s. 58(8) of the Criminal Justice Act 2003 that the company should be acquitted if leave was not obtained or the appeal abandoned. We grant leave.
By way of background facts, the company is in the business of selling domestic security systems such as CCTV and burglar alarms frequently by cold calling either by telephone or doorstep visits. The case concerned its dealings with a 76 year old widower ('the customer'): by the conclusion of the prosecution case, it was common ground that, by reason of age and infirmity, he was properly described as vulnerable. The Crown contended that his memory was poor and his vulnerabilities would have been obvious to anyone who spent any amount of time in his presence or spoke to him.
In the event, after a company representative having spoken twice to the customer by telephone on 24 May 2010, on the following day a salesman visited his home. It was alleged he was there for over three hours whereupon the customer purchased a carbon monoxide detector, an electrical inspection of his home and a CCTV home security system, all totalling £2,574.04. On 7 June 2010, the CCTV system was installed and two days later the electrical inspection undertaken. On 11 June, a salesman visited again following which the customer purchased products and electrical work totalling £2,336.72. These works were carried out on 7 and 8 July 2010.
On 30 July, members of the customer's family visited him and found that almost £5,000 which had been taken from his bank account appeared to relate to a CCTV system which was unplugged and about which he, whose mental condition was deteriorating, appeared to know nothing. Following a complaint and against that background, the relevant Trading Standards Service commenced an investigation: the prosecution was the result.
Count 1 of the Indictment charged engaging in an unfair commercial practice contrary to Regulation 12 and para. 12 Schedule 1 to the Regulations in that the company made a materially inaccurate claim or claims concerning the nature and extent of the risk to the personal security of the customer if he did not purchase a CCTV system. It is an offence of strict liability subject to a defence (the burden of which is on the defendant) of due diligence. By the end of the prosecution case, reliance was placed solely on a document produced by the salesman which stated that burglaries in his post code area had risen by 46.2% in the last 12 months and that, on average, 6.3 homes per month had been burgled in his post code area (the source being crime mapping UK).
The 46.2% statistic had been obtained from a crime mapper website using statistics provided by the police. When the full postal code was typed into the website, statistics for the ward area (larger than the area covered by the full postal code) were provided. A percentage increase or decrease in burglaries is also provided but with the qualification that it related to the same three month period. Thus, for the period up to the end of March 2010, the website would have stated "The average number of burglaries in this area has increased from 13 to 19 (46.2%) (compared with the same three month period last year)".
In fact, the evidence was that over a twelve month period burglaries in the ward (not, we repeat, the postcode area) from May 2009-April 2010 compared with May 2008-April 2009 showed a reduction of 13.5% from 52 to 45. Further, the updated statistics to the end of April 2010 would have been updated on the computer no later than 24 May. There was an issue as to the sourcing of the information and, in particular, whether it was part of cold-calling research undertaken by the company or the salesman.
The judge drew inferences as to when the statistics were obtained and by whom (appearing to rely on assertions made by the company) and, in relation to the statistics, also observed:
"I cannot find any evidence to support the proposition that the data that was relied upon in the presumed presentation to [the customer] was materially inaccurate. The application of common sense tells me that any consumer of any security product is likely to be far more influenced by events that happened recently as opposed to events that happened many months ago, albeit within a 12 month parameter."
As for the difference between post code area and ward, the judge said:
"Equally there is no basis at all for the jury to conclude that the use of the term 'post-code area' as the relevant geographical boundary as opposed to 'ward' provides any basis for any finding of material inaccuracy especially as the means of entry is the provision into the data base of the relevant post code."
Mr Atkins argues that the case did not concern a 'presumed presentation' but a document with which he was provided and, furthermore, the question of influence is not to the point: it was whether there was material from which the jury could conclude that what was described was materially inaccurate. As for the geographical area, the ward was clearly much larger than the post code and, again, the information was simply inaccurate: it was for the jury to determine materiality.
Mr Jonathan Kirk Q.C., for the company, argued that there was no evidence that comparing two twelve month periods was more accurate than comparing two three month periods which was how the police published the annual comparison and, furthermore, that there was no evidence that a statistical consideration of the post code area (as opposed to the ward) would have made any difference. At its lowest, it was open to the judge to conclude that the differences were not material.
For our part, we simply do not understand how it can be said that there was no prima facie evidence that the data was not inaccurate. It was very clear that the police data covered only 3 months; it did not cover a year. The fact is that the rate of burglaries had not risen by 46.2% over 12 months; year on year, it had dropped. Similarly, if the company wished to rely on the data as representing the number of burglaries in the customer's post code area, it was not enough simply to say that it had been accessed the data from some wider geographical basis by reference to his post-code. This may not matter for casual conversation but if being used to sell security equipment (especially to a vulnerable consumer), that there was a case of material inaccuracy seems to us to be clear: in our judgment, to assert that there was no such evidence is simply wrong. In relation to this count on the indictment, the appeal is allowed.
For convenience, we next turn to Count 3 which is a similar allegation of engaging in an unfair commercial practice albeit involving Regulations 5 and 9 of the Regulations. The Particulars of the Offence are as follows:
"[The company] between the 23 rd day of May 2010 and the 21 st day of August 2010 as a trader engaged in a commercial practice which was a misleading action in that they represented that the CCTV security system installation purchased by [the customer] and supplied to him would be an effective security measure, which contained false information and was untruthful in relation to the benefits and fitness for purpose of the product and it caused or was likely to cause the average consumer to take a transactional decision he would not have taken otherwise."
Again, it is an offence of strict liability subject to the defendant establishing, on the balance of probabilities, the defence of due diligence. In short, the system proposed by the company's salesman involved two cameras (as shown on a diagram) facing away from the house thereby enabling the face of anyone approaching to be captured. It was common ground that the proposal was sound and that one of the questions on the Customer Purchase Report (which was checked) reads "Customer made aware engineer will have final decision positioning equipment?"
Although the salesman had completed a diagram, no copy was kept by the company and it is not known whether the installer (who was an...
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