London Borough of Haringey & Anor v Marks & Spencer PLC & Anor

The Divisional Court considered whether the phrase "a person" in section 169A of the Licensing Act 1964 (as inserted by the Licensing (Young Persons) Act 2000) extends to corporate proprietors or employers who are not the named licence holder. The court held that the provision is ambiguous in context and must be read against the wider licensing scheme, including sections 160 and 3 of the Licensing Act 1964. Having regard to legislative history and the limited purpose of the amendment, the court concluded that Parliament intended to reach employees who actually made the sale (including employees omitted from the licence) rather than to create direct criminal liability for non‑licensed corporate proprietors or employers. Pepper v Hart was used to admit parliamentary material to resolve the ambiguity. The appeals by case stated were dismissed and the questions posed were answered in the negative.

Background and parties:

• The appeals arose by case stated from two district judges after summonses for sale of alcohol to a person under 18 were dismissed. The appellants were local authorities (London Borough of Haringey and Liverpool City Council) prosecuting supermarket companies (Marks & Spencer PLC and Somerfield Stores Ltd).
• The licensed premises were licensed to named employees rather than to the corporate proprietors; the sales were carried out by employees of the companies.

Nature of the application: The appeals asked the Divisional Court to determine whether the term "a person" in section 169A of the Licensing Act 1964 includes corporate proprietors or employers who are not the licence holder, thereby exposing them to criminal liability for sales to under 18s.

Issues before the court:

• Whether "a person" in s169A(1) should be read to include corporate proprietors/employers who are not licence holders.
• Whether contextual material, including other provisions of the Licensing Act and parliamentary materials, could be used to resolve any ambiguity.
• Whether comparative authorities and other consumer‑protection statutes demonstrated a broader intended scope.

Reasoning and conclusion:

• The court held that s169A must be read in the context of the licensing regime, notably sections 160 and 3, which historically and structurally focus responsibility on the licence holder and named individuals. Read in that context the language of s169A is ambiguous as to whether it singles out contractual owners/employers, the licence holder, or the actual sales assistant.
• Applying the threshold in Pepper v Hart, the court considered parliamentary materials from the Bill's passage and found a clear, narrow legislative purpose: to extend liability to employees who made sales but were not named on licences, not to reach non‑licensed proprietors or employers generally.
• Authorities from other statutes (for example decisions under the Food Safety Act) were distinguished because those statutes operate in different contexts; Allied Domecq (Weights and Measures) was of limited relevance.
• The court dismissed both appeals, answering the stated questions in the negative and leaving non‑licensed proprietors beyond the reach of s169A liability.

Other procedural notes: The court made defendant's costs orders in favour of the companies to be assessed and declined to certify a point of law for further appeal.

The appeals by case stated were dismissed. The court held that "a person" in section 169A(1) of the Licensing Act 1964 does not include a proprietor or employer who is not the licence holder; the provision was read in the broader context of the Licensing Act and, on legislative history, was intended to reach employees who effected sales rather than non‑licensed corporate proprietors. The court applied Pepper v Hart to admit parliamentary material and distinguished other statutory contexts.

Appeals by case stated from District Judge Wiles at Haringey Magistrates' Court (summary dealing with Marks & Spencer, summons considered 5 August 2003) and District Judge Lomax at Liverpool Magistrates' Court (summary dealing with Somerfield, summons considered 27 November 2003) to the Divisional Court, which delivered this judgment ([2004] EWHC 1141 (Admin)).