1. The Divisional Court's decision in Fisher v Bell

As students of the Law of Contract learn to their bemusement, in Fisher v Bell,Footnote ¹ although caught by a member of the constabulary in the most compromising circumstances, the owner of Bell's Music Shop, situate in the handsome Victorian shopping Arcade in the bustling Broadmead area of Bristol, was unsuccessfully prosecuted for offering for sale a flick knife contrary to s.1(1) of the Restriction of Offensive Weapons Act 1959. The statute penalised “any person who manufactures, sells or hires or offers for sale or hire, or lends or gives to any other person” a flick knife. Mr Bell had done all in his power to make a sale. The switchblade had been displayed in his shop window with a label that read, “Ejector knife—4s”. The police officer, who spotted the display and then took the knife away to show to his superintendent, was told by the shopkeeper that he had had other policemen in the shop inquiring about the knives. When the officer returned to tell Mr Bell that he would be prosecuted, the latter simply retorted “Fair enough.”

Subsequent events were to vindicate Mr Bell's insouciance. Lord Parker C.J., presiding over a strong court consisting of Ashworth and Elwes JJ., upheld the Bristol justices' decision that no offence had been committed. More specifically, the Divisional Court ruled that in the absence of a statutory definition of the expression “offer for sale”, the phrase had to be attributed its customary meaning in the Law of Contract. There, since a display of goods in a shop window, even accompanied by a price ticket, had for long been held not to constitute a contractual offer but only an invitation to treat,Footnote ² Mr Bell had committed no offence when he placed a flick knife in the window of his music shop in the earnest hope that someone would happen along and buy it.

Lord Parker C.J. confessed:

What carried the day, however, was the notion that a statutory provision must be viewed against the backdrop of the general law; which Parliament, of course, has to be taken to know when enacting the statute.

2. The aftermath of Fisher v Bell

The analysis adopted by the Divisional Court in Fisher v Bell was subsequently applied in an assortment of situations. In Mella v Monaghan Footnote ⁴ a shop displaying packs of pornographic photographs with a price attached was held not to have offered them for sale contrary to s. 2(1) of the Obscene Publications Act 1959. In British Car Auctions Ltd. v Wright Footnote ⁵ an auctioneer was held technically not to have offered goods for sale, consonant with orthodox contractual principles. As Melford Stephenson J. said, in a reluctant concurring judgment:

In Norgren Co. (CA) v Technomarketing Footnote ⁷ a defendant who gave an undertaking in a copyright action “not to offer or sell” goods was not acting in breach of the undertaking by sending out a price list including those goods.Footnote ⁸ In the absence of any contrary statutory intention, the contractual phrase “offer to sell”, therefore, was presumed to bear its conventional contractual meaning in a range of different contexts.

Most famously, in Partridge v Crittenden Footnote ⁹ P was charged with offering bramblings for sale contrary to s. 6(1)(a) of the Protection of Birds Act 1954. P had placed an advertisement in the birdfanciers' weekly magazine, Cage and Aviary Birds, which began publication in 1902 and is still going strong: “Quality British ABCRFootnote ¹⁰ … bramblefinch cocks, bramblefinch hens, 25s each.” A reader duly wrote to P ordering a brambling hen and enclosing a cheque. The hen was dispatched and the parcel opened by the purchaser in the presence of the prosecutor, C. The ensuing prosecution was a fiasco. The 1954 Act created an offence wherever “any person sells, offers for sale or has in his possession for sale” certain wild birds, unless close-ringed specimens bred in captivity. Clearly, having both (i) sold and (ii) had in his possession a bird for sale, P satisfied each of the first and third statutory criteria. The prosecutor, therefore, opted to proceed on the basis of the second. Having referred to Fisher v Bell, a decision in which he had participated seven years earlier, Ashworth J. declared:

Lord Parker C.J., who, it will be recalled, had delivered the leading judgment in Fisher v Bell, concurred with Ashworth J. “with less reluctance than in Fisher v Bell and Mella v Monaghan”. He considered that in the case of advertisements and circulars, “there is business sense in their being construed as invitations to treat and not offers for sale.” In short, he was completely sold on the contractual analogy, actually saying of the quashing of P's conviction: “It seems to me accordingly that not only is it the law but common sense supports it.”Footnote ¹²

Obviously, argument was addressed to the court urging that a purposive interpretation be given to these pieces of legislation. Both Lord Parker C.J. in Fisher v Bell Footnote ¹³ and Ashworth J. in Partridge v Crittenden,Footnote ¹⁴ however, aligned themselves with Lord Simonds' declaration in Magor & St Mellons RDC v Newport Corp., in which Denning L.J. had been reproved for his temerity in advocating that having once discovered the true intention of Parliament it was a judge's duty to fill in any gaps left by the legislature: such a proceeding appeared to Lord Simonds “a naked usurpation of the legislative function under the thin disguise of interpretation”.Footnote ¹⁵ With these fulminations fresh in their minds, judges of the Divisional Court were unlikely to risk Lord Simonds' wrath.

3. The true rationale of Fisher v Bell

Over the years Fisher v Bell has been characterised in different ways. Some commentators have claimed that it exemplifies the literal method of statutory interpretation.Footnote ¹⁶ This seems an over-simplification. Sir Rupert Cross put a different slant on the case.Footnote ¹⁷ At first, he argued that where a statute is passed with reference to a particular calling – in this case, improbably the enactment was suggested primarily to be directed towards shopkeepersFootnote ¹⁸ – and within that profession certain expressions possess a specific meaning, “then the words are to be construed as having that particular meaning, though it may differ from the common or ordinary meaning of the words.”Footnote ¹⁹ Thus, shopkeepers might grasp more readily the technical meaning of “offer for sale” in the Law of Contract rather than sharing the man in the street's understanding of the expression. Cross, however, then switches horses abruptly, commenting: “but the decision is best regarded as an example of the presumption that penal statutes should be strictly construed in favour of the accused”.Footnote ²⁰ Neither explanation is satisfactory: no member of the court refers to either principle. Indeed, close reading of the case reveals a quite different landscape.

Criminal lawyers have viewed the line of decisions sired by Fisher v Bell with considerable misgivings, and Fisher in particular has met with a barrage of criticism. Notably, it is said that the Criminal Law may properly diverge from the Law of Contract in its interpretation of the relevant language and, more particularly, that the courts can properly take account of the mischief to which a statute is directed. Whereas the contractual rules are intended to regulate the mating ritual of offer and acceptance – often, it is said, because “the shopkeeper impliedly reserves to himself a right of selecting his customer. A shop is a place for bargaining, not for compulsory sales …”,Footnote ²¹ the aim of the Criminal Law is to outlaw certain categories of transaction. As was pointed out in an annotation in the Criminal Law Review, in the two principal cases under review the object of the statutes was variously to prohibit the trade in flick knives and to punish the act of trafficking in protected species of wild bird.Footnote ²² In Partridge v Crittenden Ashworth J. referred to this annotation, but rejected the analysis, saying that that point was “met entirely by the quotation which appears in Lord Parker's judgment in Fisher v Bell, that ‘It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation.’”

Can the decision in Fisher v Bell actually be justified? Was the court simply mesmerised by the technical, contractual terminology employed in the Restriction of Offensive Weapons Act 1959? I think not. Whilst I have no quarrel with the notion that Criminal Law and the Law of Contract pursue different objectives, those who simply argue that these decisions do not respect the purposes behind the relevant criminal statutes fail to engage with the true interpretational rationale underlying Fisher v Bell and its similarly reviled scions.

Whilst Lord Parker C.J. and his colleagues embraced the contractual analogy, that judge also noted that in order to achieve their objective of proscribing certain forms of behaviour similar statutes operating in other areas employed markedly different language. It would be wearisome to deploy an exhaustive list. Nevertheless, it is clear that many other statutes deliberately used expressions like “expose for sale” or “offer or expose for sale” in order to avoid the very difficulty the Crown encountered in Fisher v Bell. When one surveys the legislation of the day affecting offences triable in magistrates' courts, it is striking just how frequently the legislature adopted either the phrase “to sell or expose for sale”Footnote ²³, or “offers or exposes for sale”Footnote ²⁴ or “sells or offers or exposes for sale.”Footnote ²⁵ The draughtsman's established discourse displayed a plain aversion to the concept of offers for sale in statutes criminalising various conducts. Therefore, when a court encountered a statute which provided that anyone who “offers for sale” a flick-knife was to be guilty of an offence, the obvious inference was that it was intended that, despite the fact that such a construction might diminish the effectiveness of the statute, this expression, unusual in the criminal context, was meant to bear its technical, contractual meaning. According to one annotator this afforded “a more convincing ground for the decision, though not a decisive one”.Footnote ²⁶

Indeed, such an interpretation was reinforced by the court's taking cognisance of the fact that

This procedure had been adopted in other criminal statutes. Thus, s. 20 of the Prices of Goods Act 1939 statute provided:

Similarly, s. 20(4) of the Goods and Services (Price Control) Act 1941 stated:

In short, conscious of the restrictive contractual ramifications of the expression “offer to sell”, whenever the legislature wished to criminalise conduct that in civil-law terms would normally be considered an invitation to treat, it had consistently spelled out that the words were intended to bear a more extensive meaning. The technical arguments in favour of the Divisional Court's reading of the various statutes in cases like Fisher v Bell, then, are formidable.

Nor are they necessarily diminished when one considers modern drafting habitudes. Not surprisingly perhaps, in view of settled parliamentary usage – and now, in view of Fisher v Bell, too – it remains customary to amplify the notion of offering for sale. Thus, the Deer Act 1991, s. 10 refers to anyone who “sells or offers or exposes for sale, or has in his possession for sale … any venison … .” Section 14(1)(a) of the Agriculture and Horticulture Act 1964 refers to anyone who unlawfully “offers or exposes [regulated] produce for sale,” whilst the City of Westminster Act 1999, s. 9 applies similar language in relation to street trading licences. The Copyright, Designs and Patents Act 1988 is littered with references to sale and exposure for sale.Footnote ²⁸ Even the infamous, loosely drafted Dangerous Dogs Act 1991, s. 1(2)(b) provides: “No person shall … sell or exchange [a dog to which this section applies] or offer, advertise or expose such a dog for sale or exchange.” Again, in para 1 of schedule 4 to the Local Government (Miscellaneous Provisions) Act 1982, Schedule 4, para. 1 “street trading” is defined as “the selling or exposing or offering for sale of any article … in a street; ….”Footnote ²⁹ Most telling of all, mindful of the fruitless prosecution in Fisher v Bell, s. 141(1) of the Criminal Justice Act 1988 currently lays down:

This provision could be seen as a capitulation on the part the legislature, which now concedes that even in a Criminal-Law context an offer for sale bears the technical meaning it conventionally possesses in the contractual sphere.

4. Fisher v Bell redivivus: W.M. Morrisons Supermarkets plc v Reading B.C.

For some, this analysis, habitually overlooked, may well come across as arid. Any such impression is wildly mistaken. Proper technical analysis of enactments, viewed in their broader statutory context, ought not to be overlooked simply because a court might feel uncomfortable interpreting legislation narrowly. As can be seen in the preceding section, drafting may fall into distinct behavioural patterns and individual Acts may require to be construed against the backdrop of any consistent, surrounding corpus of legislation.

The question remains, of course: how might a court today approach this variety of interpretative problem? W.M. Morrisons Supermarkets plc v Reading B.C. Footnote ³⁰ affords a clue. It is to be regretted that in this case the Court improvidently omitted to consider those very factors which, it has been argued, truly underpin Fisher v Bell and its descendants. As will be seen, once one looks at the relevant legislation in this panoramic manner, troubling features come into focus.

Acting on the instructions of council officials, a 15-year-old boy made a successful test purchase of a packet of ten Benson & Hedges cigarettes from a supermarket's sales kiosk. The retailer was subsequently convicted of selling tobacco to a person under the age of 18 years contrary to s. 7(1) of the Children and Young Persons Act 1933, which provides:

On appeal, it was contended that, in the absence of a definition in the 1933 Act, on the authority of Fisher v Bell and other “cases in which the analysis of the transaction in terms of civil law was decisive”,Footnote ³¹ the word “sells” must be given its technical legal meaning. In other words, the meaning given in the ordinary Law of Contract must prevail unless a different statutory meaning can be found by looking at other provisions of the statute.

Before the magistrates, the supermarket had argued, unsuccessfully, that the test purchase made by the boy was not a “sale” for the purposes of the Sale of Goods Act 1979 because he acquired no rights in or ownership of the cigarettes, having acted at all times on behalf of Reading Borough Council. From this, it necessarily followed that there had been no sale for the purposes of the 1933 Act. On appeal to the Divisional Court, the argument was renewed that the supermarket had not “sold” tobacco to the young person because he was acting as the agent of the Council; rather, in accordance with principles of the Law of Agency, the “sale” was to the Council. In the absence of any expanded definition of the word “sells” or “sale” – and absent any provision conferring investigative powers or a power to carry out test purchases under the 1933 Act – it would be wrong to read the term “sell” as though it meant “supply”. Therefore, after the manner of Fisher v Bell and Partridge v Crittenden, the word “sells” in s. 7(1) had to be given the technical legal meaning which it bore in the context of the law of sale of goods. Analysis of the transaction in terms of civil law had to be decisive.

A number of provisions of the Sale of Goods Act were claimed to be in point: s. 2(1), which defines a contract of sale as “a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price”; s. 2(4), which says that “where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale”; and s. 2(5) which provides:

The key civil-law principles engaged, however, derived from the Law of Agency. It was accepted that if, when purchasing the cigarettes, the 15-year-old boy was acting as an agent on behalf of the Council, he was acting as agent for an undisclosed principal.Footnote ³² As is well-known, until the principal intervenes on the agent's contract and is revealed as the true contracting party, the contract is made with the agent; and the latter is personally liable and entitled under the contract.Footnote ³³ No question of incapacity or illegality arose. The supermarket, however, contended that the property itself did not pass under the contract to the young person as purchaser and therefore the tobacco had not been “sold” to him.

Lloyd Jones J., in the absence of argument, was prepared to concede that “difficult questions could arise as to whether property passes to the agent or directly to the undisclosed principal”Footnote ³⁴. It is not immediately apparent what these questions might be, but the judge was content with a general assertion that it was “clear that property would pass from the seller either to the young person or to his undisclosed principal as a result of entering into this transaction.”Footnote ³⁵ Although Fisher v Bell and the other cases discussed above possibly predicate that criminal liability could turn on this nice analysis of the transaction in civil law, Lloyd Jones J. considered such a situation “undesirable.” Nor was it necessary to read the Act in this way. The judge asserted:

Lloyd Jones J. advanced three reasons for thinking that s. 7 of the 1933 Act should be read in this way. First, it was significant that s. 7(1) refers to a person under 18 years of age purchasing tobacco or cigarette papers “whether for his own use or not.” Since the child or young person is likely in many cases to be buying tobacco for the use of another, and in that sense is acting as agent for that other party, it seems logical that the Act should have been drafted in such a way as to preclude the vendor from relying on the defence that the purchaser was buying the tobacco for an adult. The inclusion of these words was “a strong indication” that Parliament meant for the offence to be committed, whether the child or young person was acting as principal or as agent.Footnote ³⁷Secondly, a further indication of the legislature's intention could be discerned in s. 7(4), which provides:

The subsection clearly points to situations where the young person will be acting as an agent for a manufacturer, a dealer in tobacco or (rather quaintly) a messenger company. In the judge's view, “the creation of this exception points strongly to the conclusion that the offence contrary to subs. (1) is committed whether or not the young purchaser acts as principal or agent.”Footnote ³⁸Thirdly, and most significantly, Lloyd Jones J. took the point, which had been considered impermissible in Fisher v Bell and subsequent decisions: namely, the mischief at which the section was directed. This was identified as the failure to exercise careful judgment regarding the age of a would-be purchaser of tobacco products in the face-to-face transaction. This being so,

Hooper L.J. agreed in a short concurring judgment, noting that were “any person who sells” to be construed in terms of the passing of property

His Lordship endorsed Lloyd Jones J's third point, indicating that the approach to the interpretation of the expression “offer for sale” adopted in Fisher v Bell and Partridge v Crittenden, might not be taken in future “given the modern practice to look at, as Lloyd Jones J. has done, the mischief sought to be avoided.”Footnote ⁴¹

5. Vale, Fisher v Bell?

Putting aside for a moment the two judges' suggestion that s. 7(1) of the Children and Young Persons Act 1933, along with similar provisions, might require in the future to be read purposively, Lloyd Jones J. makes two perfectly valid construction points in his judgment. Read in isolation, the statute's provisions might indeed indicate that Parliament's intention was that commission of the section 7(1) offence was independent of the question of whether the purchaser was acting as “agent” or “principal”. But if one reverts to the dichotomy explored above, which underpinned Fisher v Bell and succeeding authorities – between panoptic, technical interpretation of legislation that takes account of settled drafting conventions, on the one hand, and the temptation to fall back on a “purposive” approach to interpretation of a statute that might achieve what is perceived to be the desirable outcome, on the other – Lloyd Jones J.'s judgment provokes another, far more radical reflection.

Whilst the judge was undoubtedly correct to underline that s. 7(1) applies whether or not the tobacco and cigarette papers purchased are for the use of the child or young person, it does look odd that the section is assumed to cover cases where the purchase of tobacco or cigarette papers is made by a child or young person working undercover – as it were, sleuthing for the local authority. It is striking that when one looks at what might be generally termed other “trading offences”, “test purchases” normally have to be properly authorised under the relevant legislation,Footnote ⁴² and then often must be made observing procedures that are spelled out – sometimes, in considerable detail – in statute. Thus, to check whether sellers of goods and provides of services are acting in compliance with the Consumer Credit Act 1974, test purchases and procurements have to be effected under the terms of s. 164. Moreover, if a person is so authorised, under s. 164(2) he bears a personal responsibility since “any act done … shall be treated … as done by him as an individual on his own behalf.” Section 28 of the Consumer Protection Act 1987 regulates test purchases made by officers of enforcement authorities under that Act. The regime set up under the 1987 Act has since been extended to the detection of offences under the Fireworks Act 2003.Footnote ⁴³ The test purchases made by weights and measures authorities under ss. 107(A) and 198(A) of the Copyright, Designs and Patents Act 1988 are regulated by detailed rules laid down in ss. 27, 28, 29, and 33 of the Trade Descriptions Act 1968. Similar provision has also been made for enforcement of the Video Recordings Act 1984 by s. 16A of the Criminal Justice Act 1988, for the detection of hallmarking offences under the Hallmarking Act 1973 and, to strike a topical note, by the Olympic Symbol etc. (Protection) Act 1995.Footnote ⁴⁴ Such examples could be multiplied practically ad nauseam. But possibly the most telling case is to be found in the Crossbows Act 1987, a statute which has broadly similar prohibitory purposes to s. 7(1) of the Children and Young Persons Act 1933, and to the statute brought into play in Fisher v Bell. The Crossbows Act prohibits the sale and hire of crossbows to persons under 18. It also provides for test purchases by those under 18. Section 3A, which entered into force in March 2011, includes a provision absolving a person under 18 who buys or hires, or attempts either activity, from criminal liability under s. 2 or s. 3 of the Act “if … authorised to do so by the chief constable for the purpose of determining whether an offence is being committed ….” Under s. 3A(2),

Coupled with the evidence of the mass of legislation discussed above, the Crossbows Act 1987 does provoke the thought that it may just be that cloak-and-dagger “test purchases” of tobacco and cigarette papers by children cannot be assumed to be authorised at all under s.7(1) of the Children and Young Persons Act 1933. Section 7(1) makes no reference to such clandestine activities, and certainly does nothing to regulate them. It may well be that the use of children as local council lures to police the retail tobacco trade is now a hallowed practice.Footnote ⁴⁵ However, does it not seem unlikely that s. 7(1) of the 1933 Act even contemplated the use of children as covert jailbait for unwary tobacconists? After all, if one considers, for example, s. 3 of that selfsame Act – which makes it an offence to allow a child of between 4 and 16 years of age to reside in or frequent a brothel, or s. 5 which creates the offence of giving alcohol to a child under five years of age, or s. 23 under which it is an offence to cause or procure persons under sixteen to take part in performances endangering life or limb, or the offence of failing to provide for the safety of children at entertainments contrary to s. 12 – the use of infant tempters and temptresses as agents provocateurs would be unthinkable.Footnote ⁴⁶

6. Resort to statutory purpose and established patterns of lawmaking

So, what can we conclude from pondering this case law? It is suggested, tentatively, that one salutary lesson can yet be learned from Lord Parker C.J.'s generally disparaged judgment in Fisher v Bell. The contention that provisions like the now repealed s. 1(1) of the Restriction of Offensive Weapons Act 1959 and the extant s. 7(1) of the Children and Young Persons Act 1933 ought to be read purposively in situations in which the court feels that the righteous legislative design is thwarted by some perceived technicality, needs to be treated with caution. A purposive reading of a criminal statute, we know, may lead one into all manner of dangerous terrain, where courts can variously be accused of creating criminal offences where none existed before,Footnote ⁴⁷ of failing to construe penal statutes strictly – i.e. by granting the defendant the benefit of any doubts should the meaning of the provision be uncertain,Footnote ⁴⁸ or of reducing the knowability of the Criminal Law.

Rather like the dog that did not bark in the night,Footnote ⁴⁹ in the case of Fisher v Bell examination of many allied enactments strongly suggests that Parliament may have deliberately eschewed the traditional legislative formulae that at that time were part of the draughtsman's established vernacular – an impression reinforced by the language adopted in a considerable body of subsequent regulatory legislation.Footnote ⁵⁰ In the Morrisons case, apart from vague indications from the judges that a purposive construction might provide a helpful way forward, this type of ranging analysis was lacking. In consequence, a trick may have been missed. The aberrant procedure of employing youthful lures and loreleis, without specific parliamentary authorisation, to tempt tobacco vendors into outlawed sales to young persons seems not to have been questioned.

As the showcased decisions demonstrate, it may prove perilous to rule out the assumption that the legislature knows the general law and apprehends the technical significance of given words and phrases. Account has to be taken of the fact that both draughtsman and legislature observe cemented conventions when enacting statutes.Footnote ⁵¹ This point is sometimes overlooked by both courts and commentators. These conventions or patterns in legislative drafting nevertheless can make a decisive contribution to the meaning of the statute. Recourse perhaps should only be had to so-called purposive interpretation – assuming that a given provision's correct purpose can be confidently identified – in cases where no strong, countervailing drafting conventions obtain.