PMS International Group Plc v North East Lincolnshire Council & Anor [2005] EWHC 1111 (Admin)

Case No CO/151/2005Case No CO/240/2005[2005] EWHC 1111 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 13 May 2005
Strand
London WC2
B E F O R E:
LORD JUSTICE SEDLEY
MR JUSTICE BEATSON
Between
PMS INTERNATIONAL GROUP PLCAppellant-v-
Between
NORTH EAST LINCOLNSHIRE COUNCILDefendantIN THE PINK LTDAppellant(Trading as Everything A Pound)Appellant-v-NORTH EAST LINCOLNSHIRE COUNCIL(TRADING STANDARDS SECTION)(DEFENDANT)
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR JEREMY COTTER (instructed by Legal Department, PMS International Group, Basildon, Essex) appeared for CLAIMANT/SECOND APPELLANT PMS INTERNATIONALMR JEREMY BARNETT (instructed by Chadwick Lawrence) appeared for CLAIMANT/FIRST APPELLANT IN THE PINK LTDMR JEREMY LINDSAY (instructed by Legal Department, North East Lincolnshire Council) appeared for DEFENDANT
J U D G M E N T

LORD JUSTICE SEDLEY:

[1]This group of appeals is brought by way of single case stated by the Grimsby and Cleethorpes Justices who convicted both appellants on a total of four informations. All four informations turned upon whether a stationery set imported by the second appellant, PMS, and offered for sale at £1 in the first appellant's shop, and which was admitted to include at least one item dangerous to young children, was in law a toy within the Toys (Safety) Regulations 1995 made under the powers contained in the Consumer Protection Act 1987.[2]A toy is defined in Regulation 3 (1) of the Regulations as - " ..... any product or material designed or clearly intended for use in play by children of less than 14 years of age ..... " There follows an immaterial exclusion.[3]The following are the facts found by the justices: a) On 4 June 2003 a 12-year old child purchased an 'A Plus Office Stationery Set' from the first appellant's retail shop at Freshney Place, Grimsby and subsequently a complaint was made about the product to the local office and Trading Standards Department; b) On 11 June 2003 an officer from the Trading Standards Department visited the first appellant's retail shop at Freshney Place, Grimsby. An identical product to the one purchased by the child was being offered for sale; c) The second appellant had supplied the stationery set which was being exposed for sale on 11 June 2003 to the first appellant; d) The stationery set comprised items packed on flat cardboard and covered with loose transparent plastic; e) The items on the cardboard were• two ball points pens• one roll of sticky tape 10 feet long on a plastic dispenser• a pack of paper clips.• a stapler• a box of staples• a pair of scissors• a craft knife and blades. and could be clearly viewed through the plastic. f) The cardboard was headed with the logo 'A Plus' and described the item as an 'Office Stationery Set'; g) The product was available in a variety of bright colours; h) Two of the items (the scissors and stapler) in the packaging were of a smaller size than is usual for items of that sort in a stationery set and thereby had limited functionality. The finger holes in the scissors were too small for comfortable use by adult fingers and would have been too flimsy for office use; i) The pen caps did not have holes in their tops such as would mitigate breathing difficulties in the event of them being swallowed; j) The packaging contained no warnings or indications of precautions to be taken when using the knife but did contain a 'CE' mark; k) The stationery set was displayed for sale on a shelf about 4 feet from the floor in an area of the shop where colouring books and children's pens were also being displayed for sale; l) The shop offered for sale a large array of different products including toys, stationery, gardening products, cleaning products and other general items all at the price of £l.00.[4]Having heard evidence and argument and having reminded themselves of the definition of "toy" in the Regulations, the justices reached the following conclusions: b) It was clearly impossible for us to be certain about what the precise intentions of the manufacturers of the product in question were when the item was designed and made but we felt that we could look at all the relevant surrounding circumstances to form a view about that; c) Taken together the price, positioning and colour of the product indicated to us that this product was attractive to, targeted at and clearly intended for use by children under the age of 14; d) The product was flimsy in nature and unsuitable for use in an office environment. It would have very limited use to an adult; e) The product was a small scale version of an adult stationery set and specifically it included a small stapler, staples and small safety scissors. The safety scissors were of the type and size used by children and were too small to be of much value in terms of use by an adult. We did not form a particular view about whether the product fell within the definition of being a 'functional toy' as prescribed in Schedule 4 (3) of The Toys (Safety) Regulations 1995 as it did not appear imperative for us to do so; f) The packaging carried the CE mark which indicated that the product conformed with the Toy (Safety) Directive and whilst many members of the general public would not appreciate the significance of the mark, it was an indicator which we felt we could take into account alongside other factors when deciding whether the product was a toy or not; g) The product had 'play value' and would be used by a child under 14 for their play and amusement; h) The product did contain a craft knife which included a blade of the sort which it would have been illegal to sell to a person under 16 years of age by virtue of the Criminal Justice Act 1988. We were of the view, however, that we should look at the product in the round and the fact that one item of it could not legally be sold to a person under 16 years of age did not render the whole product as being categorised as a toy; i) Having considered all the matters referred to above it was right to conclude that the 'A Plus Office Stationery Set' was a toy within the definition found in The Toys (Safety) Regulations 1995. In reaching that conclusion we did not rule out the possibility that a person aged 14 years or older might find the product attractive for various reasons and even an adult could have purchased it and made some use of it in certain circumstances. However, the factors we have referred to and the facts we found drove us to the clear conclusion that the product fell within the definition set out by the Regulations.[5]The justices accordingly convicted both appellants, giving these reasons in open court:
"The Bench recognise that this is not a conventional, imaginative, fluffy toy. The Bench believes that this set is a young person's replica of an adult stationery set designed for their play and amusement. The Bench also believes that the items are of seriously limited use to an adult and targeted in general towards a younger customer. The Bench therefore comes to the conclusion that this is a toy."
[6]At the invitation of the appellants the following questions are set out by the justices for this court to answer: 1) Did we err in giving limited weight to the fact that the stationery set contained within it a craft knife the blades of which could not lawfully be sold to a person under the age of 16 years? 2) Did we err in giving weight to those factors which we took into account when deciding the 'A Plus Office Stationery Set' was a toy, when the definition of a toy by regulations states that the criteria is whether the item was 'either designed or clearly intended for use in play by children under the age of 14 years'? 3) Did we err in failing to give any or sufficient weight to other factors in the case when we formed our opinions that the 'A Plus Office Stationery Set' was a toy within the meaning of the regulations?[7]The principal arguments that the justices did err in these respects have been advanced on behalf of PMS by Mr Barry Cotter, who appears with Miss Winstone who appeared below, and supported on behalf of In the Pink by Mr Jeremy Barnett. They are, after some helpful refinement in the course of argument, the following:(a) the justices found to a criminal standard of proof that this set was a toy when their finding that it was impossible to be certain of the manufacturers' intent closed off this option;(b) the justices wrongly took into account, first, the CE mark and, second, the positioning of the item in the shop;(c) the justices perversely failed to accept the expert evidence when neither expert had been able to say unequivocally that this was a toy, and(d) held it was a toy when the craft knife in it could not lawfully be sold to under 16s and so made it impossible that it could be a toy.[8]In my judgment, these arguments, attractively though they have been advanced, with the exception of the final one, are misconceived. The final one, while not misconceived, on examination falls apart.[9]The justices were, in my judgment, right not to be dictated to by the expert witnesses but to make up their own minds - in the words of the appellant's written critique - "to weigh up the matters for themselves". To the extent, of course, that the experts gave them factual or opinion evidence about contested matters material to what had to be the court's own conclusion, their duty was to take this into account and to give it the weight they thought right. But it was not the experts' role to answer the very question which the justices were there to answer.[10]I would also reject the criticism of the justices for declining to substitute the experts' views for their own to the (doubtful) extent that they spoke with a single voice. It would be different perhaps if the expert evidence was all one way and that only one conclusion of law could follow from it; but, for the rest, there is no reason to think that such descriptive evidence as the expert and lay witnesses gave is not fairly reflected in the justices' findings of fact.[11]Their conclusion however was, as it had to be, their own. In reaching it, it seems to me, the justices posed the right legal question; and, with the single exception to which I will come, they marshalled and evaluated relevant and admissible evidence, and only such evidence, in answering it.[12]It was common ground that if the stationery set was a toy it broke the law. The regulation uses the concepts of design and clear intent, not in order to read the distributors' or sellers' minds but as an objective description of what the justices usefully refer to as the targeting of a product; in other words, at whom is it aimed? To answer this, anything logically indicative either way is admissible. I see nothing in the factual evidence assembled by the justices and recounted in the case they have stated which falls outside this range.[13]I do not accept that by expressing something less than certainty about the manufacturers' intention, which Mr Lindsay for the prosecutor points out is listed disjunctively from the question of design, the justices had put it out of their power to find a case proved. The passage on which this submission focuses - b) in the findings that I have recited - is a correct self-direction about the nature of design and intent in the statutory definition of "toy", divorcing it from what the maker may subjectively have had in mind. Moreover the definition of a toy is disjunctively expressed, even though the elements may very largely overlap, so that either design or intent will suffice.[14]The argument advanced to us about the craft knife and its inclusion in the stationery set seems to me to verge on the perverse. It is suggested that its very inclusion in the kit demonstrates that the set is not designed or intended as a toy. By this process of reasoning, the more dangerous a product is the less possible it will be to classify it as a toy, whatever the indicia that it is targeted at under-14s. In my view, the justices were right to have no truck with this approach to the evidence.[15]While I accept that the positioning of the product in the second appellant's shop is of limited significance - for example, it could not make a toy of what was otherwise not a toy - it is not irrelevant. The justices were entitled to note that the set was able to be presented for sale in the same area as things which were indubitably toys. The same is true of its price and colouring. None of these things was decisive but each was capable of pointing one way or the other. The fact that adults might use such things, and that children might use things that were not toys, formed a legitimate part of the argument, but it did not require separate findings of fact and manifestly did not cause the justices to entertain a doubt about their conclusion.[16]Thus far I can find no fault with the justices' reasoning. But they did err by taking the use of the CE mark to be in itself an acknowledgment that this object was a toy. It is quite correct that by Regulation 5 of the 1995 Toys (Safety) Regulations any toy which bears this mark is presumed to comply with the Regulations, but the CE mark may also, by law, be affixed to other products. I accept therefore, as Mr Lindsay accepts, that the justices have assumed incorrectly that any product bearing the CE mark was, by that token alone, being presented as a toy.[17]But Mr Cotter has been entirely unable to suggest what class of product lawfully eligible for the CE mark the stationery set belonged to if it was not to the class of products covered by the Toys (Safety) Regulations 1995. He has instanced as equally eligible for the CE mark low-voltage electrical equipment, non-automatic weighing machines, radio and telecommunication terminal equipment, personal protective equipment, household refrigerators and freezers, machinery and medical devices. Had the question been canvassed at trial rather than here, the justices would therefore have arrived at exactly the same conclusion, not this time by assumption but by deduction, namely that since the stationery set was none of these things the CE mark on it could only have been intended to indicate that it was a safe toy. They would have treated, as I would treat it, with scepticism counsel's submission to this court that the letters are meaningless. They are, as we can see from the packet produced to us, deliberately configured to reproduce or imitate the typography of the prescribed EU safety mark which is set out in Schedule 1 to the Toys (Safety) Regulations 1995.[18]In my judgment, this was a careful and conscientious decision of the justices in which they properly weighed the relevant matters, made no material error of law and came to a legitimate conclusion that the case on all four informations was proved. I would accordingly dismiss this appeal.[19]MR JUSTICE BEATSON: I agree. The appellants conceded that presentation could be a factor in deciding whether a product was a toy, but argued in this case there was nothing in the product's presentation to suggest that it was either designed for or clearly intended for use in play by children less than 14 years and was thus a toy within The Toys (Safety) Regulations 1995. The argument was that the characteristics of this product did not bring it within the definition of "toy" and that its overriding presentation and function was as a stationery product. Paragraph 6 b) of the case stated, which has been set out in my Lord's judgment, includes the statement that the justices considered that "it was clearly impossible" for them to be certain about what the precise intentions of the manufacturers of the product were when the item was designed. It was suggested that "intention" meant subjective intention and, as stated by my Lord, this also showed the application of an inappropriate standard in determining the matter before them. It was, however, open to the justices to find that the product was designed or clearly intended for use in play, having regard to the objective characteristics of the product, including appearance and presentation.[20]For the reasons given by my Lord, the way they approached this matter was one that was well within the scope of their powers.[21]This appeal should therefore be dismissed.

LORD JUSTICE SEDLEY: Are there any other applications?

[23]MR LINDSAY: I apply for costs on behalf of the respondent.

LORD JUSTICE SEDLEY: Against whom?

[25]MR LINDSAY: Against both parties.

LORD JUSTICE SEDLEY: Jointly and severally?

[27]MR LINDSAY: Yes.

LORD JUSTICE SEDLEY: Mr Cotter, what do you say?

[29]MR COTTER: I resist that.

LORD JUSTICE SEDLEY: Mr Barnett?

[31]MR BARNETT: I am invited to consider whether, as a point of principle, it should come from central funds.

LORD JUSTICE SEDLEY: We will consider it. Is there anything else?

[33]MR BARNETT: The schedule was served on us this morning. We would like some time to reflect on it.

LORD JUSTICE SEDLEY: Do you have your bill?

[35]MR LINDSAY: Yes.

LORD JUSTICE SEDLEY: Let us first decide where the order for costs will be. The respondents' costs to be paid jointly and severally by the appellants. You negotiate how you distribute them among yourselves.

[37]MR LINDSAY: Yes.

LORD JUSTICE SEDLEY: Do you wish to put your bill in?

[39]MR LINDSAY: Yes.

LORD JUSTICE SEDLEY: You have your instructing solicitor with you, Mr Barnett.

[41]MR BARNETT: I have, yes.

LORD JUSTICE SEDLEY: I imagine that he is experienced enough to run his thumb down a bill of costs and see what stands up and what does not.

[43]MR BARNETT: Yes.

LORD JUSTICE SEDLEY: Mr Barnett, do you wish to take any point on any items?

[45]MR BARNETT: I am instructed to accept the claim for the solicitors' costs but to ask for a reduction in counsel's fee. It is quite difficult but I can see the sense of it.

LORD JUSTICE SEDLEY: What would you say Mr Lindsay's performance was worth? You will speak entirely on instructions.

[47]MR BARNETT: £2,000. We would seek a reduction of £1,000.

LORD JUSTICE SEDLEY: Mr Lindsay, the attendance of your solicitor at the hearing was six hours. From where does he have to travel?

[49]MR LINDSAY: Locally.

LORD JUSTICE SEDLEY: A London solicitor?

[51]MR LINDSAY: No, local to Grimsby.

LORD JUSTICE SEDLEY: How long has his journey been?

[53]MR LINDSAY: He travelled on the five-to-six train this morning.

LORD JUSTICE SEDLEY: He came by train?

[55]MR LINDSAY: Yes.

LORD JUSTICE SEDLEY: Did he spend the journey looking out of the window or working on another client's papers?

[57]MR LINDSAY: Working wholly on this case. I know that because we looked at some other issues and discussed them.

LORD JUSTICE SEDLEY: That is commendable. That is three hours coming here. I expect you will have some other work to do when going.

[59]MR LINDSAY: I suspect that is right. In fairness, I think the attendance figure should come down to four hours because the other time can be usefully employed, that is £100 off. What do you say about your fee?[60]MR LINDSAY: I am looking at counsel's fee to be claimed on the statement of costs.

LORD JUSTICE SEDLEY: On the other side?

[62]MR LINDSAY: Yes. So far as Mr Cotter is concerned, I understand that £4,000 is the figure.[63]MR COTTER: That is why I have said nothing.

LORD JUSTICE SEDLEY: He has been conspicuously silent. Mr Barnett is being underpaid today, is he?

[65]MR LINDSAY: I have not a copy, but no doubt, yes.

LORD JUSTICE SEDLEY: Mr Barnett made his submission so unblushingly that he must be being paid less today. (Pause) We are only going to trim a small amount off. We will bring it down to £4,300 as our assessment of costs.

[67]MR COTTER: I do not know whether it is necessary to make a formal request; there is a sentence.

LORD JUSTICE SEDLEY: The dismissal of the appeal means that the conviction stands and sentence remains to be determined. The order of the court will be to remit the case for that purpose. ---