Fisher v Bell

Case Title: Fisher v Bell

Citation: [1961] 1 QB 394

Court: High Court of Justice

Judges:

• Lord Parker CJ
• Ashworth J
• Elwes J

Bench type: Queen’s Bench Division

Date of Judgment:

The judgement was delivered on the 10^th of November, 1960

Parties Involved:

• Appellant/Prosecution: Chief Inspector George Fisher, of the Bristol Constabulary prosecuting Bell for unlawfully displaying a flick knife for sale in the window of the shop. Section 1 of the Restriction of Offensive Weapons Act 1959 states that it is an offence to “offer for sale” certain prohibited weapons such as flick knives
• Defendant/Respondent: James Bell, a shopkeeper in Bristol who displayed a flick knife his shop window with a price tag clear for the public.

Facts of the Case:

• The Defendant, James Bell displayed a flick knife in the window of his shop in Bristol alongside a ticket reading: “Ejector knife- 4s”
• A Police constable entered the shop, spoke to Bell, and examined the knife. Later he confirmed that it was a flick knife. Bell admitted police had previously visited him about such knives.
• The prosecution charged the defendant (Bell) for offering to sell a flick knife, contrary to section 1 of the Restriction of Offensive Weapons Act 1959 which states that any person who offers to sell a prohibited weapon, such as flick knives, shall be guilty of an offence.
• At first instance, the prosecution submitted that by displaying the knife and a price ticket, the defendant has intended to attract a buyer which constitutes an offer to sale under the act. The defendant’s side however submitted that displaying the knife was not sufficient to constitute an offer, as established by the principles of contract law.
• The judges at first instance ruled that the display was merely an invitation to treat, therefore no criminal liability arises. The prosecution appealed to the Queen’s Bench Divisional Court.

Issues Raised:

1. Does the display of goods in a shop window with a price tag constitute an “offer for sale” under section 1 of the Restriction of Offensive Weapons Act 1959?
2. Should statutory interpretation expand “offer for sale” beyond its technical meaning in contract law, in order to fulfill the Act’s purpose?

Arguments of the Parties:

Appellant/Prosecution

• The prosecution claimed that displaying the flick knife in the shop window alongside a price ticket constituted an offer for sale for the purposes of the act. Additionally, they argued that if the statute was to be interpreted narrowly then it would defeat the purpose of the act and lead to the absurd consequence of knives being freely displayed and advertised but not sold.
• The prosecution relied on the decision in Keating v Horwood,[1] where under the Sale of Food Order 1921, a baker carrying underweight bread in his van was held to have offered or exposed the bread for sale despite not selling it yet.
• They also relied on the decision in Wiles v Maddison,[2] where under the Meat (Maximum Retail Prices) Order 1940, the court suggested that goods displayed in a window at excessive prices might amount to an “offer”.
• The prosecution relied on these authorities to contend that the statutory prohibitions should be interpreted to address the mischief and that “offer of sale” should be interpreted more broadly than contract law.

Defendant/Respondent

• The defence mainly relied on contract law principles, where displaying the knife in the window shop did not constitute an offer but rather was an invitation to treat. They argued that the actual offer comes from the customer when they present the goods to the shopkeeper, and the contract is formed only upon the shopkeeper’s acceptance as established in Pharmaceutical Society v Boots,[3] and earlier authorities.
• The defence emphasised that Parliament was well aware of these principles when it enacted the Act. If the legislature intended to prohibit exposure for sale, it could have used that terminology, as had been done before. The omission of such words could not be judicially corrected.
• Finally, they stated that in criminal law, ambiguous provisions must be interpreted in favour of the accused. Courts should not extend liability beyond the clear words of Parliament. Since Bell has not actually offered the knife for sale, he cannot be prosecuted under the act

Judgment

• The Court unanimously dismissed the prosecution’s appeal and concluded that the act of displaying a knife in a shop window with a price tag was not an offer for sale but merely an invitation to treat.

Ratio Decidendi

• Lord Justice Parker acknowledged that in everyday language, it is natural to interpret that a knife being displayed in a shop’s window was being offered to sale, however he stressed that the courts must follow established principles unless Parliament said otherwise.

According to the law of contract law, a display of goods with a price tag is merely an invitation to treat and is not a definite offer. It aims to invite customers to make offers which the shopkeeper can decline or accept. These principles are established in Timothy v Simpson,[4] and later affirmed in Pharmaceutical.[5]

He also emphasised that if parliament intended to legislate against existing contract law, it would have used the phrase “offer or expose for sale” as it has done in other acts. The absence of such wording therefore implied that the ordinary contract law definition of offer applied Furthermore, the act prohibits the manufacture, disposition and marketing of flick knives and other weapons, however it did not prohibit possession of the knife. Possessing the knife and displaying it in a shop window is not an offence within the act and does not amount to an offer of sale but merely an invitation to treat.

Lord Justice Parker dismissed the prosecutions claim relying on Keating v Horwood,[6] because the Sale of Food Order 1921 expressly prohibited not only the offering for sale of foodstuffs but also their exposure for sale. The courts did not have to decide whether there was an offer to sell because it was sufficient to prove that the goods were exposed.

Similarly, he dismissed Wiles v Maddison,[7] because the wording of the Meat (Maximum Retail Prices) Order 1940 state that “No person shall sell or offer or expose for sale or buy or offer to buy” and the prosecution in that case only proved an intention to commit an offence the next day and the issue of offer was not discussed. While Viscount Caldecote CJ did make some comments suggesting that putting goods in a window at an illegal price could be an “offer”, it was obiter dicta and therefore not binding on the courts.

Hence because of the reasoning above, the appeal was dismissed and Bell was not prosecuted. The judges distinguished the cases brought by the appellants and concluded that as judiciary they cannot expand the technical meaning of offer or extend criminal offences through interpretation. They ultimately ruled that Bell placing the flick knife on his window in the shop was merely an invitation to treat.

Conclusion

Fisher v Bell is a landmark case in enforcing the key difference between an “offer to sale” and an “invitation to treat” in contract law. An offer is a clear and definite expression of willingness to be bound by certain terms as soon as the other party accepts. A display of goods is an invitation to treat where the customers are the ones making the offer for the shop keeper. The shopkeeper then has the right to accept or decline the customer’s offer.

The decision ensured that retailers would not find themselves bound to sell to every customer regardless of stock or availability. The shopkeepers retain the authority to refuse or accept transactions until they accept the offer.

For criminal law, it highlighted the principle of legality where no one can be convicted and prosecuted of a crime unless parliament has clearly defined the conduct, which was not present in this case.

Fisher also highlights the judiciary’s commitment to strictly interpreting statutes to be compliant with existing general rules and provisions unless stated otherwise. Even when a purposive interpretation might serve the statute’s aims better, the courts will be hesitant to depart from established legal principles unless expressly authorised by Parliament.

The case was criticised for undermining the Restriction of Offensive Weapons Act 1959 act and allowing the display of dangerous weapons in shop windows. The judge’s failure to adopt a purposive approach and relying on parliament’s wording has the consequence of undermining public policy and failing to realise the purpose of the statute. However others praised the case for highlighting the principle of separation of power where it is for Parliament, not the courts, to close legislative gaps and loopholes.

In response to the outcome of Fisher v Bell, the parliament recognised the gap in law and amended the Restriction of Offensive Weapons Act 1959 act, and subsequent acts of similar purpose, to include “offer or expose to sale”. This act affirmed the judiciary’s decision in strictly interpreting parliament’s intentions and demonstrated the parliament’s own responsibility to clarify and expand statutory provisions when necessary

Reference(S):

[1] Keating v Horwood 1926 28 Cox CC 198.

[2] Wiles v Maddison [1943] 1 All ER 315.

[3] Pharmaceutical Society v Boots [1953] 1 QB 401.

[4] Timothy v Simpson (1834) 149 ER.

[5] Pharmaceutical (n 3).

[6] Keating (n 1).

[7] Wiles (n 2).