Nottingham City Council v Wolverhampton and Dudley Breweries

This is a prosecutors appeal by way of case stated from a decision of District Judge Zara sitting at Nottingham Magistrates’ Court who on 3^rd February 2003 heard preliminary arguments on points of law in relation to four information’s laid by the appellant against the respondent on 26^th July 2002.

Each information alleged that the appellant on 16^th August 2001 at the Slug and Fiddle public house in Upper Parliament Street, Nottingham sold to the prejudice of the purchaser an alcoholic drink (in three cases whisky and in the fourth case gin) which was not of the substance demanded, contrary to section 14 of the Food Safety Act 1990.

The District Judge did not hear evidence, but certain facts were agreed, namely -

(a)

the Slug and Fiddle public house is owned by the respondent company.

(b)

The licensee of the public house on the day in question was employed by the respondent.

(c)

On the 16^th August 2001 Trading Standards officers employed by the appellant made a routine inspection at the premises.

(d)

The officers tested the contents of the four bottles referred to in the informations, three of which were on display and one of which was produced by the licensee.

(e)

There was in each case a deficiency in the declared volume of alcohol, such that it fell below the tolerance allowed by Food Labelling Regulations.

(f)

No test purchases were made before or after the contents of the bottles were tested.

(g)

All the bottles were the property of the respondent.

For the respondent it was contended that only the licensee or the servant of the licensee could lawfully sell intoxicating liquor, and therefore only the licensee could be prosecuted if there was a sale. Reliance was placed on the decision of this court in Goodfellow v Johnson [1966] 1 QB 83. The appellant submitted that for various reasons that decision could be distinguished, including the fact that it related to a Licensing Act, and not to the Food Safety Act.

The District Judge considered the authorities and decided Goodfellow v Johnson was authority for the proposition relied upon by the respondents, and that he was bound to follow it. There was another issue as to whether there had been a sale, but that is no longer a central issue before us, and the District Judge posed this question for our consideration -

Whether a sale of alcoholic beverages for the purposes of section 14 of the Food Safety Act 1990 can be made only by the licensee authorised under the Licensing Act 1964, or whether it can also be made by the owner of the alcoholic beverages, where such a person also owns the premises from which they are sold and employs the licensee?

Mr MacDonald, for the appellant, adopting an argument used by the late Professor Sir John Smith in a note in the Criminal Law Review, submitted that it must be an anomaly if (given that food includes drink) a public house owner, who is not the licensee but who owns the stock, cannot be convicted under section 14 of the 1990 Act of selling adulterated whisky or gin, even if he is aware of what is happening; but under the same section he can be convicted of selling adulterated lemonade. In Mr MacDonald’s submission that is not the true position in law, although some of what has been said in cases in the past does seem to support the contention that on licensed premises a sale of alcoholic liquor can only be made by a licensee or his servant or agent. Those cases, it is submitted, do have to be read in their statutory context. When so read they can be seen not to fetter the meaning which ought to be given to the clear words of section 14 of the 1990 Act. It imposes liability upon “any person who sells … any food which is not of the… substance demanded….”. Section 2(1)(a) provides that for the purposes of the Act “the supply of food otherwise than on sale in the course of a business... shall be deemed to be a sale …”. Section 1(1)(a) makes it clear that food includes drink, and there is nothing anywhere in the Act to suggest that when the owner of the goods, either personally or through his servant or agent, agrees that they should be sold, so that title passes, he is protected from liability simply because the goods are alcohol and the sale takes place in licensed premises of which the owner is not the licensee. From the point of view of the enforcing authority it is important to be able to bring proceedings against an owner, and not simply against a bar person or an employed manager who is the licensee because sometimes the fault can be, wholly or in part, that of the owner. If he is not at fault then he can take advantage of the defence of due diligence which is to be found in section 21(1) of the Act.

Mr MacDonald further submits that even if the respondents are right as to the impact of the decision in Goodfellow up to 2001, so that in licensed premises alcohol could only be sold by a licensee or his servant or agent, that situation changed as a result of amendments made to section 169 of the Licensing Act 1964 by the Licensing (Young Persons) Act 2001.

Finally Mr MacDonald submits that on the facts of this case there was no sale by retail as envisaged by section 160(1) of the Licensing Act, but the provision of samples to the Trading Standards Officers was a supply of food otherwise than on sale which was deemed to be a sale by section 2(1) of the Food Safety Act for the purposes of that Act. Such a supply, it is contended, could lawfully be made by someone other than the licensee.

For the respondents Mr Ian Wise submits that the District Judge was right to apply Goodfellow as he did, and that there are sound policy reasons for distinguishing between the sale of alcohol and other types of food. In general where alcohol is sold legal responsibility attaches to the individual who physically supplies the product, which is not considered to be necessary in relation to, for example, lemonade.

As to statutory changes made in 2001 Mr Wise submits that their only purpose was to strengthen the law in relation to the sale of alcohol to those under the age of 18, and to deal with the liability of a servant of the licensee as set out in section 169 prior to amendment.

In relation to the final submission made on behalf of the appellant Mr Wise submits that a careful reading of the definitions section of the 1964 Act shows that sampling does come within the definition of sale by retail, so the distinction which Mr MacDonald seeks to draw is not valid.

I come therefore to Mr MacDonald’s primary submission, which involves examining a number of authorities stretching back over a century, and in my judgment they are best considered in chronological order.

I start with Hotchin v Hindmarsh (1891) 2 KB 181 which is of particular significance because it was relied upon in Goodfellow. The appellant was the local foreman of a dairy company, and the milk which he supplied had added water. He was prosecuted and convicted under section 6 of the Sale of Food and Drugs Act 1875, a linear predecessor of section 14 of the 1990 Act. The 1875 Act also had some limited defences in section 6 and a warranty defence in section 25, which the appellant was unable to establish, but it was contended on his behalf in the Divisional Court that his employers and not he should have been prosecuted. Lord Coleridge CJ examined the structure of the Act, the earlier sections of which were directed to physical acts, saying in relation to two of those sections at 186 –

“If the magistrates find the existence of the intent and the commission of the act, … the person doing the act must be dealt with as a principal, even though he is a servant. It cannot be his duty to break the law and if he knowingly commits the act he is guilty.”

The Chief Justice then turned to section 6, and said of it –

“In my opinion a person who takes the article in his hand, and performs the physical act of transferring the adulterated thing to the purchaser, is a person who sells within this section.”

As Mr MacDonald points out, the Chief Justice used the indefinite article. He did not say that only the person who handed over the adulterated thing could be a seller within the section, and indeed he went on to say at 187 –

“If, therefore, any person transgresses against the provisions of section 6, be he principal or agent, he falls within that section.”

Mathew J agreed, and added at 189 –

“It would be an extraordinary interpretation of the Act to hold that even when it was shown that the person who did the act was guilty, his employer alone could be liable to be convicted.”

Mr MacDonald invites our attention to the word “alone” and Mathew J went on to point out that if the appellant were right under section 25 “the result might be that while the guilty person would escape, his innocent employer might be convicted.”

The next decision to which I need refer is Coppen v Moore (No 2) (1898) 2 QB 306. Section 2(2) of the Merchandise Marks Act 1887 made it an offence to sell or expose for sale goods to which a forged trade mark or false description was applied unless the alleged offender could prove what amounted to due diligence. Salesmen at one of the appellant’s shops sold American Ham as Scotch Ham, despite instructions from the appellant to branch managers that breakfast hams should only be sold as such, without reference to any place of origin. He was nevertheless convicted. On appeal it was contended on his behalf that he should not be held criminally liable for the unauthorised acts of his servants, but Lord Russell CJ, presiding in a six judge Divisional Court, said at 313 –

“In our judgment it was clearly the intention of the Legislature to make the master criminally liable for such acts, unless he was able to rebut the prima facie presumption of guilt by one or other of the methods pointed out in the Act. Take the facts here, and apply the Act to them. To begin with, it cannot be doubted that the appellant sold the ham in question, although the transaction was carried out by his servants. In other words, he was the seller, although not the actual salesman.”

As Mr Wise pointed out, the facts of Coppen v Moore are unrelated to licensing, but they do show that in general the ordinary principles of law apply to statutory provisions designed to protect the consumer.

Williamson v Norris (1899) 1 QB 7 was concerned with the sale of alcohol by a barman at a bar in House of Commons run by the Kitchen Committee, in respect of which bar there was no licence. He was convicted of an offence contrary to section 3 of the Licensing Act 1872 which, so far as material, provided that –

“No person shall sell ... any intoxicating liquor without being duly licensed to sell the same, or at any place where he is not authorised by his licence to sell the same.”

In this court Lord Russell CJ said at 13 –

“On reading that section I think it is impossible not to see that, in order to bring the innocent act of a waiter or a barman within the penal clause, it is necessary to put a strong gloss on the words of the section. I am of opinion that the true meaning of the section is that the sale which is prohibited must be a sale by the person who ought to be licensed. Everyone knows that a barman or a waiter is not a person licensed. The sales struck at is a sale by the master or the principal. It is contended for the appellant that section 3 ought to be read as if the words ‘without being duly licensed’ were ‘ without being protected by a licence’; but that would be putting a violent gloss upon the words, and to do so is not necessary for the purpose of giving effect to the Act.”

Wills J agreed, saying at 14 –

“The construction contended for by the appellant requires that ‘authorised by his licence’ should be read as equivalent to ‘acting under the authority of someone else having a licence’. It is a great straining of language.”

The statutory wording was different from that considered by the court in Hotchin v Hindmarsh where the question of whether the person who handed over the goods ought to be licensed did not arise.

In Mellor v Lydiate (1914) 3 KB 1141 the appellants were brewers and owners of a public house, the licence in respect of which was held by their manager. He supplied beer to the respondent, and the appellants were then convicted of an offence contrary to section 65(1) of the Licensing (Consolidation) Act 1910 which, so far as material, provided that a person –

“…shall not sell… any intoxicating liquor unless he holds a justices licence…”

The appeal was allowed, but there were five judgments and their reasons differed. Lord Reading CJ at 1152 said –

“On behalf of the appellants it was contended that there had been no sale by them within the meaning of the words in section 65, and that in any event their servant, for whose act it was sought to make them responsible under the statute, was the holder of a justices licence, and, therefore, that the requirements of the statute had been met.”

At 1153 he said –

“If it were right to construe the section as if we were determining the rights and obligations of the parties to a contract of sale it could not be doubted, as a general principle of law, that a sale by a servant authorised in that behalf is a sale by the principal, at least to the extent of imposing upon the latter the burdens and advantages of the contract. But I cannot think that when the Legislature enacted that a justices licence should be required as a condition precedent to the right of selling intoxicating liquor by retail on the licensed premises it intended that every person who might be made liable as a contracting party to a contract of sale must hold a justices licence for such sale notwithstanding that he took no part in the actual conduct of the sale on the premises.”

The Chief Justice went on to deal with the object of licensing – to make the person who conducts and manages the business on site responsible to the licensing justice. He referred to Williamson v Norris as showing that the barman under the control of the licence holder does not commit an offence contrary to section 65, and at 1154 he continued –

“In the present case, the question is whether the appellants can be said to have sold the liquor under section 65. There has been only one sale, and that was the sale actually conducted by Henry Smith, who is the licence holder. In my judgment there cannot be under this section one sale physically made by him for which a licence is required and another, arising out of his acts, by the appellants as a firm and by each of the members of the firm. If the sale was not by him but by the appellants, it would mean that the person placed by the appellants on the premises to manage and conduct the business there did not require to hold a licence. For the reasons I have already given, I think he is the person aimed at by Parliament in this section, who requires the protection of a justices licence. As he held a licence, the appellants have not aided or abetted him in committing an offence under this section. I am therefore of opinion that the appellants did not sell the liquor to the respondent within the meaning of the section and have therefore not committed the offence of which they have been convicted.”

The approach adopted by Darling J was different. At 1155 he said –

“Smith, being the manager for the appellants of the whole business conducted on their premises, did undoubtedly sell liquor there within the meaning of the Act, and therefore he needs the protection of a justices licence. Of course there was a sale by, or at least on behalf of, the appellants of whatever liquor of theirs was by their managing agent sold, but such a sale by them is not necessarily a selling of the kind for which they require a licence. The whole of the transaction may be regarded thus: the appellants did sell their goods on the licensed premises, but merely through and by means of Smith, their fully authorised agent or manager, knowingly licensed to act in this manner on his principals’ behalf. This selling was by a licensed person of goods to which the licence properly applied, and was entirely within the contemplation of the justices who granted it. But there was no complete and perfect sale without the concurrence of the principal and agent alike, and so the person conducting the sale was the alter ego of the appellants.”

Bankes J at 1157 said –

“It is no doubt true … that Smith’s act was in the ordinary commercial sense a sale by the appellants because it was a sale by their authorised agent of liquor which was their property. This, however, does not decide the question. I agree .. that we ought not , in construing section 65 to exclude the ordinary meaning of the word ‘sell’, unless there is something in the statute which renders it necessary to do so, or unless to include the ordinary meaning would result in an absurdity”

A little later he said –

“In my opinion any construction of section 65 which results in the act of Smith in serving the respondent with intoxicating liquor being treated as being between the respondent and Smith as an authorised and lawful act, and the same act as between the respondent and the principal for whom he, Smith was acting in so serving the respondent being treated as an unauthorised and illegal act, is absurd and must be rejected.”

He therefore concluded that –

“No person can be convicted of selling intoxicating liquor without a licence under this section where the act complained of is an act done by such person’s duly appointed manager, who holds a licence authorising him to do the act.”

Avory J focussed on the sale, saying at 1159 –

“The sale in question here was therefore authorised by the licence, and whether the sale was by Mellors Limited, as I think it was, within the meaning of section 65 of the Act of 1910, or by Smith their agent or servant, as I also think it was, the sale was not unlawful, but was a sale by a person holding a licence in the name of his agent or servant in the one case, and by the actual holder of the licence in the other case.”

Lush J said that there was only one sale, and it was either by the manager or by the appellants. The section was one of a group of sections which had “nothing to do with defining contractual rights or contractual obligations”. Their object is to manage the business of selling intoxicating liquor on licensed premises so, he said at 1160 –

“The seller contemplated by the section is the person who actually sells, the person who is in charge and who makes the contracts and generally conducts the business of selling. The person who does that is Mr Smith, not the appellants, and although he sells for the appellants benefit, it is he who sells and not the appellants themselves.”

In Holt Brewery Co Ltd v Thompson (1920) 84 JP 127 the appellants owned a public house at which their licensed manager sold spirits at a price in excess of that permitted by regulation. It was contended that as they were not the licensees there was not sale by them, but Lord Reading CJ said at 128 –

“The language of the Order contains nothing which excludes the real principal, i.e. the owner of the public house, from being made liable notwithstanding that he was not the licensee. It is said that the licensee alone is liable. Nothing in the language of the Order indicates that.”

He went on to say that Mellor v Lydiate was decided upon the meaning of certain words in the Act of 1910. Avory J agreed. He rejected the contention that the offence against the Order could only be committed by the holder of the licence, saying –

“It seems to me to be clear that although the offence may be committed by the person who holds the licence it was in the present instance committed also by the persons who were employing the servant who in fact carried out the transaction of sale.”

He went on to say that the real effect of Mellor’s case is that section 65 of the 1910 Act “imposes a penalty upon any person who sells intoxicating liquor except under the authority of a licence.”

That brings me to Goodfellow v Johnson in which the defendant was the manager and licensee of a public house owned by a brewery. When the premises were visited by a local authority sampling officer the gin which was supplied by the barmaid was adulterated. She was the servant of the brewery, and on that basis the magistrates dismissed the allegation that the defendant had contravened section 2 of the Food and Drugs Act 1955 which, so far as material, provided that –

“If a person sells to the prejudice of the purchaser any food … which is not…of the substance … demanded by the purchaser he shall … be guilty of an offence.”

Lord Parker CJ referred to that statutory provision as an absolute offence which was not correct – see sections 3, 113 and 115, and at 88F he said –

“The forbidden act is the selling to the prejudice of the purchaser, and it has long been held that a person who has done the forbidden thing through somebody else like a servant or agent is himself liable. Further, as long ago as 1891 it was held in Hotchin v Hindmarsh that the forbidden act in a provision such as this is not the parting with the title by the owner but is the physical handling and handing over of the goods by way of sale: in other words the shop assistant, or in this case the barmaid, is liable, and accordingly in view of the general principle to which I have already referred any person on whose behalf that act of handling and handing over is done is also liable.”

Mr MacDonald submits, and I accept, that in that passage the effect of Hotchins case seems to have been misunderstood. It decided no more than that the wording of the 1875 Act was such as to render liable the person who handed over the adulterated milk. He was a seller for the purposes of section 6 of that Act, but it was unnecessary to go further than that. Mr MacDonald also invited our attention to what Lord Parker said at the end of the passage I have cited. Surely, he submits, the act of handling and handing over was done on behalf of the owner of the goods, the brewery company. Lord Parker decided otherwise. He said that the acts of the barmaid were not those of the company, but of the licensee. At 90B he said –

“The company as opposed to the defendant licensee could not lawfully perform the acts on those premises through their servant, Mrs Wright; the only person who could do so was the defendant.”

Before us Mr Wise accepted that in Goodfellow’s case the effect of Hotchin appears to have been misunderstood, but he submitted that Lord Parker’s conclusion was not entirely dependant upon his interpretation of Hotchin. What he said at 90B (supra) was a second and untainted reason for his decision. I find that a difficult proposition. To my mind the reasoning of the Lord Chief Justice, with which Marshall J agreed, is not severable as Mr Wise suggests, and furthermore the proposition at 90B standing alone is of limited value. The company, through its servant the barmaid, clearly could make an effective sale, regardless of the wishes of the licensee, and such a sale could involve the company and not just the licensee in criminal liability (see Holt’s case). Everything depended upon the facts, and the provisions of the legislation under consideration.

Widgery J, as he then was, gave the third judgment in Goodfellow. He referred to section 120(1) of the Licensing Act 1953, which provided that if any person sells by retail any intoxicating liquor without holding a licence he shall be guilty of an offence. He went on to say that unless the barmaid was selling on behalf of the defendant licensee she would have been committing an offence under that section. At 90G he said that was not a fiction –

“Rather it is a fact that licensed houses are, by the necessity of the licensing legislation, organised on that footing, and here the act of selling complained of was an act … which could only have been done in that house by the defendant licensee. In those circumstances it seems to me inevitable to conclude that Mrs Wright’s act of selling was in law the act of the licensee and he should be responsible for it.”

I accept that the licensing legislation is organised on the basis that the licensee is the person primarily responsible and answerable to the licensing justices for all that happens in the licensed premises, but I do not see why that responsibility cast upon the licensee should, in relation to legislation not confined to licensing, relieve product vendors of responsibilities which in relation to every product other than alcohol they are required to bear.

Sopp v Long [1970] 1 QB 525 concerns the liability of the non-resident licensee where short measure was sold by the local manageress and the licensee was prosecuted for contravening section 24(1) of the Weights and Measures Act 1963. In that case it was common ground that only the licensee could sell (see 860C to D) through his servant the barmaid. On his behalf it was contended, unsuccessfully in the end, that he could not have caused a short measure to be delivered unless he knew of or had authorised that act. That does not seem to me to assist in relation to what we have to decide.

Bellerby v Carle [1983] 2 AC 101 also concerned a prosecution under the Weights and Measures Act 1963, arising out of beer measuring instruments which dispensed smaller quantities than permitted by law. The joint licensees were not permitted to interfere with the measuring instruments, so it was held that they did not have such possession of them as would give rise to liability under section 16(1) of the Act. In the speech of Lord Brandon, with which the other members of the House agreed, Goodfellow and Sopp were cited, and at 108A he said –

“I do not, as at present advised, see any reason to doubt the correctness of these two decisions. They establish the proposition that, where a licensee of licensed premises, who is alone permitted under the Licensing Acts to handle and hand over intoxicating liquor to a customer at such premises, chooses to perform those acts through the agency of another person, such as a barmaid employed by the same company or other organisation as he is employed by, he is under the same criminal liability for such other person’s acts as he would be if he had performed them himself.”

As Mr Wise accepts, the approval was a little tentative, and it was not central to the decision, but it is obviously of some assistance to his case.

The last authority to which I need refer is Allied Domecq Leisure Ltd v Cooper [1999] JP 163, another prosecution under the 1963 Act for selling short measures of beer. On appeal to this court there were a number of issues which for present purposes are not relevant, but the question of the responsibility of the company, which was not the licensee, for the shortcomings of an inadequately trained bar person was said to arise. In fact this court found at 16G that the question did not really arise because of the way the justices decided the case, but Sedley J at 17E questioned the concession made before the justices reflecting the conventional view that Goodfellow precluded any prosecution of the owners of the beer which the licensee was selling on the basis that he alone may sell beer. The judge continued –

“I have been concerned whether it follows from the proposition that only a licensee may sell beer that the company which owns the premises provides the beer and employs the licensee to sell is not equally selling the beer. I have also asked myself whether the decision in Hotchin v Hindmarsh on which the Divisional Court founded in Goodfellow v Johnson and which holds that the forbidden act in this context is the parting with possession and not with title, truly negatives this possibility.

If the true position were that a company in the appellant’s position is selling beer through the licensee, then the only relevant question would be under section 34 whether each had exercised due diligence in order to prevent the bar tender giving short measure.”

It was in relation to that case that Professor Smith wrote the note in the Criminal Law Review to which I referred earlier in this judgment [1999] CLR 230. He submitted that the conventional view was wrong. Hotchin decided that the physical handling of goods may constitute the offence, but it did not decide that the owner on whose behalf the sale is made is not also guilty of committing it. Some offences under the Licensing Acts can only be committed by a licensee, but a contravention of section 2 of the Food and Drugs Act 1955 was not such an offence.

In my judgment the words of section 14 of the Food Safety Act 1990 should be given their ordinary meaning and should not be restricted as Mr Wise contends and as the District Judge accepted, simply because the food in question is an alcoholic drink. Apart from the clarity of the statutory wording it seems to me that a powerful reason for arriving at that conclusion is that section 14 applies to all foods, and it is obviously desirable for the achievement of the legislative purpose that it should be possible to hold to account the owner of the goods prior to the sale. Furthermore it is not an unreasonable burden because he has available the defence of due diligence. There were only narrower defences in earlier legislation. For the reasons given by Professor Smith Hotchin does not cast doubt upon my conclusion, which derives some support from Coppen v Moore. Mellor was a prosecution under the provisions in the then current Licensing Act which prohibited the sale of intoxicating liquor by anyone who did not hold a licence. There was agreement as to the result, but not as to the reasons, and Lush J may have been right to point out that specific licensing provisions have nothing to do with contractual obligations. There is no obvious reason why that approach should be carried over into, for example, the Food Safety Act. The approach does not even apply to all statutory provisions concerned with the sale of alcohol, as can be seen from Holt’s case, where the “real principal” remained liable.

Although Goodfellow does support the respondent’s case, its persuasive force is severely impaired by Lord Parker’s misinterpretation of Hotchin. The reasoning of Widgery J explains why the licensee was to be regarded as the seller, even for the purposes of the Food and Drugs Act 1955, and that was the only issue in that case, but it does not explain why the pre-sale owner of the goods who authorised and approved the sale should not also be regarded as a seller. In my judgment the decision in Goodfellow did not dictate the outcome in the present case even in the court below because, at least in part, it was decided per incuriam. However the District Judge did not have the benefit of having the matter argued as fully as it has been argued before us.

As to the remaining authorities I need not add to what I have already said.

My conclusion in relation to the primary submission made by Mr MacDonald makes it unnecessary for me to consider in any detail his remaining submissions, but I did not find them persuasive. It seems to me that the statutory changes made in 2001 were, as Mr Wise submitted, for a limited purpose, and I also agree with Mr Wise that sampling does come within the definition of sale by retail for the purposes of the 1964 Act.

I would therefore answer the question posed in the case stated as indicated in this judgment, and allow the appeal. The case will have to be remitted to the District Judge with a direction to continue the hearing.

I agree. While Hotchin v Hindmarsh supports the proposition that the person who physically hands over the goods may commit the offence it did not decide that others, in particular the owner may not equally be liable.

The decision in Goodfellow v Johnson was no doubt correct on its facts but the proposition set out by Lord Parker CJ at 88f is too broad and is based on a misinterpretation of Hotchin.

The anomaly of an owner being liable under section 14 of the 1990 Act for adulterated lemonade but not for adulterated whisky, even where he knows what is taking place, illustrates why the decision in Goodfellow should be narrowly construed.

I too would allow the appeal.