Tesco Supermarkets Ltd v Nattrass

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Reid,Lord Morris of Borth-y-Gest,Viscount Dilhorne,Lord Pearson,Lord Diplock
Judgment Date31 Mar 1971
Judgment citation (vLex)[1971] UKHL J0331-1

[1971] UKHL J0331-1

House of Lords

Lord Reid

Lord Morris of Borth-y-Gest

Viscount Dilhorne

Lord Pearson

Lord Diplock

Tesco Supermarkets Limited
and
Nattrass
(on Appeal from a Divisional Court of the Queen's Bench Division)

Upon Report from the Appellate Committee, to whom was referred the Cause Tesco Supermarkets Limited against Nattrass (on Appeal from a Divisional Court of the Queen's Bench Division), that the Committee had heard Counsel, as well on Wednesday the 3d, as on Thursday the 4th, Monday the 8th and Tuesday the 9th, days of February last, upon the Petition and Appeal of Tesco Supermarkets Limited, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice of the 15th of July 1970, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of William Kenneth Nattrass, the Respondent in the said Appeal; and due Consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of a Divisional Court of the Queen's Bench Division of the High Court of Justice of the 15th day of July 1970, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Cause be, and the same is hereby, remitted back to a Divisional Court of the Queen's Bench Division of the High Court of Justice with a Direction to Quash the Conviction imposed by J. K. Batty Esquire and F. P. Youell Esquire, two of Her Majesty's Justices of the Peace for the County of Chester acting in and for the Petty Sessional Division of Northwich, on the 3d day of February 1970: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Divisional Court, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments.

Lord Reid

My Lords,

1

The Appellants own a large number of supermarkets in which they sell a wide variety of goods. The goods are put out for sale on shelves or stands each article being marked with the price at which it is offered for sale. The customer selects the articles he wants, takes them to the cashier, and pays the price. From time to time the Appellants, apparently by way of advertisement, sell "flash packs" at prices lower than the normal price. In September 1969 they were selling Radiant washing powder in this way. The normal price was 3s. 11d. but these packs were marked and sold at 2s. 11d. Posters were displayed in the shops drawing attention to this reduction in price.

2

These prices were displayed in the Appellants' shop at Northwich on 26th September. Mr. Coane, an old age pensioner, saw this and went to buy a pack. He could only find packs marked 3s. 11d. He took one to the cashier who told him that there were none in stock for sale at 2s. 11d. He paid 3s. 11d. and complained to an Inspector of Weights and Measures. This resulted in a prosecution under the Trade Descriptions Act 1968 and the Appellants were fined £25 and costs.

3

Section 11(2) provides:

"If any person offering to supply any goods gives, by whatever means, any indication likely to be taken as an indication that the goods are being offered at a price less than that at which they are in fact being offered he shall, subject to the provisions of this Act, be guilty of an offence."

4

It is not disputed that that section applies to this case. The Appellants relied on section 24(1) which provides:

"In any proceedings for an offence under this Act it shall, subject to subsection (2) of this section, be a defence for the person charged to prove—

( a) that the commission of the offence was due to a mistake or to reliance on information supplied to him or to the act or default of another person, an accident or some other cause beyond his control; and

( b) that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control."

5

The relevant facts as found by the Magistrates were that on the previous evening a shop assistant Miss Rogers whose duty it was to put out fresh stock found that there were no more of the specially marked packs in stock. There were a number of packs marked with the ordinary price so she put them out. She ought to have told the shop manager Mr. Clement about this but she failed to do so. Mr. Clement was responsible for seeing that the proper packs were on sale, but he failed to see to this although he marked his daily return "all special offers O.K." The Magistrates found that if he had known about this he would either have removed the poster advertising the reduced price or given instructions that only 2s. 11d. was to be charged for the packs marked 3s. 11d.

6

Section 24(2) requires notice to be given to the prosecutor if the accused is blaming another person and such notice was duly given naming Mr. Clement.

7

In order to avoid conviction the Appellants had to prove facts sufficient to satisfy both parts of section 24(1) of the 1968 Act. The Magistrates held that they "had exercised all due diligence in devising a proper system for the operation of the said store and by securing so far as was reasonably practicable that it was fully implemented and thus had fulfilled the requirements of section 24(1)( b)". But they convicted the Appellants because in their view the requirements of section 24(1)( a) had not been fulfilled: they held that Clement was not "another person" within the meaning of that provision.

8

The Divisional Court held that the Magistrates were wrong in holding that Clement was not "another person". The Respondent did not challenge this finding of the Divisional Court so I need say no more about it than that I think that on this matter the Divisional Court was plainly right. But that Court sustained the conviction on the ground that the Magistrates had applied the wrong test in deciding that the requirements of section 24 (1) ( b) had been fulfilled. In effect that Court held that the words "he took all reasonable precautions…" do not mean what they say: "he" does not mean the accused, it means the accused and all his servants who were acting in a managerial or supervisory capacity. I think that earlier authorities virtually compelled the Divisional Court to reach this strange construction. So the real question in this appeal is whether these earlier authorities were rightly decided.

9

But before examining those earlier cases I think it necessary to make some general observations.

10

Over a century ago the Courts invented the idea of an absolute offence. The accepted doctrines of the Common Law put them in a difficulty. There was a presumption that when Parliament makes the commission of certain acts an offence it intends that mens rea shall be a constituent of that offence whether or not there is any reference to the knowledge or state of mind of the accused. And it was and is held to be an invariable rule that where mens rea is a constituent of any offence the burden of proving mens rea is on the prosecution. Some day this House may have to re-examine that rule, but that is another matter. For the protection of purchasers or consumers Parliament in many cases made it an offence for a trader to do certain things. Normally those things were done on his behalf by his servants and cases arose where the doing of the forbidden thing was solely the fault of a servant, the master having done all he could to prevent it and being entirely ignorant of its having been done. The just course would have been to hold that, once the facts constituting the offence had been proved, mens rea would be presumed unless the accused proved that he was blameless. The Courts could not, or thought they could not, take that course. But they could and did hold in many such cases on a construction of the statutory provision that Parliament must be deemed to have intended to depart from the general rule and to make the offence absolute in the sense that mens rea was not to be a constituent of the offence.

11

This has led to great difficulties. If the offence is not held to be absolute the requirement that the prosecutor must prove mens rea makes it impossible to enforce the enactment in very many cases. If the offence is held to be absolute that leads to the conviction of persons who are entirely blameless: an injustice which brings the law into disrepute. So Parliament has found it necessary to devise a method of avoiding this difficulty. But instead of passing a general enactment that it shall always be a defence for the accused to prove that he was no party to the offence and had done all he could to prevent it, Parliament has chosen to deal with the problem piecemeal, and has in an increasing number of cases enacted in various forms with regard to particular offences that it shall be a defence to prove various exculpatory circumstances.

12

In my judgment the main object of these provisions must have been to distinguish between those who are in some degree blameworthy and those who are not, and to enable the latter to escape from conviction if they can show that they were in no way to blame. I find it almost impossible to suppose that Parliament or any reasonable body of men would as a matter of policy think it right to make employers criminally liable for the acts of some of their servants but not for those of others and I find it incredible...

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