R v Croydon Justices and others, ex parte Holmberg
Date
30 April 1992
Legislation
Trade Marks Act 1938
Prosecution of Offences Act 1985 ss3(2), 15(2)
Keywords
police assistance; trading standards; criminal offences; counterfeit goods; director of public prosecutions; trade mark offences
Counsel
D Naish for Holmberg, A Collins QC for the Director of Public Prosecutions, B Jubb for the London Borough of Croydon
Solicitors
Knowles Benning for Holmberg; Crown Prosecution Service for the Director of Public Prosecutions; Solicitor to the London Borough of Croydon
Judge
Watkins LJ; May J
Court
High Court Queen's Bench Division (Crown Office List)
Reported
(1993) 12 Tr L 10; (1993) 157 JPN 202
Summary
Holmberg applied for judicial review of a decision of the Croydon Magistrates Court sitting in committal proceedings. The order Holmberg sought was one to prevent the London Borough of Croydon from being heard by the magistrates as prosecutor in connection with various offences under the Trade Marks Act 1938. Holmberg argued that the only person able to prosecute him was the Director of Public Prosecutions because s3(2) of the Prosecution of Offences Act 1985 states that 'it shall be the duty of the Director… to take over the conduct of all criminal proceedings, other than specified proceedings, instituted on behalf of a police force (whether by a member of that force or by any other person)." It is was not suggested that the case concerned "specified proceedings". Additionally, s 15(2) of the 1985 Act provided: "Proceedings in relation to an offence are instituted . . . (c) where a person is charged with an offence after being taken into custody without a warrant, when he is informed of the particulars of the charge . . ." Holmberg's application thus raised a simple question of fact - namely whether the proceedings before the justices were, contrary to the finding of the justices, proceedings instituted not by the local authority but on behalf of a police force. Holmberg argued that they were and thus the Director of Public Prosecutions should maintain the action against him in distinction to the London Borough of Croydon trading standards.
It was held that the relevant powers of a weights and measures authority fall somewhere between the fuller statutory powers of customs and excise officers in drug trafficking matters and the powers of a limited company concerned to enforce copyright. It was significant, however, that the weights and measures authority did have the statutory duty to enforce the relevant provisions of the statutes in relation to which the applicant is charged. The Court could see no reason why they should not seek police assistance in performing their duties and knew of no reason why the police were not entitled to provide it. The Court held that seeking police assistance of itself does not necessarily turn what are in truth proceedings brought by the local authority into proceedings brought on behalf of a police force.
Mr Naish on behalf of the applicant argued that the powers of the local authority were limited to investigating and collating the results of the investigation, and to preferring an information and seeking a summons. They had no specific statutory power of arrest, no power to charge, no power to deprive anyone of their liberty. He argued that, on the facts of this case, the part that the police played in investigating the facts, arresting the applicant, taking him to the police station, interviewing him and charging him was such that the resulting proceedings were in fact instituted by them and not by the trading standards officers. The justices found otherwise and this was a finding of fact.
The High Court agreed and stated that the justices decision was plainly right. It noted that it would be a rare case where criminal proceedings resulting from a weights and measures investigation carried out by the proper statutory authority, and resulting in a charge drafted at the instigation of the authority and where the "person charging" was recorded as the trading standards officer, were in fact proceedings instituted on behalf of a police force. In this case the Croydon police provided help in a number of respects. But the evidence which they held made it clear that the trading standards officer from Croydon and his department were at all times in control and took all decisions which it was within their competence to take. The help which the police gave did not turn what was in truth a weights and measures prosecution into proceedings instituted on behalf of the Croydon police force. For these reasons the application was refused. No order for costs was made.