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FISHER v BELL REVISITED: MISJUDGING THE LEGISLATIVE CRAFT

  • Roderick Munday (a1)

Extract

As students of the Law of Contract learn to their bemusement, in Fisher v Bell,1 although caught by a member of the constabulary in the most compromising circumstances, the owner of Bell's Music Shop, situate in the handsome Victorian shopping Arcade in the bustling Broadmead area of Bristol, was unsuccessfully prosecuted for offering for sale a flick knife contrary to s.1(1) of the Restriction of Offensive Weapons Act 1959. The statute penalised “any person who manufactures, sells or hires or offers for sale or hire, or lends or gives to any other person” a flick knife. Mr Bell had done all in his power to make a sale. The switchblade had been displayed in his shop window with a label that read, “Ejector knife—4s”. The police officer, who spotted the display and then took the knife away to show to his superintendent, was told by the shopkeeper that he had had other policemen in the shop inquiring about the knives. When the officer returned to tell Mr Bell that he would be prosecuted, the latter simply retorted “Fair enough.”

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Corresponding author

Address for correspondence: Peterhouse, Cambridge, CB2 1RD. Email: rjm1000@cam.ac.uk.

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1 [1961] 1 Q.B. 394; (1961) 125 J.P. 101.

2 Timothy v Simpson (1834) 6 C. & P. 499.

3 [1961] 1 Q.B. 394, 399–400. The Divisional Court's decision caused consternation and within weeks Lord Morris of Kenwood was introducing a Restriction of Offensive Weapons Act 1959 (Amendment) Bill in the House of Lords “to rectify this omission” whereby “an article with a price on it in a shop window is merely an invitation to trade [sic] and not an offer for sale”: H.L. Deb. 9 May 1961, vol. 231, col. 121. The proposed Bill was also intended to close another loophole in the 1959 legislation. It was noticed that the Act, which had been intended to curb imports of flick knives, did not apply to Northern Ireland. Therefore, weapons whose importation was prohibited elsewhere in the United Kingdom could be legitimately brought into the realm via the Hibernian route.

4 [1961] Crim. L.R. 175.

5 [1972] 1 W.L.R. 1519.

6 Ibid., pp. 1525–6.

7 (1983) 1 January, unreported.

8 Cf. Grainger & Sons v. Gough [1896] A.C. 325.

9 [1968] 1 W.L.R. 1204.

10 “ABCR”: aviary bred, close-ringed.

11 Ibid., p. 1209.

12 Ibid. loc. cit.

13 [1961] 1 Q.B. 394, 400.

14 [1968] 1 W.L.R. 1204, 1209.

15 [1952] A.C. 189, 191.

16 E.g. C. Elliott and F. Quinn, English Legal System, 12th ed. (London 2011), p. 53; G. Slapper and D. Kelly, English Law, 2nd ed. (Abingdon 2006), p. 51.

17 Statutory Interpretation (London, 1976), 65. See now 3rd ed. by Bell and Engle (Oxford 1995), 73.

18 Since the statute includes manufacturers, hirers and lenders of flick knives, the argument is problematical. Bennion on Statutory Interpretation: A Code, 5th ed. (London 2008), § 368, pp. 1206–7 and P. Smith, S. Bailey and M. Gunn, The Modern English Legal System 5th ed. (London 2007), § 6.013 both see the statute as possibly using technical language that needs to be construed technically without claiming that the legislation was aimed at any particular constituency.

19 Unwin v. Hanson [1891] 2 Q.B. 115, 119 per Lord Esher M.R. He continued: “For instance, the ‘waist’ or the ‘skin’ are well-known terms as applied to a ship, and nobody would think of their meaning the waist or the skin of a person when they are used in an Act of Parliament dealing with ships.”

20 See below footnote 48.

21 Winfield, P., “Some Aspects of Offer and Acceptance” (1939) 55 L.Q.R. 499.

22 [1961] Crim. L.R. 181.

23 E.g. Agricultural Produce (Grading and Marking) Act 1928, ss.3 and 4(2)(d); Hares Preservation Act 1892, s. 2; Markets and Fairs Clauses Act 1847, s. 13; Stamp Duties Management Act 1891, s. 13(8).

24 E.g. Copyright Act 1956, ss. 5(3)(a), 16. 21 and 43.

25 E.g. Game Act 1831, s. 3A; Protection of Animals Act 1911, s. 8(a); Public Health Act 1961, s. 37(1)(b).

26 [1961] Crim. L.R. at p. 182.

27 [1961] 1 Q.B. 394, 399 per Lord Parker, C.J.

28 See ss. 23, 24, 83, 107, 184, 188, 198, 205H, 227, 296, 296ZB, 297A, and 298, some of which were amended as recently as 2003: Copyright and Related Rights Regulations 2003 (SI 2003/2498).

29 See Jones v. Bath & N.E. Somerset Council [2012] EWHC 1361 (Admin), (2012) 176 J.P. 530. Just as the term pedlar, as used in the Pedlars Act 1871, s. 3 refers to any “hawker, pedlar, petty chapman, tinker, caster of metals, mender of chairs, or other person who, without any horse or other beast bearing or drawing burden, travels and trades on foot and goes from town to town or to other men's houses, carrying to sell or exposing for sale any goods, wares, or merchandise, or procuring orders for goods, wares, or merchandise immediately to be delivered, or selling or offering for sale his skill in handicraft.'

30 (2012) 176 J.P. 388, [2012] EWHC 1358 (Admin).

31 Ibid. at [14].

32 Conceivably, on the facts it may alternatively have been a case of sale to the boy, followed by resale to the council. In which case, a fortiori the appellant's arguments fell away. Of course, had the boy informed the employee in the sales kiosk, “I am a youth making a test purchase on behalf of Reading Borough Council”, the defendant's argument would have had greater force since, absent special circumstances, the Law of Agency decrees that when the agent acts for a disclosed principal the contract is made between the third party and the principal, the agent acquiring neither rights nor liabilities under the contract. Because the Children and Young Persons Act 1933, s. 7(1) refers to a “person who sells to a person under the age of eighteen years”, in this unlikely situation it is easier to imagine a court holding that no offence had been committed.

33 Bowstead & Reynolds on Agency, 19th ed., by Peter Watts (London 2010), § 9.012; Munday, Roderick, Agency: Law and Principles (Oxford 2010), § 10.27.

34 (2012) 176 J.P. 388 at [19].

35 Ibid. loc. cit.

36 Ibid. at [20].

37 Ibid. at [21].

38 Ibid. at [22].

39 Ibid. at [23]. The court made no reference to the gravity of a conviction of this offence. Section 143(2) of the Criminal Justice and Immigration Act 2008 added s. 12B to the 1933 Act, empowering the court to issue a ‘restricted sales order’, inter alia “prohibiting the person to whom it relates from selling any tobacco or cigarette papers to any person”, etc. (s. 12B(3)(a)) – i.e., putting the hapless vendor out of business for up to a year if “satisfied that, on at least two occasions within the period of two years ending with the date on which the relevant offence was committed, the offender has committed other tobacco offences” (s. 12B(5)).

40 Ibid. at [26].

41 Ibid. at [28].

42 E.g. Agricultural or Forestry Tractors (Emission of Gaseous and Particulate Pollutants) Regulations (SI 2002/1891) reg. 7; Noise Emission in the Environment by Equipment for use Outdoors Regulations (SI 2001/1701) reg. 2; Construction Products Regulations (SI 1991/1620) reg. 16; et al. There is Divisional Court authority that test purchases properly conducted do not amount to entrapment and that volunteers employed by Trading Standards and suchlike are not agents provocateurs: London Borough of Ealing v Woolworths [1995] Crim. L.R. 58 (an 11-year old boy had purchased an 18-category video film contrary to the Video Recordings Act 1984, s. 11(1)).

43 See Fireworks Act 2003, s. 12.

44 See Olympic Symbol etc. (Protection) Act 1995, s. 8A (improbably, this is its correct title: see s. 19); London Olympic Games and Paralympic Games Act 2006, Sched. 3, para 12.

45 It would seem that such is by no means universally the case. Not all such prohibitions amount to criminal offences carrying criminal sanctions or penalties. Lottery tickets, for example, may neither be sold to nor be sold by persons under 16 years of age. These prohibitions in the National Lottery Regulations 1994, reg. 3 merely provide grounds for Camelot to revoke a ticket vendor's licence in case of infringement. No provision exists for prosecution in cases of breach of reg. 3. Camelot, interestingly, has adopted a self-imposed policy of not employing under-age stooges to make test purchases. In consultation with the National Lottery Commission, Camelot devised its own test-purchasing programme, “Operation Child”. “Operation Child” involves test purchases conducted by young people who are aged 16, but look younger. (Local councils, it might be noted, advertise to recruit such young people, who look younger than their years, in order to police other enactments that do carry criminal sanctions; service may even contribute to those volunteers' Duke of Edinburgh awards.) Camelot operates a policy of three strikes and you are out: retailers who sell on three separate occasions to test purchasers who are under age in appearance face the sanction of having their terminal removed. The odd upshot is that the regulation has not actually been infringed at all, but the seller is “penalised”. Local Government Regulation publishes guidelines on test purchasing, A Practical Guide to Test Purchasing (March 2010, Lacors): see notably, para 3.2(c), which ordains that “the young person must be younger than the age stated for the purchase of the particular product.”

46 Further faint confirmation may be found in s. 7(3), which provides: “[i]t shall be the duty of a constable and of a park-keeper being in uniform to seize any tobacco or cigarette papers in the possession of any person apparently under the age of 16 years whom he finds smoking in any street or public place, ….” If the sight of anyone out and about who looks to be under 16 enjoying a crafty fag is sufficient, without more ado, to justify a seizure of property, one would anticipate that the statute ought to be regulating any circumstances in which youngsters under the age of 18 – which, in order to avert accusations of entrapment, as in the Morrisons case is likely to include the very young – were going to find themselves in possession of such malignant substances as tobacco products and cigarette papers.There is another point. The Act's antiquated concepts both of “boy messengers in uniform” (s. 7(1)) – not girls, it might be noted – and of “a park-keeper being in uniform” (s. 7(3)) reek of a bygone era. They add to the sense that even if the legislature had contemplated the surreptitious purchases by children working undercover as a standard means of enforcing the prohibition on tobacco sales to the young – and there is absolutely no statutory evidence that it did, the procedure needs to be reviewed in the light of modern legislative practice.Additionally, one is bound to wonder whether, under s. 7(3), a constable seizing tobacco products actually requires to be in uniform.

47 Although the offences were said to be offences that existed at common law, it does no harm to recall the furore kindled by the House of Lords' decision in Shaw v D.P.P. [1962] A.C. 220, from which a decade later the House retreated in some disarray in Knuller (Publishing, Printing and Promotions) Ltd. v D.P.P. [1973] A.C. 435.

48 This principle, widely known across the Atlantic as the principle of lenity, is frequently invoked in legal argument, but certainly not uniformly applied. Whereas Blackstone stated this to be a general canon of statutory construction (“Penal statutes must be construed strictly”: Commentaries on the Laws of England, I.88), Justice Scalia included it in his discussion of “Assorted Canards of Contemporary Legal Analysis”, 40 Case Western Reserve L. Rev. (1989–90). For interesting discussion, see further Newland, Sarah, “The Mercy of Scalia: Statutory Construction and the Rule of Lenity”, 29 Harv. C.R.–C.L. L. Rev. 197 (1994); Solan, Lawrence M., “Law, Language and Lenity”, 40 Wm & Mary L. Rev. 57 (1998–1999).

49 See Sir Arthur Conan Doyle, ‘Silver Blaze’ in The Memoirs of Sherlock Holmes (London 1894).

50 A not dissimilar argument has been used to show the high unlikelihood that, in employing the term “person” in s. 100(1) of the Criminal Justice Act 2003, the legislature intended to refer to the dead: Munday, Roderick, “The Quick and the Dead: Who Counts as a ‘Person’ under Section 100 of the Criminal Justice Act 2003?” [2007] J. Crim. Law 238.

51 Although the drafting of s. 1(1) of the Restriction of Offensive Weapons Act 1959, had it been drawn to ministerial attention, might immediately have been seen to be defective, almost certainly this would not have been a suitable case for invoking the doctrine clarified by the House of Lords in Inco Europe Ltd. v First Choice Distribution [2000] 1 W.L.R. 586, whereby exceptionally a court may read words into an enactment to correct an obvious drafting error and to give effect to the legislature's undoubted intention. As Lord Nicholls noted in Inco, “the courts exercise considerable caution before adding or omitting or substituting words” (ibid., p. 592. See also R (W) v Leeds Crown Court [2012] 1 W.L.R. 2786 at [46]–[47] per Sir Anthony May P.) Lord Nicholls stipulated that, before exercising this power, a court had to be “abundantly sure” of three matters: (i) the intended purpose of the relevant provision; (ii) the fact that, through inadvertence, the draftsman had failed to give effect to the intended purpose of that provision; and (iii) “the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed.” The presence of a united body of authority, consisting of statute and case law, indicating that the phrase “offer for sale” has an established technical meaning, which the legislature must be taken to know, would militate against such a course – even if the courts today appear more willing to step in to rectify perceived Parliamentary oversights: see further, Munday, Roderick, “Appealing Contempt of Court: Parliament's Homeric Nod” [2012] Stat. L.R. 345, 359–61.

FISHER v BELL REVISITED: MISJUDGING THE LEGISLATIVE CRAFT

  • Roderick Munday (a1)

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