Issue 8 Winter 2007/2008
The role of the expert in Accountancy and Actuarial Discipline Board (AADB)
Scottish Equitable held liable for giving unauthorised investment advice
General Medical Council - Fitness to Practise appeal decisions
HSE sends warning to Landlords
The Approach to Sentencing in Trade Mark Cases
Personal Data Security on the internet
Inquests and Article 2 ‘System Failure’
Narrow definition of ‘Supplier’ in Toy Safety Regulations
Article by Peter Binning and David Campbell, Corker Binning
The Home Secretary recently announced that the government would not be enacting the ‘forum’ provisions in the Police and Justice Act 2006. This is a body blow to those who have campaigned for greater protection in extradition cases where alleged criminal conduct took place both in the UK and in a foreign jurisdiction. The US extradition cases of the NatWest Three and Ian Norris have been at the centre of the debate on this issue.
If brought into force, section 42 of the Police and Justice Act would amend the Extradition Act 2003 to add ‘forum’ as a potential bar to extradition. That is, where a significant part of the conduct alleged to constitute the extradition offence takes place in the UK, the court would have power to prevent
extradition if it concluded that it would not be in the interests of justice for the person to be tried for the offence in the
requesting territory. Similar protection does exist in other countries, for example, Ireland. The announcement by the Home Secretary suggests that the forum amendment has
effectively been shelved.
The United States, in particular, has made numerous requests for extradition of British nationals and a number of these have featured cases where the conduct alleged occurred in both jurisdictions. However, the decision by the Home Secretary on forum should not perhaps have come as much of a surprise. The forum amendment was at the outset a token offering to the Tories to overcome opposition to the Police and Justice Act. Yet it is striking that the government was prepared to allow an Act to be passed by Parliament and then justify its failure to introduce the forum protection by saying that it would make the Extradition Act 2003 “inconsistent not only with the US-UK treaty but also with a lot of other territories designated as extradition partners.” Any change must now await change of government as the opposition parties still support the forum provisions.
The Attorney General’s office published the ‘Guidance for Handling Criminal Cases with Concurrent Jurisdiction
Between the UK and USA’ in January 2007.
This provides for a system of early contact between UK and USA prosecutors where there are cases involving
concurrent jurisdiction i.e. criminal conduct that has
occurred in both the UK and USA and which could be tried in either jurisdiction. The guidance envisages early strategy
discussions between US and UK prosecuting authorities.
Of note is that the guidance clearly states that it does not create any rights on the part of a third party to object to or otherwise seek review of a decision by UK or US
authorities regarding the investigation or prosecution of a case or issues related thereto. This was undoubtedly a direct
result of the proceedings instigated by the NatWest 3 aimed at preventing extradition to the United States.
The proceedings included a judicial review of the failure of the Serious Fraud Office to prosecute the case against them in the UK. If successful, the instigation of criminal
proceedings in the UK would have delayed and perhaps
effectively prevented any extradition to the USA.
The benefits to the applicants in having a case tried in the UK rather than the United States are many, including, at least for the time being, access to adequate publicly funded legal representation.
It is noteworthy that the trial of the NatWest 3 is reported to have been delayed until next year as a result of
difficulties for at least one defendant in securing legal
representation. Access to overseas witnesses is another
problem. In the NatWest 3’s case they have sought an order from the court to allow five UK based witnesses to testify by video deposition arguing that these witnesses are in fear of
attending the US to give evidence. Of even more concern to defendants facing trial in the United States is that the likely penalties are substantially higher should they be found guilty or plead guilty to criminal offences. Prison
sentences are markedly greater in length in the US and the prison regime is significantly harsher.
There is nothing in the Guidance to prevent the extradition to the US of a UK citizen where any part of the conduct complained of occurs within the US, even if the bulk of the conduct occurred within the UK. Since the Extradition Act 2003 came into force, there have been 45 successful
extraditions to the US, a trend which is likely to continue
To read the full article please visit our online articles
The role of the expert in Accountancy and Actuarial Discipline Board (AADB)
Article
by Jeremy Barnett, St Pauls Chambers
Background
The Accountancy & Actuarial Discipline Board is the independent, investigative and disciplinary body for accountants and actuaries in the UK. It is responsible for administering an independent scheme covering members of the numerous
Accountants bodies and also members of the Faculty & Institute of Actuaries.
The focus of the AADB is on cases of public interest. The normal channel of reference will the accountancy or actuarial body primarily concerned, however the Board does have the power to call in cases whether or not they have been referred by an accountancy body.
In deciding whether a matter raises important issues affecting the public interest, the AADB considers whether there appears
to be serious public concern or damage to public confidence in the accountancy profession. Factors to be taken into account include the nature, scale and gravity of the case, does the conduct adversely affect a significant class of people or
undermine confidence in financial reporting in the UK. Cases will usually concern PLCs, financial institutions, charities,
public bodies or providers of infrastructure. Accountancy cases involving losses of £1m or Actuarial cases involving £10m will also be considered.
The Mayflower Group plc decision.
The first reported decision relates to the Mayflower Group plc and was published on 22nd January 2007 and concerned
complaints against PwC and Mr Donnelly [the FD of Mayflower] alleging misconduct, in that the conduct fell short of the standards reasonably to be expected of a member firm of the ICEAW or ACCA. The complaints alleged failure to signify
significant level of concern about Mayflower’s ability to continue as a going concern (failure to address Statement of Auditing Standards 130) against PwC, and non disclosure of an overstatement of work in progress by Mr Donnelly to the sum of £4m.
The Tribunal concluded that when PwC signed their audit opinion there was not a significant level of concern about
Mayflower’s ability to continue as a going concern, and that PwC’s conclusion as to this was therefore within the range of reasonable judgments which would be open to an auditor to make. Accordingly the complaint against PwC was dismissed [by a majority]. With regards to Mr Donnelly’s conduct, the specific complaints in his case were also dismissed
unanimously.
The role of the expert
An interesting point arose as to the role of the expert in these hearings. Here, the AADB instructed Mr Woolfe, an
experienced partner in practice of Chartered Accountants, with special responsibility for technical accounting interpretations and problem areas including audit reports and
independence/ethical issues.
Mr Woolf played a role in the conduct of the complaint, in that he was asked to advise on the scope of the investigation,
assist in the conduct of it, review information, prepare for and attend witness interviews, and advise on charges. He was cross examined ‘vigorously’ on the basis that he had gone beyond the traditional role of the expert by becoming part of the
investigative process. The Tribunal concluded that he was plainly not wholly independent by reason of having been closely involved in the investigation and that there is a tension between being the investigator and an independent expert.
As a result of the above finding, the Tribunal invited the Board to consider separating the investigatory and expert roles in
future cases. A number of specific findings were made contrary to Mr Woolfe’s evidence, which no doubt influenced their
findings in relation to the main evidential issues.
The Tribunal also noted with surprise that the complaint had been brought against the firm as a whole, rather than any
individual partner. In general the evidence given by the PwC witnesses was found to be honest. The dissenting opinion
however concluded that there was doubt as to the reliability of the PwC audit opinion on ‘going concern’, thereby exposing the highly technical nature of such cases, and the difficulty that practitioners will face in giving firm advice upon such complex accounting issues.
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Scottish Equitable held liable for giving unauthorised
investment advice
Article by Jeanette Harwood, Walker Morris
In a High Court ruling on 31 July, the pension provider Scottish Equitable plc was ordered to pay £700,000 to the claimant for breaching its statutory duty not to give unauthorised investment advice to a private investor. The case is thought to be the first in which a financial product provider has been held liable for giving unauthorised advice, the usual cause of action being against the investor’s IFA for mis-selling. The claim was brought under the old regulatory regime of the Financial Services Act (FSA) 1986 and the PIA rules but the principles are equally applicable in the current framework of the Financial Services and Markets Act (FSMA) 2000 and the Conduct of Business (CoB) rules.
The claimant, Mr Walker, had been an employee of the construction firm Taylor Woodrow for many years and was a member of the company’s final salary occupational pension scheme. In September 1999, Mr Walker met with his IFA, an employee of
Inter-Alliance Group plc, to discuss his pension plan in view of his impending retirement. Between 1999 and 2001, Mr Walker had two more meetings with his IFA and a broker consultant from Scottish Equitable, both of whom advised him to transfer his pension from the Taylor Woodrow final salary scheme to a money purchase scheme operated by Scottish Equitable; he did this in February 2001 following his retirement. The scheme was far less successful than the Taylor Woodrow scheme would have been and Mr Walker claimed against Inter-Alliance for breach of contract and against Scottish Equitable for breach of
statutory duty.
The proceedings against Inter-Alliance were stayed when the group went into administration, leaving the claim for breach of statutory duty as Mr Walker’s only course of redress. Under the PIA Rules on polarisation, a product provider (in this case, Scottish Equitable) is prohibited from giving investment advice to a private investor that goes beyond factual information about the provider’s own product presented in a neutral way and not intended to ‘sell’ the product to the investor. The rules were designed to embody the financial regulatory principle that customers should be treated fairly by establishing a clear division between IFAs, whose role is to provide investors with product advice, and product providers, who may only provide technical advice on their particular products. Scottish Equitable was held to be vicariously liable for the statements made by its broker consultant to Mr Walker. The broker consultant had told Mr Walker in both meetings that if he were in Mr Walker’s position he would transfer his own pension into a money purchase scheme – this amounted to a breach of the statutory duty not to
give unauthorised investment advice under the PIA rules.
Under section 62 FSA 1986 (the predecessor to section150 FSMA 2000) a breach of a statutory duty under the financial
regulatory framework is actionable by a claimant Michael David Walker v (1) Inter-Alliance Group Plc (in Administration)
(2) Scottish Equitable Plc (2007) [2007] EWHC 1858 (Ch)who has suffered loss because of the breach. The judge held that if the broker consultant had not advised Mr Walker in this way, he would not have left the Taylor Woodrow final salary scheme and would not have suffered loss – thus Mr Walker was entitled to claim his losses from Scottish Equitable.
The case will serve as a warning to financial product providers about the dangers of breaching the regulatory framework on promoting products and advising clients. In the past, product providers have largely been immune to claims of this nature, with IFAs the more obvious target for aggrieved investors and they should be sure to retrain broker consultants on how to avoid breaching the CoB rules. The case also spells good news for the regulators who are keen to force home the principle of treating customers fairly and establishing clear delineation between IFAs and product providers.
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General Medical Council - Fitness to Practise appeal decisions
Article by Fiona Barnett, Solicitor Advocate CPS Leeds. Associate Member GMC
Dr Gurpinder Saluja: 2006 EWHC 2784 (Admin)
An interesting case, incorporating a principle often argued in the criminal courts - entrapment.
On 14 November 2003, Dr Saluja (S) was consulted by Rachel Dobson, an undercover journalist posing as a patient. She asked S for a sick note to enable her to take time off work and have a holiday at Christmas. Dobson made it clear she was not ill. She said her boyfriend had given her £1000 to get the note. S advised her to make an appointment nearer the time, suggesting that at the future consultation, she could state that she was suffering from “….stress or depression or whatever you feel like”, that she should not mention that she wanted a holiday, and “…I can guarantee that I will give it [the certificate] you at that time”. Dobson had surreptitiously recorded the conversation.
On 26 August 2005 S was charged with serious professional misconduct.
On 19 January 2006 the Fitness to Practise Panel (FPP) which heard the charge stayed the proceedings as an abuse of process on the basis of entrapment. The Council for the Regulation of Healthcare Professionals (the Council) appealed the stay.
The issues to be decided by the Administrative court were: (i) did it have juridiction to hear the appeal? (ie. was a stay a “ ‘final decision’ of the relevant committee not to take any disciplinary measure ” – and a “relevant decision” which could be referred to the Court by the Council, (Medical Act 1983 and National Health Service Reform and Health Care Professions Act 2002)
(ii) if so, was the decision to impose a stay “unduly lenient” or “manifestly inappropriate”.
In relation to (i), Mr Justice Goldring accepted the argument of the Council, that the decision to stay on the basis of abuse of process was a “final decision” and a “relevant one” which could be appealed.
In answer to (ii), the Court examined the authorities relating to entrapment. At the first instance hearing, the Legal Assessor had not made it plain to the FPP that there is a distinction between police and journalists when considering entrapment/abuse of process. The FPP excluded the covertly recorded evidence and concluded,“ On the basis of finding of entrapment, taken together with the breach of Article 8 of the Human Rights Act, the Panel has decided to stay the proceedings against Dr Saluja having regard to his Article 6 rights to a fair hearing”.
Goldring J was satisfied that the FPP applied the law wrongly.• It substituted “journalist” for “police” – an error which alone was sufficient to impugn the decision.• It did not take account of the “substantial difference” between a doctor at his professional practice being pressed to provide a false medical certificate, and a drug dealer being importuned by an undercover officer. S could have said no and asked the patient to leave. The conduct of the journalist fell short of misconduct which would compromise the integrity of the disciplinary process• There was nothing to suggest specific consideration of public protection, the upholding of proper professional standards and public confidence in the profession in the context of the balancing exercise the FPP had to carry out.
The FPP manifestly erred; it could not have stayed the proceedings had proportionality been properly considered. There was no basis to exclude the evidence under section 78 PACE on the basis of entrapment.
The Councils appeal was allowed. The case was remitted to the FPP with the direction to inquire into and determine the issues of serious professional misconduct, and if necessary, sanction.
At the subsequent hearing of the FPP (Professional Conduct Committee), 11 to 13 April 2007, all the allegations were admitted and/or found proved. The Panel found S guilty of serious professional misconduct. In determining sanction, it applied the principle of proportionality in balancing the interests of S with those of the public, and the need to maintain confidence in the profession and declare and uphold proper standards of professional conduct. It balanced the gravity of the misconduct against the mitigating factors submitted on behalf of S and imposed a suspension for one month
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HSE sends warning to Landlords
Article By James Bourne-Arton St Pauls Chambers
On the 7th December 2007 the HSE issued a warning to housing landlords in relation to fulfilling their legal obligations under section 36(2) and 36(3) of the Gas Safety (Installation and Use) Regulations 1998, which relate to the maintenance of all gas appliances.
This warning follows the conviction of Lea Fields, a Grimsby Landlady, who ignored an Improvement Notice requiring
her to employ a registered CORGI gas engineer to carry out safety checks. She was sentenced to a community order with the requirement she carries out 200 hours unpaid work. She was also ordered to pay £500 in prosecution costs.
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The Approach to Sentencing in Trade Mark Cases
Article By Alun Jones St Pauls Chambers
This is the second of a two-part article considering the sentences for offences of: making counterfeit goods; selling counterfeit goods; and possessing counterfeit goods with view to selling them (section 92(1) of the Trade Marks Act 1994).
Multiple Offences.
For section 92 (1) (c), in cases where many suspected counterfeit items are seized, the prosecution will ordinarily select a sample of the goods seized and send them for analysis by the Trade Mark holder (or more commonly their agent) and a witness statement will be produced declaring the goods as counterfeit. Accordingly, the indictment will often only reflect a tiny proportion of the overall suspected criminality.
Trading Standards departments tend to charge defendants with s. 92 (1) (c) offences (possessing counterfeit goods with a view to gain) rather than supplying goods (s. 92 (1) (b)) because they are easier offences to prove and do not demand the more costly investigative process of tracking down an appropriate sample of items from purchasers. This may cause a dilemma for the sentencing court which must sentence for the counts on the indictment, despite the existence of perhaps hundreds or thousands of other items seized.
The case of R v Canavan [1998] 1 Cr. App. R. 79 sets out the basic principle that a Defendant should not be sentenced for offences which he has neither admitted nor which have been proved by verdict. In R v Twisse [2001] 2 Cr. App. R. (S) 9 (a drugs case) it was said that “the court is not required to blind itself to the obvious. If a defendant claims that the occasion in question was an isolated transaction, that submission can be rejected if the facts and circumstances point with sufficient clarity to the opposite and he can be given the appropriate sentence for a single offence charged without the credit which he would receive if it really were an isolated offence”.
Although, at first glance, Twisse appears to dis-apply the Canavan principle, it in fact reinforces it. The only reason the court did not “blind itself to the obvious” was because the defendant made admissions of earlier heroin dealing despite there being only a one count indictment for possessing heroin with intent to supply.
In view of the above, the interview becomes all important. If the Defendant has made no admissions or, often more wisely, has made no comment at all, then sentence can only be passed on the basis of the counts that feature on the indictment.
As a matter of practicality, a schedule of offences to be taken in to consideration is often prepared. If such is accepted, then sentence need not be restricted to the counts on the indictment. If it is not admitted, there is always the small risk of a further prosecution.
The prosecution may start to take advantage of rule 14.2 of the Criminal Procedure Rules providing for duplicitous counts in a single ‘rolled up’ count, permitting the sentencing court to pass a sentence to reflect the total criminality of a Defendant. However, the same principles apply
and if a Defendant has not made admissions, rule 14.2 will not be of very much assistance to the prosecution.
Type and Length of Sentence.
It is often the case that for s.92 (1) (c) offences, defendant’s sentenced at the Crown Court will receive custodial sentences. Although there are no guideline cases, the Crown Court tends to treat these offences as being deserving of deterrent sentences.
The deterrent approach appears to derive from the case of R v Burns [2001] 1 Cr. App. R. (S.) 63 wherein Judge Rivlin QC referred to a passage from R v Adam [1999] 1 Cr. App. R. (S.) 403: “A deterrent sentence was called for in this kind of case” .
It is certainly arguable that deterrent sentences are not called for in every case heard at the Crown Court. There were a number of aggravating features in Adam - continued offence over a 2 ½ year period, numerous complaints, sales in the region of £54, and a further arrest for like offences. Despite those features, Adam only received a 9 month custodial sentence and even that was described by the Court of Appeal as “severe”.
I would therefore suggest that a deterrent sentence is perhaps called for where there is a degree of persistence. In R v Kemp (1995) 16 Cr. App. R. (S.) 941, however, the Court of Appeal stated that “offences of counterfeiting are offences which normally attract at least a short sentence of imprisonment”. That may be true in the Crown Court but the very recently published Magistrates’ Court Sentencing Guidelines do not suggest custody as being the norm.
The starting point for a first time offender with a small number of counterfeit items is a Band B/C fine. For a larger number of counterfeit goods with no involvement in a wider operation, the guideline suggests a “medium level” community order. For offences involving a high number of items or involvement in a wider operation e.g. manufacture or distribution, a short custodial sentence is suggested or committal to the Crown Court.
The aggravating features listed are: a high degree of professionalism; high level of profits; and if the purchasers of the goods are at risk of harm. Mitigating features would include a guilty plea and a mistake or ignorance about provenance of the items.
Applying those guidelines to the discussion above, in a case where 15 items were assessed and found to be counterfeit out of several thousand
items that were seized but not assessed (nor any admissions made), one might try and argue that the matter should remain in the
Magistrates Court for sentence and thereby only attract only a modest fine!
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Personal Data Security on the internet
Article by Jeanette Harwood, Walker Morris
The news that HM Revenue and Customs has lost CDs containing the personal data, including names, addresses, national insurance
numbers and bank details, of 25 million people has put the issue of data protection very firmly in the national spotlight with editorial writers and politicians queuing up to demand the strengthening of the existing law, currently contained in the Data Protection Act 1998 (the Act). Apart from the recklessness of entrusting the delivery of such a volume of important personal data to the ordinary postal system two aspects of the HMRC debacle are particularly striking – firstly, the failure to encrypt the data; and secondly, the fact that no disclosure was made of the loss for ten days after it became known. This highlights the absence of any requirement under the Act for individuals to be notified when there is a breach of the Act that affects the security of their personal data.
The Data Protection Act 1998
All organisations that hold personal data on individuals are obliged to treat personal data in accordance with the eight data protection principles
set out in the Act which include ‘Appropriate technical and organisational measures shall be taken against unauthorised or unlawful
processing of personal data and against accidental loss or destruction of, or damage to, personal data’.
HMRC committed a breach of the seventh principle, which requires the data controller to take “appropriate measures against unauthorised processing…and accidental loss or destruction”.
In February 2006, the Financial Services Authority estimated that ID fraud cost the UK economy 1.7 billion per year. Recent examples of security breaches in respect of personal data include:
October 2007, the HMRC lost a laptop containing details of 2,000 people holding ISA investments
October 2007, a CD containing details of 15,000 Standard Life customers was lost
March 2007, the retailer TK Maxx ‘came clean’ and notified customers when hackers stole details of more than 45 million
payment cards. Although there was no legal obligation to make such a disclosure, this allowed customers to be on their guard for any unusual activity on their accounts
February 2007, the Nationwide Building Society was fined £980,000 for failing to manage security risks following the theft of a laptop from a Nationwide employee’s home in 2006.
Recommendations for reform
The recent House of Lords report of the Science and Technology Committee, highlighted the fact that the lack of legislative protection means that a company which has lost or infringed personal data has no direct commercial incentive to disclose this to its customers. The
Committee stated that this position is socially unacceptable and made a number of recommendations, including:• Increased government action to persaude businesses to accept responsibility for loss of information• Business should be held responsible for losses incurred by online fraud.
• Obilgatry reporting of data security breaches• Increasing the powers of the Information Commissioner.
Inquests and Article 2 ‘System Failure’
Article by James Lake St Pauls Chambers
It is the Coroners responsibility to determine whether or not an
Article 2 inquest will be held. The significance of this is that the primary function of the Coroners court, namely to establish when, where and how the death occurred, will not discharge the burden of Article 2. An Article 2 inquest widens the ambit of the inquest and determines by what means and in what circumstances the death occurred (R v HM Coroner for the Western District of Somerset & Another, ex parte Middleton [2004] UKHL 10).
This is clearly a significant step in using the Coroners court as a
viable and effective procedure for investigating complex and
contentious deaths, but such an inquest can only take place where the state potentially bears the responsibility for the death. Deaths in custody or in hospital will be likely to receive an Article 2 inquest but a traumatic workplace death will not. Deaths at work can be complex and contentious affairs and would significantly benefit an inquest where there is a thorough investigation into the circumstances of the death. Why should a death in custody receive an investigation, whereas an accident at work will only have the standard coronial inquest with its limited scope? Both would benefit equally but the death in the working environment will not receive the scrutiny it requires.
One remedy of course would be to extend Article 2 to include all other regulatory settings, regardless of whether the state bears the responsibility. After all ‘everyone’s right to life shall be protected by law’. It is recognised that this in itself would carry certain
difficulties not least because the system would not be able to cope with the volume of such inquiries. It would be far better for the
Government to recognise that certain deaths will not receive the
required scrutiny and therefore use a meritocracy system instead. The Coroner could decide on a case by case basis whether it would be necessary and proportionate to hold a detailed investigation into the ‘circumstances of the death’.
It leaves the interesting question of whether the state could be held responsible for a death because it had previously not taken the
opportunity through the coronial system to address and correct
systemic failings of non-state organisations or companies. It is therefore logical for either the courts or the government to extend the scope of Article 2 by not limiting it to persons or organisations
acting on behalf of the state.
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Scott Kenworthy t/a K Play Int v North Tyneside Council . 15.2.07
In a recent landmark decision the Divisional Court, seems to have taken a restrictive view of the definition of a ‘supplier’ within the meaning of the Toys (Safety) Regulations 1995. In this case the Magistrates found that the Appellant was a supplier for the purposes of section 12(1) of the Consumer Protection Act in that he exposed it for supply within the meaning of Regulation 3 and therefore had a legal responsibity to ensure that the toys he exposed for supply met the safey requirements applicable to them.
Here the item was a toy work bench. It was supplied to Phillipa Bowler, a retail outlet trading as ‘Selling Smiles’. The Appellant was the sole UK representative for Handelshaus, a German company. He worked on his own account as K-Play International. Philipa Bowler, on the basis of the Handelshaus catalogue distributed by K-Play, ordered the hammer bench from him.
He passed on the order to Handelhaus who had the bench made in Bulgaria, ( then outside Germany). It was imported into
Germany and sent directly to Phillipa Bowler who was invoiced by Handelshaus. Payment was made to K- Play in the UK. VAT was charged at German rates. The Appellant was paid a commission.
The allegation was that Phillipa Bowler had failed to satisfy the essential safety requirements as required by Regulation 4 and Annex 2 as the bench contained excessive levels of lead and chromium. As is common in these cases, she was not prosecuted. The Appellant alone was, pursuant to s40(1) of the Consumer Protection Act 1987.
The question before the Divisional Court was whether the Appellant could prove on the balance of probablities that he took all reasonable steps and excercised all due diligence to avoid the commision of the offence. The Appellants’ guilt was wholly
dependent on the guilt of Philipa Bowler – the supplier. By the regulations, the obligation upon those other than the
manufacturer in the community is not to supply a toy which would jeopardise the safety or health of users or third parties when the toy is used as intended bearing in mind the normal behaviour of children.
The conviction was overturned on the basis that.‘any conviction of him could only be parasitic on the guilt of Mrs Bowler. She could only be guilty if the toy in question jeopardized
the safety or health of users or third parties when used as intended or in a forseeable way bearing in mind the normal behaviour of children. Her guilt could not be established simply on the basis of non compliance with the essential safety requirements’.
It would therefore seem that in every case of this nature where the importer does not have the obligations imposed on a
manufacturer, the prosecution will have to call evidence before the Magistrates to show that the item caused an actual risk in a forseeable manner to children, rather than relying upon technical breaches of regulations to prove guilt.