Kenworthy (t/a K-Play International) v The Council for the Borough of North Tyneside

Where liability under Toys (Safety) Regulations 1995 Regulation 13 is parasitic on the guilt of another supplier, non-compliance with the essential safety requirements does not by itself establish guilt. The court must also address whether the toy would jeopardise users’ or third parties’ safety or health when used as intended or in a foreseeable way, bearing in mind children’s normal behaviour.

A conviction cannot stand where the case was tried on the mistaken assumption that breach of the essential safety requirements was sufficient, and the appellate court cannot say what the result would have been had the correct legal test been applied.

The appellant was convicted by North Tyneside Justices under section 40(1) of the Consumer Protection Act 1987 in relation to a toy supplied by another trader. The toy failed the essential safety requirements because its paint contained excessive lead and chromium. The Justices focused on whether the appellant had established the due-diligence defence under section 39, and did not consider Regulation 13 of the Toys (Safety) Regulations 1995.

On a case stated, the Divisional Court considered whether the primary supplier had committed the relevant offence and whether the appellant’s conviction could stand despite the failure to address Regulation 13.

1. Appeal allowed; conviction quashed. The appellant’s liability under section 40(1) of the Consumer Protection Act 1987 was wholly dependent on the guilt of the trader who supplied the toy.
2. Under Regulation 13 of the Toys (Safety) Regulations 1995, a person who is not the manufacturer in the Community, the authorised representative or the importer may supply a toy despite non-compliance with Regulation 4 only if the toy would not jeopardise the safety or health of users or third parties when used as intended or in a foreseeable way, bearing in mind the normal behaviour of children.
3. The Justices had treated non-compliance with Regulation 4 as sufficient to establish guilt. Their failure to consider the Regulation 13 safety-or-health issue meant that they were not correctly advised on a crucial element of the primary supplier’s liability. The conviction therefore rested on a legally flawed basis.
4. The court did not need to determine the burden of proof on the Regulation 13 issue. Even if the respondent’s proposed allocation of the burden were correct, it was impossible to know how the Justices would have decided the case if properly advised. Further evidence might have been adduced by either side.
5. Only the first question in the case stated required determination. The remaining issues, including the European-law arguments and due-diligence question, did not arise. No remission was sought or ordered. The appellant was awarded costs from Central Funds.

• North Tyneside Justices: convicted the appellant and conditionally discharged him for six months.
• High Court (Administrative Court): allowed the appeal on the first question in the case stated and quashed the conviction. No remission arose.