The respondent had been accused of selling milk not of the nature, substance and quality demanded, in that it was deficient in milk fat. The justices found facts proved as admitted: ‘When the summons was served on the respondent on August 14, 1944, there was also served on him a copy of the certificate of the public analyst (numbered 7582) of his analysis of the sample, the subject of the information, taken on July 17, in accordance with s80, subs3, of the Food and Drugs Act, 1938. The sample had duly been divided into three parts as required by the statute, and certificate No 7582 related to that sample. On July 19, 1944, two days after the aforesaid sample was taken, the appellant, in order to meet a possible defence that the contravention was due to the act or default of another person under s83, subs1, took a further sample of the respondent’s milk, in accordance with s70, subs 2. A copy of the certificate of the public analyst relating thereto (numbered 386) was not served on the respondent with the summons, but was sent to him by registered post on August 21, 1944, by the appellant’s solicitor with a covering letter, saying that he proposed to adduce the certificate in evidence at the hearing. ‘At the hearing the prosecuting solicitor having stated that he proposed to adduce in evidence both certificates 7582 and 386, the solicitor for the respondent objected that the respondent had not been served with a copy of certificate 386 with the summons and that consequently the information was bad.’ The justices agreed with that submission and dismissed the information.
Held:
Atkinson J said, at 551-2: ‘Prima facie, the sample under s70, subs2, taken on July 19, 1944, is one which does not affect the respondent, but is more concerned with the original supplier. Both samples were sent to the public analyst, and on July 25 he issued two certificates. The certificate relating to the milk in respect of which Cox was prosecuted was certificate No 7582, and it certifies that there was only 2.85 percentage of fat. The certificate of the sample taken on July 19 was No 386. I do not know that anything really turns upon what precisely happened at the hearing, but the solicitor for the prosecution opened the case, and stated that he proposed to adduce in evidence both the certificates. At once the respondent objected that he had not received a copy of the second certificate numbered 386. with the summons, and the justices took the view that he was entitled to, and ought to have been served with a copy of that certificate along with the summons, and on that ground dismissed the information.
The contention of the respondent is that ‘any’ in s80, subs 3, means ‘every’ certificate of analysis. There the submission ends. Analysis of what, and within what limitation, I know not. The appellant says that the obvious meaning of that word is: ‘any certificate of analysis of the article sampled, of that which you are speaking about, the subject-matter of the information.’ And in my view the argument of the appellant is unanswerable. It seems to me that some limitation must be put upon the words ‘any certificate of analysis’. If it is not limited in that way, where is the line to be drawn? Is it any certificate of analysis of any milk at any time purchased, however irrelevant to the article sold and sampled? If it had been meant to go beyond the analysis relating to the article sampled, surely there would have been some words indicating the class or the limits within which the certificates to be served must come.’
Wrottesley J said: ‘I agree that what is meant by the words ‘any certificate of analysis’ is any certificate of analysis of the article sampled, and therefore to that extent of the article which is the subject of the information.’
Tucker J said: ‘I agree, although I do not think the point is perhaps quite so clear as do the other members of the court, for this reason, that, in my opinion, some words have to be read into s 80, subs 3, whatever interpretation is placed on the sub-section. I think it would suffice Mr. Quass’s argument if one read in the words ‘any certificate of analysis obtained on behalf of the prosecutor for the purposes of such proceedings.’ On the other hand, if Mr Hutton is right, I think the words which have to be read in are ‘in respect of the article which is the subject matter of the prosecution.’ And the question to my mind, is which of those alternative sentences should be read in. On the whole, I have come to the conclusion that the words which should be read in are ‘in respect of the article which is the subject-matter of the prosecution.’ When one reads the whole of s 80, I think that is what is envisaged. Generally speaking, what is envisaged is the taking of one sample, no doubt for the purpose of the prosecution, although there may conceivably be cases in which two samples might be taken in respect of the article which is the subject-matter of the prosecution. If that were so, then, no doubt, service of both analyses would have to be made on the seller.’
. . And ‘It seems to me, therefore, to follow that if a prosecutor has an analysis made and obtains a certificate afterwards which he intends to use at the proceedings, he does so at his peril if he has not served a copy on the defendant in sufficient time to enable the defendant to comply with the requirements of subs3. If he does not, the court will no doubt grant an adjournment and the prosecution very likely will be penalised in costs.’
Atkinson, Wrottesley, Tucker JJ
[1945] 1 KB 549
Food and Drugs Act 1938
England and Wales
Cited by:
Cited – Sargent v GRE (UK) Limited CA 16-Apr-1997
The plaintiff had been injured, losing a finger, playing football whilst in the forces. He was unable to continue his profession within the army, and claimed under his insurance against loss of employment through permanent disablement. The insurers . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.186065