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FISHER v. BELL.

QUEEN'S BENCH DIVISION



[1961] 1 QB 394, [1960] 3 All ER 731, [1960] 3 WLR 351, 59 LGR 93, 125 JP 101

HEARING-DATES: 10, November 1960

10 November 1960

CATCHWORDS:
Criminal Law -- Dangerous weapons -- Flick knife -- Knife displayed in shop window with
price attached -- Whether "offer for sale" -- Restriction of Offensive Weapons Act, 1959 (7 &
8 Eliz. 2 c. 37), s. 1 (1).

HEADNOTE:
A shopkeeper displayed in his shop window a knife with a price ticket behind it. He was
charged with offering for sale a flick knife, contrary to s. 1 (1) * of the Restriction of
Offensive Weapons Act, 1959.



* The relevant terms of s. 1 (1) are printed at p. 732, letter G, post.

Held: the shopkeeper was not guilty of the offense with which he was charged because the
displaying of the knife in the shop window was merely an invitation to treat and the
shopkeeper had not thereby offered the knife for sale, within the meaning of s. 1 (1) of the
Act of 1959.

Keating v. Horwood ([1926] All E.R. Rep. 88) and Wiles v. Maddison ([1943] 1 All E.R. 315)
distinguished.

Appeal dismissed.

NOTES:
As to the meaning of "offer", in the law of contract, see 8 HALSBURY'S LAWS (3rd Edn.) 69,
paras. 119; and for a case on the subject, see 12 DIGEST (Repl.) 57, 314.

For the Restriction of Offensive Weapons Act, 1959, s. 1 (1), see 39 HALSBURY'S STATUTES
(2nd Edn.) 260.

CASES-REF-TO:

Keating v. Horwood, [1926] All E.R. Rep. 88; 135 L.T. 290; 90 J.P. 141; Digest Supp.
Magor & St. Mellons Rural District Council v. Newport Corpn., [1950] 2 All E.R. 1226; affd.
H.L., [1951] 2 All E.R. 839; [1952] A.C. 189; 115 J.P. 613; 3rd Digest Supp.
Wiles v. Maddison, [1943] 1 All E.R. 315; 168 L.T. 280; 107 J.P. 83; 2nd Digest Supp.

INTRODUCTION:
Case Stated. This was a Case Stated by justices for the City and County of Bristol in respect
of their adjudication as a magistrates' court sitting in Bristol on Feb. 3, 1960.

On Dec. 14, 1959, an information was preferred by the appellant, a chief inspector of police,
against the respondent charging him with an offence against s. 1 of the Restriction of
Offensive Weapons Act, 1959, in that, on Oct. 26, 1959, at 15/16, the Arcade, Broadmead,
Bristol, he unlawfully offered for sale a knife which had a blade which opened automatically
by hand pressure applied to a device attached to the handle of the knife. The justices found
the following facts.

The respondent was the occupier of a shop in Bristol (situated at the above address), where
he carried on the business of a retail shopkeeper trading under the name of Bell's Music
Shop. On Oct. 26, 1959, a police constable saw displayed in the window of the shop, among
other articles, the knife referred to in the information. Behind the knife in the window, the
police constable also saw a ticket on which were printed the words "Ejector knife -- 4s."
These words referred to the knife. The police constable entered the shop, saw the
respondent and said to him: "I have reason to believe that is a flick knife you have
displayed in your shop window.May I examine it?" The respondent removed the knife from
the window and said: "I have had other policemen in here about the knives". The police
constable examined the knife and took it away from the premises for examination by a
superintendent of police. Later the same day the police constable returned to the
respondent's premises and informed the respondent that in his opinion the knife was a "flick
knife". The respondent said: "Why do the manufactures still bring them round for us to
sell?" The police constable informed the respondent that he would be reported for offering
for sale a flick knife, and the respondent replied: "Fair enough".

The appellant contended that the respondent, by his action in displaying the knife in the
shop window with the ticket behind it and referring to it, such action being carried out with
the object of attracting the attention of a buyer of such knife and selling the same to such
buyer, had offered the knife for sale within the meaning of the Act of 1959. The respondent
contended that, on the facts, he at no time offered the knife for sale within the meaning of
the Act of 1959. The justices were of the opinion that, in the absence of a definition in the
Act of 1959, the words "offer for sale" ought to be construd as they were in the law of
contract, so that, in this instance, the respondent's action was merely an invitation to treat
and not a firm offer which needed but a customer's acceptance to make a binding contract
for sale, and, accordingly, they dismissed the information.

COUNSEL:
J. A. Cox for the appellant. P. Chadd for the respondent.

PANEL: Lord Parker, C.J., Ashworth and Elwes, JJ.

JUDGMENTBY-1: LORD PARKER, C.J.

JUDGMENT-1:
LORD PARKER, C.J.: This is an appeal by way of Case Stated by justices for the City and
County of Bristol, before whom an information was preferred by the appellant, a chief
inspector of police, against the respondent that he on a certain day in a shop unlawfully did
offer for sale a knife which was, to use ordinary terms, a flick knife, contrary to s. 1 of the
Restriction of Offensive Weapons Act, 1959. Section 1 (1) of the Act provides:

"Any person who manufactures, sells of hires or offers for sale or hire, or lends or gives to
any other person -- (a) any knife which has a blade which opens automatically by hand
presure applied to a button, spring or other device in or attached to the handle of the knife,
sometimes known as a 'flick knife'... shall be guilty of an offence..."
The justices, without deciding whether the knife in question was a knife of the kind
described in the statute, decided that the information must be dismissed on the ground that
there had not been an offer for sale.

The short facts are these. The respondent keeps a retail shop in Bristol and, in October,
1959, a police constable, walking past the shop, saw in the window, amongst other articles,
one of these knives. Behind the knife in the window was a ticket with the words "Ejector
knife -- 4s." The police officer went in and informed the respondent that he would be
reported for offering for sale such knife, and the respondent replied: "Fair enough".

The sole question is whether the exhibition of that knife in the window with the ticket
constituted an offer for sale within the statute. I think that most lay people would be
inclined to the view (as, indeed, I was myself when I first read these papers), that if a knife
were displayed in a window like that with a price attached to it, it was nonsense to say that
that was not offering it for sale. The knife is there inviting people to buy it, and in ordinary
language it is for sale; but any statute must be looked at in the light of the general law of
the country, for Parliament must be taken to know the generallaw. It is clear that, according
to the ordinary law of contract, the display of an article with a price on it in a shop window
is merely an invitation to treat. It is in no sense an offer for sale the acceptance of which
constitutes a contract. That is clearly the general law of the country. Not only is that so, but
it is to be observed that, in many statutes and orders which prohibit selling and offering for
sale of goods, it is very common, when it is so desired, to insert the words "offering or
exposing for sale", "exposing for sale" being clearly words which would cover the display of
goods in a shop window. Not only that, but it appears that under several statutes -- we
have been referred in particular to the Prices of Goods Act, 1939, and the Goods and
Services (Price Control) Act, 1941 -- Parliament, when it desires to enlarge the ordinary
meaning of those words, has a definition section enlarging the ordinary meaning of "offer
for sale" to cover other matters including, be it observed exposure of goods for sale with the
price attached n(1).



n(1) See s. 20 (4) (a) of the Goods and Services (Price Control) Act, 1941; 26 HLASBURY'S
STATUTES (2nd Edn.) 319.

In those circumstances I, for my part, though I confess reluctantly, am driven to the
conclusion that no offence was here committed. At first sight it appears absurd that knives
of this sort may not be manufactures, they may not be sold, they may not be hired, they
may not be lent, they may not be given, but apparently they may be displayed in shop
windows; but even if this is a casus omissus -- and I am by no means saying that it is -- it
is not for this court to supply the omission. I am mindful of the strong words of LORD
SIMONDS in Magor & St. Mellons Runal District Council v. Newport Corpn. n(2). In that case
one of the lords justices in the Court of Appeal had, in effect, said n(3) that the court,
having discovered the supposed intention of Parliament, must proceed to fill in the gaps --
what the legislature has not written, the court must write -- and in answer to that
contention LORD SIMONDS in his speech said n(4):



n(2) [1951] 2 All E.R. 839; [1952] A.C. 189.

n(3) [1950] 2 All E.R. at p. 1236.

n(4) [1951] 2 All E.R. at p. 841; [1952] A.C. at p. 191.

"It appears to me to be a naked usurpation of the legislative function under the thin
disguise of interpretation..."

For my part, approaching this matter apart from authority, I find it quite impossible to say
that an exhibition of goods in a shop window is itself an offer for sale. We were, however,
referred to several cases, one of which is Keating v. Horwood n(5), a decision of this court.
There, a baker's van was being driven on its rounds. There was bread in it that had been
ordered and bread in it that was for sale, and it was found that that bread was under
weight, contrary to the Sale of Food Order, 1921. That order was an order of the sort to
which I have referred already and which prohibited the offering or exposing for sale. In
giving his judgments, LORD HEWART, C.J., said n(6):



n(5) [1926] All E.R. Rep. 88.

n(6) [1926] All E.R. Rep. at p. 89.

"the question is whether, on the facts, there were (i) an offering, and (ii) an exposure, for
sale. In my opinion, there were both."
AVORY, J., agreed. SHEARMAN, J., however, said n(7):



n(7) [1926] All E.R. Rep. at p. 90.

"I am of the same opinion. I am quite clear that this bread was exposed for sale, but have
had some doubt whether it can be said to have been offered for sale until a particular loaf
was tended to a particular customer." There are three matters to observe on that case. The
first is that the order plainly contained the words "expose for sale", and, on any view, there
was in that case an exposing for sale. Therefore, the question whether there was an offer
for sale was unnecessary for decision. Secondly, the principles of general contract law were
never referred to; and thirdly, albeit all part of the second ground, the respondents were
not represented and there was, in fact, no argument. For my part, I cannot take that as an
authority for the proposition that the display here in a shop window was an offer for sale.

The other case to which I should refer is Wiles v. Maddison n(8). I find it unnecessary to go
through the facts of that case, which was a very different case and where all that was
proved was an intention to commit an offence the next day, but, in the course of his
judgments, VISCOUNT CALDECOTE, C.J., said n(9):



n(8) [1943] 1 All E.R. 315.

n(9) [1943] 1 All E.R. at p. 317.

"A person might, for instance, be convicted of making an offer of an article of foot at too
high a price by putting it in his shop window to be sold at an excessive price, although there
would be no evidenee of anybody having passed the shop window or having seen the offer
or the exposure of the article for sale at that price."
Again, be it observed, that was a case where, under the Meat (Maximum Retail Prices)
Order, 1940, the words were: "No person shall sell or offer or expose for sale or buy or offer
to buy..." Although LORD CALDECOTE, C.J., does refer to the making of an offer by putting
an article in the shop window, before the sentence is closed he has, in fact, turned the
phrase to one of exposing the article. I cannot get any assistance in favour of the appellant
from that passage. Accordingly, I have come to the conclusion in this case that the justices
were right, and this appeal must be dismissed.

JUDGMENTBY-2: ASHWORTH, J.

JUDGMENT-2:
ASHWORTH, J.: I agree.

JUDGMENTBY-3: ELWES, J.

JUDGMENT-3:
ELWES, J.: I also agree.

DISPOSITION:
Appeal dismissed.

SOLICITORS:
Robins, Hay & Waters, agents for Town clerk, Bristol (for the appellant); Haslewoods,
agents for Cooke, Painter, Spofforth & Co., Bristol (for the respondent).