Enfield London Borough Council v Argos Ltd

A later improvement to a trader’s compliance system does not, by itself, establish that the trader previously failed to take all reasonable precautions or exercise all due diligence. That remains a factual judgment for the magistrates. The statutory defence must be assessed by reference to the precautions in place at the relevant time, and the appellate court should not substitute its own view of what would have been preferable. Where the prosecution seeks to challenge precautions forming part of the sale process, it must identify that case sufficiently in advance to give the trader a fair opportunity to meet it.

Argos sold a six-piece knife block to a child under 16 in a test purchase. It relied on the defence in section 141A of the Criminal Justice Act 1988, contending that it had taken all reasonable precautions and exercised all due diligence.

The Justices accepted that Argos had a clear compliance system, including till warnings, staff selection, monitoring, training and managerial oversight. They also accepted that the employee had acted in accordance with the policy then in force, although Argos later introduced a policy requiring identification of customers who appeared under 21.

Enfield appealed by way of case stated. The issues were whether the later policy demonstrated that the earlier precautions were insufficient, and whether the Justices were entitled to confine their consideration to the till rather than the period before the goods were handed to the purchaser.

1. Appeal dismissed. The Justices were entitled to find that Argos had taken all reasonable precautions and exercised all due diligence.
2. The fact that a further precaution is later identified or adopted does not determine whether all reasonable precautions were taken previously. The statutory question remains one for the Justices’ judgment on the evidence before them. The appellate court must not substitute its own assessment of the preferable system.
3. Naish v Gore [1971] 3 All ER 737 and Smith v T&S Stores plc were consistent with that approach. Cases such as Robert Gale v Dixon Stores Group Limited [1993] Institute of Trading Standards Administration Law Reports: CO/2487/91 and Wandsworth London Borough Council v Bentley [1980] RTR 429 were distinguishable because they involved an absence of precautions or circumstances in which the later precaution demonstrated that the existing system was inadequate.
4. Section 141A(1) extends to the whole process of sale in an Argos-style store, including the period between payment and handover. A compliance system should therefore address employees involved in handing over the goods, as well as employees taking payment.
5. Nevertheless, the Justices were entitled to confine the hearing to the till. The prosecution had not sufficiently raised the alleged deficiencies in the post-payment system during the evidence, and it would have been unfair to extend the examination at the closing stage. The prosecution need only prove the prohibited sale initially, but it must identify the alleged failure in precautions clearly enough to allow the trader to answer it.
6. Costs were awarded out of central funds.

This was an appeal by way of case stated from the decision of the Justices. The Divisional Court dismissed the appeal and answered both questions in the affirmative.