R v Budimir and another; Interfact Ltd v Liverpool City Council (No. 2)

JurisdictionEngland & Wales
Judgment Date29 June 2010
Neutral Citation[2010] EWCA Crim 1486
Date29 June 2010
CourtCourt of Appeal (Criminal Division)
Docket NumberCase No: 2009/06640/D1

[2010] EWCA Crim 1486

[2010] EWHC 1604 (Admin)

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT BOURNEMOUTH

IN THE HIGH COURT OF JUSTICE

DIVISIONAL COURT

Before: Lord Chief Justice of England and Wales

The Hon. Mr. Justice David Clarke

and

The Hon. Mr. Justice Lloyd Jones

Case No: 2009/06640/D1

Case No: CO/2652/2004

Between
Regina
Respondent
and
Nikolas Budimir
and
Nicholas Rainbird
Applicants
and
Secretary of State for Culture, Media and Sport
Intervener
And Between
Interfact Limited
Applicant
and
Liverpool City Council
Respondent

Mr. Nigel Peters QC (instructed by Kaye Tesler & Co) for the Appellants

Mr. J. McGuinness QC (instructed Crown Prosecution Service) for the Respondents

Miss Marie Demetriou ( instructed by the Treasury Solicitor) for the Intervener

Lord Pannick QC and Mr David Lowe (instructed by Henri Brandman & Co) for the Applicant

Mr. J. McGuinness QC (instructed by Crown Prosecution Service) for the Respondent

Miss Marie Demetriou (instructed by the Treasury Solicitor) for the Intervener

Hearing dates : 6 th May 2010

Lord Judge, Lord Chief Justice of England and Wales

1

These otherwise unconnected applications question the enforceability of a properly enacted Act of Parliament, the Video Recordings Act 1984 (“the 1984 Act”).

2

The contentions advanced on behalf of the applicants by Lord Pannick QC and Mr Nigel Peters QC involve the seemingly startling proposition that, notwithstanding the respective applicants' undoubted guilt, a conviction recorded on the basis of a statute enacted by our sovereign Parliament must be quashed because of an adventitious failure by the United Kingdom Government, before its enactment, to comply with a Directive from the European Community (the Technical Standards Directive, Directive 83/189 EEC (“the Directive”)). For A.V. Dicey, and generations not only of judges and lawyers, but the community at large, such a proposition would have appeared to be a constitutional impossibility. Among very many extracts from his An Invitation to the Study of Law of the Constitution (6 th edition 1902), the principle is perhaps best encapsulated at page 38:

“The principle then of Parliamentary sovereignty may, looked at from its positive side, be thus described: Any Act of Parliament, or any part of an Act of Parliament, which makes a new law…will be obeyed by the Courts. The same principle, looked at from its negative side may be thus stated : There is no person or body of persons who can, under the English Constitution, make rules which override or derogate from an Act of Parliament ….”

Later, at page 87, identifying what he described as three traits of Parliamentary sovereignty, Dicey spoke of the

“Non existence of any judicial or other authority having the right to nullify an Act of Parliament, or to treat it as void or unconstitutional.”

3

Faced with the submissions advanced on behalf of the applicants, the answer offered by previous generations would have been that the argument was nonsense. Whether we like it or not, that comfortable course is not available to us. The reason is summarised by Professor Vernon Bogdanor in his “New British Constitution”. At page 28 he describes how “the problem of how to give legislative effect to membership of a body which could overrule Parliament” was resolved.

“… the European Communities Act of 1972, … provided for the recognition of all directly enforceable Community Law in preference to any Act of Parliament, past or future. Thus, until the Act were to be repealed, European Community Law would trump existing or future legislation passed by Westminster… Parliament in 1972 had been able to do something which many had previous thought impossible, that is, to limit its sovereignty. European Community legislation was superior to statute…there can be little doubt that the European Communities Act produced a structural change in the British constitution”.

Thus, the issues raised in these applications must be addressed by reference to European Union Law (EU law) and not, save to the extent that EU law has been incorporated into domestic law, to constitutional principles which pre-date our entry into the European Communities. In summary, section 2(4) of the European Communities Act 1972 prohibits the application domestically of statutory provisions which are inconsistent with directly applicable Community law. It is therefore not open to us to ignore EU law. Parliament has obliged us to apply it, even if the effect may be to render an Act of Parliament unenforceable.

4

We have all contributed to the judgment of the court, but the heavy burden of preparing those parts of the draft which address EU law, and the European Convention on Human Rights (“the Convention”), was undertaken by Lloyd Jones J.

5

In the first application Interfact Limited (“Interfact”) applied pursuant to Civil Procedure Rules 52.17 for permission to apply to the Divisional Court to re-open its decision of the 23 rd May 2005 in Interfact Limited v Liverpool City Council [2005] EWHC 995 (Admin) to dismiss Interfact's appeal by way of case stated against a number of convictions under section 12(1) of the 1984 Act. We have sat as a Divisional Court to hear this application. In the second Nikolas Budimir and Nicholas Rainbird applied to the Court of Appeal Criminal Division for an extension of time (approximately 1 year 8 months) and leave to appeal against their convictions at the Bournemouth Crown Court on 10 th March 2008 for offences contrary to section 10(1) of the 1984 Act. The essential facts are very simple. The question in each case is whether the failure by Her Majesty's Government to give an appropriate notification under the Directive has, through the application of EU law and the Convention created an injustice which it is not otherwise possible to discern.

Interfact Limited v Liverpool City Council

6

Interfact is a mail order company which trades in videos including those which have been given “R18” certificates by the British Board of Film Classification. Section 12(1) of the 1984 Act provides that R18 videos may only be supplied or offered for supply in a licensed sex shop.

7

On 27 th April 2004 the applicant was convicted by Liverpool Magistrates' Court on 44 counts under section 12(1) of the 1984 Act. The acts constituting the offences involved

a) Posting to customers, from licensed premises R18 videos which had been ordered by post or by telephone;

b) Enclosing with such postal deliveries catalogues offering to sell and deliver further R18 videos.

In each case, supply or offer to supply was from a licensed sex shop and not in a licensed sex shop.

8

Interfact was fined £3,000 in respect of one offence of supplying and £2,000 in respect of one offence of offering to sell. No fine was imposed in respect of the other 42 offences. Interfact was also ordered to pay £25,617.22 in costs to Liverpool City Council Trading Standards Department which had brought the prosecution.

9

Interfact appealed to the Divisional Court by way of case stated, contending that the court below had erred in its interpretation of where the supply took place for the purposes of section 12(1) of the Act. On 23 rd May 2005 the Divisional Court (Maurice Kay LJ, Newman J.) dismissed the appeal and upheld the convictions. Interfact was ordered to pay the Respondent's costs which were later agreed in the sum of £16,000 and paid. Interfact sought leave to appeal to the House of Lords. That application was refused on 13 th October 2005. It looked like the end of the litigation.

Budimir and Rainbird

10

On 10 th March 2008 Budimir and Rainbird pleaded guilty at Bournemouth Crown Court to six counts of having in their possession for the purpose of supply a video recording containing a video work in respect of which no classification certificate had been issued, contrary to section 10(1) of the 1984 Act. Each offence was committed on 31 st January 2007. Furthermore each asked the court to take into consideration one offence contrary to section 10(1) of the 1984 Act, namely that they “between 30 th April 2003 and 1 st February 2007 had in their possession for the purpose of supply 15,631 video recordings containing video works in respect of which no classification or certificate had been issued”. In respect of these offences each of the applicants was fined a total of £30,000 and ordered to pay £690 prosecution costs. In addition each was made the subject of a confiscation order in the sum of £156,370.

11

The present applications for leave to appeal out of time, were received at the Crown Court on 11 th December 2009, approximately 1 year and 8 months out of time.

The Video Recording Act 1984 and the Technical Standards Directive.

12

The Technical Standards Directive, Directive 83/189 EEC was adopted by the Council of the European Community on 28 th March 1983. It was required to be implemented by Member States by the 28 th March 1984.

13

Its purpose is to eliminate restrictions on the free movement of goods. This is apparent from the following recitals in the preamble:

“Whereas the prohibition of quantitative restrictions on the movement of goods and of measures having an equivalent effect is one of the basic principles of the Community;

Whereas barriers to trade resulting from technical regulation relating to products may be allowed only where they are necessary in order to be essential requirements and have an objective in the public interest of which they constitute the main guarantee;

Whereas it is essential for the...

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