Adaway, R v

A local authority considering a criminal prosecution for strict-liability consumer-protection offences must give careful effect to its own enforcement policy. Where the policy’s stated prosecution criteria are wholly unsupported by the available material, the prosecution may be oppressive and should be stayed as an abuse of process.

A trial judge who refuses a stay despite that absence of foundation exercises the discretion on an unsustainable basis. The resulting convictions must be quashed.

The appellant, trading with his wife as a partnership, was convicted at Reading Crown Court on 18 December 2003 of two offences of supplying goods with a false trade description contrary to section 1(1)(b) of the Trade Descriptions Act 1968. The charges concerned roof vents and the conservatory roof. His wife was acquitted.

The appellant appealed by leave of the single judge. His principal ground was that the proceedings should have been stayed as an abuse of process because the local authority had commenced a criminal prosecution without evidence satisfying the prosecution criteria in its Public Protection Enforcement Policy. The central issue was whether that decision made the prosecution oppressive.

1. The appeal was allowed and the convictions were quashed. The court held that the judge should have stayed the prosecution as oppressive. His refusal to do so was an exercise of discretion without foundation.

2. The local authority’s policy required a proposed prosecution to satisfy at least one stated criterion, including fraudulent activity or a deliberate or persistent breach of legal obligations. The prosecution ultimately accepted that there was no evidence of fraud and no material showing persistent breach. The sole suggested basis for deliberateness was the appellant’s denial in interview that he had made a mistake.

3. Those criteria had no statutory force and the decision whether to prosecute remained for the local authority. Nevertheless, the absence of material capable of substantiating either criterion established that the prosecution was unsupported by the authority’s own policy and was oppressive. The judge ought to have reached that conclusion when the stay was sought.

4. The court stressed that, before bringing criminal proceedings concerning the strict-liability offences under the Trade Descriptions Act 1968, a local authority must carefully consider its prosecuting policy. Criminal proceedings should not be used to secure the settlement of a private dispute where another means of resolution is appropriate.

5. The local authority was ordered to pay the appellant’s costs: £14,657 plus VAT for the magistrates’ court and Crown Court proceedings, and £7,500 plus VAT for the appeal.

• Court of Appeal (Criminal Division) — by [2004] EWCA Crim 2831, allowed the appeal from the appellant’s convictions at Reading Crown Court and quashed the convictions.
• Reading Crown Court — on 18 December 2003, convicted the appellant on two counts under section 1(1)(b) of the Trade Descriptions Act 1968 and imposed fines of £250 on each count.