Tesco Stores Ltd. v London Borough of Harrow

MR JUSTICE NEWMAN: This appeal by way of case stated raises a short point in connection with the meaning and application of section 34 of the Food Safety Act 1990. The section imposes a time limit for prosecutions under the Act. It provides as follows:

The question raised by the case stated is as follows:

The essential facts taken from paragraph 2 of the case stated are that on 15th February 2001 Mr Shah purchased a packet of bread rolls, or baps, from the Tesco store in Harrow. When he reached home he noticed that one of the rolls had a piece of wire embedded in it.

On 19th February 2001 he telephoned the Environmental Health Services Department of the London Borough of Harrow. He spoke to an administrative assistant who left a message for Mr Le Brun, an environmental health officer, as follows, "Food complaint. Bought: baps. Found: a piece of metal. Shop, Tesco, Station Rd, Harrow".

Mr Le Brun received that message on that day but he was unable to contact Mr Shah by telephone which is what he had been asked to do, but he spoke to Mrs Shah. Mrs Shah confirmed the purchase of the baps and the discovery of the wire upon opening them. We have, as the magistrates had, the note of that conversation, indeed of both conversations, and it may be convenient to set it out at this stage:

As it happened Mr Le Brun had a meeting with the general manager of the Tesco store for another reason that day, but he took the opportunity, in the course of that meeting, to refer to the complaint from Mr Shah, and he was informed that the store manager was already aware of the complaint. He was told the staff were harbouring some suspicions that the complaint might be malicious. Mr Le Brun said he would continue with his investigation once he had spoken to Mr Shah.

On 23rd February 2001 Mr Le Brun spoke to Mr Shah at his home and took possession of the packet of bread rolls and the receipt confirming their purchase. Thereafter further investigation took place. On 23rd April 2001 Mr Le Brun received a report from the public analyst giving the opinion that the wire had entered the product during the manufacturing stage. On 21st February 2002 the information was laid.

It was therefore critical for the magistrates to come to a conclusion as to whether or not the prosecutor had, within the meaning of the subsection of section 34, discovered the offence before 21st February 2001 or not. They did not reach a conclusion as to the date when the prosecution did discover the commission of the offence, or at least if they did they did not expressly state the conclusion. They confined themselves to a conclusion that it did not take place on or by 19th February. Since, as I have indicated, the information was laid on 21st February 2002, it must follow that they considered that it was not discovered until after 21st February 2001.

Although they did not say so, according to the facts as I have summarised them, there are not really many options. They are, as it appears to me, either that the discovery occurred on 23rd February, when Mr Le Brun spoke to Mr Shah at his home and took possession of the packet of bread rolls, or on 23rd April 2001, when the report from the public analyst, giving the opinion that the wire had entered the product at the manufacturing stage, had been received by the prosecuting authority. The magistrates stated in paragraph 6 of their case:

It seems to me to follow that on the evidence which was before them they concluded that it was on 23rd February when possession was taken of the bap and Mr Shah was seen by Mr Le Brun, that the offence was discovered. I will have to come back to the events of 23rd February when considering an argument presented to this court by Mr Miller, which is not reflected in the case stated, in which he sought to provide a legal basis for the discovery being on the date.

That said, it is worthy of note that the principal argument for the London Borough of Harrow appears to have been, as the case stated indicates, and as the skeleton argument to this court makes plain, that no discovery, within the meaning of the section, took place until 23rd April 2001. Namely, not until the report from the public analyst had been received.

It is not clear to this court how far argument was advanced, or if so upon what basis it was advanced, in relation to the 23rd February date. But in this court, in the face of what, in my judgment, are the obvious difficulties in connection with the 23rd April date being the relevant date for discovery, Mr Miller has sensibly explored and developed the argument in connection with 23rd February.

So that there is no mystery about it, in my judgment, the suggestion that it was not until 23rd April that the offence was discovered was manifestly incorrect. It was, on a further analysis of the facts, the date when the result of an investigation of the offence, and, in particular, investigation of what was believed to be a possible line of defence by Tesco were received. In my judgment, the suggestion was quite outside the ambit and true meaning of section 34, and, indeed, beyond that which was supported by any of the cases to which the magistrates were taken, and to which we have been helpfully referred.

As it has been argued in the skeleton, and to some extent in this court, it appears to be accepted that the meaning of the word "discovery" in the section means when:

This formulation, which has received approval and adoption in other cases, was first propounded by McNeill J in the case of John Charles Brooks v Club Continental [1981] Tr L 126 DC, on 13th October 1981. We have a transcript. In that case the trading standards officer of the relevant authority had been unsure as to the identity of the offender, because he was dealing with a corporate defendant and a number of possible candidates as the proposed defendant. The relevant passage in McNeill J's judgment is as follows:

In common with the position which has been adopted, for example, in the R v Beaconsfield Justices, ex parte Johnson and Sons Limited [1985] 149 JP 535 DC, and, as I say, other cases, I readily adopt that formulation, noting the words of McNeill J, "for the purposes of this case." But for reasons which will become apparent from this judgment it may be that in some cases such as this one, a particular approach, entirely consistent with that test but having a different formulation, could be of assistance to Justices when considering issues such as this.

It has been accepted by both sides that discovery does not import any investigation or confirmation of the facts. Thus both sides, in their skeleton arguments, approached this case by asking the question: what are the facts which are material to found the relevant charge? To answer that, one need, in my judgment, to go no further than the charge:

The skeleton argument of Mr Harris, for Tesco, on this appeal, followed that approach in paragraph 16 as follows: knowing that someone was alleging the existence of the primary facts which are set out in the summons; having knowledge from disclosure in some way of the material facts which found the offence. In paragraph 16 he develops the ingredients. They are, in essence, (i) that a person (ii) sold (iii) for human consumption (iv) food (v) that was so contaminated (whether by extraneous matter or otherwise) that it was not reasonable to expect it to be used for human consumption in that state.

In marked distinction, though following the same formulation, it can be seen in paragraph 17 of the respondent's skeleton argument, that among matters Mr Miller has listed appears this, that the baps were to be ones, "which were contaminated by Tesco (by their act or omission)." Thus, the argument advanced to the magistrates, and, as I say, not really pursued very forcibly before us, but there for our consideration, was that it was a material fact for the prosecutor to know that the baps had been contaminated by Tesco. That cannot be right. What needed to be known was that a sale took place by Tesco of baps in a contaminated state.

The magistrates stated their conclusion, or the reason for their conclusion, in these terms, paragraph 6:

In their reasons, which are also in our bundle, their conclusion on this part of the case is in these terms:

It is thus material to emphasise, both from the reasons and from the case stated, that it is not immediately apparent why the magistrates concluded that it was 23rd February. It was not clear whether it was because Mr Le Brun had been able to have a conversation with Mr Shah on that day, or because the taking possession of the baps and the opportunity to look at them occurred on that day, or whether it was both, which led them to their conclusion.

I now come to the argument which Mr Miller has emphasised in this court today. He said, relying upon the analysis I have set out, that it all points to the magistrates having concluded that 23rd February was the relevant date. It was on that date, and not before that date, that the prosecuting authority was able to come to some form of conclusion about whether or not the food item was so contaminated, within the meaning of the section, as to be in a state in which it would not be reasonable to expect it to be used for human consumption.

It is unsatisfactory for him and the argument that there is no evidence that the taking of possession, or having sight of the baps, brought about any material change in the state of the information which was already in the possession of Mr Le Brun. He could hardly have concluded other than that Mr Shah regarded the baps as unfit for consumption because he had complained to Tesco and to the London Borough of Harrow.

Before expressing my conclusions on it and on the question raised by the case stated, it is convenient at this point to identify some particular considerations. First, to remind oneself of the legislative aims in connection with a provision such as this. The setting of time limits for the prosecution of offences is designed to achieve two important consequences. The first is to provide protection to the citizen who may have committed a criminal offence, and the second is to bring about, in the authority having responsibility for the prosecution, an efficient and timely investigation of the offence.

Thus, next, it is material to ask: what would Parliament have intended as being the appropriate time when a prosecuting authority should assume a duty to investigate? In my judgment it can certainly be answered by reference to the approach of McNeill J and the distinction he drew between discovering the material facts and investigating them. Parliament can be taken to have intended that once the commission of an offence is disclosed there should be a duty on the prosecuting authority to investigate it.

The relevant discovery is one which is most likely to give rise to investigation, and that future investigation may or may not lead to a prosecution. It may lead, as it did in this case, to an investigation of the viability of any possible defence which has either been foreshadowed by the defendant or foreseen by the prosecutor.

In my judgment, having regard to the way this case has been argued, and from some parts of the case stated, it may be worthwhile emphasising that the decision as to when time begins to run does not involve an investigation of the prosecutor's actions at the time, or forming a view as to the legitimacy of any judgment, if any, which the prosecuting authority might have made at that date. It cannot have been intended by Parliament, for example, that where a prosecuting authority makes no judgment in connection with the facts as disclosed, the absence of a judgment can prevent time running.

An unease I have in connection with this case is that the magistrates may have been drawn to their conclusion by reference to a consideration of what Mr Le Brun might reasonably have wanted to know before he formed a judgment. Thus, they decided the case on "the quality" of the information which was before the prosecutor. They seemed to have assumed that Mr Le Brun needed to see the baps, and/or to have a conversation with Mr Shah, before the facts fell within the section.

It is not clear what they meant by the expression, "The quality of the information was poor." It is not clear whether the assessment to which they were referring related to the quality of the information already received, or whether it referred to gaps which gave rise to the need to seek other information.

Mr Miller submitted that there was a need for more information before the offence could be regarded as discovered. For reasons which may have become apparent from what I have already said, I am of the view that it is sufficient, if the relevant authority has information in connection with the case from which it can be inferred, that there is an issue as to whether or not food has been so contaminated that it would not be reasonable to expect it to be used for human consumption. The complaint which had been made necessarily raised that issue.

In my judgment it follows that if the magistrates had in mind that it was necessary, in order to come to some judgment about the degree of contamination that the baps should be seen, they erred.

In my judgment there was material, which, objectively viewed, gave rise to the inference that the complaint from Mr Shah was that he considered the bap he had purchased to be unfit for human consumption because it had wire or metal in it. He made a complaint. As the prosecuting authority, Mr Le Brun, knew, he made a complaint on the day he purchased it. On 19th February he had made a complaint to the Food Standards Authority. In my judgment he was not making that complaint, or it is not to be inferred that he was making that complaint, in respect of something that he regarded as fit for human consumption. He was not making an idle complaint.

Thus, I would reject the argument advanced by Mr Miller to the effect that the magistrates were entitled to point to 23rd February as the relevant date.

In conclusion, it seems to me the test of McNeill J, as referred to in the cases, is one which was of direct assistance to the magistrates and is of direct assistance to this court. But having regard to the particular considerations to which I have drawn attention it seems to me that the magistrates may have been assisted in this case, and may, in future cases, be assisted by asking the question: whether the facts disclosed, objectively considered, would have led a prosecuting authority to have reasonable grounds to believe that an offence may have been committed by some person who has been identified to it? Discovering the offence should be taken to mean discovering grounds sufficient to found a reasonable belief an offence has been committed. It seems to me such an approach is consistent with the statutory intention which can be drawn from the section and at that stage investigation can begin of the primary facts which are then known to the prosecutor. It is at that moment that time should be begin to run.

For those reasons, therefore, I would answer the question in the case stated, namely, whether they were correct, no, and I would be for allowing this appeal.

MR JUSTICE MCCOMBE: I agree. I only add a few words of my own on two points because we are differing from the magistrates, and because it seems to me that a degree of confusion crept into the process of the argument by the point that was taken below, and to a degree here, that the relevant discovery of the offence did not occur until 23rd April.

First, I admit to initial attraction to the views of the magistrates as expressed in paragraph 6 of the case, but for reasons clearly explained by my Lord I have become persuaded that that was not correct. The views expressed by my Lord are, to my mind, also entirely consistent with the decision of this court which apparently, accordingly to paragraph 5 of the case, was not cited to the magistrates, namely the decision in R v Bexley Justices ex parte Barratt Homes Limited, of which the hearing date was 9th March 2000 and of which we have been supplied a transcript. That was a decision of this court consisting of Schiemann LJ and Douglas Brown J. In Schiemann LJ's judgment, in that case, he said two things which, to my mind, are entirely in line with the views expressed by my Lord, and with the view of this case that I have formed during the hearing. In his judgment he said this in the first passage:

Then in a passage a little further down the judgment, his Lordship said this:

Secondly, I say that confusion may have arisen in the process of this case because of the view taken at some stage that the relevant discovery was not made until 23rd April. That was the date upon which the prosecuting authority had considered and investigated the viability of a potential defence on behalf of the defendant. To my mind that falsely equates the concept of the discovery of the offence with the prosecutor's decision to prosecute. They are not the same thing for the reasons that both of us have now tried to express.

I agree, therefore, that the question posed by the justices should be answered in the manner indicated by my Lord and that the appeal should be allowed.

MR JUSTICE NEWMAN: So, Mr Harris?

MR HARRIS: Will your Lordships let the matter be remitted to the Justices with a direction to acquit?

MR JUSTICE NEWMAN: Yes, about the sentence quashing the sentence, the penalty?

MR HARRIS: Yes, my Lord, forgive me, that would, of course, be appropriate as well, yes.

MR JUSTICE NEWMAN: I am just puzzled as to why -- I must say my Lord agrees with me, I was rather minded that we would quash the conviction, quash the sentence. There is no question of a remission to them at all, just deal with the costs here and that is the end of it, is it not?

MR HARRIS: If your Lordships are content with that approach --

MR JUSTICE NEWMAN: I know it is into the lunch hour, and my mind may go on to other things, but I think, frankly, it does not seem to me to be other than that; we quash the conviction, we quash the sentence, and we deal with the question of costs.

MR HARRIS: Well, my Lord, I am obliged.

MR JUSTICE NEWMAN: There is an order for costs below.

MR HARRIS: Yes.

MR JUSTICE NEWMAN: It is a very high order, £13,000, is it?

MR HARRIS: My Lord, the case had other issues in it besides those which came to you.

MR JUSTICE NEWMAN: I see. Anyway there was an order that your clients pay the costs?

MR HARRIS: Yes.

MR JUSTICE NEWMAN: Well, that, obviously, is a matter which perhaps may give rise to issues we have to listen to, I do not know, or does it follows the event?

MR HARRIS: Would your Lordships be kind enough to simply say this today, and it is an issue I have canvassed with my friend: that the respondent pay the appellant's costs, to be assessed if not agreed, because there is going to be an issue to be sorted out between the parties as to the apportionment of what took place below. I confess that I am slightly at fault here today because I cannot put before your Lordships, as I know I ought to be able to, a bill of my own costs here today.

MR JUSTICE NEWMAN: I am rather concerned, at the moment, about the order for costs below. What do you want us to do about that?

MR MILLER: My Lord, if I could interrupt, in terms of costs below, the local authority, being a prosecuting authority, it would follow that the defence get their costs from central funds, not from the local authority.

MR JUSTICE NEWMAN: Well, I know -- I may be unnecessarily pedantic -- what I am trying to work out is, since there were other matters which were involved, whether there is any issue in the order below which gives rise to a continuing, as you would say, duty or need for the costs order in the Magistrates' Court to survive for any reason or another, or are you content that we should quash the order for costs below?

MR MILLER: Well, my Lord, subject to one caveat and that is this: below there was two points argued, one before you today and one that was not. So, in terms of quashing the costs order the council should be entitled to some of their costs in terms of what was not actually presented here today.

MR HARRIS: I would respectfully submit not, because I am acquitted. If I had won on the time point that would have been as far as the case would have gone. My friend is entirely right, of course, my application at that juncture, had the case not then proceeded to all the other issues, would simply have been an application for my costs from central funds.

MR JUSTICE NEWMAN: It seems to me that what we do is we quash the Magistrates' order in its entirety; the sentence, the fine and the costs order. All right, we do that.

MR HARRIS: I am obliged, my Lord.

MR JUSTICE NEWMAN: Now the next question is, you, as a successful party in the court below, is it right that you say you are entitled to your costs from central funds?

MR HARRIS: My Lord, yes. Maybe there is a slight confusion. Below, as an acquitted defendant, I would be entitled to a defendant's costs order. That is all I would ask for, which would be an order from central funds. So far as today is concerned --

MR JUSTICE NEWMAN: In the Magistrates' Court?

MR HARRIS: Yes, that is the only order under section 18 of the Prosecution of Offences Act. That is the only order that I am entitled to ask for.

MR JUSTICE NEWMAN: All right. What do you ask so far as your costs in this court are concerned?

MR HARRIS: Would your Lordship be good enough to say that I can have my costs to be assessed if not agreed.

MR JUSTICE NEWMAN: Can you oppose that in this court?

MR MILLER: My Lord, no, save as there is no costs schedule before the court today, if they are to be assessed they pay for the assessment.

MR JUSTICE NEWMAN: Do you accept that?

MR HARRIS: I accept that.

MR JUSTICE NEWMAN: All right.

MR HARRIS: The order used to be, forgive me, in the old days, that you would ask for your costs from central funds?

MR JUSTICE NEWMAN: Not so now.

MR HARRIS: These days you simply ask for a defendant's costs order which is the phraseology within the Prosecution of Offences Act.

MR JUSTICE NEWMAN: That seems right. So you have a defendant's costs order in the court below, and you have your costs here to be assessed --

MR HARRIS: If not agreed.

MR JUSTICE NEWMAN: -- if not agreed.

MR HARRIS: I am grateful.

MR JUSTICE NEWMAN: And the qualification is that --

MR HARRIS: If assessed I pay the costs.

MR JUSTICE NEWMAN: If assessed you pay the costs of the assessment.

MR HARRIS: Indeed so.

MR JUSTICE NEWMAN: All right.

MR JUSTICE MCCOMBE: I have learnt that Mr Harris, thank you.

MR JUSTICE NEWMAN: Thank you both very much indeed.

MR HARRIS: I am much obliged, my Lords.