London Borough of Merton, R (on the application of) v Sinclair Collis Ltd

The prohibition on selling tobacco to persons under 18 applies to sales made through automatic vending machines. The seller may be a corporate body, and a vending-machine transaction can constitute a sale of goods. The provision dealing specifically with vending machines supplies an additional regulatory remedy; it does not exclude the general criminal prohibition. Legislative history does not justify a construction more favourable to machine operators. The court left open whether a statutory notice on a machine could affect whether the transaction amounted to a sale.

The local authority appealed by stated case from a district judge’s ruling concerning eight test purchases of cigarettes made by children from vending machines operated by Sinclair Collis Ltd. The district judge held that the statutory regime for vending machines was exclusively contained in section 7(2) of the Children and Young Persons Act 1933, so that section 7(1) could not apply.

The central issue was whether, notwithstanding the complaint procedure in section 7(2), a sale of tobacco to a person under 18 through an automatic vending machine was capable of constituting an offence under section 7(1).

1. The appeal was allowed on the question of law. The district judge was wrong to hold that section 7(2) provided the exclusive means of regulating sales of cigarettes from vending machines.
2. The word “person” in the first occurrence in section 7(1) includes a body corporate, subject to the statutory contrary-intention qualification. The person to whom tobacco is sold must, in context, be a human being under 18. The definition in the Interpretation Act 1889 supported that construction (para [8]).
3. “Sale” bears its ordinary statutory meaning under section 2 of the Sale of Goods Act 1979. A sale may be effected without face-to-face human interaction. Where the machine operator owns the cigarettes, placing them in the machine and inviting payment for their delivery is capable of being a sale by the operator to the purchaser (paras [9]–[10]).
4. The specific vending-machine provision does not displace the general prohibition. Section 7(2) provides an alternative and different remedy: a Magistrates’ Court may order precautions, or removal of the machine, where it has been used by a person under 18. Parliament could provide both a criminal prohibition and a regulatory complaint procedure, and concurrent proceedings are not inherently contradictory (paras [16]–[19]).
5. The legislative history, including the amendments made by the Children and Young Persons (Protection from Tobacco) Act 1991, showed a progressive tightening of the law. It supplied no basis for construing the current provisions more favourably to vending-machine operators (paras [20]–[24]).
6. The court did not determine the further argument that a statutory notice on the machine might prevent the transaction from being a sale under section 2 of the Sale of Goods Act 1979. That issue remained open (para [25]). The matter was remitted to the Magistrates’ Court for further hearing. Sinclair Collis was ordered to pay the costs of the appeal; the order for costs below remained undisturbed (paras [37], [42]–[45]).

• High Court (Administrative Court): the appeal by stated case was allowed on the construction of section 7, and the matter was remitted to the Magistrates’ Court for further hearing.
• District judge: held that section 7(2) of the Children and Young Persons Act 1933 was the exclusive provision applicable to sales from vending machines.