Nottingham City Council v Wolverhampton & Dudley Breweries Plc
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kennedy,Mr Justice Royce,LORD JUSTICE KENNEDY |
| Judgment Date | 27 November 2003 |
| Neutral Citation | [2003] EWHC 2847 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 November 2003 |
| Docket Number | Case No: CO/2232/2003 |
[2003] EWHC 2847 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Kennedy and
Mr Justice Royce
Case No: CO/2232/2003
Iain MacDonald (instructed by Nottingham City Council Legal Services) for the appellant
Ian Wise (instructed by John Gaunt & Partners) for the Respondent
This is a prosecutors appeal by way of case stated from a decision of District Judge Zara sitting at Nottingham Magistrates' Court who on 3 rd February 2003 heard preliminary arguments on points of law in relation to four information's laid by the appellant against the respondent on 26 th July 2002.
Each information alleged that the appellant on 16 th August 2001 at the Slug and Fiddle public house in Upper Parliament Street, Nottingham sold to the prejudice of the purchaser an alcoholic drink (in three cases whisky and in the fourth case gin) which was not of the substance demanded, contrary to section 14 of the Food Safety Act 1990.
The District Judge did not hear evidence, but certain facts were agreed, namely -
(a) the Slug and Fiddle public house is owned by the respondent company.
(b) The licensee of the public house on the day in question was employed by the respondent.
(c) On the 16 th August 2001 Trading Standards officers employed by the appellant made a routine inspection at the premises.
(d) The officers tested the contents of the four bottles referred to in the informations, three of which were on display and one of which was produced by the licensee.
(e) There was in each case a deficiency in the declared volume of alcohol, such that it fell below the tolerance allowed by Food Labelling Regulations.
(f) No test purchases were made before or after the contents of the bottles were tested.
(g) All the bottles were the property of the respondent.
For the respondent it was contended that only the licensee or the servant of the licensee could lawfully sell intoxicating liquor, and therefore only the licensee could be prosecuted if there was a sale. Reliance was placed on the decision of this court in Goodfellow v Johnson [1966] 1 QB 83. The appellant submitted that for various reasons that decision could be distinguished, including the fact that it related to a Licensing Act, and not to the Food Safety Act.
The District Judge considered the authorities and decided Goodfellow v Johnson was authority for the proposition relied upon by the respondents, and that he was bound to follow it. There was another issue as to whether there had been a sale, but that is no longer a central issue before us, and the District Judge posed this question for our consideration -
Whether a sale of alcoholic beverages for the purposes of section 14 of the Food Safety Act 1990 can be made only by the licensee authorised under the Licensing Act 1964, or whether it can also be made by the owner of the alcoholic beverages, where such a person also owns the premises from which they are sold and employs the licensee?
Submissions in this Court.
Mr MacDonald, for the appellant, adopting an argument used by the late Professor Sir John Smith in a note in the Criminal Law Review, submitted that it must be an anomaly if (given that food includes drink) a public house owner, who is not the licensee but who owns the stock, cannot be convicted under section 14 of the 1990 Act of selling adulterated whisky or gin, even if he is aware of what is happening; but under the same section he can be convicted of selling adulterated lemonade. In Mr MacDonald's submission that is not the true position in law, although some of what has been said in cases in the past does seem to support the contention that on licensed premises a sale of alcoholic liquor can only be made by a licensee or his servant or agent. Those cases, it is submitted, do have to be read in their statutory context. When so read they can be seen not to fetter the meaning which ought to be given to the clear words of section 14 of the 1990 Act. It imposes liability upon "any person who sells … any food which is not of the… substance demanded….". Section 2(1)(a) provides that for the purposes of the Act "the supply of food otherwise than on sale in the course of a business… shall be deemed to be a sale …". Section 1(1)(a) makes it clear that food includes drink, and there is nothing anywhere in the Act to suggest that when the owner of the goods, either personally or through his servant or agent, agrees that they should be sold, so that title passes, he is protected from liability simply because the goods are alcohol and the sale takes place in licensed premises of which the owner is not the licensee. From the point of view of the enforcing authority it is important to be able to bring proceedings against an owner, and not simply against a bar person or an employed manager who is the licensee because sometimes the fault can be, wholly or in part, that of the owner. If he is not at fault then he can take advantage of the defence of due diligence which is to be found in section 21(1) of the Act.
Mr MacDonald further submits that even if the respondents are right as to the impact of the decision in Goodfellow up to 2001, so that in licensed premises alcohol could only be sold by a licensee or his servant or agent, that situation changed as a result of amendments made to section 169 of the Licensing Act 1964 by the Licensing (Young Persons) Act 2001.
Finally Mr MacDonald submits that on the facts of this case there was no sale by retail as envisaged by section 160(1) of the Licensing Act, but the provision of samples to the Trading Standards Officers was a supply of food otherwise than on sale which was deemed to be a sale by section 2(1) of the Food Safety Act for the purposes of that Act. Such a supply, it is contended, could lawfully be made by someone other than the licensee.
For the respondents Mr Ian Wise submits that the District Judge was right to apply Goodfellow as he did, and that there are sound policy reasons for distinguishing between the sale of alcohol and other types of food. In general where alcohol is sold legal responsibility attaches to the individual who physically supplies the product, which is not considered to be necessary in relation to, for example, lemonade.
As to statutory changes made in 2001 Mr Wise submits that their only purpose was to strengthen the law in relation to the sale of alcohol to those under the age of 18, and to deal with the liability of a servant of the licensee as set out in section 169 prior to amendment.
In relation to the final submission made on behalf of the appellant Mr Wise submits that a careful reading of the definitions section of the 1964 Act shows that sampling does come within the definition of sale by retail, so the distinction which Mr MacDonald seeks to draw is not valid.
The impact of Goodfellow.
I come therefore to Mr MacDonald's primary submission, which involves examining a number of authorities stretching back over a century, and in my judgment they are best considered in chronological order.
I start with Hotchin v Hindmarsh (1891) 2 KB 181 which is of particular significance because it was relied upon in Goodfellow. The appellant was the local foreman of a dairy company, and the milk which he supplied had added water. He was prosecuted and convicted under section 6 of the Sale of Food and Drugs Act 1875, a linear predecessor of section 14 of the 1990 Act. The 1875 Act also had some limited defences in section 6 and a warranty defence in section 25, which the appellant was unable to establish, but it was contended on his behalf in the Divisional Court that his employers and not he should have been prosecuted. Lord Coleridge CJ examined the structure of the Act, the earlier sections of which were directed to physical acts, saying in relation to two of those sections at 186 –
"If the magistrates find the existence of the intent and the commission of the act, … the person doing the act must be dealt with as a principal, even though he is a servant. It cannot be his duty to break the law and if he knowingly commits the act he is guilty."
The Chief Justice then turned to section 6, and said of it –
"In my opinion a person who takes the article in his hand, and performs the physical act of transferring the adulterated thing to the purchaser, is a person who sells within this section."
As Mr MacDonald points out, the Chief Justice used the indefinite article. He did not say that only the person who handed over the adulterated thing could be a seller within the section, and indeed he went on to say at 187 –
"If, therefore, any person transgresses against the provisions of section 6, be he principal or agent, he falls within that section."
Mathew J agreed, and added at 189 –
"It would be an extraordinary interpretation of the Act to hold that even when it was shown that the person who did the act was guilty, his employer alone could be liable to be convicted."
Mr MacDonald invites our attention to the word "alone" and Mathew J went on to point out that if the appellant were right under section 25 "the result might be that while the guilty person would escape, his innocent employer might be convicted."
The next decision to which I need refer is Coppen v Moore (No 2) (1898) 2 QB 306. Section 2(2) of the Merchandise Marks Act 1887 made it an offence to sell or expose for sale goods to which a forged trade mark or false description was applied unless the alleged offender could prove what amounted to due diligence. Salesmen at one of the appellant's shops sold American Ham as Scotch Ham,...
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