About this case:

• Citation:
  [2023] NIKB 35
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice Michael Humphreys

The court found that the products could not be classified as children’s toys and the respondent therefore acted ultra vires.

Background

The applicant was a company that imports and distributes Halloween and party products. Its application for judicial review raised concerns relating to the procedure for importing such goods into Northern Ireland post-Brexit.

In particular, the applicant sought to impugn a decision by the respondent, Belfast City Council, to classify goods imported as ‘toys’ within the meaning of the Toys (Safety) Regulations 2011, and to subsequently detain those goods.

In November 2021, the Office for Product Safety and Standards (OPSS) notified the respondent, claiming that a number of these items had been removed and sent for testing. The respondent argued that it acted lawfully at all material times, that the hold on the products was placed by OPSS, and that the goods held were non-compliant toys.

The goods the subject of the hold were identified as including “USA Flag Ghost Face Mask”, “Scary Movie Mask”, “Michael Myers Knife” and “Anubis Mask Adult”. The applicant argued that the respondent erred in classifying these goods as toys, and acted unlawfully in subjecting the goods to permanent detention.

The detention

The 2011 Regulations provide that toys are “products designed or intended (whether or not exclusively) for use in play by children under 14 years of age”.

Guidance Note no.17 further clarifies that “carnival costumes”, which include disguise costumes and fancy dress, are only toys if “they are of a size which is suitable for children under 14 years. Carnival costumes for adults are no [sic] toys”.

As such, if an item is not sized in a way which is suitable for a child under 14 years, then it cannot be a toy, since it cannot have been designed or intended for someone of that age.

Here, examination assistance was sought from Glasgow Scientific Services (‘GSS’) in relation to three 2021 consignments. Five of the products were found either to not be toys or to be compliant with the relevant standards. Thirteen product types were, however, “deemed to be toys and did not comply with the requirements of toy safety legislation”.

These results were adopted by the respondent in full.

The applicant’s evidence

The applicant instructed an expert witness, Alan Ross, a chartered textile technologist, to examine the products. He noted that two product types had conflicting age-related information, saying both that they were not intended for use by children and that they were suitable for age 8 upwards. These should properly be considered as toys.

However, overall, he noted that the products all related to ‘horror’ themes associated with adult-related films or video games. The two child costumes did carry the appropriate conformity marking, and the various face masks were too large for child use, and were clearly and unambiguously labelled as being for adult use.

He believed that a product which related to an adult film, marked for adult use and sized for adults, should not be regarded as a toy. He also noted that the 2011 Regulations allow for remedial action to be taken by an importer to bring items into conformity prior to them being released onto the market.

The applicant therefore contended that the decision to classify nine of the items as toys was wrong in law since they were intended for use by adults and sized accordingly.

Consideration

The court noted that although the GSS officer determined nine of the items to be ‘toys’, there did not appear to be any factual basis for this conclusion. The examiner “leaps to the conclusion that they fall into the statutory definition”, despite the fact that his analysis made no reference to the fact that:

1. the products were based on films which were intended for adults only;
2. they were labelled for use by adults only; and
3. they were sized for adults and not for children.

To have concluded that they were toys was to have made an error of established fact, which played a material part in the decision-making process and, ultimately, the legal conclusion. This caused evident unfairness to the applicant.

Further, no account was taken of the guidance that carnival costumes should only be classified as toys “if they are of a size which is suitable for children under 14”. This omission constituted a fundamental flaw in the decision-making process.

The respondent therefore acted unlawfully in classifying nine items as toys within the meaning of the 2011 Regulations.

Further, the applicant asserted the absence of any power enjoyed by the respondent to detain allegedly non-compliant goods permanently and without any right of redress.

The respondent did not attempt to argue that any such power existed. However, the court found that the council had “at all times… acted ultra vires in relation to the goods in question”, for the following reasons:

1. in February 2022, the respondent asserted that it had not placed a ‘hold’ on the goods, but this had been done by OPSS;
2. in the email dated 11 February 2022, Ms Kelly stated that the goods in question would remain ‘subject to a customs hold’;
3. the legal basis for the detention of the goods was not articulated by the respondent; and
4. the respondent made the case repeatedly in sworn evidence that it had complied with its legal obligations, when this was manifestly not the case, and the opportunity was not taken to correct this error.

The court highlighted that there was no opportunity provided to the applicant to be heard, nor was it informed of its remedies under national law.

Conclusion

Ultimately, the court found that the decision by the respondent to detain the products without taking appropriate measures, without informing the applicant of its right to be heard and without affording an appeal right was clearly in breach of the relevant regulations, and was without any legal authority.

The court therefore quashed the decision of the respondent to subject all of the goods in the October consignment to detention.