Dorset County Council v House (Rev 1) [2010] EWCA Crim 2270

[2010] EWCA Crim 2270

Case No 2009/05857 C3

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT BOURNEMOUTH

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 13/10/2010

Before

LORD JUSTICE TOULSON

MR JUSTICE MADDISON

MR JUSTICE HICKINBOTTOM

Between

DORSET COUNTY COUNCIL

DAVID RICHARD YEATES HOUSE

Timothy Bradbury on behalf of Dorset County Council

Simon Goodman on behalf of David Richard Yeates House

Hearing Hearing dates: 6 July 2010

Judgment

Introduction

[1]On 28 October 2005, in the Crown Court at Bournemouth, on a prosecution brought by the Trading Standards Department of the Respondent Council, the Applicant was convicted by a majority verdict of two counts of failure to identify cattle by means of an eartag contrary to Regulation 3(4) of the Cattle Identification Regulations 1998 (1998 SI No 871, “the Identification Regulations”), and five counts of failure to notify the movement of cattle contrary to Regulation 5(1) of the Cattle Database Regulations 1998 (1998 SI No 1796, “the Database Regulations”). In addition, he was convicted unanimously of five counts of applying a false trade description or supplying goods to which a false trade description had been applied, contrary to Section 1(1) of the Trade Descriptions Act 1968. All of the offences for which he was convicted took place in the course of the Applicant’s business as a farmer during the period 2001 to 2004.

[2]He was sentenced by the trial judge (Mr Recorder Bebb QC) the same day. In addition to the 12 matters for which he had been convicted that day, he stood to be sentenced in respect of two further offences of failing to notify the birth date of bovine animals contrary to Regulation 5 of the Database Regulations, to which he had earlier pleaded guilty and for which he had been committed for sentence by the Bournemouth Magistrates’ Court on 5 February 2005.

[3]The Applicant was sentenced to a fine of £700 on each of the 12 counts upon which he had been found guilty by the jury, and ordered to pay prosecution costs of £2,000. No additional penalty was imposed in respect of the matters to which he had pleaded guilty. His total sentence was, therefore, a fine of £8,400 with a 6 month period of imprisonment in default, together with a costs order in the sum of £2,000.

[4]Four years later, on 30 October 2009, the Applicant lodged a notice of appeal in respect of the seven jury convictions under the Database and Identification Regulations, no appeal being made in relation to the trades description matters. On 18 February 2010, Dobbs J referred the applications for the appropriate extension of time and for leave to the full court, to enable the Respondent to be represented. That course kept open the issue of delay – relied upon by the Respondent – but, at the hearing before us, all matters were argued, to enable us to deal with the substantive appeal if we were minded to grant leave. This is the reserved judgment from that hearing.

Legislative Background

[5]The importance of animal farming to the community and economy, and its sensitivity to disease, has been recognised in legislation since the 19th century, in a series of statutes designed to control disease by monitoring the movement and disposal of animals. Earlier statutes were repealed by the Contagious Diseases (Animals) Acts 1878 to 1893, which were themselves consolidated in the Diseases of Animals Acts 1894 to 1970, which were in their turn repealed and replaced by the Animal Health Act 1981. Each of these Acts was similar in form. The primary legislation enabled detailed provisions to be made by various subsidiary authorities – generally the Privy Council or local authorities in the earlier Acts, but usually the relevant Secretary of State later – the primary and secondary legislation together comprising a statutory scheme imposing various obligations upon those in charge of agricultural animals, and making the contravention of the requirements of the scheme a criminal offence. Both the obligations imposed upon those responsible for animals and the provisions criminalising breach therefore arose out of the same, integrated and self-contained domestic scheme.

[6]As agriculture became more sophisticated, the obligations imposed became more onerous. For example, the Bovine Animals (Identification, Marking and Breeding Records) Order 1990 (SI 1990 No 1867) made under the Animal Health Act 1981, as its short title suggests, required those in charge of agricultural animals to identify those animals with an approved identification, mark them and keep various breeding records.

[7]European law provisions added to that burden; although early European requirements did not change the form of the scheme, in the sense that the European provisions were not directly applicable, and both the requirements imposed upon those responsible for animals and the provisions imposing (criminal) sanctions for breach continued to appear in the domestic scheme, which continued to be self-contained. For example, Council Directive 92/102/EEC required the United Kingdom to set up and maintain a system of marking and recording agricultural animals; but, as a Directive, it was neither directly applicable nor did it impose any specific obligations on those in charge of agricultural animals themselves. Each Member State was required to enact legislation implementing the Directive, both imposing the relevant obligations on those in charge of animals and appropriate sanctions for breach. The United Kingdom implemented that Directive in the Bovine Animals (Records, Identification and Movement) Order 1995 (SI 1995 No 12), made under the Animal Health Act 1981, which imposed the relevant obligations on individuals and made contravention an offence under that Act.

[8]However, the regulatory landscape was changed by the bovine spongiform encephalopathy (“BSE”) crisis in the mid-1990s. The European Community decided to take robust action to stabilise the beef and beef products markets, by establishing a system for the identification, registration and tracing of cattle, and the labelling of beef and beef products, of far greater sophistication than had been previously imposed. It did so, first, in the form of Council Regulation (EC) No 820/97 (“Regulation 820/97”) which, being a Regulation, could and did impose obligations both upon Member States and, directly, upon individuals in charge of animals. By Article 22, Regulation 820/97, which applied from 1 July 1997, was binding in its entirety and directly applicable in all Member States.

[9]Regulation 820/97 imposed a requirement upon the United Kingdom to establish a system for the identification and registration of such animals (Article 1), which was required to include identification eartags, a computerised database, animal passports and individual registers kept on each holding (Article 3).

[10]Article 4 concerned the requirement for cattle to have eartags. Article 4.1 provided:

“All animals on a holding born after 1 January 1998 or intended for intra-community trade after 1 January 1998 shall be identified by an eartag approved by the competent authority, applied to each ear. Both eartags shall bear the same unique identification code which makes it possible to identify each animal individually together with the holding on which it was born….”

Article 4.5 forbade the removal or replacement of an eartag – by anyone – without the permission of the competent authority.

[11]Under Article 7, the obligation to keep records was imposed directly upon any “keeper” of animals, defined in Article 2 as anyone responsible for animals “whether on a permanent or temporary basis, including during transportation or at a market”, as follows: “1. With the exception of transporters, each keeper of animals shall: - keep an up-to-date register, - once the computerised database is fully operational, report to the competent authority all movements to and from the holding and all births and deaths of animals on the holding, along with the dates of these events, within 15 days and, as from 1 July 2000, within seven days of the event occurring. However, at the request of a Member State and in accordance with the procedure referred to in Article 10, the Commission may determine the circumstances in which Member States may extend the maximum period. 2. Where applicable and having regard to Article 6, each animal keeper shall complete the passport immediately on arrival and prior to departure of each animal from the holding and ensure that the passport accompanies the animal. 3. Each keeper shall supply the competent authority, upon request, with all information concerning the origin, identification and, where appropriate, destination of animals which he has owned, kept, transported, marketed or slaughtered. 4. The register shall be in a format approved by the competent authority, kept in manual or computerised form, and be available at all times to the competent authority, upon request, for a minimum period to be determined by the competent authority but which may not be less than three years.” - keep an up-to-date register, - once the computerised database is fully operational, report to the competent authority all movements to and from the holding and all births and deaths of animals on the holding, along with the dates of these events, within 15 days and, as from 1 July 2000, within seven days of the event occurring. However, at the request of a Member State and in accordance with the procedure referred to in Article 10, the Commission may determine the circumstances in which Member States may extend the maximum period.

[12]The Regulation therefore categorically imposed obligations directly on individual citizens, particularly (but not exclusively) those responsible for animals. It was not, however, concerned with the specifics of enforcement which were, in the usual way, left to Member States. Article 21 required Member States to “take all the necessary measures to ensure compliance with the provisions of this Regulation”: and any sanctions imposed by the Member State were required to be “proportionate to the gravity of the breach”.

[13]The United Kingdom complied with its enforcement obligations by bringing into force the Identification Regulations and the Database Regulations on 15 April 1998 and 28 September 1998 respectively. Although the powers to make subsidiary legislation under the Animal Health Act remained available, the Identification and Database Regulations were each made pursuant to the power contained in Section 2(2) of the European Communities Act 1972, which provides a mechanism for implementing Community/Union obligations into United Kingdom domestic law. It provides:

“... Her Majesty may by Order in Council, and any designated Minister or department may by order, rules, regulations or scheme, make provision – (a) for the purposes of implementing any Community [now, European Union] obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or (b) for the purpose of dealing with matters arising out of or related to any such obligation or rights…”

It goes on to provide that “designated Minister or department” means such Minister of the Crown or government department as may be designated by Order in Council. (a) for the purposes of implementing any Community [now, European Union] obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or (b) for the purpose of dealing with matters arising out of or related to any such obligation or rights…”

[14]As we have indicated, the Applicant was convicted of offences under two regulations made under the provisions of this section, namely Regulation 3(4) of the Identification Regulations and Regulation 5(1) of the Database Regulations.

[15]Regulation 3(1) of the Identification Regulations, under the heading “Enforcement of Article 4 of the Council Regulation (eartags)”, provided that the Minister of Agriculture, Fisheries and Food is the competent authority for the purposes of Article 4 of Regulation 820/97, succeeded on government reorganisation by the relevant Minister in the Department for Environment, Food and Rural Affairs. (For convenience, we shall refer to the competent authority as simply “DEFRA”). The Regulation continues:

“(2) The person responsible for identifying cattle by means of an eartag applied to each ear in accordance with Article 4.1 of the Council Regulation shall be the keeper. (3) In accordance with Article 4.2 of the Council Regulation the keeper shall apply the eartags to the animal... [the Regulation then sets out various time periods in which the eartags were to be applied]. (4) Any person who fails to comply with the requirement in Article 4.1 of the Council Regulation to apply an eartag within the period specified in paragraph (3) above shall be guilty of an offence.”

By Regulation 2, “the Council Regulation” is specifically defined as Regulation 820/97.

[16]In the Database Regulations, the competent authority is the Minister, as under the Identification Regulations (Regulation 3). Under the heading “Offences”, Regulation 5(1) provides:

“Any person who fails to comply with the requirement to notify the birth, movement or death of any cattle in accordance with the second indent of Article 7.1 of the Council Regulation in the way provided for in these Regulations or within the time limit specified in the Regulations shall be guilty of an offence.”

By Regulation 7: “The notification of movement of cattle in accordance with the second indent of Article 7.1 of the Council Regulation shall be by the keeper...”: and it proceeds to set out details of the notification required. As with the Identification Regulations, by Regulation 2 of the Database Regulations, “the Council Regulation” is specifically defined as Regulation 820/97.

[17]We shall shortly return to these provisions under which the Applicant was convicted: but, to complete the relevant legislative history, the European Parliament and the Council of the European Union later came to consider that the requirements of Regulation 820/97 were inadequate; and, by Regulation (EC) No 1760/2000 (“Regulation 1760/2000”), which came into force on 20 July 2000, provided for a revised system. Again, it was expressly binding in its entirety, and directly applicable in all Member States (Article 25). By Article 24, Regulation 820/97 was expressly repealed; but, by Article 24(2):

“Reference to Regulation (EC) No 820/97 shall be construed as references to this Regulation and should be read in accordance with the correlation table set out in the annex.”

The annex does, indeed, incorporate a table correlating the repealed articles of Regulation 820/97 with those in the new Regulation. Articles 4 and 7 of Regulation 1760/2000 were in similar terms to the same numbered articles in Regulation 820/97, save for Article 7.1. Article 7.1 of Regulation 820/97 (quoted in Paragraph 11 above) required the reporting of movements, births or deaths within 7 days of the relevant event. Article 7.1 of Regulation 1760/2000 gave Member States a discretion as to the timing of reporting, requiring the reporting of such events “within a period fixed by the Member State of between 3 and 7 days of the event occurring”: and, by the Cattle Database (Amendment) Regulations 2002 (SI 2002 No 94), the Database Regulations were amended to reduce the period for reporting movements to 3 days. (The Applicant’s “movement” offences in fact all occurred in 2001, and he was consequently prosecuted under the unamended provisions.)

[18]Following the revocation of Regulation 820/97 by Regulation 1760/2000, no attempt was made to change the domestic provisions, for example to replace references to the Regulation 820/97 with references to the new Regulation 1760/2000; at least, not until 2006. By Regulation 3(4) of the Cattle Identification (Amendment) Regulations 2006 (SI 2006 No 1538) and Regulation 3(5) of the Cattle Database (Amendment) Regulations 2006 (SI 2006 No 1539), the definition of “the Council Regulation” in both the Identification and Database Regulations was substituted as follows: “ ‘the Council Regulation’ means Council Regulation (EC) No 1760/2000 (establishing a system for the identification and registration of bovine animals and regarding the labelling of beef and beef products and repealing Council Regulation (EC) No 820/97)”.

[19]However, that substitution was only effective from 15 June 2006 – after the date of each of the Applicant’s offences; and, indeed, after his conviction for them.

The Parties’ Submissions

[20]We will deal with the merits of the proposed appeal, before the issue of delay in respect of which the merits are of course a relevant factor.

[21]The Applicant relies upon a single ground of appeal. In relation to the convictions he seeks to appeal, on the basis of the jury verdicts, he concedes the truth of the facts alleged against him: and he concedes that, in failing to identify and notify the movement of his cattle as alleged, he was in breach of the relevant provisions of Regulation 1760/2000: but that Regulation does not, of course, itself create a criminal offence. The offences with which he was charged were created by the Identification and Database Regulations. However, Counsel on the Applicant’s behalf, Mr Simon Goodman, submitted that criminal liability under both Regulation 3(4) of the Identification Regulations and Regulation 5(1) of the Database Regulations is expressly and exclusively defined in terms of a failure to carry out an obligation imposed by Regulation 820/97, namely Articles 4.1 and 7 respectively: and, therefore, that criminal liability is dependent upon the obligation arising from Regulation 820/97 continuing. But all of the Applicant’s offences as charged were post-20 July 2000, the date on which Regulation 820/97 was repealed and replaced by Regulation 1760/2000. As at the date of each of the alleged breaches, there was consequently no obligation under Regulation 820/97 in respect of which non-compliance could be a criminal offence: and, in respect of each count, the Applicant was therefore convicted of an offence which was, at the relevant time, unknown to the law.

[22]Mr Timothy Bradbury for the Respondent submitted that the mechanism for implementing European obligations is a matter for each Member State, in the United Kingdom being a matter for Parliament. It is open to Parliament to adopt an approach whereby the requirements imposed directly on individuals by a European Regulation are substantively repeated in the domestic provisions that implement that Regulation; and/or, citing Department for the Environment, Food and Rural Affairs v ASDA Stores Limited

[2003] UKHL 71

at [25], an approach that does not require making new implementing domestic provisions whenever Community/Union legislation changes.

[23]Certainly for the purposes of this appeal, we accept those premises as far as they go – but, with respect, we consider they miss the real issue in this case, which is, not what Parliament could have done by way of implementation of the relevant European Regulations, but what in fact they did do. The sole issue for us is the proper construction of the Identification and Database Regulations.

[24]In respect of that, Mr Bradbury submitted that, on their true construction, the Identification and Database Regulations did not rely upon the substantive obligations deriving from Regulation 820/97 at all: but, rather, the relevant wording of that European Regulation was contextually incorporated into those domestic regulations implementing it. Therefore, although Regulation 820/97 was directly applicable and it directly imposed requirements on individuals, by effectively incorporating the wording of obligation from that European Regulation, the Identification and Database Regulations themselves imposed an identical obligation on the individual, as well as imposing the sanction for breach. On that analysis, the relevant domestic provisions imposing criminal sanctions (i.e. Regulation 3(4) of the Identification Regulations and Regulation 5(1) of the Database Regulations) do not depend on the continuing validity of Regulation 820/97 at all; and those domestic provisions remain good, in imposing both an obligation on the keepers of animals and sanctions for breach of those obligations, despite the repeal of Regulation 820/97.

[25]In support of that submission, Mr Bradbury urged us to take what, he submitted, was a purposive approach to the construction of the domestic provisions. As we have indicated, the wording of Articles 4.1 and 7 of Regulation 820/97 was substantially readopted, seamlessly, in Regulation 1760/2000: and so, the directly applicable obligations of those responsible for animals in respect of identifying those animals and recording their movements have at all material times in substance remained the same. The United Kingdom had an obligation, under European law, to enforce those obligations. As a tenet of construction of the implementing provisions, there is (he submitted) a presumption that the United Kingdom intended to comply with its European obligations. Consequently, Mr Bradbury invited us to proceed on the basis that Parliament could not have intended there to be a gap in the criminalisation of breaches of those obligations by individuals responsible for animals, which would have put the United Kingdom in breach of its obligations to enforce.

[26]He also relied upon the only case in which the issue before us appears to have been argued, namely R v Drake in which the issue appears to have arisen in substantially identical form in the Crown Court at Bristol in a trial before His Honour Judge Lambert and a jury. Judge Lambert gave judgment on the issue on 22 June 2006, during the course of the trial. He found, “resoundingly” (his word), that the Identification and Database Regulations did not require the continued validity of Regulation 820/97 because, he was persuaded, the Regulations merely imported the wording of the European Regulation and were not in any way dependent upon any obligation emanating from that Regulation. The judge appears to have been influenced by the fact that the domestic Regulations were made under Section 2(2) of the European Communities Act 1972, rather than Regulation 820/97: and, of course, Section 2(2) remained and remains extant. That ruling was not the subject of any appeal.

Discussion and Conclusion on Merits

[27]Attractively as Mr Bradbury’s submissions were made, we cannot accept the construction suggested on behalf of the Respondent, for the following reasons.

[28]The purposive approach to construction, relied upon by Mr Bradbury, has its limits. The court is, of course, constrained to construe the intention of Parliament (or an authority to which Parliament has delegated its legislative function) through the legislative words used, reading the instrument as a whole and in its context. There may be cases in which the natural meaning of the words is so at odds with the apparent purpose of the instrument as to lead a court to give the words a strained meaning in order to give effect to what it conceives as the legislature’s true intention. However, it is one thing to adopt a strained meaning of words in order to give effect to the apparent underlying purpose of the legislature. It is quite another to adopt a strained meaning in order to give effect to what the legislature might have intended if it had been contemplating a different situation from that which obtained at the time of the legislation. The Identification and Database Regulations were intended to implement Regulation 820/97. There is no reason to suppose that they were drafted in contemplation of what was to happen if Regulation 820/97 came to be repealed and replaced.

[29]In referring to Regulation 820/97, the Identification and Database Regulations do not use consistent wording. We accept that some references, if looked at discretely and in isolation, might be consistent with the construction pressed by the Respondent, namely that the substantive obligations imposed upon the keepers of animals and others derive from the domestic Regulations themselves; for example, some requirements are put in terms of being “specified” in Regulation 820/97 (e.g. Regulation 9), language which at least might arguably be consistent with external textual reference.

[30]However, in general, the language of the Identification and Database Regulations is overwhelmingly redolent of the enforcement of substantive obligations arising out of Regulation 820/97, rather than the domestic Regulations themselves, with many references to matters being done “in accordance with” or, alternatively, “in contravention of” specific articles of that Regulation. On its face, that language is not the language of contextual incorporation, but of enforcing obligations arising elsewhere, namely in Regulation 820/97.

[31]Moving from the general to the particular, we consider that proper analysis of specific provisions of the domestic Regulations is fatal to Mr Bradbury’s construction. In our view, a number of provisions patently and unambiguously enforce obligations and requirements that emanate exclusively from Regulation 820/97.

[32]For example, Article 7(3) of Regulation 820/97 (quoted in Paragraph 11 above) requires each keeper to supply the competent authority, upon request, with certain information about animals in his care. Regulation 29(1) of the Identification Regulations provides:

“Any person who contravenes or fails to comply with any of the following provisions of the [Regulation 820/97] ... shall be guilty of an offence... (a) Article 7.1, first indent (keeping of a register) (b) Article 7.3 (provision of information) (c) Article 7.4 (production and retention of the register).”

In relation to (b) (Article 7.3), the Identification Regulations make no other reference to this obligation to provide information, for example by requiring specific particulars to be given or in any other way. The entire obligation emanates from – and only from – Regulation 820/97: and the offence is put clearly in terms of a contravention of a particular provision (Article 7.3) of Regulation 820/97. We do not consider that the suggestion that this provision in the Identification Regulations incorporates the wording of Article 7.3 of Regulation 820/97 by reference to be an arguable interpretation. Given that they fall within the same provision, the same must be true for the obligations in Articles 7.1 (first indent) and 7.4.

[33]We consider the immediately following Regulation (Regulation 30 of the Identification Regulations, paragraph (2) of which is in identical terms to Regulation 11(2) of the Database Regulations), equally telling. Under Regulation 30(2): “An inspector shall have powers to carry out all checks and examinations necessary for the enforcement of Title I of [Regulation 820/97]...”: and it proceeds to set out some of the powers included in that ambit. Those powers are, in our judgment, clearly and unequivocally attached to the requirements emanating from, and dependent upon, Regulation 820/97. In our view, it is not possible to allow for a construction that contextually imports the wording of Regulation 820/97 to enable the powers of the inspector to remain extant in the event of the repeal of that European Regulation: those powers are inconsistent with the Respondent’s submission, that the domestic provisions are not reliant upon the continued validity of Regulation 820/97.

[34]Once examples such as these can be identified, where specific provisions of the Identification and Database Regulations are dependent upon the continued validity Regulation 820/97, the Respondent’s submissions are, in our judgment, fatally undermined. We do not consider it is possible for Parliament to have intended that some provisions in the domestic Regulations were dependent upon the continued validity of the European Regulation, and others not.

[35]For that reason, we prefer the construction proposed by Mr Goodman for the Applicant, namely that criminal liability under the Identification and the Database Regulations is exclusively defined in terms of a failure to carry out an obligation imposed by Regulation 820/97: and that, therefore, criminal liability is dependent upon Regulation 820/97 continuing in effect.

[36]This is also reflected in the provisions of the specific domestic Regulations which the Applicant was alleged to have contravened. Regulation 5(1) of the Database Regulations makes a person guilty of an offence if he “fails to comply with the requirement to notify… in accordance with the second indent of Article 7.1 of [Regulation 820/97]”. The natural meaning of those words is that the offence comprises contravention of the obligation deriving from the Regulation 820/97, and hence is dependent upon that obligation continuing: but, in any event, given that the offence of failing to comply with the obligation in the first indent of Article 7.1 is dependent upon that obligation continuing (see Paragraph 32 above), no other construction is arguable. Regulation 3(4) of the Identification Regulations makes a person guilty of an offence if he “fails to comply with the requirement in Article 4.1 of [Regulation 820/97]”. In that provision too, on a plain reading, the offence is expressed in terms of failing to comply with a requirement deriving from a particular provision of Regulation 820/97.

[37]The only direct authority on the point that Counsel have been able to identify, is Drake (see Paragraph 26 above). However, that judgment, although deserving of proper respect, is not of course binding on this court; and, with respect to the careful decision of Judge Lambert (who does not appear to have had the benefit of the considered submissions that we have had), we do not consider either his reasoning or conclusion to be correct. That the enabling provision for the Identification and Database Regulations (i.e. Section 2(2) of the European Communities Act 1992) had not been repealed does not appear to us to be in point, when the issue concerns whether the Regulations contextually import the obligations set out in Regulation 820/97 or depend upon the continuing obligations in that European Regulation. We do not consider that the judge properly took into account the change introduced by Regulation 820/97 in imposing obligations directly upon individuals, including keepers of animals. For the reasons we have given, we have come to the firm conclusion that the domestic Regulations do not simply cut and paste wording from the European Regulation: but rather they impose criminal sanctions upon failures to comply with obligations emanating from, and hence dependent upon, the provisions of Regulation 820/97.

[38]We consider that construction to be clear and unambiguous from the wording of the Identification and Database Regulations itself. However, that construction also derives some external support.

[39]First, whilst of course the question of construction of the relevant provisions is a matter for the court, it comes as some comfort that our interpretation is shared by those advising the competent authority. Initially, DEFRA took the view that Article 24(2) of Regulation 1760/2000 (quoted in Paragraph 17 above) had the effect that references to Regulation 820/97 in national legislation (as well as European law) would effectively be replaced by references to Regulation 1760/2000, which revoked and replaced it. However, in the summer of 2006, DEFRA was advised by its Law and Regulation Directorate General that Article 24(2) applied to European references only. The Respondent, as well as DEFRA, now accepts that that is correct. That concession is well made (

Case C-8/90

Belgium v Kennes and Verkooyen

[1993] 3 CMLR 735

[40]As a result of it, DEFRA were advised as follows:

“(b) The obligation on national courts to interpret the relevant rules of national law in the light of the content of Community law finds its limits in the general principles of law which form part of the Community legal system and, in particular, in the principles of legal certainty and non-retroactivity in criminal law. (c) A Regulation cannot, of itself and independently of a national law adopted by a Member State, have the effect of determining the criminal liability of persons who acted in contravention of its provisions. (d) The failure to amend the domestic legislation to refer to Regulation 1760/2000 infringes these principles. Where offence creating provisions are drafted in such a way that criminal liability depends on a failure to comply with requirements set out in European legislation that was not in force at the time of the alleged offence, no lawful conviction can result.”

[41]DEFRA appear to have accepted that advice. As a result, they have not pursued any further prosecutions under the relevant provisions, nor have they contested applications under section 142 of the Magistrates’ Courts Act 1980 to set aside convictions made in the Magistrates Court, or appeals to the Crown Court or to the Court of Appeal. They promulgated a standard form letter, sent to courts, indicating that they would not contest an application or appeal, and why. Both Counsel before us understood that, as a result, no appeal by a keeper of animals under the Identification or Database Regulations in the circumstances of the case before us has ever been contested, until this case. Even in this case, initially the Respondent (which is, of course, the relevant local authority Trading Standards Department, rather than DEFRA) expressly indicated that they would not oppose the appeal (see, for example, their letter to the Applicant’s solicitors dated 8 October 2008); and the appeal was originally lodged on the basis that it was not opposed. The Respondent’s opposition only appeared in their formal response to the appeal, in which they made no concession and indicated that they would oppose the appeal.

[42]None of that, of course, directly affects the issue before us, namely the true construction of the Identification and Database Regulations. The Respondent was perfectly entitled to withdraw any concession, and oppose the appeal, as it did. However, we do take some comfort from the fact that the construction of the relevant regulations that we prefer appears to be shared by the competent authority, which, of course, sponsored and drafted the Regulations we are construing: and that the Applicant’s application will be the subject of the same construction that has apparently been applied by the prosecuting authorities in all other appeals. If it were otherwise, he might have had some understandable sense of grievance.

[43]Second, the construction which we prefer avoids potential difficulties raised by Mr Goodman in his submissions. Although he and we accept that the relevant provisions of Regulations 820/97 and 1760/2000 (and the respective obligations imposed by them upon a keeper of animals) are substantively the same, if the obligations imposed upon a keeper by Regulation 820/97 were incorporated into the Identification and Database Regulations by reference, and then a subsequent Regulation had revoked the obligations in Regulation 820/97 and replaced them with different obligations, where would that leave a keeper of animals? He would be bound to comply with the new Regulation, which would be directly applicable to him; and he would be bound to comply with the earlier Regulation, failing which he would be committing a criminal offence. Even if, in terms of obligations imposed upon individuals, the differences between Regulations 820/97 and 1760/2000 are not significant, Mr Bradbury accepted that, where there was a material change, the later Regulation would have to override the earlier – although we were unclear, on his construction, why – but those difficulties are avoided by the construction that we favour. In fact, in our view, that hypothetical example is simply a further indicator that that our construction is correct, and Mr Bradbury’s interpretation is untenable.

[44]Third – but a related point – in considering Mr Bradbury’s submissions, we were concerned about the principle of legal policy known as the principle of doubtful penalisation (see Bennion on Statutory Interpretation, 5th Edition (2002), Part XVII). An aspect of that principle is that individuals should not be liable to criminal prosecution (and should certainly not be liable to have their liberty imperilled) except under clear authority of law. In this case, the Applicant was of course prosecuted, and his liberty was put in jeopardy in the sense that a default term of imprisonment was set in respect of the fine imposed upon him. After 20 July 2000 (when Regulation 1760/2000 revoked Regulation 820/97), a keeper of animals, investigating his liability to criminal proceedings under the Identification and Database Regulations, would, on an ordinary reading of those regulations, have seen that that liability attached to a contravention of the provisions of European Regulation 820/97. If he had, after 2000, looked at those provisions, he would have seen that they had been repealed. Although we consider, again, that this is more a reflection of the fact that the interpretation we favour is the true construction of the relevant statutory provisions, we would have viewed with concern a construction that then required him to identify the European Regulation that replaced Regulation 820/97, and thereafter further required him to compare the obligations of the two Regulations and take a view as to whether they were substantively the same. The principles of “legal certainty and non-retro-activity in criminal law” concerned DEFRA (see Paragraph 40 above) – and rightly so. On the Respondent’s construction, they would have concerned us too.

[45]Finally, we were referred to two authorities. Neither supports the construction contended on behalf of the Respondent. As one would expect, each case turned upon the wording of the particular domestic provision involved – materially different from the provisions we are considering – and they are consequently of little assistance in the construction of the Identification and Database Regulations.

[46]However, one, in our view, arguably supports the Applicant’s contentions. That case is Mayne v Ministry of Agriculture, Fisheries and Food

[2000] All ER (D) 976

, [2001] EHLR 5, which concerned Council Directive (EEC) 64/433 that addressed the issue of differing health requirements imposed by Member States in relation to meat. Regulation 1(4) of the Products of Animal Origin (Import and Export Regulations) 1992 (SI 1992 No 3298), by which the United Kingdom sought to implement that Directive, provided:

“Any reference in these Regulations to a directive is a reference to that directive as amended”

. When concerns about BSE emerged, the European Commission made further decisions amending Directive 64/433. The United Kingdom did not respond by any change to the 1992 Regulations. It was held that the reference to amendment in Regulation 1(4) was only to amendments to the Directive which had been made by the time the domestic regulations were made and did not refer to any future amendments. Thus, it was held, a failure to comply with the later decisions amending the Directive could not result in criminal sanctions. Of course, that case turned upon the construction of the particular domestic regulations involved: but, insofar as it goes, it shows that, where those regulations are unambiguous, there may be a lacuna in criminal sanctions where a national authority fails to amend national legislation to keep it in line with European requirements. To that, limited, extent, it is supportive of the Applicant.

[47]Mr Bradbury also referred us to the decision of the House of Lords in Department for the Environment, Food and Rural Affairs v ASDA Stores Limited

[2003] UKHL 71

, to which we have already referred (paragraph 22 above). That case concerned fresh horticultural produce which, before 1972, was regulated by the Agriculture and Horticulture Act 1964 and regulations thereunder. Section 12 imposed a duty to observe the regulations, and section 14(1) made it an offence to sell or offer to sell regulated produce in contravention of section 12. When the United Kingdom joined the European Economic Community, there were already directly applicable Community Regulations governing the grading of certain types of horticultural produce. As a result, the 1964 Act and regulations were amended to include reference to “produce of any description for the time being subject to community grading rules” (emphasis added) as being “regulated produce”. Lord Nicholls (with whom the other members of the House of Lords agreed) held that the inclusion of the words “for the time being”:

“… can only have been intended to indicate that this exclusionary provision was not confined to produce which was subject to Community grading rules at the time this provision in the European Communities Act 1972 came into force. While the … applicability of the exclusionary provision was to depend upon the content of the Community grading rules at any given time in the future. The phrase ‘for the time being’ envisages, and is intended to encompass, a changing state of affairs.”

Therefore, as one might expect, the case turned upon the proper construction of the words of the specific domestic statutory provisions, which were very different from the provisions which we have to construe, in which there is no such phrase as “for the time being”. On the basis of that wording, it was held that it was not necessary to make new regulations, as and when European provisions changed. As we have indicated, that could have been done by the competent authority in this case: but it was not. This case is of no assistance to the Respondent.

[48]For those reasons, we consider that the ground of appeal has merit. Indeed, the merit appears to us to be overwhelming, in that, on the true construction of the Identification and Database Regulations, the Applicant was charged and convicted of offences which, at the time, were unknown to English law – because they related to contraventions of obligations that were not extant at the relevant time.

Delay

[49]We do not consider that it would do justice to this case to refuse an extension of time for permission to appeal, on the basis of the delay.

[50]We accept that this case has a long, and not entirely happy or even properly explained, history. The application for permission is approximately 4 years out of time. Part of that delay – although, in truth, only a small part – resulted from the Applicant’s solicitors applying for relief to the Criminal Cases Review Commission, before an application for permission to appeal was made. The 18 month delay between the conviction and the Applicant seeking advice on the merits of an appeal, and further delays in applying to the Criminal Cases Review Commission and thereafter seeking Counsel’s advice, have not been cogently explained.

[51]However, in seeking to do justice to the application, we take into account(i) the ground of appeal, namely that the Applicant was convicted of offences unknown to English law, and the overwhelming merits of that ground as set out above,

(ii) the indication by the Respondent in October 2008 (maintained until the formal response to the appeal, see Paragraph 41 above), that the appeal would not be opposed,

(iii) that, irrespective of delay, no other appeal has been opposed in the circumstances of the Applicant

(iv) the apparent absence of other following cases (this appears to be the only appeal in which an enforcing authority has taken the point taken by the Respondent in this case), and

(v) that the Respondent, as it frankly accepts, has suffered no prejudice by the delay. In all of those circumstances, we consider it is appropriate to extend time for the application for permission.

Disposal

[52]By way of disposal, we shall therefore formally extend time for lodging this appeal so that it is in time, and we shall grant leave to appeal.

[53]On the substantive appeal, we shall allow the appeal against conviction in relation to each of the seven counts that the Applicant – now, the Appellant – breached provisions of the Identification and Database Regulations, and quash those convictions.