Enfield London Borough Council v Argos Ltd

LORD JUSTICE MOSES: This appeal by way of case stated raises the question as to whether a reasonable precaution taken after a test case conducted by the trading standards of a local authority necessarily discloses a failure to take all reasonable precautions before.

The trader in question was the well-known store Argos Limited. It sold a six piece knife block to a child under the age of 16 who had been sent to Argos to provide a test purchase. In those circumstances, Argos was guilty of an offence under section 141A of the Criminal Justice Act 1988 unless it could prove on the balance of probabilities that it had taken "all reasonable precautions and exercised all due diligence to avoid the commission of the offence".

The purchase took place on 30th May 2006. At the store, the child, who was 1.85 metres tall and had an appearance of being about 19 or 20, as the Justices found, filled in a slip containing the identification number for the knife block obtained from the catalogue and approached a Ms Harmsworth at the cash desk. Ms Harmsworth, who was found to be a very credible witness and of strong personality, concluded that the purchaser was about her own age, 19 or 20, and had facial hair. The Justices agreed from their view of the appearance from CCTV and a still photograph that that was a reasonable judgment and that nobody could reasonably have suspected from the appearance that he was under 19. But, as I have said, the offence was committed unless the system for identifying whether a purchaser was of a prohibited age or not was one which was found to be a system which required the employees to take all reasonable precautions and exercise all due diligence.

Accordingly, the Justices examined the system. They found as a fact that there was a clear system in place to avoid unlawful sales. That system consisted of till bulletins which would appear on the screen once a purchase of knives was identified. It was the only bulletin to appear on the screen on such an occasion. In addition, there was careful selection and monitoring of staff and clear mandatory training and records kept for each employee, including whether they had undertaken refresher training. In addition, intranet was used to remind managers of their obligations. The Justices found the store manager was vigilant to remind the staff about the various methods by which Argos fulfilled it statutory obligation, including the bulletin boards. The member of staff was herself charged with a criminal offence but was acquitted because the Justices concluded she had made a genuine and understandable error.

The Justices concluded that, by virtue of the system in place, Argos had exercised all reasonable precautions and all due diligence. They accepted that it was the company policy not just to seek to identify someone as being under 16 but, as they put it, to advise staff "to add a couple of years to the restricted age". They found as a fact that the member of staff had acted in accordance with that policy.

Enfield London Borough Council, however, contended that that policy could be demonstrated to be a policy whereby Argos did not take all reasonable precautions and had not exercised all due diligence. They advanced that contention on the basis of a change of policy after this test purchase. By that change of policy, the details of which are not before us and are not recorded fully by the Justices, there was a written policy requiring identification of purchasers if they appeared to be under the age of 21. It was known as the "Think 21" policy and introduced, apparently, because of the law in Scotland. The evidence in relation to that was that the Customer Services Manager did not regard that as a suitable policy, bearing in mind the fact that there were a number of different restricted or prohibited ages according to the type of goods sold which varied between 12, 15, 16 and 18. Thus it was said that the "Think 21" policy would not be suitable.

Left to myself, I would regard a policy that required members of staff to aim considerably higher than the age prohibited by statute as a reasonable and sensible one. Left to myself, I would regard that as particularly of importance now that we all appreciate how dangerous it is should knives have circulation amongst those under the age of 16, coupled, as Mr Travers so well submitted, by the great difficulty in identifying with any accuracy whether someone is under 16. Clothes, height, appearance and in many cases facial hair disguise all too easily the age of a youth under the age of 16 and it is of no difference in relation to young ladies whose cosmetic application will have a similar effect, coupled with their dress, as indicating a far greater age. Better to be safe than to have weapons widely circulated.

However, the decision is not for me. The Justices decided that the system in place did demonstrate on the balance of probabilities that Argos had taken all reasonable precautions. But, not daunted by the trite observation that decisions of fact and questions of judgment are for the Justices and not for us, Mr Travers points out that the precaution taken subsequently of aiming considerably higher than two years was a reasonable precaution and, in the light of that, it was not open to the Justices, so he contends, to conclude that all reasonable precautions have been made. He does not go so far as to contend that as a matter of law, if a reasonable precaution has been taken by way of a change of system after a test case, it necessarily follows that there has been a failure to take all reasonable precautions before, but he does contend that it is powerful evidence of such a failure and that in this particular case, so obvious was the remedy, so difficult the problem, it was a precaution which ought reasonably to have been taken before.

In my view, the skill of Mr Travers' advocacy should not disguise the reality of his submission, which is that the Justices were not entitled to take the view that all reasonable precautions had been taken in the light of what had happened after. I disagree that it is open to us to interfere with their judgment in that way. The fact that some other precaution can be identified as having been taken by way of change of system does not dispose of the question whether all reasonable precautions had been taken before.

If authority is needed for so obvious a proposition, there is ample authority contained in cases of many years standing, indeed of such longstanding that one can see that counsel for Argos in this case, Mr Scrivener QC, was counsel even in those days of yore. Back in 1971, in Naish v Gore [1971] 3 All ER 737, Mr Scrivener, as he then was, on behalf of the Trading Standards Officer, failed to establish before the Divisional Court, presided by Lord Widgery CJ, that, because some precaution was identified to avoid an inaccurate odometer, there had been a failure to take reasonable precautions before. In that case, the motorcar dealer had had the mileage reading on the odometer checked by the Automobile Association but Mr Scrivener contended that further precautions could have been taken either by examiners waiting for a log book, identifying the purchaser from that and making inquiries of the vendor rather than the purchaser, or, alternatively, enquiries could have been made from the registration authority.

The Lord Chief Justice contrasted the case before him with those cases where no precautions had been taken, for example to test whether a watch said to be waterproof was in fact water resistant or whether the odometer had been altered in a case where there was no examination of the motorcar whatever. He observed that the trader had taken a certain amount of trouble to satisfy himself and said:

So too Mr Justice Buxton, as he then was, as long ago as 1994 in Smith v T&S Stores plc, declined to conclude that the fact that a further precaution might reasonably have been taken to avoid the sale of cigarettes to a 12 year-old child was dispositive as to the question as to whether all reasonable precautions had been taken. In that case, the Justices found that they had and the question for this court was whether they were entitled to find that all reasonable precautions and all due diligence had been exercised. As he put it, at page 342D:

Contrast such cases with those where no precautions had been taken or an obvious and reasonable precaution was taken subsequently, such cases exemplified in the decision of Kennedy LJ in Robert Gale v Dixon Stores Group Limited [1993] Institute of Trading Standards Administration Law Reports: CO/2487/91. In that case, Dixons were found to have no method of identifying computers brought back to determine whether they were faulty or not. After it was discovered that a computer had been sold incorrectly as new, the system was changed to introduce adhesive stock transfer notes indicating that it was a return of goods requiring examination. In that case that reasonable precaution demonstrated to the mind of Kennedy LJ that it was not open to the Justices to say that all reasonable precautions had been taken to avoid the sale of a returned computer as new. Similarly, in Wandsworth London Borough Council v Bentley [1980] RTR 429, the failure of the auctioneer to check the mileage with the vendor, Shell UK, was found by the Lord Chief Justice to be a failure to take all reasonable precautions and a failure to take all due diligence. But it is of note that neither Kennedy LJ nor Lord Lane CJ in either case were purporting to set down a rule that because one can identify some other precaution that might have been taken, even if that precaution is reasonable, it necessarily follows, as a matter of law, that the Justices would not be entitled to find that the defence of taking all reasonable precautions had been made good.

In the instant case, many of us might be able to think of an even better system than that which had been advised, but the decision is not for us, it was for the Justices and in my judgment they were entitled to take the view, for the reasons that they did set out, that the precautions taken were all reasonable precautions and the exercise of all due diligence. That ground in my judgment fails and in those circumstances, in answer to the second question:

A further question arises, namely whether the Justices should have confined their attention, as they did, to the policy in relation to what employees did at the till as opposed to all the transactions until such a time as the handing over of the block of knives to the young man. Most of us will be well familiar with the way goods are bought at Argos. A catalogue number is identified in a large catalogue and the number either written down or punched up to find whether the particular item is available. Nowdays the item identified can be purchased by means of a card placed in the computer terminal or by approaching a member of staff and paying for the item before it is collected. That item is then brought up from a basement or store house and, when the number of the purchase docket is shown, it can be collected at the till. No question arises, as Mr Scrivener QC sensibly accepts, as to the precise moment when property passes. Many interesting but wholly idle questions arise as to whether the block of knives is ascertained or unascertained goods and as to the moment when it is appropriated in contract or what happens if there is only one single item in stock of the type which the purchaser wishes to take away.

The subject matter of cases such as this is the consumer sale of items, the sale of which to those under age will cause great social harm. In those circumstances, it is plain that the reference in section 141A(1) to any person who sells will incorporate the whole process of sale in stores such as Argos, not just the moment when the credit card or cash is handed over but also at all times until the goods are handed over. Imposed systems which seek to avoid a prohibited sale which include responsibility on others than those accepting the cash or credit card is clearly highly desirable. The vice, after all, which the section seeks to avoid is the delivery of a knife into the hands of someone under age. Thus it is accepted by Argos that they have a responsibility to see that the system covers not only employees working at the till but those handing over the item in question.

But that policy in relation to the whole process of sale was not, as it appears, the issue before the Justices. As they found, the prosecution case had been primarily focused on what had happened at the cash desk. Mr Travers pointed out that the prosecuting authority need to do no more than open the offence, namely the sale of an item to one of a prohibited age. It is then up to the defendant, if it seeks to do so, to establish its defence. There was therefore no need for the prosecution to grapple in opening with the question of whether there was any system in place or not. But, as I think he was minded to accept, the prosecution ought to put to the defence what it is about their precautions or absence of precautions is said is a failure to take all reasonable precautions and all reasonable diligence. Mr Travers cannot recall whether he cross-examined any witness called on behalf of Argos to that effect. He does recall raising the question of what system was put in place by Argos after payment at the till but before collection of the knives but only did so by way of response to the solicitor acting for Argos in the case before the Justices. The Justices took the view that that was too late. They took the view that, in the circumstances of this particular case, they should confine themselves to events at the till. In so doing, for the reasons I have already given, they were not saying as a matter of law that the system should only be focused on what happened at the till but regarded themselves as being confined to those events and that system because of the way the case has been advanced. They relied on a number of factors. Firstly, they relied upon a proposition that the contractual sale took place at the till. That is not supported by Mr Scrivener and rightly not so for the reasons I have already given. But they also had regard to the fact that the summons against Argos confined attention to the sale by, as it was put so archaically, "the hand of your servant Emma Harmsworth." They then had regard to the fact that there was a summons, also subsequently dismissed, against that lady and no other employee and added that they had heard no evidence that any enquiries had been carried out by the investigating officer at the collection point or as to even who may have been the relevant person at the collection point. As Mr Scrivener points out, there was no evidence as to the system as to what happened between till and collection point at all.

In those circumstances, in my judgment it is quite impossible to raise an appeal on the basis that there has been no evidence as to what system was in place and what precautions taken after the transaction at the till and before the block of knives had been collected. If the prosecution had wanted to advance a case in relation to that, they should have made that clear before the final submission by way of repost by Mr Travers. The difficulty is aggravated by the fact that in interview a trading standards officer suggested that it would be wrong to have more than one person in charge of the responsibility of seeing whether the purchaser was under age or not, taking, it appears, a rather different view from that taken by the legal advisers of Enfield now. Be that as it may, we cannot in my judgment interfere with the view that the Justices took that it would be unfair to extend the examination to the system between till and collection point when that had not been raised in the course of evidence advanced by Argos.

I accept the emphasis Mr Travers places upon the statutory burden placed upon traders to make good their defence. The prosecution need not, by way of opening and conduct of the case, do any more than prove the sale contrary to the prohibition contained in section 141A. But it is not open to a prosecution to argue that precautions which have been taken do not amount to all reasonable precautions unless the point is aired in such a way as to give a defendant trader an opportunity to meet that accusation. So to say is to say nothing new about the fairness of the conduct of proceedings which is the responsibility of the justices and not ours. They took the view as to what was fair and I do not disagree with it. In those circumstances, I would answer the first question:

For those reasons I would dismiss this appeal.

MR JUSTICE GOLDRING: I agree.

MR SCRIVENER: I ask for costs, my Lord.

MR TRAVERS: My Lord, I cannot resist them.

LORD JUSTICE MOSES: Yes. They come out of central funds, all of them?

MR SCRIVENER: I am just checking. (pause) They come out of central funds.

MR TRAVERS: Yes. Section 16, I think, the prosecution gives --

LORD JUSTICE MOSES: Yes, costs out of central funds.

MR SCRIVENER: I do not know whether your Lordship wants to see the schedule or whether we just make it a detailed order. We are not asking for the court to assess.

LORD JUSTICE MOSES: They are conceded? (pause) He has not had time to consider them.

MR SCRIVENER: No, he has not.

MR TRAVERS: My Lord, if they come out of central funds, it is not a matter strictly that would --

LORD JUSTICE MOSES: No, they would not be anyway, because central funds is whatever the tax authority is.

Thank you very much.