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Lord Judge rejects "startling" EU rights compliance claim

29 June 2010

The UK's failure to notify an Act of Parliament to the European Commission did not undermine its enforceability, the Court of Appeal has ruled.

Giving the lead ruling, the Lord Chief Justice said it was a “startling proposition” that an Act would not be enforceable because it had not been notified to the commission under the Technical Standards Directive.

“The answer offered by previous generations would have been that the argument was nonsense,” he said, but the European Communities Act now forced the courts to consider the argument by reference to EU rights.

Lord Judge was ruling in two cases, R v Budimir and Rainbird, and Interfact v Liverpool City Council [2010] EWCA Crim 1486, which involved offences under the Video Recordings Act 1984.

In Interfact, a mail order company was convicted for supplying pornographic videos 'from' a licensed sex shop, in breach of the Act which required this kind of material to be offered for sale 'in' a shop.

In the second case, Budimir and Rainbird were convicted for failing to obtain a certificate for similar videos before offering them for sale.

In both cases the defendants argued that the Act should have been notified to the European Commission under the Technical Standards Directive (83/189), the aim of which was to prevent member states from enacting legislation that could unjustifiably restrict trade in the EU.

Lord Judge accepted that under EU law the applicants had the right to argue that the Act should be disapplied.

He also agreed that the principle of effectiveness required the courts to give effect to rights derived from EU law.

But, the principle, he said, “does not require EU rights will be enforced by national courts in all circumstances” - failure to comply with national procedural rules being one such circumstance.

In both cases it was open to the applicants to raise non-notification at trial, a step they failed to take at the time, the judge continued, even though “it is not unknown for points relating to the free movement of goods to be taken in prosecutions for the unlawful distribution of pornography”.

Lord Judge concluded that the English law rules on appeals out of time (in the first case) and permission to re-open a final decision (in the second case) “did not have the effect of making it virtually impossible or excessively difficult for an individual to rely on the rights conferred by EU law”.

The senior judge nevertheless regarded the issue as one that warranted consideration by the Supreme Court and said he would draft a question to be referred to the justices.

In a letter to the DPP in August last year, the then culture minister said the offences in the Act were technical regulations within the meaning of the directive and instructed that all prosecutions under the Act should be stopped.

The Act was notified in September 2009, then repealed, and a new Act notified and adopted earlier this year as the Video Recordings Act 2010.

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