Strand, London, WC2A 2LL
B e f o r e :
| SINCLAIR COLLIS LIMITED
|- and -
|SECRETARY OF STATE FOR HEALTH
- and -
THE MEMBERS OF NATIONAL ASSOCIATION OF CIGARETTE MACHINE OPERATORS
Nicholas Paines QC and Ian Rogers (instructed by DWP/DH Legal Services) for the Defendant
Thomas de la Mare and Iain Steele (instructed by Davies Arnold Cooper) for the Interested Party
Hearing dates: 12th and 13th October 2010
Crown Copyright ©
Sir Anthony May President of the Queen's Bench Division:
Automatic Tobacco Vending Machines
The claimants' claims
The Legislative history
a) electronic ID card age verification, similar to that used in Germany and the Netherlands and soon to be introduced in Japan;
b) ID coin mechanisms, by which the purchaser would have to obtain an ID coin or token from a member of staff who would be required to verify the purchaser's age; and
c) remote radio control by which a member of staff would open the vending machine by remote control having verified the purchaser's age.
The principle of each of these is that the machine is not openly available for use to anyone whose age has not been verified. The concept is in principle similar to that required for the sale of cigarettes over a counter in shops or supermarkets, where the salesperson has to verify the purchaser's age. Each of these systems is obviously open to a degree of error, non-observance, circumvention or deceit, but those who permit children to buy cigarettes are or would be open to criminal sanction.
a) 17% of regular smokers aged 11 to 15 state that a vending machine is a usual source for them of tobacco products. (This is an accurate abstract from a survey, in contrast with my earlier reference to the 17%).
b) 17% is reduced to 7.5%, because the respondents to the survey were able to give more than one usual source and the resulting percentages added up to 227%.
c) a publication in 2006 found that 11-15 year olds smoke on average 6 cigarettes per day.
d) if sales to those under age from vending machines are stopped, child smokers will on average smoke 0.45 fewer cigarettes per day (7.5% of 6 = 0.45.)
e) the children will therefore on average live about 18 days longer (0.11 life years gained multiplied by 0.45 = 0.05 life years saved per person), to which is ascribed a money value of £2,500 (£50,000 multiplied by 0.05).
f) a 2006 survey shows that 20% of 16-19 year olds smoke.
g) 650,000 children (? who reach the age of 16-19 years) are born each year, so 130,000 of them (20% of 650,000) are candidates for smoking on average 0.45 fewer cigarettes per day. These will on average each live 18 days longer = 6,500 life years (130,000 multiplied by 0.05 = 6,500).
h) the money value of 130,000 18 days is £324m. (£2,500 multiplied by 6,500 = £324m.).
i) but there are uncertainties in this, including the possibility (? probability) that some of the young people will obtain their cigarettes from elsewhere. So reduce £324m. to a range of 10% - 50% = £32.4m. to £162m.
j) but enforcement is unlikely to be 100% effective. So reduce the amounts by another 10%, so that the range is now £29.2m. to £146m.
k) the value of these amounts discounted over 10 years is a range of £215m. to £1.07bn.
Article 36 Justification and Proportionality the claimants' case
"The court can do no more than inquire whether the Secretary of State has (i) taken adequate steps to inform himself of the position in the third country (ii) properly considered the information which is available to him and (iii) come to an opinion which is consistent with that information, recognising that it is his responsibility to evaluate the material which is available to him."
"The Court of Justice has ruled that "the health and life of humans rank first among the property and interests protected by Article 36 and it is for Member States, within the limits imposed by the Treaty, to decide what degree of protection they intend to assure, and in particular how strict the checks to be carried out are to be". In the same ruling the Court stated that national rules or practices do not fall within the exception specified in Article 36 TFEU if the health and life of humans can be as effectively protected by measures which do not restrict intra-EU trade so much.
Protection of health and life of humans, animals and plants is the most popular justification under which Member States usually try to justify obstacles to the free movement of goods. While the Court's case-law is very extensive in this area, there are some principal rules that have to be observed: the measures adopted have to be proportionate, i.e. restricted to what is necessary to attain the legitimate aim of protecting public health. Furthermore, measures at issue have to be well founded providing relevant evidence, data (technical, scientific, statistical, nutritional) and all other relevant information."
Paragraph 6.3 restates the proportionality test in similar terms, indicating that the court has allowed Member States a certain "margin of discretion" regarding the measures adopted and the level of protection pursued. Paragraph 6.4 restates the burden of proof and the fact that justification must be accompanied by appropriate and precise evidence.
a) The only sustainable legitimate aim of the legislation banning the sale of tobacco from automatic vending machines was to reduce the incidence of tobacco smoking by young people under 18; but the Secretary of State at the last moment and wrongly introduced a second aim of encouraging adult smokers to quit smoking. This made the Final Impact Assessment, on the basis of which the Ministerial decision was made, wrong and misleading.
b) The Secretary of State made significant (and the claimants would say fundamental) errors in identifying and assessing relevant facts. There were, it is said, errors in the assessments of the benefits resulting from the ban, and the assessment of detriment was superficial and unsupported by the facts.
c) The ban was not the least restrictive option. The originally favoured option of restricting under-age purchases from vending machines by electronic means would have been less restrictive and no less effective.
d) The ban does not seek to protect public health in a consistent and systematic manner, since not providing for age-restricted access to tobacco vending machines is inconsistent with permitting it for tobacco sales in shops.
Legitimate aim claimants' case
Final Impact Assessment
a) The figure of 20% for the smoking prevalence of 1619 year olds is not appropriate because it derives from a 2006 survey at a time when it was lawful for 17 year olds to buy cigarettes. The minimum age has since been raised. This is also inconsistent with another part of the calculation where the new minimum age is taken into account. A suggestion in correspondence that raising the minimum age may have increased the proportion of cigarettes bought from vending machines by those under 18 overlooks the fact that figures from 2008 are already used in another part of the calculation. The Secretary of State acknowledged in September 2010 that a recently published academic paper showed a reduction of the prevalence to 17%. This, say the claimants, should reduce to 16% if hand rolled cigarettes, not available from vending machines, are taken out of the calculation.
b) Evidence suggests that the proportion of cigarettes obtained from vending machines by those under 18 fell between 2006 and 2008. It fell from 14% to 10% for 1115 year olds, and it may be inferred that the trend for 16 and 17 year olds was similar. At most, the ban would address a declining problem.
c) If these matters (characterised by the claimants as errors) are taken into account, the best estimate net money benefit would have been negative, thereby falsifying the proportionality judgment. The net benefit would reduce further, if, as one report suggests, the range of net benefit should be reduced from 10 to 50% to 10 to 40%.
Least restrictive option
Justification and proportionality defendant's case
"If anything, indeed, I would have thought interferences with the fundamental rights and freedoms guaranteed by the Convention more, rather than less, difficult to justify than restrictions on the merely economic rights of free movement of goods and services provided for by the Treaty. If anything, these economic rights seem to me more akin to the property rights protected under Article 1 of the First Protocol than to the core rights guaranteed, for example, under Articles 8-11 and therefore to be more readily overridden in the broad public interest than the Convention's core rights."
At paragraph 156 of his opinion, Lord Brown had contrasted the position under Article 1 of the First Protocol with the test of strict necessity required for an interference with Article 8 rights. He said at paragraph 165 that if the ban on hunting, with which the Countryside Alliance case was concerned, were regarded as engaging Article 28 or 49 EC (as they then were), he could not believe that its justification would fall to be judged as strictly as would be the case if Article 8 of the Convention were engaged.
Article 1 of the First Protocol to the European Convention on Human Rights