The Consumer Protection from Unfair Trading Regulations 2008 411(a) that the commission of the offence was due to
(i) a mistake, or to
(ii) reliance on information supplied to him by another person, or to
(iii) the act or default of another person, or to
(iv) an accident, or
(v) some other cause beyond his control; and(b) that he took all reasonable precautions and exercised all due diligence to avoid the
commission of the offence.
The defendant needs to prove both elements of the defence on a balance of probabilities. If
the defence is that the offence was committed due to a mistake, then the mistake must be
one made by the person charged, not by any other person.
In Tesco Supermarkets vNattrass (1971), an important Trade Descriptions Act case
which will apply here, the House of Lords held that the very senior managers of a company
might be regarded as the controlling mind and will of the company, and therefore as the
company. A mere supermarket manager could not be regarded as the company and was
therefore ‘another person’.
Whichever of the aspects of the reg. 17 defence is being relied upon, the defendant will
always need to prove that he took all reasonable precautions and exercised all due diligence
to prevent the commission of the offence. Whether or not this has been done will be an
objective question of fact, to be decided by examining all the circumstances of the case.
In Tesco Supermarkets Ltd vNattrassit was held that a company would have satisfied
the requirement if it had created a system which could be rationally said to be designed to
prevent offences from being committed.
Regulation 18 gives a defence to an advertiser who receives an advertisement in the
ordinary course of business and did not know, and had no reason to suspect, that the
publication of the advertisement would amount to an offence under the Act.
The by-pass provision
Regulation 16 deals with the situation where the offence was committed due to the act or
default of another person. If the defendant uses that as a reg. 17 defence, he must give the
name of the person at fault to the prosecution. Regulation 16 provides that the person at
fault can then be guilty of an offence, even if he is not a trader. For example, in Olgeirsson
vKitching (1986)a private motorist sold a car to a garage saying that it had done 38,000
miles, even though he knew that this was not true. The owner of the garage sold the car on,
applying the 38,000 mile description. The purchaser found out that the description was
false. The private motorist was guilty of an offence under the by-pass provision in the TDA
1968, even though he could not have been guilty of any other offence under that Act because
he was not in business.
The Act is enforceable by the Office of Fair Trading and local authority trading standards
departments. They are given wide powers to make test purchases, enter premises, carry
out investigations and seize goods or documents. They also have a duty to enforce the
regulations. This does not necessarily mean bringing prosecutions, but rather to ensure
compliance through the most appropriate methods.
Product safety
Criminal liability as regards unsafe products is imposed by the General Product Safety
Regulations 2005.