PMS International Group Plc v North East Lincolnshire Council & Anor

Whether a product is a toy under the Toys (Safety) Regulations 1995 is determined objectively. The question is whether it was designed or clearly intended for use in play by children under 14. Design and intent are alternative routes, and neither requires proof of the manufacturer’s subjective state of mind. All logically relevant evidence may be considered, including presentation, price, colouring, positioning and limited usefulness to adults. None is necessarily decisive. A dangerous component does not prevent a product from being a toy. A CE mark is not conclusive because it may lawfully appear on other products, but it may be relevant where the available product categories show that it indicates toy safety compliance. The tribunal must reach its own conclusion, while taking relevant expert evidence into account.

Two appeals by way of case stated arose from convictions imposed by the Grimsby and Cleethorpes Justices on four informations. The proceedings concerned an office stationery set supplied by PMS International Group Plc and sold by In the Pink Ltd. The set included stationery items, scissors, a stapler, staples, a craft knife and blades. The justices found that its presentation, price, colouring, location and limited adult utility showed that it was targeted at children under 14 and therefore fell within the definition of a toy in the Toys (Safety) Regulations 1995.

The appellants challenged the justices’ treatment of the manufacturers’ intention, the CE mark, the product’s shop positioning, expert evidence and the inclusion of a craft knife which could not lawfully be sold to a person under 16. The central issue was whether the justices had erred in law in treating the stationery set as a toy.

1. The appeals were dismissed. The convictions stood, and the case was remitted for sentence. The respondents’ costs were payable jointly and severally by the appellants.
2. Under regulation 3(1) of the Toys (Safety) Regulations 1995, the relevant concepts are design and clear intention. They provide alternative routes to classification, although they may substantially overlap. The inquiry is objective and concerns the product’s targeting, rather than the distributor’s or seller’s state of mind or the manufacturer’s undisclosed subjective intention (paras 12–13).
3. Anything logically indicative of the product’s targeting is admissible. Presentation, price, colouring and positioning may therefore be considered, although none is decisive alone. Positioning a product among toys cannot make an otherwise non-toy a toy, but it may contribute to the overall assessment. The possibility that adults might use the product, or that children might use non-toys, does not prevent the tribunal reaching a clear conclusion (para 15).
4. The justices were entitled to weigh the factual and expert evidence and reach their own conclusion. Experts could provide relevant factual or opinion evidence, but it was for the justices to decide the legal question (paras 9–11).
5. The inclusion of a craft knife did not make it impossible for the set to be a toy. Treating a dangerous component as determinative would wrongly imply that the more dangerous a product was, the less capable it was of being classified as a toy. The justices were entitled to assess the product as a whole (para 14).
6. The CE mark was not, by itself, an acknowledgement that the product was a toy, since other products may lawfully bear the mark. The justices therefore initially made an error. That error was immaterial, however, because the product did not belong to the other categories identified as eligible for the mark and its mark imitated the prescribed EU safety mark. The evidence supported the same conclusion by deduction (paras 16–17).

Grimsby and Cleethorpes Justices: Convicted both appellants on four informations after finding that the stationery set was a toy within the Toys (Safety) Regulations 1995.

High Court (Administrative Court): Dismissed the appeals by way of case stated. The convictions stood and the case was remitted for sentence.