Dacre Son & Hartley Ltd v North Yorkshire Trading Standards

Property misdescription — Procedure — Conviction for offences of making false and misleading statements contrary to section 1(1) of Property Misdescriptions Act 1991 — Whether informations containing sufficient details of case to be met — Whether compliance with r 100 of Magistrates’ Courts Rules 1981 — Whether necessary to specify person making the statement — Appeal dismissed The respondent council laid a number of informations against the appellant estate agent alleging offences of making false or misleading statements contrary to section 1(1) of the Property Misdescriptions Act 1991. They had acted after receiving complaints from H, who had dealt with the appellant when attempting to buy a property in Airton, North Yorkshire. The appellant had arranged for H to view a property. H had subsequently made an offer on it, but had pulled out of the sale after receiving reports, of which the appellant also had copies, indicating a serious damp problem. H had subsequently visited the appellant’s office and enquired about the property on two occasions — on one of which she recorded the conversation — and had been informed that there was no damp problem. At the hearing, and after the prosecution had presented its case to the magistrates, the appellant made a submission of no case to answer on the grounds that: (i) the informations were defective and did not comply with r 100 of the Magistrates’ Court Rules 1981, since they failed to specify, inter alia, who had made the alleged misleading statement or to whom it had been made, with the effect that the appellant was not sufficiently informed of the case to be met; (ii) the defects were not capable of being remedied by the evidence; and (iii) there was insufficient evidence to convict. On the first point, the appellant made comparisons with the requirements of the Trade Descriptions Act 1968. The magistrates rejected the submission and convicted the appellant. However, they stated a case for appeal, asking whether they had been correct: (i) to hold that, where a challenge was made to the validity of an information at the close of the prosecution’s case, they were entitled to take account of the evidence that had been heard up to that point and of details that had been supplied to the accused before the hearing by way of advance information; (ii) to find that the informations did, in the circumstances, comply with r 100; and (iii) to find that there was sufficient evidence to convict. Held: The appeal was dismissed. 1. All three questions would be answered in the affirmative. As to the first question, the critical issue was whether the way in which the information had been framed created real unfairness, in that the appellant was misled or otherwise prejudiced. The magistrates were entitled to look at extraneous evidence to see whether such unfairness had arisen. In the present case, the appellant could have been in no doubt, after receiving the advance information, as to the case that the respondents intended to advance. 2. The informations had set out all the requisite matters and all the elements of the offence, that is, the relevant statutory provision, the date of the alleged offences, the details of the false and misleading statements (namely that they related to the presence or absence of damp), the property to which they related and that reports showed the statements to be false. There was no fatal defect. It was not necessary to name the employee of the appellant who had made the misleading statement, since it was the appellant as a business, and not the individual, that was accused. Comparisons with the 1968 Act were not helpful. 3. There was clear and strong evidence against the appellant. Given that section 1(1) of the 1991 Act created a strict liability offence, and absent any defence of due diligence, a conviction had been inevitable once the magistrates had accepted the evidence of H. Per curiam: If an accused considered that there had been a lack of particularity in an information, creating a risk of unfairness, it could at any time request further and better particulars. If it deliberately waited until the trial, it would be more difficult to claim unfairness. A submission of no case to answer was meant to deal with the evidence, and was not an appropriate forum within which to challenge the adequacy of an information. William Hanbury (instructed by Newstead & Walker, of Otley) appeared for the appellant; Andrew Goodman (instructed by the solicitor to North Yorkshire County Council) appeared for the respondents. Sally Dobson, barrister