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1. LORD JUSTICE BROOKE: This is an appeal by the Defendants, Allied Domecq Leisure Limited, by way of Case Stated from their conviction at the Bradford Magistrates' Court, on 24th February 1998, of two offences committed by virtue of section 32 of the Weights and Measures Act 1985. The first information, which the Justices found proved, contended that on 24th July 1997 at Bradford in the County of West Yorkshire the Appellants:

2. A second information, which the Justices also found proved, was in identical terms except that it referred to 18 and a quarter fluid ounces, not 18.

3. The Case Stated shows that although the justices heard certain live evidence, the appellant and respondent agreed the following facts:

4. After referring to the contentions of the parties and the cases to which they were referred, the Justices continued:

5. Accordingly the Magistrates say they found the two informations proved and imposed a fine of £250 in respect of each offence with an Order for payment of costs of just under £1,500.

6. In those circumstances the Magistrates posed the following six questions for the opinion of the High Court:

7. In essence, four points are taken by Mr Philpott: two of a technical nature, one relating to the facts of the case, and the fourth raising an interesting point of law as to the potential criminal liability of his clients in the circumstances as held by the Justices.

8. I will come to the two technical points first. The first, which relates to the third question posed by the Justices, arises out of the fact that although everybody knew that the offence in question related to the ordering of one pint of Fates bitter and one pint of Goddess beer, the information referred to Fates on each occasion. The evidence, on which the prosecutor relied, had been served by him on the Defendant and this had led, before the case started before the Justices, to the parties agreeing the facts. Nevertheless, Mr Philpott has submitted that having agreed the facts his clients were entitled to sift through the prosecutor's case and then, at the end of the prosecution evidence, to say: 'I huff you. You have charged Fates in the second information where it should be Goddess and there has been no application to amend and therefore we can only be convicted of one of these offences.'

9. Mr Philpott did not suggest that at any stage anybody had been misled in any way, but he submitted that this was not a mere triviality but was a complaint of substance and accordingly the Justices should not have convicted on the information which mentioned a Fates rather than a Goddess.

10. Mr Gioserano, who appears for the prosecutor, has drawn our attention to the summary in [1996] Crim L.R. 334 of the recent decision of this Court in New Southgate Metals Ltd v London Borough of Islington , in which the Court identified three types of error which occurred in an information and in the summons based on it. The first was:

11. Mr Gioserano submits that the mistake in this case could properly be placed in the third category. I agree with him. I would give to the third question posed by the Justices:

12. The other technical point arises in this way: as the case shows, the prosecutor served notices under section 83 of the Act on the bar tender, Daniella Lewis, and also on the company. Section 83 of the Act provides, so far as is material, by subsection (3):

13. Mr Philpott's point is that the prosecutor had never served such a notice on the licensee, who was prima facie guilty of the offence under section 28 (on which the charges, under section 32, were parasitic), and that in those circumstances his clients could not properly be convicted under section 32. He relied in this context, in particular, on the decision of this Court in Cottee v Douglas Seaton (Used Cars) Limited [1972] 1 WLR 1408.

14. Mr Gioserano submits in response that section 32 expressly provides as follows:

15. He submits that in this statutory scheme there is no need for the prosecutor to serve a section 83 notice on somebody they have no intention of charging and that they are able to bring the secondary offender before the Court under section 32 and show that an offence under Part IV of the Act has been committed without having to charge, what I will call, the 'principal offender'.

16. Of course it is the law that if the prosecution cannot show that the principal offender has committed an offence then the offence under section 32 cannot have been committed. However, I can see nothing in this statutory scheme to require the prosecutor to serve a section 83 notice on the principal offender, particularly if they have no intention of prosecuting her (which appears to be the case in relation to this absent sick licensee) in order to succeed against the secondary offender. In my judgment there is nothing in this technical point either and I would answer the question:

17. I now turn to the third issue which relates to the facts. Before I come to the argument on the facts of this particular case it is necessary to go back and review, briefly, the previous history in relation to the law on the sale of beer with heads on it. In Marshall v Searles [1964] Crim L.R. 667 the facts were that:

18. Therefore, what was being sold was that which purported to be sold. This was purely a decision justifying the Justices' finding in that case on the facts before them. Those facts revealed what the expectation of the general public was when they ordered a pint of Guinness.

19. Next there is the Scottish case of Dean v Scottish & Newcastle Breweries Limited 1978 SLT 24. In that case the sale in question was of:

20. In dismissing the appeal, the Court of Session held:

21. There was therefore a technical argument before the Court which observed:

22. So far as the facts were concerned, the issue before the Court turned on the Sheriff's finding 11. The Lord Justice-Clerk said:

23. In those circumstances the higher court held that this was a finding of fact which the Sheriff was entitled to make, adding:

24. Again this was a finding of fact which was upheld when a challenge to it was made on a point of law on the basis that the lower Court was entitled to make the findings that it did.

25. The third and last case in this series is Bennett v Markham [1982] 3 All ER 641, a decision of Donaldson LJ and Webster J sitting in this Court. That was, as the Justices in the present case observed, a rather special case. The facts are set out in the headnote at page 641:

26. In those circumstances the Magistrates dismissed the informations. Again the Magistrates' findings of fact were dispositive of the matter and this Court declined to interfere. In his judgment Webster J set out the evidence and the special demand, particularly in the Leeds area, for

27. In those circumstances, this Court held that the question whether or not a head of froth was excessive or unreasonable was a matter for the Tribunal of fact to determine.

28. Against that background of law we have been shown that in the Weights and Measures Act 1985, which followed soon after the decision in Bennett v Markham , Parliament enacted section 43 entitled "Beer and Cider". This section provided, so far as is material:

29. By subsection (2) it was provided that:

30. We have been told that, in the event, the Secretary of State did not bring section 43 into force and it was repealed from 3rd November 1994 onwards under the De-regulation and Contracting Out Act 1994, section 14. Although the former government at one time announced its intention to bring the section into force, it then changed its mind and announced its intention to repeal the section as part of its de-regulation exercise.

31. Our attention has been drawn to a private members bill which was unsuccessfully introduced in the last session of Parliament with the intention of reintroducing into our law a provision similar to that which was in section 43 of the 1985 Act. That bill failed, however, and statute law correctly makes no express provision in relation to beer. Accordingly the Courts have to determine these matters on the evidence before them, and the three cases, which I have cited, show that the Court is under a duty to take into account the facts of the case and any local evidence of particular customer preference, and then to determine whether what is being sold is what is being described.

32. Mr Philpott submits that although there was no evidence of any special quality of the beer in question in this case, there was really no difference between this case and the Bennett case, because the only special feature in that case was that the beer contained and retained the head as the liquid was drunk, and, in the present case, the Justices acknowledged that the bitter public of Bradford required a head of beer. In my judgment the Bennett case is clearly different. The present case can be decided on its particular facts and the Justices were wholly entitled to take the view, as they did, that the facts of Bennett were distinguishable.

33. Mr Philpott then made submissions based upon the guidance notes. The effect of the guidance notes is, on the material before us, confused. They are not exhibited to the case so we do not know their terms, although we are told that both the Appellant and the Respondent referred to this document in correspondence and representations. We are told by the justices that if the guidance notes were followed there should not be any prosecution for short measure and that on 24th July 1997 best practice, as set out in the guidance notes, was not followed.

34. Mr Philpott has told us, although it does not appear in the Case, that the guidance notes have some reference to the whole process of selling beer not being completed until such time as the purchasers have asked for a top up or not, as the case may be. One of the submissions made under the Appellant in the Court below was that if the guidelines were relevant the transaction in question had not been completed since the officers did not ask for a top up. Although it appears on the face of it that the Justices took the guidance notes into account when they said that best practice was not followed, the second question they ask us is:

35. Mr Philpott has told us that this was a question inserted in the case under the Justices themselves changing the draft that was submitted to them under his client's solicitors. It is not altogether clear what view the Justices took of the evidential status of the guidance notes. As I have said, they have not been exhibited to the case.

36. However all this may be, it appears to me that there was ample evidence on which the Justices were entitled to find that the beer, as sold, did not meet the description of the beer purported to be sold. In particular, the Justices said that there was a survey of three public houses (two in Leeds and one being the public house in question in Bradford) and that of the bitter drinkers who were surveyed, who either lived or worked in Leeds or Bradford, 83% would ask for a top up if the head was too large. There is no evidence as to the state of mind of the other 17 per cent. It is quite clear from this evidence of local preference that what may or may not have been the case in Leeds in the time of Bennett v Markham and in Dunbarton in the time of Dean v Scottish Newcastle Breweries was not what was reflected in customer preference and customer wish in Bradford in 1997. Accordingly, in my judgment the Justices were entitled to reach a finding of fact adverse to the Appellants and in relation to the first question they asked:

37. I would answer the question "yes".

38. I am a little bit reluctant to answer the second question at all because, as I have said, it is not clear to me whether the justices did or did not take into account the guidance notes. In my judgment they would have been entitled to take their contents into account as part of the evidence of fact which they were to consider, although if there had been evidence that, whatever the guidance notes said, on the facts of this particular case the customers in this particular area of Bradford had some peculiar preference, then they might have been entitled to find that the statute had not been broken.

39. I turn finally to the fourth issue, which is an issue of law. The difficulty I find in considering this issue is that in the Court below, where Mr Gioserano did not appear, it does not appear that any particular care was taken in identifying for the Justices what the act or default was which led to the appellants being guilty of the offence in addition to the licensee. Nothing is said in the information which would cast any light on this. After the findings of fact are set out in the Case, we see that it was contended under the Respondent that because the licensee was employed under the Appellants and the premises were owned under the Appellants, they were responsible for the offence of the licensee. Mr Gioserano accepts that this wide proposition could not have given the Justices very much help in identifying what it was that the Appellants did, or what it was that they failed to do, which was causative of the commission of the offence under the licensee.

40. When one turns to the facts, it is hardly surprising that against this unpromising background the Justices' findings are not wholly clear. In the reasons they gave for their conclusion that the Appellants were guilty of an offence under section 32, they said, and I repeat:

41. It is not very easy to determine from those findings quite where the failure relied on under the Justices can be identified. On the face of it it is a failure under the company management, in other words its central management, for a failure to provide such training as would ensure that a barmaid in a pub, which was being run under one of their employees as licensee, did not do what Miss Lewis did on this occasion. The justices referred to the company's policy on training. They then say:

42. The fifth question they asked us was:

43. Mr Gioserano has accepted that if from the way the Justices expressed themselves and posed their question, the default they found was of the company's arrangements for training their staff, and particularly training those of their staff whom they would put into public houses as licensees or relief mangeresses, then there was no evidence before them to justify a finding that those arrangements, set up as a matter of policy and which are described in the case as structured training, had failed. In those circumstances, Mr Gioserano bravely tried to rescue from the case a concept that it was not Miss Lewis on whom the Justices were concentrating, and it was not the company on whom the Justices were concentrating. Rather, it was the relief manageress who had arrived at the public house five days before the incident in question and had apparently immediately spotted that the barmaid should have some training and had arranged that she would start her training, as indeed she did, the day after the Inspectors called.

44. In those circumstances Mr Gioserano has submitted that if what the Justices found was that the offence was due to the default of the relief manageress, Kirsty Tickle, in failing to ensure that the minute she arrived at that public house she personally trained the barmaid, then her employers, Allied Domecq Leisure limited, would be vicariously liable for her failure. He drew our attention to certain passages in the speeches of Lord Reid and Viscount Dilhorne in Tesco Supermarkets Limited v Nattrass [1972] AC 153, and the well-known judgment of Viscount Reading CJ in Mousell Brothers Limited v London North-Western Railway Company [1917] 2 KB 836, and submitted that in these particular circumstances there was a statutory duty on Allied Domecq Leisure Limited not to commit a default which was causative of an offence. They failed in that statutory duty, through the relief manageress's failure, and she was their agent who should have ensured that their statutory duty was complied with.

45. In my judgment, brave though this attempt was to rescue the case, it is not the way that it was put before the Justices, it is not the way the Justices themselves approached it and it has no link with the two relevant questions which the Justices asked us. I have referred to question 5:

46. Neither of those questions picked out the default on which Mr Gioserano now relies which was an alleged default of the relief manageress. Interesting though Mr Gioserano's submissions were, in my judgment they are of no relevance to anything we have to decide. I have great sympathy with the Justices who were clearly doing their best, in the absence of the help that they ought to have received from the prosecutor, in identifying what was the default of Allied Domecq on which the prosecution relied under section 32. It may very well be that the prosecutor found himself in unfamiliar water because of the particular nature of sales made under a licensee.

47. Turning to the last two questions the Justices asked us:

48. In my judgment that question does not really arise because this does not appear to have been the way that the Justices decided the case, which seems to have been a concern about a training failure rather than a concern about the bar tender herself.

49. Then to question 5:

50. I would answer that there was no evidence before the Justices to justify a finding, if they made one, that the company had failed properly to train the relief manager. Accordingly, if the Justices' finding related to a head office failure in implementing training policy, then that finding was not supported under the evidence before them.

51. In these circumstances, while, as I have said, I have great sympathy for the Justices in the circumstances in which the case was put before them, I would, for my part, having answered the questions along the lines that I have suggested, and set aside the conviction.

52. MR JUSTICE SEDLEY: I agree that this appeal must be allowed and the conviction set aside, for the reasons given under my Lord. I wish, however, to add two observations. One is that I found disturbing the repeated submission under Mr Philpott, for the Appellant, that it was a material fact that people, including the complainant, could, but did not always, ask for a top-up if they felt that the head on their beer was excessive. The person who orders a pint is entitled to a pint. If a pint (including, if legally proper, a head) is not supplied, there is no onus on the customer to demand full measure before an offence is committed.

53. My second reservation I express briefly and tentatively. We have heard very little argument upon it because Mr Gioserano has had to live with the concession made below that the Appellant could be liable, if at all, only under way of vicarious liability for an "other person" under section 32, namely the relief manageress. I simply wish to put on record my doubts about what appears to be the accepted approach to Part IV of the Weights and Measures Act 1985.

54. The primary offence of giving short measure created under section 28 is committed under any person who sells beer under the pint. The concession made before the Justices reflected the conventional view that the decision of this Court in Goodfellow v Johnson [1966] 1 QB 83, precludes any prosecution of the owners whose beer the licensee is selling on the ground that it is the licensee alone who may sell beer. I have been concerned whether it follows from the proposition that only a licensee may sell beer that the company which owns the premises, provides the beer and employs the licensee to sell it is not equally selling beer. I have also asked myself whether the decision in Hotchin v Hindmarsh [1891] 2 KB 181, on which the Divisional Court founded in Goodfellow v Johnson and which holds that the forbidden act in this context is the parting with possession and not with title, truly negatives this possibility.

55. If the true position were that a company in the Appellant's position is selling beer though the licensee, then the only relevant question would be under section 34 whether each had exercised due diligence in order to prevent the bartender giving short measure. If this were the statutory scheme, then absent a defence of due diligence neither the brewer nor the licensee could escape liability under blaming the bartender. Indeed section 32 makes it clear that the bartender may also be prosecuted. There would then be no need for the artificiality of trying, as Mr Gioserano has skilfully but unsuccessfully tried, to bring in the Appellant under the device of common-law vicarious liability, a doctrine which distributes civil liability on grounds of legal policy without regard to fault, pinning such liability on the default of someone not (so far as we know) before the Court as a Defendant.

56. The problem of slotting a due diligence defence into a vicarious liability case is evident. The defence either exonerates the licensee or fails altogether, but cannot help the owner. This cannot be right. These considerations, however, cannot directly arise here because the conceded basis on which the case proceeded below makes them immaterial. Given this, I agree that the appeal has to succeed upon the single ground explained under my Lord, Brooke LJ

57. MR PHILPOTT: I ask for three Orders: firstly, that the appeal be allowed and the convictions be quashed; secondly, that the Respondent pay the Appellants' costs of the appeal; and thirdly, in the Court below the Defendant have a Defendant's Costs Order out of Central Funds?

58. MR GIOSERANO: My Lord, I accept it is somewhat difficult to respond to those applications, save to say this: this Court has expressed sympathy not only with the Magistrate but some recognition of the complex nature of the way in which this case was put in the lower Court. I can only ask that this Court have some sympathy also of the prosecutor in those circumstances.

59. LORD JUSTICE BROOKE: We are sorry for everybody in the present state of the law. I hope we may have helped, I am not sure we have. However, we feel constrained to adopt what Mr Philpott has suggested, that the Respondent should pay the Appellant's costs in this Court and there should be a Defendant's costs Order in the Court below.

60. MR PHILPOTT: I am obliged to your Lordships.