Wm Morrisons Supermarkets Plc v Reading Borough Council

For the purposes of section 7 of the Children and Young Persons Act 1933, a sale of tobacco to a person under 18 is not confined to a transaction in which that person acts as principal or receives the property. The offence applies where the young person enters into the sale as an agent, whether the principal is disclosed or undisclosed, and whether or not the property passes to the young person.

The statutory meaning of “sells” is a question of legal interpretation. It cannot be resolved merely by asking whether the transaction falls within the ordinary meaning of the word. The statutory context, including the reference to use by another and the express exceptions, and the legislative purpose of securing careful age checks in face-to-face sales, show that agency and the ultimate destination of the tobacco are immaterial.

Reading Borough Council prosecuted Wm Morrisons Supermarkets Plc after a 15-year-old, acting in a council test purchase, bought cigarettes from the claimant’s store. The magistrates convicted the claimant under section 7(1) of the Children and Young Persons Act 1933 and rejected the argument that there had been no sale to the young person because he acted for the Council.

On an appeal by case stated, the Divisional Court considered whether the test purchase constituted a sale to a person under 18 for the purposes of section 7(1). The central issue was whether “sells” required a contractual sale in which the young person was the principal and acquired the property.

1. Appeal dismissed. The magistrates were entitled to conclude that the test purchase constituted a sale to a person under 18 for the purposes of section 7(1) of the Children and Young Persons Act 1933.
2. The meaning of “sells” in the statutory context was a question of legal interpretation. The court distinguished the approach in Brutus v Cozens [1973] AC 854, where the House of Lords treated the statutory word as having its ordinary meaning and left its application to the facts. Here, the prior question was the legal meaning of “sells” in section 7.
3. Section 7 applies where a young person enters into a transaction of sale as principal or as agent, whether the agency is disclosed or undisclosed, and whether or not property passes to the young person. The possibility that the young person acted for Reading Borough Council therefore did not prevent the transaction from being a sale to a person under 18.
4. The words “whether for his own use or not” in section 7(1) indicate that Parliament intended the provision to cover purchases made for another person, including purchases made as agent. Section 7(4), which creates specific exceptions for certain employees purchasing tobacco for business purposes, provides further support for that construction.
5. The legislative mischief was the failure to exercise careful judgment about the age of a would-be purchaser in a face-to-face transaction. Whether the property passed to the young person or to another person was irrelevant. The court noted that a contrary construction would permit retailers to evade the legislation through arrangements preventing property from passing to an under-age purchaser.

• High Court (Administrative Court): on an appeal by case stated, answered the magistrates’ question “Yes” and dismissed the appeal.
• Reading Magistrates: convicted the claimant on 2 December 2010 under section 7(1) of the Children and Young Persons Act 1933, imposed a fine and costs, and held that the test purchase was a sale to a person under 18.