London Borough of Croydon v Pinch A Pound (UK) Ltd

A statutory due-diligence defence requires proof of both all reasonable precautions and all due diligence. The requirements are cumulative, although they may overlap. Courts should ordinarily apply the statutory language without importing a separate requirement of negligence, moral blame or a reprehensible state of mind. On a case stated appeal, the High Court asks whether a reasonable tribunal, applying the correct test to the evidence, could have reached the decision under challenge. Serious shortcomings identified by the tribunal may be inconsistent with an acquittal where the statutory defence has not been proved.

The prosecution appealed by way of case stated against the Crown Court’s decision allowing the respondent company’s appeal from conviction for selling a bladed article to persons under 18. The issue was whether the company had proved the defence in section 141A(4) of the Criminal Justice Act 1988, namely that it had taken all reasonable precautions and exercised all due diligence.

The Crown Court accepted that signs, staff training and a refusals book involved significant shortcomings, but nevertheless acquitted the company. The questions for the High Court were whether the Crown Court had applied the correct test and whether its conclusion was open to it on the evidence.

1. The appeal was allowed. The case was sent back to the Crown Court with a direction to convict the respondent and proceed to sentence.
2. Section 141A(4) requires proof of two cumulative elements: all reasonable precautions and all due diligence. The elements may overlap, but due diligence includes ensuring that preventive measures are maintained, followed by staff and remain adequate in light of the statutory risk and the nature of the business.
3. The statutory defence is expressed in ordinary language. It will rarely be necessary to formulate a test beyond the statutory words. The Crown Court therefore erred, or was likely to have erred, if it treated negligence, positive fault or a reprehensible state of mind as an additional mental requirement. In this context, the reference in Tesco Ltd v Nattrass [1972] AC 153 to a reprehensible state of mind equated to lack of care and failure to show due diligence.
4. The sale of a restricted item does not itself defeat the defence. Nor does the later introduction of a precaution, such as a Think 21 policy, automatically prevent reliance on it. A defendant need take all reasonable precautions, not every conceivable precaution. The assessment remains fact-sensitive and must take account of the public concern addressed by the legislation and the nature and size of the business.
5. On a case stated appeal, the question was whether a reasonable Crown Court, applying the correct test, could have reached the acquittal. The findings that the signs were confused and legally inadequate, training was insufficiently informed and maintained, and the refusals register was ineffective were inconsistent with proof of the statutory defence.

• High Court (Administrative Court): allowed the prosecution’s appeal by way of case stated against the Crown Court’s acquittal and directed conviction and sentencing.
• Crown Court at Croydon: on 23 February 2010 allowed the company’s appeal against its Magistrates’ Court conviction.
• Magistrates’ Court: convicted and fined the company after the trials on 14 and 21 August 2009.