410 Chapter 15Regulation of business by the criminal law
A trader who engages in a commercial practice without regard to whether the practice contravenes
the requirements of professional diligence shall be deemed recklessly to engage in the practice,
whether or not the trader has reason for believing that the practice might contravene those
requirements.
Case law on the Trade Descriptions Act 1968 would suggest that a trader will have behaved
recklessly unless he first positively asks himself whether or not a practice contravenes the
requirements of professional diligence, and then decides that it does not.Example
Harry, a garage owner, advertises a car as never having been in an accident when he knows
that it has been in a serious accident. First, Harry is a trader, the car is a product and the
advertisement is aimed at consumers. Therefore, the advertisement is a commercial practice,
as defined by reg. 2(1). Second, the commercial practice was unfair, as defined by reg. 3(3)
because (a) the advertisement contravened the requirements of professional diligence and
(b) it was likely to materially distort the economic behaviour of the average consumer with regard
to the product. Third, Harry acted knowingly and therefore committed the reg. 8 offence.The reg. 9 offence
The strict liability reg. 9 offence is committed by engaging in a commercial practice which
is misleading under reg. 5.The reg. 10 offence
The strict liability reg. 10 offence is committed by engaging in a commercial practice which
is a misleading omission under reg. 6.The reg. 11 offence
The reg. 11 offence is committed by engaging in a commercial practice which is agressive
under reg. 7.The reg. 12 offence
The reg. 12 strict liability offence is committed by engaging in a commercial practice which
is set out in Schedule 1. However, it is not an offence to engage in the commercial practices
set out in paragraphs 11 or 28 of Schedule 1.
Companies can commit any of the offences and if a company is found guilty its officers
can also be found personally guilty if they connived in the commission of the offence.
Prosecutions for all of the offences must be brought within three years of the commission of
the offence or within one year of its discovery, whichever is earlier. The maximum penalty
is two years’ imprisonment.Defences
The Regulations set out defences which can apply to the reg. 9, 10, 11 or 12 offences, but not
to the reg. 8 offence.Due diligence defence
Regulation 17(1) provides that it is a defence for the person charged under reg. 9, 10, 11 or
12 to prove: