| TRADE DESCRIPTION — Car — False description — Claimant accused of applying false trade description by altering odometers — Time for prosecuting offence running from commission of offence or discovery of offence by prosecutor — Whether offence committed at time odometers turned back — Whether “prosecutor” local authority or its officer — Whether offence “discovered” at time of officer’s investigation or at later date when another officer deciding to institute proceedings — District judge deciding by way of preliminary issue that informations laid in time and accepting jurisdiction to act as examining magistrate — Whether obliged to state case where deciding preliminary issue on jurisdiction — Trade Descriptions Act 1968 ss 1, 19(1) — Magistrates’ Court Act 1980, s111
R (Donnachie) v Cardiff Magistrates’ Court [2007] EWHC 1846 (Admin)
QBD: Sedley LJ and Nelson J: 27 July 2007
Where a district judge had decided a preliminary issue as to jurisdiction his ruling could properly be challenged by way of case stated or judicial review. An offence under s1(1)(a) of the Trade Descriptions Act 1968 was a separate offence from that created by s1(1)(b) and was committed at the time when an odometer reading was altered. The local authority rather than one of its officers was the prosecutor within the meaning of s19 of the 1968 Act and it discovered an offence under that section when one of its officers first became aware of the offence.
The Divisional Court of the Queen’s Bench Division (Sedley LJ and Nelson J) so held when granting the claimant, Sharyn Donnachie, judicial review of two decisions of District Judge Charles who, sitting at Cardiff Magistrates’ Court, had determined that informations laid against the claimant for offences under the Trade Descriptions Act 1968 had been laid in time, and that he therefore had jurisdiction to deal with her as an examining magistrate and commit her for trial to the Crown Court which he accordingly had done, but had refused to state a case for an opinion of the High Court on his ruling under s111 of the Magistrates’ Court Act 1980.
The claimant and Mr Carl Cummings had been prosecuted by Cardiff County Council, the interested party, in relation to a number of offences under the Trade Descriptions Act 1968. The council alleged they had altered the odometer readings of a number of Hackney Carriage vehicles. Under section 19(1) of the Trade Descriptions Act 1968 no prosecution for an offence under the 1968 Act could be commenced after the expiration of three years from the commission of the offence, or one year from its discovery by the prosecutor, whichever was earlier. Under s 1(1)(a) of the 1968 Act any person who applied a false trade description or under s1(1)(b) any person who supplied or offered to supply any goods to which a false trade description was applied was guilty of an offence. The district judge had held that at the time when the odometers had been turned back no offence had been committed under s 1 of the 1968 Act; and that the prosecutor for the purpose of s19 was the employee to whom the council had delegated authority to institute legal proceedings for breaches of the 1968 Act and who was responsible for laying the informations.
NELSON J, giving the judgment of the court, said first that the court had jurisdiction to deal with the claimant’s applications and that the district judge could have stated a case. Where the district judge was acting not as an examining magistrate, but deciding a preliminary issue as to jurisdiction, his ruling upon that was final and could properly be challenged by way of case stated or judicial review. S1(1)(a) and s1(1)(b) created two separate absolute liability offences under the 1968 Act. S 1(1)(a) applied when an odometer was turned back and s1(1)(b) applied when a vehicle was supplied or offered for supply with an altered odometer. An offence was committed under s 1(1)(a) at the time when an odometer reading was altered; the district judge had therefore erred in concluding that at the time when the odometers had been turned back no offence had been committed. Furthermore the prosecutor for the purposes of s19 was the council since they were the enforcing authority. A body corporate could only act through its officials and the official with authority to institute proceedings whose knowledge would only be acquired upon reading the papers shortly before laying the informations could not properly be described as “discovering” the offence under s 19 when those working for him would have had knowledge considerably earlier. The district judge had therefore erred in concluding that the person responsible for instituting proceedings was the prosecutor for the purposes of s19 of the 1968 Act. His decision that the informations had been laid in time would be quashed as wrong in law and the matter remitted to him to determine in accordance with the declarations made.
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Appearances: Nicholas Yeo (Morgans, Cardiff) for the claimant; Daniel Williams and Lee Reynolds (Chief of Legal and Democratic Services, Cardiff County Council, Cardiff) for the council
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