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

For the purposes of section 169A of the Licensing Act 1964, “a person” does not include the corporate proprietor or employer which is not the licence holder. The provision must be read in the context of the licensing regime, which traditionally places responsibility on the licence holder and those acting under the licence holder’s direction. Although the wording is ambiguous, the court may consult Parliamentary material under Pepper v Hart where the statutory threshold is met. That material showed that the amendment had a limited purpose: to extend liability to employees previously outside the statutory offence, while preserving the licence holder’s responsibility. It did not extend the offence to the non-licensed proprietor or employer.

Two local authorities brought appeals by case stated against the dismissal of prosecutions against Marks & Spencer PLC and Somerfield Stores Ltd. The prosecutions concerned sales of alcohol to persons under 18 by employees at licensed supermarket premises.

The magistrates’ courts held that the corporate defendants were not “persons” within section 169A of the Licensing Act 1964. In the Marks & Spencer case, the district judge also stated that the company would have established the due diligence defence. The central issue was whether section 169A applied to a non-licensed business owner or employer.

1. The appeals were dismissed. The court answered both stated questions in the negative. A non-licensed owner or employer could not commit the offence under section 169A merely because alcohol was sold from premises which it owned or operated.
2. Section 169A had to be construed in the context of the licensing legislation, including sections 3 and 160 of the Licensing Act 1964. Giving “a person” different meanings in sections 160 and 169A would produce absurd results. The phrase was also inherently ambiguous because “a person who sells” might refer to the person with title to the goods, the licence holder, or the sales assistant.
3. The ambiguity crossed the threshold in Pepper v Hart, permitting reference to Parliamentary material. That material showed that the Licensing (Young Persons) Act 2000 had a narrow purpose. It was intended to remove the distinction between employees of a licence holder and employees of a proprietor who was not the licence holder. It was not intended to impose liability on the proprietor or employer itself.
4. The amendment therefore made a limited extension to the traditional licensing structure. The proprietor, whether incorporated or unincorporated, remained outside the statutory offences. Other consumer protection legislation did not alter that conclusion because it operated in a different statutory context.
5. Nottingham City Council v Wolverhampton & Dudley Breweries plc did not assist the appellants. That decision concerned the differently structured Food Safety Act 1990. The court also derived no assistance from the obiter reservations expressed in Allied Domecq Leisure Limited v Cooper.
6. A defendant’s costs order in both cases was made, to be assessed. The court declined to certify a further point of law or grant leave to appeal.

• High Court (Administrative Court): appeals by case stated from decisions of district judges at Haringey Magistrates’ Court and Liverpool Magistrates’ Court. The summonses against the corporate defendants had been dismissed.
• High Court (Administrative Court): both appeals dismissed; defendant’s costs orders made.