NOTICE OF TEST AND INTENDED PROSECUTION. (Hansard, 8 May 1968)

§ Mrs. Gwyneth Dunwoody
I beg to move, Amendment No. 28, in page 17, line 35, leave out from beginning to 'and' in line 44 and insert: (2) No proceedings for an offence under this Act, other than an offence under section 27(5) or 28, shall be instituted by a local weights and measures authority unless they have given to the Board of Trade notice of the intended proceedings and either a period of twenty-eight days has elapsed since the giving of the notice or the Board of Trade have before the end of that period issued a certificate under this section. (3) A notice under subsection (2) of this section must be accompanied by a summary of the facts on which the charges are to be founded. (4) A certificate of the Board of Trade that a notice under subsection (2) of this section was given on a date specified in the certificate and was accompanied by the summary required under subsection (3) of this section shall be conclusive evidence that the notice was given on that date and was accompanied by such a summary. This Amendment is designed to introduce a measure of flexibility into the requirement that local weights and measures authorities should not launch a prosecution for any offence under the Bill until at least 28 days after they have given notice of their intention to the Board of Trade. It has been represented to us that the application of this rule to all prosecutions under the Bill would cause unnecessary and undesirable delays in cases which are of purely local significance.
526 We think there is substance in this criticism. We remain convinced that it is right to provide for the Board to have notice of intended proceedings for all offences which are of national interest or involve the possibility of multiple prosecutions, and to be able to take up to 28 days for consideration and consultation in important cases, but we certainly do not want to hold up proceedings for no good reason.
The Amendment would, therefore, make two changes in the present provisions. First, it would exclude from the requirement to give notice, offences under Clause 27(5)—disclosure of information obtained by virtue of that Clause—and under Clause 28—obstruction of enforcement officers. We find it difficult to envisage that these two offences could ever be of more than local significance. Secondly, and more important, the Amendment would enable the Board to dispense with the full 28 days' notice in appropriate cases by issuing a certificate on receipt of which the local authority would be free to go ahead with the prosecution at an earlier date. These changes would not weaken the procedure for ensuring that the Board is able to exercise a co-ordinating function in relation to prosecutions which are of more than local interest, and we shall be able to take the full 28 days for consideration and consultation in cases of wider interest.

Mrs. Dunwoody
If for any reason the Board's certificate had not been provided by the time the 28 days' notice expired, the local weights and measures authority would be free to institute proceedings. In cases which were obviously not in these categories we could issue a certificate at once and so enable the prosecution to proceed without delay. I hope the House will agree this is a sensible arrangement.

Mr. Deputy Speaker
The next Amendment is No. 29. I must draw the attention of the House to the fact that in consequence of the insertion of the words in the last Amendment which has 527 just been carried, Amendment No. 29 will be at line 46 and not line 40 as stated on the Notice Paper.

§ Mr. Kenneth Lewis
I beg to move, Amendment No. 29, in page 17, line 46, at the end to insert: (3) Whenever notice of intended prosecution has been given to the Board of Trade notice setting out the matters complained of shall at the same time be given to the person against whom it is intended to proceed. (4) No proceedings in respect of any matter shall be taken under this Act if civil proceedings in respect of the same matter—

(a) are pending, or

(b) have succeeded against the person proposed to be charged.
I do not really know what effect the previous Amendment has actually had on my Amendment, but perhaps the hon. Lady will give me some guidance on that when she replies.
My Amendment is concerned with two matters. The new subsection (3) I propose is intended to provide that notification of intended prosecution is given in the case of services as well as that of goods, goods already being covered. As will be seen from Clause 29(1,a), where goods have been seized the person from whom they have been taken is informed of the results of any test. From that result he obviously can deduce that proceedings are imminent. There are, as I understand, no such provisions made in the case of services, and the new subsection (3) is intended to cover that point.
The proposed subsection (4) in my Amendment is a little more complicated. Certainly it is very complicated as far as I am concerned. I understand that it is much more complicated than my proposed subsection (3), since the Misrepresentation Act, 1967, enables people to recover in the case of almost any sort of misrepresentation. In general terms, there is some difficulty in business as between this Bill and the Misrepresentation Act. In the case of almost any kind of representation under that Act, any person who was innocent in the case of services as well as goods was covered. But it seems that someone could be sued for misrepresentation under the 1967 Act while at the same time being prosecuted under this Bill.
528 It is the practice in many countries where the authority of the civil law is relatively small to provide penal offences in those cases in which in more advanced countries the civil law provides adequate protection. It therefore seems a retrograde step to provide not only a civil remedy but also a criminal offence, which can be brought to bear on top of the civil action.
Furthermore, it does not seem necessary to have this criminal remedy in addition to the civil remedy. It must be recognised that people can get legal aid in actions which are being taken. This aspect arises out of the complication as between this Bill and the Misrepresentation Act, and I would appreciate the hon. Lady's advice on it.

§ Mrs. Gwyneth Dunwoody
This Amendment in effect contains two proposals. The first one, set out in the proposed new subsection (3), is that local weights and measures authorities should be required to notify an intended defendant of the complaint against him at the same time as they give notice to the Board of Trade of their intentions to prosecute. Similar suggestions have been put forward before and we have given the whole subject careful consideration. We do not think, however, that we should be justified in amending the Bill in this way.
I believe that, in practice, there would be few, if any, cases where the proposed defendant was not already aware of what was afoot some time before the authority had made up its mind to prosecute—for instance, because of an enforcement officer calling to make enquiries or because of correspondence with an aggrieved member of the public. It cannot be said that the Amendment is necessary to enable the defendant to prepare his case, since he will anyway have adequate time for this purpose if and when the summons arrives. It is, of course, the duty of the courts to make sure that an accused person has the time he needs to prepare his defence.
Neither would the Amendment provide any special safeguard against the disappearance of evidence which might help the defence in the time which has elapsed since the commission of the offence. That may well have happened—if it is going to happen—before notice 529 is given to the Board of Trade. The best protection against it happening is the provision in Clause 18 that proceedings may not be brought more than twelve months from the discovery of the offence at the very latest, and, when the proceedings are summary, not more than twelve months from its commission. We see no genuine advantage to the accused in the provision proposed here. It would, however, have certain disadvantages, notably the extra paper work and formalities which it would involve, and I hope the House will agree that it should not be accepted.
The second half of the Amendment is, I understand, intended to prevent the institution of a prosecution for any offence under the Bill when civil proceedings in respect of the same matter are pending or have succeeded against the person proposed to be charged. I can see no logic at all in this proposal. Its basic implication is that criminal proceedings under this Bill should be regarded as a second-best alternative to civil proceedings, whereas the two have quite different purposes.
One of the principal objects of the Bill is to lay down high standards of care and accuracy in the giving of information about goods and services and to ensure that these standards are observed by placing a duty of enforcement on local authorities. It is irrelevant to this purpose whether civil proceedings have been taken by a person aggrieved by an act which is an offence under the Bill. Civil proceedings are the means by which one aggrieved individual obtains redress, whereas the object of this Bill is to deter or punish a deception practised on shoppers in general.
In so far as civil proceedings are started in respect of the same act as an enforcement authority wished to make the subject of a criminal charge, the effect of the Amendment would seem to be to make it virtually impossible ever to proceed with that charge, for, by the time the civil proceedings had ended, it is very likely that the period of limitation in Clause 18 would have elapsed. Indeed, the concept of being able to prosecute where civil proceedings fail but unable to prosecute where they succeed seems to me a very strange one and very hard to justify.
I am not at all sure that the Amendment as drafted would produce the 530 result that the hon. Member has in mind. But in any case I must ask the House not to accept it.

§ Mr. Kenneth Lewis
The hon. Lady has to recognise that the difficulty in this is that the civil proceedings that may be going on could be settled out of court, as a result of an agreement between the two parties. At the same time, under this Measure, action could be taken although there may not be a good case. It would cause a considerable amount of embarrassment.

§ Mrs. Gwyneth Dunwoody
I take the hon. Gentleman's point, but I hope I have pointed out that the right course would be for the authority to decide whether it was in the general interest in order to deal with the case. In all the circumstances this would be taken into account.