Day 309 - 03 Dec 96 - Page 41


     
     1   MR. JUSTICE BELL:  Lots of things, I do not think it is
     2        productive to look into if there was a misunderstanding
     3        whose, if anyone's, responsibility it was.  I just want to
     4        know whether I can take whatever I think I may from that
     5        document.
     6
     7   MR. RAMPTON:  I respectfully recommend your Lordship to look at
     8        the document.  In fact, there are, I think, about five of
     9        them because it is tabs 11 to 17 in the same file.  And
    10        also have a look at Mr. Hawke's evidence and see what it
    11        comes out at.  I hope you will forgive me if I do not,
    12        unless your Lordship asks me to, then come back to it
    13        because, having read it, it did not seem to me to amount to
    14        very much.
    15
    16   MR. JUSTICE BELL:  At the bottom of that page you say "It might
    17        be thought a sufficient answer to the first question is the
    18        advertising, is the advertising as advertising directed at
    19        children objectionable in itself"?
    20
    21   MR. RAMPTON:  No, that is-----
    22
    23   MR. JUSTICE BELL:  That is, is advertising to children
    24        intrinsically objectionable?
    25
    26   MR. RAMPTON:  Yes, that is the one.  I must say I do not think
    27        much of the point at 11.2.  I am bound to say I think I am
    28        with your Lordship in believing that ultimately it is a
    29        question for the court.  If the court happens to agree with
    30        the regulatory authorities that is one thing, if the court
    31        does not then that is bad luck on the regulatory
    32        authorities.  All one would say then is McDonald's have
    33        obeyed the rules, that is a feather in their cap; whether
    34        it goes far enough is a matter for what your Lordship
    35        thinks of the advertising.
    36
    37   MR. JUSTICE BELL:  Yes.  It seems to me that it must be what I,
    38        as the embodiment of the ordinary reader, actually makes of
    39        it, and these may be matters I can take into account.  But
    40        one can imagine a regulatory body which did not, let us get
    41        right away from it, advertising in principle; one can
    42        imagine a regulatory body which thought that a certain kind
    43        of activity was not really very good form but it was so
    44        entrenched in the particular society that the most one
    45        could do was regulate around the fringes of it.
    46
    47   MR. RAMPTON:  Absolutely.  I quite agree, respectfully, and I do
    48        agree.  I would also say this, that one can imagine a jury
    49        case where some advocates, not me, might try and bamboozle
    50        a jury into, as it were, subjugating their own judgment to 
    51        that of the regulatory authorities and the judge having to 
    52        say to the jury, 'I am afraid that is not right, it is up 
    53        to you what you think of the advertising'.
    54
    55   MR. JUSTICE BELL:  Yes.  Thank you.  Then 11, 2, 3, the answer
    56        to the question could only be, yes, in all the
    57        circumstances, if one took the view that children,
    58        especially small children, were unable to distinguish fact
    59        from fiction, reality from fantasy.  Could one not say, or
    60        just that they might not be able fully to appreciate that

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