R v Horseferry Road Justices, ex parte Hillier

Date

9 October 1998

Legislation

Trade Marks Act 1994 s92
Magistrates Courts (Advance Information) Rules 1985.

Keywords

criminal offences; plea and directions hearing; oppressive conduct by stipendiary magistrate; disclosure of defence; continuity of prosecution evidence

Counsel

K Scholz, T Spencer

Solicitors

Goldkorns for Hillier; Westminster Council Solicitor

Judge

Kennedy LJ, Sullivan J

Court

Queens Bench Division (Crown Office List)

Reported

(1998) 162 J.P. 783; (1998) 162 JPN. 983

Summary

The applicant, Mr Hillier was exposing for sale certain perfumes in the Oxford Street area which bore the marks CHANEL or CALVIN KLINE. On four occasions in December 1996 he was observed by trading standards officers of the Westminster City Council who came to the conclusion that what was happening was illegal. They confiscated the perfumes which were exposed for sale and bagged them. The allegation was that they were, in fact, counterfeit and not that which they appeared to be. The result was that 14 summonses were issued alleging contraventions of section 92 of the Trade Marks Act 1994.

In August 1997 Mr Hillier was served with advance information in accordance with the Magistrates Courts (Advance Information) Rules 1985, which set out in general terms the nature of the case against him and which consisted exclusively of the statements upon which the prosecution intended to rely. A careful examination of those statements properly carried out by Mr Vout, who was instructed as counsel on behalf of Mr Hillier, disclosed that there was a break in continuity because it could not be seen from a careful examination of the statements that the perfumes which had been placed in bags by the inspectors were necessarily those which had been examined by the persons who were instructed to examine perfumes in order to decide whether or not they were genuinely Chanel and Calvin Klein products.

The matter came before the stipendiary magistrate at Westminster on 4 September 1997. There were a number of similar matters listed for hearing on that day. It is clear that the applicant, Mr Hillier, entered pleas of not guilty. It is equally clear that the stipendiary magistrate pressed Mr Vout as to what was the nature of the defence. It was accepted by Mr Scholz, rightly, that the magistrate was entitled to ask the question, but the substance of Mr Scholz's complaint was that the magistrate went beyond the bounds of propriety in demanding an answer. Clearly at that stage the magistrate was not entitled to demand an answer. It is unnecessary for the purposes of this judgment to go into the matter deeply, but the affidavit of Mr Vout and the affidavit of Mr Hillier make it clear that, according to them, the magistrate was hectoring and offensive in the way in which he behaved towards Mr Vout, who was a very junior member of the Bar at that time.

Decision

The Court held that if what they say is right as to the magistrate's conduct, it was, and is, wholly unacceptable. Indeed it had the result that Mr Vout disclosed that which at that stage he did not wish to disclose at all, namely the nature of his client's defence (a technical defence, but defence for what it was worth nevertheless). Mr Scholz inevitably had to say that the prejudice is that the prosecution was allowed to mend its fences; to make good the deficiency, as he concedes that it has been made good, in the continuity evidence in relation to 10 of the 14 charges. The next question must be whether that is not something which would have happened in any event.

The High Court discussed the possible ramifications of a lack of continuity of evidence and the prejudice that could have been sustained by Hillier as a result of the disclosure of his defence.

It concluded on the circumstances of the case that the disclosure did not, in fact, prejudice Hillier at all and therefore, although there was, if his account of what occurred is correct, a lack of fairness, the unfairness did not lead to any prejudice. Accordingly the High Court declines to grant any form of relief and the application was dismissed.