Kousar, R v

For an offence of possession in the course of a business under section 92(1)(c) of the Trade Marks Act 1994, knowledge that goods are stored in a shared home, acquiescence in their presence, and an ability or right to require their removal do not alone prove possession. The prosecution must prove that the defendant exercised the requisite control over the goods.

It must also prove that the defendant's possession was in the course of a business. That element requires evidence that the defendant participated, whether paid or unpaid, in the business dealing with the goods. Domestic association with a trader and awareness of stored stock are insufficient.

The appellant was convicted at Birmingham Crown Court on counts alleging unauthorised use of a trade mark contrary to section 92(1)(c) of the Trade Marks Act 1994. Her husband, a market trader, was also convicted.

Counterfeit goods were found in a van registered to the husband and in the loft of the family home. The prosecution alleged that the appellant jointly possessed them. It did not allege that she aided or abetted her husband's possession.

At the close of the prosecution case, the Recorder rejected the appellant's submission that there was no case to answer. On appeal, the central issue was whether the evidence could establish both possession or control by the appellant and possession in the course of a business.

1. Appeal allowed. The Recorder should have upheld the submission of no case to answer. The appellant's conviction could not stand.
2. Knowledge that commercial goods were stored in a shared matrimonial home did not establish possession. Nor did the appellant's acquiescence, permission, or ability to ask her husband to remove them. Those matters showed no more than knowledge and acquiescence. Possession required evidence that she actually exercised the requisite control over the goods.
3. The authorities on possession of drugs did not support the Crown's wider submission that an ability to control was enough. The court explained that secondary liability may arise where a defendant assists or encourages another's possession, but this prosecution alleged primary possession only.
4. There was also no evidence that any possession by the appellant was in the course of a business. Section 92(1)(c) of the Trade Marks Act 1994 required proof that she participated, paid or unpaid, in the business dealing with the goods. The evidence showed neither involvement in her husband's trading nor control exercised for that business.
5. The distinction between goods in the loft and those in the van did not require separate resolution. If there was no evidence of possession of the loft goods, there was no evidential basis for possession of the van goods.

• Court of Appeal (Criminal Division): Allowed the appellant's appeal against conviction and held that there was no case to answer.
• Crown Court at Birmingham: On 17 March 2008, the appellant was convicted on counts 5 to 9 under section 92(1)(c) of the Trade Marks Act 1994.