"No change had taken place in the constitution of the sample that would interfere with the analysis. "As witness our hands this 15th day of December, 1900. "J. CAMPBELL BROWN, D.Sc. "W. COLLINGWOOD WILLIAMS, B.Sc. "At 30, Brownlow-street, Liverpool." 3. At the hearing of the said information the said certificate was tendered as evidence on behalf of the respondent but it was contended on behalf of the appellant that the said certificate was bad on the following grounds : (a) That the certificate of the analysts was not in the form prescribed by section 18 of The Sale of Food and Drugs Act, 1875, and as set forth in the schedule thereto. (b) That the said certificate did not state the constituent parts of the sample analysed and did not state the quantity of arsenic alleged to be therein. (c) That the said certificate did not state the weight of the sample analysed. 4. One of the public analysts - Dr. Williams-who signed the said certificate gave oral evidence on behalf of the respondent. 5. It was proved to our satisfaction that the said sample contained arsenic to such an extent as to be injurious to health, and that absolutely pure beer does not contain arsenic. 6. We were of opinion that the said certificate complied with the requirements of the said Acts on the ground that it contained such statements as enabled us to come 65 J. P. 646. to a conclusion ourselves that the said sample was adulterated with arsenic. We therefore admitted the said certificate. 7. We found as a fact upon the evidence brought before us that the article purchased as aforesaid contained arsenic to such an extent as to render it injurious to health, and was not of the nature, substance and quality of the article demanded by the purchaser, to wit, beer, and we convicted the appellant. 8. It was contended on behalf of the appellant that the giving of a certificate by the public analyst in the form set forth in the schedule to the Sale of Food and Drugs Act, 1875, was a condition precedent to the institution of proceedings under section 6 of the said Act, and that the certificate set forth above was not in the form set forth in the said schedule, nor to the like effect, and that the information was therefore bad and should be dismissed. The question of law arising on the above statement for the opinion of this court, therefore, is whether, upon the facts above stated, our admission of the said certificate was right in point of law. If the court should be of opinion that the admission of the said certificate was right, then the said conviction is to stand; but if the court should be of opinion otherwise, then the said information is to be dismissed. BENT v. ORMEROD. Case stated by justices in and for the county palatine of Lancaster. 1. Upon the hearing of a certain information and complaint preferred by the appellant against the respondent under section 6 of the Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63), that the respondent did sell to the prejudice of the purchaser a certain article of food, to wit, beer, which was not of the nature, substance and quality demanded by such purchaser, the same containing arsenic contrary to the form of the statute in that case made and provided as aforesaid, we dismissed the information. 2. The following facts were proved before us: 3. The appellant is a superintendent of police, and an inspector for the Sale of Food and Drugs Acts in the Salford Hundred of the county of Lancaster, and the respon. dent a licensed victualler who keeps the Wellington Inn," in Bolton-road, Pendlebury, in the said county. GOULDER v. ROOK; BENT v. ORMEROD ; LEE v. BENT; BARLOW . NOBLETT. 4. On the 5th of December, 1900, an inspector of police for the said county acting under the instructions of the appellant purchased from the respondent at the said "Wellington Inn" six quarts of 4d. beer for analysis. 5. Upon the making of the said purchase all the provision in that behalf of the Sale of Food and Drugs Acts were complied with. 6. Upon the analysis the sample of beer taken by the purchaser was found to contain arsenic, the analysts' certificate being as follows: "No change had taken place in the constitution of the sample that would interfere with the analysis. "As witness our hands this 13th day of December, 1900. "J. CAMPBELL BROWN, D.Sc., "W. COLLINGWOOD WILLIAMS, B.Sc., "at 30, Brownlow-street, Liverpool." By the agreement of the parties no question was or is to be raised as to the form or sufficiency of the certificate. The county analyst was called and proved that the beer contained arsenic to the extent of one-ninth of a grain per gallon at least. 7. Arsenic does not form one of the constituents of beer, and the quantity of arsenic in the beer was such as to render the same injurious to health. No evidence was given as to the constituent parts of pure beer, but it was admitted by the respondent, and we find as a fact, that pure beer does not contain the quantity of arsenic contained in the sample sold to the inspector as mentioned in paragraph 6. 8. The respondent did not mix the arsenic in the beer, and did not know of its existence in the beer, nor could he be expected to know 65 J. P. 646. of or suspect the existence of arsenic in the beer, nor could he with reasonable diligence have obtained that knowledge. 9. The arsenic had been introduced into the beer by the brewer using glucose or invert sugar, a substance often used in brewing, which improperly contained arsenic. The brewer did not know when he used it that the glucose or invert sugar was contaminated with arsenic. 10. On the part of the appellant it was contended that the proceedings were rightly brought under section 6 of the Sale of Food and Drugs Act, 1875, and that an offence had been committed under that section. 11. On the part of the respondent it was contended that the proceedings were wrongly brought under section 6 of the said Act, and ought, if any, to have been brought under section 3 of the said Act, and that there was no offence under section 6 aforesaid, the arsenic having been introduced into the beer through no fault of the respondent and with out his knowledge, and that he could not with reasonable diligence have obtained that knowledge, and that the said section 6 did not apply to such a case. 12. We found as a fact that the beer sold by the respondent as aforesaid was not of the nature, substance and quality of the article demanded by the purchaser, in that there had been mixed with it under the circumstances mentioned in paragraphs 8 and 9 an ingredient prejudicial to the health of the purchaser. 13. The question of law upon which this case is stated is whether upon the facts proved and found to be proved as aforesaid an offence was committed under section 6 of the Sale of Food and Drugs Act, 1875. Given under our hands this 29th of March in the year of our Lord one thousand nine hundred and one, at Manchester, in the county aforesaid. J. M. YATES. This case was precisely similar in all respects to Lee v. Bent, except that in the certificate of the analysts it was stated: "We are of opinion that the said sample contains a serious quantity of arsenic." The Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63), provides : Section 3.-" No person shall mix, colour, stain, or powder, or order or permit any other person to mix, colour, stain, or powder GOULDER v. ROOK; BENT v. ORMEROD; LEE v. BENT; BARLOW v. NOBLETT. any article of food with any ingredient or material SO as to render the article injurious to health with intent that the same may be sold in that state, and no person shall sell any such article so mixed, coloured, stained, or powdered under a penalty in each case not exceeding 501. for the first offence, every offence after a conviction for a first offence shall be a misdemeanour for which the person on conviction shall be imprisoned for a period not exceeding six months with hard labour." Section 5.-" Provided that no person shall be liable to be convicted under either of the two last foregoing sections of this Act in respect of the sale of any article of food or of any drug if he shows to the satisfaction of the justice or court before whom he is charged that he did not know of the article of food or drug sold by him being so mixed, coloured, stained, or powdered, as in either of those sections mentioned, and that he could not with reasonable diligence have obtained that knowledge." a Section 6.-"No person shall sell to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance and quality of the article demanded by such purchaser under penalty not exceeding 201., provided that an offence shall not be deemed to be committed under this section in the following cases, that is to say : "(1) Where any matter or ingredient not injurious to health has been added to the food or drug because the same is required for the production or preparation thereof as an article of commerce in a state fit for carriage or consumption and not fraudulently to increase the bulk, weight, or measure of the food or drug or conceal the inferior quality thereof. "(2) Where the drug or food is a proprietary medicine or is the subject of a patent in force and is supplied in the state required by the specification of the patent. "(3) Where the food or drug is compounded as in this Act mentioned. "(4) Where the food or drug is unavoidably mixed with some extraneous matter in the process of collection or preparation." Section 21.-"At the hearing of the information in such proceeding the production of the certificate of the analyst shall be sufficient evidence of the facts therein stated, 65 J. P. 646. unless the defendant shall require that the analyst shall be called as a witness . . ." Moulton, K.C. (Montague Lush with him), for the appellant in Goulder v. Rook.-The proceedings in this case were taken under section 6 of the Sale of Food and Drugs Act, 1875, and the contention is that they were instituted under the wrong section. The case comes under section 3 if it comes anywhere at all. Under section 6 the knowledge of the seller is immaterial; he is assumed to know what he is selling and cannot plead ignorance; but under section 3 bond fide want of knowledge on the part of the retailer is a defence. The language of the sections is different. Section 6 is intended to deal with cases of adulteration, where the bulk of the article has been increased by adding some cheaper article to it, such as the case of adding water to milk. This case is not one of adulteration at all. The arsenic was not added to the beer in order to increase its bulk. but the beer was accidentally and in the course of its manufacture contaminated with arsenic. The proceedings, therefore, ought to have been taken under section 3, and the ignorance of the retailer would then have been a complete answer to the charge. The beer here was not adulterated with the arsenic in order to increase its bulk, but was accidentally contaminated with arsenic. The different nature of the two clauses is seen by the fact that section 23 refers to section 3, and section 24 to section 6. Lawson Walton, K.C. (T. F. Byrne with him), for the respondent.-The prosecution here was rightly instituted under section 6. The question of whether beer contains arsenic surely is a matter affecting the nature, substance and quality of the article. It may be that proceedings might also have been taken under section 3, but the question that the sections overlap does not matter, but the question, it is submitted, does not come within section 3 at all. The arsenic was not mixed here with the beer in order that the beer might be sold in that state, but it was mixed by accident and in ignorance. [He cited Betts v. Armstead (1888), 20 Q. B. D. 771; 52 J. P. 471; Parker v. Alder, [1899] 1 Q. B. 20; 62 J. P. 772.] Moulton, K.C., in reply.-The argument for the respondent assumes that it is just to prosecute criminally a person who is not to blame in any way. This arsenic in beer was GOULDER v. ROOK; BENT v. Ormerod; LEE v. BENT; BARLOW v. NOBLETT. an unknown danger and could not be guarded against. Section 6 (3) contemplates as an indication of an offence under that section that the addition might increase bulk, weight, or measure. The arsenic in the beer here has no such effect. Joseph Walton, K.C. (Pickford, K.C., E. Sutton, and F. H. Mellor with him), for the appellant in Bent v. Ormerod.-The decision of the magistrates in refusing to convict under section 6 was wrong. They seem to have thought that because proceedings might have been taken under section 3 that prevented proceedings being taken under section 6. The offences created by the two sections overlap and are not exclusive of each other. In Dickins v. Randerson, [1901] 1 Q. B. 437; 65 J. P. 262, the court pointed out that an offence might be under section 7 as well as section 6, and that one section did not exclude the other. [He also cited Hoyle v. Hitchman (1879), 4 Q. B. D. 233.] The purchaser not only gets here something injurious but he also gets an article not of the quality demanded by him. [He referred to section 2 of the Sale of Food and Drugs Act, 1879 (38 & 39 Vict. c. 63).] Montague Lush (Moulton, K.C., with him), for the respondent.-The contention of the appellant does away with section 3 altogether, as every case under it would also come under section 6. That cannot have been the intention of the Legislature. It may be that there are some cases which would fall within both sections, but the distinction is this, that under section 6 the article must be adulterated with something, by part of the real article being abstracted and something added in its place which the purchaser did not ask for. Here the beer was not adulterated by the addition of the arsenic. The magistrates have no doubt found that the article was not of the "nature, quality and substance" demanded by the purchaser, but there was no evidence on which they could base such a decision, which must be based upon the fact of adulteration, which does not exist in the present case. This was not a case of adulteration at all under section 6, but a case of the admixture of an injurious ingredient under section 3. Joseph Walton, K.C., in reply. Montague Lush (Moulton, K.C., with him), for the appellants in Lee v. Bent and Barlow v. Noblett.-The certificate in both 66 65 J. P. 646. these cases is clearly insufficient. It does not state in either case the constituent parts of the sample analysed, it merely states " a quantity of arsenic" and a serious quantity of arsenic." [He cited Fortune v. Hanson, [1896] 1 Q. B. 202; 60 J. P. 88, and Newby v. Sims, [1894] 1 Q. B. 478 ; 58 J. P. 263. ] Joseph Walton, K.C. (Pickford, K.C., E. Sutton, and F. H. Mellor with him), for the respondent. The certificates in these cases are sufficient. The certificates are not conclusive evidence in any case; all that the analyst has to state is the result of his analysis. In certain cases, no doubt, it is very necessary that the component parts should be set out; for instance, in the case of milk being adulterated with water, as water is a component part of milk itself, the proportions must be set out in order to show the adulteration. That is the reason why in the cases of Fortune v. Hanson (supra) and Newby v. Sims (supra) it was held that the proportions must be stated in order to enable the court to say whether there was adulteration or not, but except in cases of adulteration the certificate need only state the result of the analysis. (Bakewell v. Davis, [1894] 1 Q. B. 296; 58 J. P. 228.) It is not necessary that the certificate should state the constituent parts of the sample. (Bridge v. Howard, [1897] 1 Q. B. 80; 60 J. P. 190.) The certificate in the present case states that there is a certain quantity of arsenic, that must mean an appreciable amount; the certificate is therefore a good certificate, and though not enough by itself to secure a conviction it can always be supplemented by other evidence. Lord ALVERSTONE, L.C.J.-It will be convenient, in the first place, to deal with the points raised in the two cases of Lee v. Bent and Barlow v. Noblett. In the first of these cases the analyst had certified that the sample contained arsenic; and in the second case, that it contained a serious quantity of arsenic. Now we are all of opinion that these two certificates are not sufficient. It is very important that the practice should be uniform, and we think it is clear, after the series of decisions to which we have been referred, that the certificate of the analyst must be a document in proper form, and that that certificate ought to contain in it sufficient materials to enable the magistrates to form a judgment on those materials whether the offence charged had GOULDER v. ROOK; BENT v. ORMEROD; LEE v. BENT; BARLOW v. Noblett. been committed. We need not consider whether a certificate would be bad which went further, but we think at least it must fulfil that condition. There are many cases in which the only evidence is the certificate of the analyst. Nothing is said in these two certificates as to what ordinary beer-I will not say absolutely pure beer, but ordinary beer-should contain, and nothing is said as to the degree or amount of arsenic found in the sample except in the one case that arsenic was there, and in the other case that there was a serious quantity of arsenic. We think, having regard to the necessary protection of the persons charged, that the certificates ought to contain further particulars, so that the magistrates may have before them materials on which they can come to a conclusion. We could not decide otherwise without overruling several decisions which seem to us to be founded in good sense. We need not consider whether or not in every particular case it is absolutely necessary to say that the certificate must set out all the proportions of the ingredients contained in the sample, but we are justified in saying that these certificates are not sufficient. That disposes of the two cases of Lee v. Bent and Barlow v. Noblett, in both of which the conviction must be quashed. I now come to the more important and more difficult point which was raised in Goulder v. Rook and Bent v. Ormerod. I am of opinion that the conviction in the former case should be supported and that the case of Bent v. Ormerod, in which there has been a dismissal of the charge, should go back to the justices for conviction. A great deal of the difficulty disappears if the language of section 6 is considered by itself. I quite agree that if it is plain that one group of sections deals with one class of offence and another group of sections deals with another class of offence, the consideration and comparison of the language of the two groups of sections may afford very material assistance. On the other hand, it has not been disputed that the fact that sections which create separate offences overlap does not show that a case may not be within both of them. It may very likely be that the facts afford grounds for prosecuting under more than one section. There are numerous instances of that in our criminal statutes; 65 J. P. 646. but I think the question under section 6 is whether or not a person has sold an article of food or a drug which is not of the nature, substance and quality of the article demanded by a purchaser. If I may use the expression, in my opinion section 6 starts at the sale and ends at the sale. There is no need to consider how that which makes the article otherwise than of the nature, substance and quality of the article demanded has got into it, but the question is whether in fact it is there to such an extent that the article is different in nature, substance and quality. I think it would be cutting the section down unwisely, and cutting it down without sufficient direction in the statute, if we were to hold that it was needful to enter into an examination of the stage at which, or the precise process by which, that which makes the article different has found its place in the article which is being sold. Now applying that test, the magistrate in Goulder v. Rook has found as a fact that the beer sold by the appellant was not of the nature, substance and quality of the beer demanded by the purchaser. The certificate shows that arsenious acid to the extent of not less than one-eighth of a grain per gallon was there, and he finds as a fact "that arsenic was an ingredient injurious to health, and that the quantity of arsenic in the beer was such as to render the same injurious to health, but that it did not form one of the constituents of beer." I read those words as meaning that arsenic does not form one of the constituent parts of beer in any substantial degree under ordinary circumstances. It is plain that if I am right in the view I have expressed as to the prima facie meaning of section 6, since the magistrate has found as a fact that this article was not of the nature, substance and quality of that demanded by the purchaser, then, if there was any evidence which could support such a conclusion, the conviction must stand. I have already indicated that the magistrate having before him a case in which a dangerous foreign body was present to the extent of one-eighth of a grain per gallon, which is injurious to health, it seems to me that he having drawn the conclusion that the beer sold was not of the nature, substance and quality of the article demanded, it is not possible for us to say that he was wrong. It has been suggested that if what is in the article is the |