Wm Morrisons Supermarkets Plc v Reading Borough Council [2012] EWHC 1358 (Admin)

Case No CO/2962/2011[2012] EWHC 1358 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 9th February 2012
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE HOOPER
MR JUSTICE LLOYD JONES
Between
WM MORRISONS SUPERMARKETS PLCEClaimantv
Between
READING BOROUGH COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss C Andrews (instructed by Beachcrofts) appeared for ClaimantMr s Blackford (instructed by Reading BC) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE LLOYD JONES: This is an appeal by case stated against the decision of the Reading Magistrates on 2 December 2010, convicting the appellant of an offence contrary to section 7(1) of the Children and Young Persons Act 1933. That section, as amended, provides in relevant part:
"Any person who sells to a person under the age of eighteen years any tobacco or cigarette papers, whether for his own use or not, shall be liable, on summary conviction to a fine not exceeding level 4 on the standard scale."
[2]The magistrates made the following findings of fact. On 26 February 2010 the respondent laid an information charging the appellant that on 19 September 2009 in the county of Berkshire he did sell to a person under 18 years of age tobacco contrary to the section 7(1) of the Children and Young Persons Act 1933, as amended. The appellant pleaded not guilty to that offence and the trial took place on 1 and 2 December 2010.[3]The facts found were that on 19 September 2009 a young person aged 15, who was born on 28 May 1994, entered the appellant's store at Reading, went to the cigarettes sales kiosk and asked for ten B & H. The sales assistant on the kiosk apparently did not understand and the purchaser repeated his request. The assistant consulted a colleague in the kiosk and supplied the purchaser with a packet of ten Benson & Hedges cigarettes, taking from him the appropriate money and placing it in the till. The purchaser left the store. The purchaser subsequently handed the cigarettes to an officer of Reading Borough Council outside the store. The purchaser throughout was conducting a test purchase in accordance with instructions from council officers in order to determine whether or not the appellant was observing the law relating to the supply of tobacco only to persons aged 18 or over.[4]The magistrates found that the appellant failed to take such precautions or exercise the due diligence required to allow it a defence under section 7(1)(a) of the Children and Young Persons Act 1933.[5]In the proceedings before the magistrates the appellant had submitted that the test purchase by the purchaser was not a sale for the purposes of the Sale of Goods Act 1979, because the purchaser acquired no rights in or ownership of the cigarettes having acted at all times on behalf of Reading Borough Council. It was further submitted that it followed that there had been no sale for the purposes of section 7(1) of the 1933 Act and therefore the appellant was not guilty of the offence.[6]The magistrates concluded that they were sure for the purposes of the case before them the request for cigarettes by the purchaser, the acceptance of his payment and the handing over of the cigarettes constituted a sale to a person under the age of 18 within the meaning of section 7(1) and that neither questions about the passage of ownership under the Sale of Goods Act 1979, nor the motive of the purchaser, that is the fact that it was a test purchase, in any way detracted from that. Furthermore, they considered that they were not assisted by the decision in Merton London Borough Council v Sinclair Collis Ltd [2011] 1 WLR 1570 which had been cited to them. Accordingly they convicted the appellant, imposed a fine of £2,000 plus a victim surcharge of £15 and ordered the appellant to pay the costs of Reading Borough Council in the sum of £6,648.[7]The question which is now posed for the opinion of the High Court is:
"Were we entitled to conclude that the test purchase in this case constituted a sale to the purchaser for the purposes of section 7(1) of the Children and Young Persons Act 1933?"
[8]On behalf of the appellant, it is submitted by Ms Andrews that the justices erred in law, in that they failed to interpret the meaning of the word "sale" in section 7(1) as referring to the passing of property pursuant to a contract. Furthermore she submitted that they erred in failing to consider who in fact and law was the other party to the contract and in failing to find this to be the defendant Council and not an under-age volunteer appointed by the Council for the purpose of carrying out this transaction and instructed by the Council in his task. Accordingly she submitted that they erred in convicting the appellant. In essence, it is said that the appellant did not sell tobacco to the young person because he was acting as agent of the Council and so the sale was to the Council.[9]On behalf of the respondent, Mr Simon Blackford places at the forefront of his submissions the following passage in the speech of Lord Reid in Brutus v Cozens [1973] AC 854 at page 861D to F:
"The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is. But here there is in my opinion no question of the word 'insulting' being used in any unusual sense. It appears to me, for reasons which I shall give later, to be intended to have its ordinary meaning. It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage in the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision then there can be a question of law but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision."
[10]Although, because of the way in which the argument developed before us, it has not been necessary to hear Mr Blackford in detail on this first of his submissions, he invites us in his written submissions to start with the ordinary meaning of "sells".[11]He submits that it is only if the ordinary meaning of the word causes problems that recourse should be had to the tools of statutory interpretation. He submits that the use of the word sells poses no difficulty and that it must be open to the justices to find that the sale is a sale to the person handing over the money, notwithstanding the fact that the purchase is a test purchase. He submits that as a matter of common sense any ordinary person standing in the Morrisons shop in question would have been astonished to be told that what he or she was witnessing was not a sale to the person standing there but to some else who was not present. He submits that the court need go no further than that.[12]As Mr Francis Bennion explains in Statutory Interpretation, 5th Edition, pages 1222 to 1223, there are two questions intertwined in the passage from Lord Reid's speech on which Mr Blackford relies. The first is the question of law whether the word used in this statutory context is to be given its ordinary meaning or some modification of that meaning and the second, the question of fact whether the conduct found falls within the legal meaning of that word. In Brutus v Cozens the House of Lords considered that the word was intended to have its ordinary meaning. It then went on to consider the application of the meaning to the facts. That second stage did not involve any question of interpretation.[13]By contrast, the present case does raise a question of interpretation, namely: what is the legal meaning of the word "sells" in the context of this statute? That legal meaning may, of course, accord with its ordinary meaning, but ascertaining its legal meaning is a prior question to that which principally occupied the House of Lords in Brutus v Cozens. Accordingly it is insufficient for present purposes simply to say that the justices were entitled to conclude that the tobacco was sold to the test purchaser in the ordinary sense of the word "sell".[14]On behalf of the appellant Ms Andrews submits that the Act does not include any extended definition of the word "sells" or "sale". In particular she says that we should resist any invitation to read it as if it meant "supply". Furthermore, she points to the fact that there is no provision in the statute for investigative powers and no power to carry out a test purchase.[15]She submits that the word "sells" must be given the technical legal meaning which it bears in the context of the law of sale of goods and, in support of this approach, she relies on a series of decided cases as applying a contractual analysis in determining the meaning of a statutory provision. In particular here she relies on Pharmaceutical Society v Boots Cash Chemist Southeastern Ltd [1953] 1 QB 401, Fisher v Bell [1961] 1 QB 394, Partridge v Crittenden [1968] 1 WLR 1204 and Leicester v Balfour Williamson [1953] 2 QB at 168. These are all cases in which the analysis of the transaction in terms of civil law was decisive. Furthermore she submitted on the authority of Fisher v Bell that these cases establish that the contractual meaning, that is the meaning given in the ordinary law of contract, must prevail unless a different statutory meaning can be found by looking at other provisions of the statute.[16]Here she goes on to point to section 2 of the Sale of Goods Act 1979 and in particular section 2(1):
"(1)A contract of sale of goods is a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price." section 2(4): "
Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale." and section 2(5):
"Where under a contract of sale the transfer of the property in the goods is to take place at a future time or subject to some condition later to be fulfilled the contract is called an agreement to sell."
[17]I turn to consider where such an analysis of the transaction may lead. I assume for present purposes that it is appropriate to have regard to these definitions in a different statute. It is fair to say that those provisions not only provide definitions for the purpose of that statute but they may be regarded as reflecting the terminology generally employed in the common law in relation to sale.[18]The appellant's case assumes that the young person was acting as agent. That is not necessarily established on the facts found by the magistrates. It is possible that the findings of fact could be consistent with his acting as principal and reselling the tobacco as principal, and if that is what happened then there is clearly a sale to the young person. However, I accept that it is far more likely, on the facts found, that the young person was acting as an agent for the Council and I am prepared to proceed on that basis for present purposes.[19]If the young person was acting as agent of the Council, he was acting as agent for an undisclosed principal. Where a principal is undisclosed at the time of contracting, the contract is made with the agent and he is personally liable and entitled under it (see Bowstead & Reynolds on Agency, 19th Edition, paragraph 9-012 and the cases there cited). However, the appellant's point is in relation to the passing of property, that is that the property does not pass under the contract to the young person as purchaser and therefore the tobacco is not sold to him.[20]I can see that difficult questions could arise as to whether property passes to the agent or directly to the undisclosed principal. These have not been argued before us. However, it seems clear that property would pass from the seller either to the young person or to his undisclosed principal as a result of entering into this transaction. That the question of criminal liability might turn on such a nice analysis of the transaction in civil law would perhaps be undesirable but certainly a possibility, as is apparent from some of the authorities to which we have referred earlier in this judgment.[21]However, I consider that in this instance such an analysis is not called for. I am persuaded that Parliament did not intend to limit the application of this provision to a case where a child or young person acts as principal and therefore property passes to him. On the contrary, I have come to the clear conclusion that section 7 applies where a child or young person enters into a transaction of sale, whether as a principal or on behalf of someone else, whether disclosed or undisclosed and whether or not property passes to him.[22]I have come to that conclusion for three principal reasons. First, section 7(1) includes the words, "whether for his own use or not." These words are no doubt intended to preclude a defence on the basis that the child or young person was purchasing the tobacco for an adult. However, contrary to the submission of Ms Andrews, I do not understand these words to relate to the purpose of the vendor at the point of sale but to the nature of the transaction. It is likely that in many cases in which a child or young person purchases tobacco for the use of another, he will be acting as agent for that other. However, if the appellant is correct in its submissions, then no offence would be committed in such circumstances because there would not be a sale to the child or young person. To my mind the inclusion of these words in section 7(1) is a strong indication that Parliament intended that the offence would be committed, whether the child or young person was acting as principal or as agent.[23]Secondly, further support for that conclusion is provided by section 7(4):
"Nothing in this section shall make it an offence to sell tobacco ... [to] any person who is at the time employed by a manufacturer of or dealer in tobacco, either wholesale or retail, for the purposes of his business, or is a boy messenger in uniform in the employment of a messenger company and employed as such at the time."
[24]To my mind, the young person who is employed by a manufacturer or dealer in tobacco and who purchases tobacco when employed as such and for the purposes of that business is hardly likely to be contracting as a principal. He will be purchasing as an agent for his employer. The same is true of a boy messenger in uniform in the employment of a messenger company acting in that capacity when purchasing tobacco. To my mind the creation of this exception points strongly to the conclusion that the offence contrary to subsection (1) is committed whether or not the young purchaser acts as principal or agent.[25]Thirdly and more generally, when one has regard to the mischief at which the legislation is aimed, namely failure to exercise careful judgment regarding the age of a would-be purchaser in the face-to-face transaction, it seems to me that it is irrelevant whether property passes to the young person or as a result of his entering into the transaction to someone else. What matters is that the child or young person enters into a contract for the sale of tobacco and that property passes under that contract.[26]For these reasons I would answer the proposed question "Yes".

LORD JUSTICE HOOPER: I agree and add only this. If Ms Andrews were right, then a shop could drive a coach and horses through this legislation by having a sign, drawn to the attention of the purchaser, to the effect that the property did not pass if the purchaser was under the age of 18.

[28]Ms Andrews relies particularly in her argument upon two cases which my Lord has already mentioned, namely Fisher v Bell and Partridge v Crittenden. In Fisher v Bell, a shopkeeper displayed a flick knife with its price in his shop window. Charged with offering that flick knife for sale, it was held by a Divisional Court, presided over by Lord Parker LCJ, that this was not an offer for sale but an invitation to treat.[29]Fisher v Bell was followed in Partridge v Crittenden where the defendant was advertising for sale cage and aviary birds. A person wrote enclosing a cheque asking for a bramblefinch hen to be sent to him and that was done. The defendant was charged with offering birds for sale. The Divisional Court held that the defendant had not made an offer for sale but an invitation to treat. Lord Parker mentions in the course of his judgment a criticism of Fisher v Bell in the Criminal Law Review suggesting that there might be a different meaning in the criminal law for the words "offer for sale" than for those words used in the law of contract. Lord Parker did not find that an attractive argument and said that: "It appears to be to a naked usurpation of the legislative function under the thin guise of interpretation" to adopt such an argument. The comment written by Professor Smith in the Criminal Law Review to which Lord Parker was referring can be found at [1961] Criminal Law Review 180.[30]It may be that this approach to the interpretation of the words "offer for sale" may not be adopted given the modern practice to look at, as Lloyd Jones J has done, the mischief sought to be avoided.[31]In any event, as I have said, I agree and therefore this appeal is dismissed.