Explain the material facts in the case (25%)

On 14 March 2003, a charge was made by the prosecutor (here being the Trading Standards Department of the City Council), against the defendant, Q, that Q had contrary to12(1) Video Act 1985supplied at a place other than a licensed sex shop, a video in respect of which the classification certificate stated that no video recording containing that work was to be supplied other than at a licensed sex shop.

Deputy District JudgeCurtis heard the trial in the Magistrates Court on 2 April 2004. It was agreed between the parties that: (a) Allan Auty, a principal trading standards officer employed by theCity Council was authorised to act as a covert human intelligence source pursuant to the provisions of theRegulation of Investigatory Powers Act 2000; authorisation was granted to allow Allan Auty to make a test purchase from the defendant; (b) an order for a video recording classified R18 by the British Board of Film Classification had been placed with the defendant by post and telephone; and (c) the video had been delivered, together with catalogues, to an address in Leeds, which was not a licensed sex shop.

The Deputy District Judge was of the opinion that:

(i)the concept of supply as defined insection 1(4)of the Video Act 1985 was wider than (albeit it included) the concept of sale;

(ii)that distinction could be demonstrated by reference to criminal law;

(iii)the best safeguard to ensure that R18 videos were not supplied to those under age of 18 years was to limit supply in a restrictive and properly licensed way;

(iv)the wording of the Video Act 1985 was clear and unambiguous: supply involved a transfer of physical possession;

(v)accordingly, a licensed sex shop could not supply R18 videos by way of mail or telephone order and supply had to be made to a person physically present in the licensed sex shop nor could it offer to supply R18 videos by way of mail or telephone order.

The defendant was convicted.

The defendant appealed by way of case stated to the Administrative Court.

The facts are stated in the following judgment of the Administrative Court.

MAURICE KAY LJhanded down the following judgment of the court.

1This is the judgment of the court.

2We have before an appeal by case stated from the Magistrates' Court. The defendant is Q. They operate a licensed sex shops at premises in Nottingham. On 27 April 2004 Q was convicted of an offence undersection 12 (1) Video Act 1985.The offence concerns supplying a video recording which has been given a R18 certificate by the British Board of Film Classification ("BBFC") pursuant tosection 7(2)(c)of the Video Act 1985. A classification under section 7(2)(c) comprises two statements, namely that the recording is not to be supplied to any person below 18 years and that it can only be supplied in a licensed sex shop, being (although not part of the statement) premises, which only those aged 18 or over may enter. The transactions giving rise to this prosecution and conviction were effected with the defendants by Mr Allan Auty of the City Council Trading Standards Department. They were in the nature ofa test transaction. Mr Auty did not attend at the licensed sex shop in question. His actions were designed to lay the foundation for proceedings in which he could raise the issue whether the provisions of the Video Act 1985 rendered delivery of an R18 video, other than in a licensed sex shop, a criminal offence. Currently orders are placed by mail, telephone or communicated electronically and the customer never attends the sex shop. He contends that a lawful supply can only take place when an adult customer is physically present in the licensed sex shop, and to do otherwise is a criminal offence. As currently organised, customers are informed, in catalogues or by telephone, that delivery by post is available. Deputy District Judge Curtis in the case decided the issues in favour of Mr Auty and convicted. Q was fined 3,000 for one offence of supplying. It was also ordered to pay 25,617.22 in respect of prosecution costs.

3This appeal turns on the proper construction of section 7 (and subsection (2)(c) in particular) and 12(1) and the definition of "supply" in section 1(4) of the Video Act 1985.

The Video Act 1985 ("the 1985 Act")

4The scheme of the 1985 Act ensures that a video recording cannot be supplied or offered to the public unless and until it has been classified by the BBFC. Classification certificates are issued pursuant tosection 7(2)of the 1985 Act, as amended. A classification certificate must contain the title assigned to the video work and one of the following:

"(a) a statement that the video work concerned is suitable for general viewing and unrestricted supply (with or without any advice as to the desirability of parental guidance with regard to the viewing of the work by young children or as to the particular suitability of the work for viewing by children or young children); or (b) a statement that the video work concerned is suitable for viewing only by persons who have attained the age (not being more than 18 years) specified in the certificate and that no video recording containing that work is to be supplied to any person who has not attained the age so specified; or (c) the statement mentioned in paragraph (b) above together with a statement that no video recording containing that work is to be supplied other than in a licensed sex shop."

5Section 1(4)of the 1985 Act defines what is meant by "supply". It provides:

" 'Supply' means supply in any manner, whether or not for reward, and, therefore, includes supply by way of sale, letting on hire, exchange or loan; and references to a supply are to be interpreted accordingly."

6Section 12(1)of the 1985 Act provides for enforcement of the restriction imposed by section 7(2)(c):

"Where a classification certificate issued in respect of a video work states that no video recording containing that work is to be supplied other than in a licensed sex shop, a person who at any place other than in a sex shop for which a licence is in force under the relevant enactment-(a) supplies a video recording containing the work, or (b) offers to do so, is guilty of an offence unless the supply is, or would if it took place be, an exempted supply."

Section 11(1)provides for the enforcement of the restriction imposed by section 7(2)(b) in similar terms. In each case the starting point for interpreting the enforcement provisions is the classification process in section 7. In each case it can be noted that the classification certificate is concerned with the act of supply whereas the penal enforcement extends, in addition, to the act of offering to supply.

7The "relevant enactment" is the Local Government Act 1982 which governs the licensing of sex shops. We need not concern ourselves with "exempted supplies" which are essentially intermediate supplies in a commercial chain which culminates in a licensed sex shop. The words of section 12(1) which are central to these appeals are "supplies", "offers to do so" and "other than in a licensed sex shop".

The facts

8Before turning to the interesting submissions on the construction of section 12, it is appropriate to say a little more about the facts, as to which there was no dispute at trial. So far as Q is concerned, at all material times it held a licence to operate a sex shop at 14 Bourne Road, Nottingham. Mr Auty made his test purchase from Q by posting an order for an R18 video to the shop. The video was posted and delivered to him at his office in Beeston which, needless to say, is not a licensed sex shop. With the video was also posted a catalogue.

[paragraphs 9 and 10 of the judgement have been intentionally removed]

11The catalogue included with it an order form with printed terms and conditions. Under the heading "Supply" the terms and conditions provided:

"There are two supply options: you may have your order sent by mail or you may collect it yourself. The most convenient option is to have your order delivered to your home address, in which case we will hand over your order, packaged to a carrier in your name for postal delivery to your home address, for which you will be required to contribute towards costs. If you wish to collect your order from our offices then kindly indicate this to us in writing on the last line of the order form. We will then inform you when the package is ready for you to pick up.

The condition under the heading "Sale Agreement" stated:

"A sale agreement exists once we accept your order communicated by telephone, in writing, by fax, or via the internet. We reserve the right to refuse an order without giving a reason or to attach extra conditions (for example, asking for advance payment). Any orders placed via our internet/website are accepted via our licensed premises at Nottingham."

The condition headed "Point of Sale" provided:

"When placing an order with Q you certify that you are over 18 years old, that you purchase our products for your own personal use, and that you will not allow any videos, CDs, or magazines to be viewed by minors. You should fully understand that our products are sexually explicit and, as such, are only to be purchased via our licensed premises [in Nottingham]."

The issues

12This case stated in relation to Q turns on the proper construction of section 7 (and subsection (2)(c) in particular) and 12(1) and the definition of "supply" in section 1(4) of the 1985 Act.

13On behalf of Q, Mr Pannick submits that the supply of the video to Mr Auty took place in the licensed sex shop because that is where his orders were accepted and from where the video was dispatched. He submits that the purpose of these provisions is met so long as the supply of an R18 video recording is derived from a transaction made with a licensed sex shop proprietor.

Supply other than in a licensed sex shop

14The Deputy District Judge in the Magistrates Court concluded:

"The concept of supply as defined insection 1(4)of the Video Act 1985 is wider than (albeit it includes) the concept of sale. The distinction can be demonstrated by reference to criminal law. The best safeguard to ensure that R18 videos are not supplied to those under the age of 18 years is to limit supply in a restrictive and properly licensed way. The wording ... is clear and unambiguous. Supply involves a transfer of physical possession."

Mr Pannick, on behalf of the defendant, submits that this analysis is wrong. His first submission is that, whilst section 1(4) makes it clear that "supply" can take various forms, where, as here, it takes the form of a sale, the essential acts had all occurred before the goods left Q's premises. The sale had been concluded by the acceptance of Mr Auty's order. Accordingly, the sale -and therefore the supply - took place in a licensed sex shop. On behalf of the prosecution, Mr Flewitt submits that, upon a true construction, the concept of "supply" under the 1985 Act is synonymous with a transfer of physical possession. In this regard, he replies upon on a number of authorities, in criminal law, which have arisen in the context of other statutes.

15The word "supply" arises in the definition of offences under sections 4 and 5 of theMisuse of Drugs Act 1971. It does not receive an exhaustive statutory definition. Section 37(1) merely states that "'supplying' includes distributing". InR v Belfast[1985] Smith J, giving the judgment of the Court of Appeal (Criminal Division), said:

"Thus, we are driven back to considering the word 'supply' in its context. The judge himself relied upon the dictionary definition, which is a fairly wide one. This court has been referred to theShorter Oxford English Dictionary, which gives a large number of definitions of the word 'supply', but they have a common feature, viz: that in the word 'supply' is inherent the furnishing or providing of something which is wanted. In the judgment of this court, the word 'supply' insection 5(3)of the 1971 Act covers a similarly wide range of transactions. A feature common to all of those transactions is a transfer of physical control of a drug from one person to another. In our judgment questions of the transfer of ownership or legal possession of those drugs are irrelevant to the issue whether or not there was intent to supply."

This approach was further developed inR v Sunderland[1987], in which the House of Lords held that supply connoted more than a mere transfer of physical control in that it is necessary that the transfer is for the purposes of the transferee. Lord Keith of Kinkel said, at p 309:

"The word 'supply', in its ordinary natural meaning, conveys the idea of the furnishing or providing to another something which is wanted or required in order to meet the wants or requirements of that other."

16InLiverpool v Exeter(1987)the Divisional Court was concerned with the meaning of the word "supplies" insection 1(1)(b)of theTrade Descriptions Act 1968. The case was concerned with time limits and the issue was whether a vehicle had been supplied when the contract was made or only upon subsequent delivery. The Divisional Court held that the supply occurred when the goods were delivered. Lord Widgery CJ said, at p 1288:

"For my part I think that the proper construction of this Act requires supply to be treated here as the date of delivery. I can see that there are arguments which might be advanced for applying the Sale of Goods Act 1893 to this situation and saying that an article is supplied when the property passes by virtue of that Act. But I think ... that that would be an unnecessary and undesirable complication to attach to this already somewhat difficult Act, and I think that the proper meaning of supply in this context is the delivery of the goods as delivered by the seller, or notification that they are available for delivery if they are to be collected by the buyer."

17The word "supply" has also been considered in the context ofsection 75of theRoad Traffic Act 1988(as amended) which prescribes the offence of supplying a motor vehicle in an unroadworthy condition. Section 75(2) states: "In this section references to supply include-(a) sell, (b) offer to sell or supply, and (c) expose for sale." InDevon v Cornwall[2001]the transaction under consideration was one whereby the repairer of a vehicle returned it to its owner, having failed to put it into a roadworthy condition. The Divisional Court held that the vehicle was supplied to its owner when the repairer returned it to him. Forbes J said, at para 17:

"As Lord Keith said inR v Sunderland[1987], the word 'supply' involves no more than a transfer of physical control of a chattel from one person to the other in order to provide that other with something that that other wants or requires. In this case, the respondent transferred physical control of the car to Mr Williams and, in doing so, provided Mr Williams with that which Mr Williams desired and required, namely a motor vehicle which had been repaired and which had passed its MOT test."

18Relying on these authorities, Mr Flewitt, for the prosecution, submits that it has been consistently held in the construction of criminal statutes that "supply" is not to be construed by reference to principles of the law of contract but is to be given the wide meaning adopted in those authorities. There is no reason to depart from that construction in relation tosection 12of the 1985 Act. Mr Pannick, for the defendant, submits that each statute has to be construed in its own context. In the Misuse of Drugs Act 1971 the word "supply" is not expressly defined in a way which includes "sale". It is immaterial whether drugs are sold or supplied gratuitously. Moreover, the Video Act 1985 is primarily concerned with the place at which the supply is carried out, which is an irrelevant consideration under the Misuse of Drugs Act 1971. In the Trade Descriptions Act 1968 the word "supply" is undefined. The concept of "sale" is therefore is not proffered as an example of "supply". Moreover, once again the statute is not concerned with regulating the place at which the supply takes place. In the Road Traffic Act 1988 there is a partial definition of "supply" which includes a sale but again the location of the transaction is irrelevant in the commission of the offence.

19We are wholly unpersuaded that the distinctions which Mr Pannick seeks to draw are appropriate or meaningful. The starting point must be section 7 of the 1985 Act. It has not been in dispute that the principal purpose of the classification procedure is to guide parents and others in connection with what is suitable material for children to view and to control and thereby prevent viewing by children of video works, which are available by way of supply to adults, but which are not considered suitable to be viewed by children. The dispute, in truth, has been over the ambit of the restriction insection 7(2)(c). The purpose is to prevent children viewing unsuitable material and the ambit of the restriction on supply in section 7(2)(c) should be interpreted with a view to that purpose being achieved. It seems plain to us that the restriction, requiring that a video work is not to be supplied other than in a licensed sex shop, is designed to eliminate a range of circumstances carrying the risk that such material might come to be viewed by persons under 18, for which the certificate in section 7(2)(b) and enforcement under section 11(1) of the Act provides some, but limited protection. For a case illustrating some judicial consideration of the evasions of the protection which can occur: seeLondon v Bristol [1993].

20In our judgment, the requirement that the event of supply is to be confined to a licensed sex shop gives heightened protection, reducing the opportunity for the material to be viewed by children. Since section 12(1) is an enforcement provision in relation to section 7(2)(c), aimed at securing that the supply of a video work so classified is to be in a licensed shop, it falls to be interpreted according to the same purpose. For the above reasons and for those appearing below, we reject the submission that the aim and purpose of section 7(2)(c) and section 12 of the 1985 Act is limited to ensuring that such video material is only dealt with by persons licensed to run a sex establishment. The classification states: "Restricted. To be supplied only in licensed sex shop to persons of not less than 18 years." The restriction is not directed simply to ensure a supply takes place "by" a licensed sex shop proprietor.

21In our judgment the fact that the transaction in the present case is one of sale and the fact that sale is one of the examples of supply in the definition provided by section 1(4) does not alter the definition of the restricted act which is made an offence in section 12(1). The inclusion of sale in the examples of supply does not justify resort to contractual principles for the purpose of establishing whether there has been a supply. To do so contradicts the plain meaning of supply as it is employed in the classification process. Moreover, we see no reason to depart from the consistent approach taken in relation to the construction of the other criminal statutes. The word "supply" has a wide meaning, being "supply in any manner". We have no doubt that the definition is apt to achieve the purpose of the scheme. Section 1(4) provides a non-exhaustive list of examples. The offence remains one of "supply". We derive no assistance from the fact that the other statutes are unconcerned with the location of the offence, whereas the 1985 Act is very much concerned with location. That seems to us to be consistent with the scheme. The purpose of the classification procedure and section 12 is to ensure that the supply of restricted material only takes place at licensed establishments because thereby an effective scheme for restricting the viewing to adults will be in place. The construction contended for by Mr Pannick would significantly reduce the effectiveness of that purpose. We have no doubt that one of the main reasons for the restriction is to ensure that the customer comes face to face with the supplier so that there is an opportunity for the supplier to assess the age of the customer. It is a disincentive to a visibly under-age customer to seek out the forbidden material.

[paragraphs 22 to 29 (inclusive) of the judgement have been intentionally removed]

30It follows from what we have said that, in our judgment, the Deputy District Judge in the Magistrates Court correctly construed section 12 of the 1985 Act. Accordingly, this appeal must be dismissed.

End of case extract