Thoburn v Sunderland City Council

JurisdictionEngland & Wales
JudgeLord Justice Laws,Mr Justice Crane,LORD JUSTICE LAWS,MR JUSTICE CRANE,‘MR JUSTICE CRANE’,‘LORD JUSTICE LAWS’
Judgment Date18 February 2002
Neutral Citation[2002] EWHC 195 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase Number: Co/3308/2001 Case Number: CO/3993/2001 Case Number: CO/4100/2001
Date18 February 2002
And Between
Steve Thoburn
Appellant
and
Sunderland City Council
Respondent
Between
Colin Hunt
Appellant
and
London Borough of Hackney
Respondent
And Between
(1) Julian Harman
(2) John Dove
Appellant
and
Cornwall County Council
Respondent
And Between
Peter Collins
Appellant
and
London Borough of Sutton
Respondent

[2002] EWHC 195 (Admin)

Before

Lord Justice Laws and

Mr Justice Crane

Case Number: Co/3308/2001

Case Number: Co/3639/2001

Case Number: CO/3993/2001

Case Number: CO/4100/2001

IN THE SUPREME COURT OF JUDICATURE

Royal Courts of Justice

Strand,

London, WC2A 2LL

Michael Shrimpton instructed by Percy Short & Cuthbert for the 2nd Appellant Hunt; instructed by Sproulls for the 3rd and 4 th Appellants Harman and Dove, instructed by McKenzie Bell for the 1st Appellant Thoburn; and leading Helen Jefferson for the 1 st,2 nd, 3 rd & 4 th Appellants; Quinton Richards, instructed by Pilgram Heron for the 5th Appellant Collins)

Simon Butler (instructed by Legal Services for London Borough of Hackney and instructed by Legal Services for Cornwall County Council)

Eleanor Sharpston QC and Philip Moser (instructed by Colin G Langley, Director of Administration for Sunderland City Council)

Fiona Darroch (instructed by Legal Services for London Borough of Sutton).

Lord Justice Laws
1

INTRODUCTORY

2

1 These are four appeals by way of case stated. All of them are about the law relating to weights and measures. That may seem a dry enough subject. But the appeals raise issues which have excited much feeling. They concern the municipal legislation giving effect to the policy of the European Union (“EU”) to introduce in the Member States compulsory systems of metric weights and measures. So in the United Kingdom our imperial measures, much loved of many, seem to face extinction. Not all at once; there are exceptions and postponements, as I shall show. Mr Shrimpton for the appellants says that the crucial legislation, which is all in the form of subordinate instruments made by ministers, is entirely invalid. He would have us view this litigation as a great constitutional case. However that may be, it has certainly required the court to travel over much constitutional territory, and to consider the relationship between on the one hand the law of the EU—that is, the Treaties themselves, subordinate European legislation, and the jurisprudence of the Court of Justice, and on the other, our domestic law—that is, primary legislation passed by Parliament, subordinate legislation made by ministers, and the jurisprudence of our higher courts. But this antithesis is in one sense misstated. The law of the EU is itself part of our domestic law, by force of the European Communities Act 1972. The true opposition for Mr Shrimpton's purpose is between the claim of European law to be supreme in each of the Member States and the traditional doctrines of the common law relating to the supremacy of Parliament, and I will explain this in due course.

3

THE FACTS

4

Thoburn

5

2 Steven Thoburn trades as a greengrocer in Sunderland. In the course of his trade he used weighing machines calibrated in pounds and ounces. On 16 February 2000 he was warned by a properly authorised inspector that these machines did not comply with current legislation. He was served with a 28-day notice requiring that the machines be altered so as to yield measurements in metric units. He did not obey the notice. On 31 March 2000 the inspector obliterated the imperial measure stamps on his machines. He continued to use these now unstamped machines to sell loose fruit and vegetables by pound and ounce. He was prosecuted for two offences (there being two relevant machines) under s.11(2) and (3) of the Weights and Measures Act 1985. I will set out these provisions and all the relevant legislation in due course. Mr Thoburn's trial took place before District Judge Morgan in the Sunderland Magistrates Court over five days in January and March 2001. He pleaded not guilty to both charges. He was represented by Mr Shrimpton, and the prosecutor, the Sunderland City Council, by Miss Sharpston QC: as they have been represented before us. There was no dispute about the facts. The case for the defence effectively consisted in the submissions which Mr Shrimpton has addressed to us on these appeals. On 9 th April 2001 the District Judge delivered a judgment to whose rigour and fullness I would pay tribute. He rejected Mr Shrimpton's arguments and convicted Mr Thoburn.

6

Hunt

7

3 Colin Hunt sold fruit and vegetables from a stall in Hackney. On 22 and 26 September 2000 officers of the Hackney Borough Council's Trading Standards Office visited the stall. On 22 September the officer bought three sweet potatoes and two pieces of plantain. The unit prices for both were displayed by reference to pounds weight, not kilograms. On 26 September officers went to the stall on three separate occasions. On the first, the officer bought two pieces of cassava. On the second and third the officers respectively purchased plantain and sweet potatoes. In every instance the prices were marked by reference to pounds weight. In addition the officers determined that the quantity delivered in each case was less in weight than the amount which would have corresponded with the price. Mr Hunt was charged with six offences of failing to display a unit price per kilogram, contrary to Article 5 of the Price Marking Order 1999 and s.4 of the Prices Act 1974. In addition he was charged with four offences of delivering a lesser quantity than that which corresponded with the price charged, contrary to the same provisions. As regards these latter charges it is important (in light of the argument relating to them) to notice that at some time before September 2000 Mr Hunt was advised by the council to dispose of the imperial scales he had been using, and took the advice. He obtained a set or sets of metric scales in their place. Thus in September 2000 he was advertising his wares with prices marked up by reference to pounds, but had to weigh out the quantities on scales calibrated in metric measures. So for every sale, he had to convert the goods’ weight in metric to imperial so as to arrive at the correct price. In these circumstances it is said (and there is no reason to doubt) that the offences of delivering underweight goods were the consequence of innocent mistakes of calculation. The fact of Mr Hunt's having only metric scales in September 2000 is not in the stated case, as it should have been. However it is agreed between the parties.

8

4 Mr Hunt was tried by District Judge Baldwin at the Thames Magistrates Court on 20 June 2001, when he pleaded not guilty on all charges. Again, there was no dispute as to any of the facts. As I understand it the reasoned decision of District Judge Morgan in Mr Thoburn's case was put before District Judge Baldwin, and also before the magistrates in the two remaining cases whose facts I shall shortly describe. In all of these cases the same constitutional arguments as had been advanced by Mr Shrimpton in Sunderland were relied on. In addition it was submitted in Mr Hunt's case that prosecution of the charges of delivering underweight goods amounted to an abuse of process. District Judge Morgan's judgment was not of course binding on any other court. However District Judge Baldwin followed it. He also rejected the argument as to abuse of the process of the court, and so convicted Mr Hunt upon all the charges which he faced. He made concurrent orders of conditional discharge for twelve months for each of the offences.

9

Harman and Dove

10

5 Julian Harman sells fruit and vegetables at premises in Camelford, Cornwall. On 31 January 2001 he was found to be selling Brussels sprouts and Granny Smith apples with prices marked by reference to pounds weight only. He was charged with two offences contrary to the Price Marking legislation, and two offences of using for trade “a unit of measurement, namely a pound, which was not included in Parts I to V of Schedule 1 to the Weights and Measures Act 1985 as amended by the Units of Measurement Regulations 1994 contrary to s.8(1)(a) and 8(4) of the 1985 Act. John Dove runs a fish shop in the Market Place at Camelford. On 31 January 2001 he was selling pollack and mackerel with prices marked by reference to pounds weight. He too was charged with two offences contrary to the Price Marking legislation, and two offences contrary to s.8(1)(a) and 8(4) of the 1985 Act. He was also charged with an offence of wilfully obstructing an officer of the weights and measures authority on 31 January 2001, by deliberately preventing her from removing price tickets which were required as evidence.

11

6 Mr Harman and Mr Dove were tried by a bench of lay justices at the Bodmin Magistrates Court. The justices followed District Judge Morgan's decision and on 17 August 2001 convicted both of them of all the offences with which they were charged.

12

Collins

13

7 This case is different from the others, because it involves no criminal prosecution. Peter Collins holds a street trading licence issued by the London Borough of Sutton. He trades in fruit and vegetables. On 31 August 2000 the council had imposed certain conditions upon the renewal of his licence, which was due to expire on 31 March 2001. They were as follows.

“(i) The goods permitted to be sold under the terms of the licence will be fruit (excluding soft fruit) and vegetables.

(ii) The goods sold under the terms of this licence will be sold by reference to number or by net weight. Any goods sold by net weight will be by reference to the metric system only (i.e. by kg or grams).

(iii) Any weighing instrument or weights used in determining the weight of...

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