Department for Environment, Food and Rural Affairs (Appellants) v. ASDA Stores Limited and another (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice)

There is no presumption that domestic legislation implementing Community obligations excludes future changes in Community legislation. The court must ascertain the intention reasonably attributable to Parliament or the minister by applying the usual interpretative aids.

An ambulatory provision referring to produce “for the time being” subject to Community grading rules encompasses rules made after the domestic legislation. It may therefore impose criminal liability by reference to subsequently changing Community standards, provided that the offence-creating provisions are sufficiently clear and precise. Parliament may choose this mechanism, particularly where Community rules change frequently, without requiring a new statutory instrument for every change.

The Department prosecuted ASDA Stores Ltd and its grocery manager for offering fruit and vegetables for sale contrary to Community grading and labelling standards. The alleged offences arose under section 14(1)(a) of the Agriculture and Horticulture Act 1964, as modified by the Grading of Horticultural Produce (Amendment) Regulations 1973.

The district judge ruled before hearing evidence that the alleged offences were unknown to law because the relevant Community regulations post-dated the domestic implementing legislation. The Divisional Court dismissed an appeal by case stated in [2002] EWHC 1335 (Admin).

The central issue was whether the amended 1964 Act and the 1973 Regulations applied ambulatively to Community grading rules made after 1972.

1. Appeal allowed unanimously. Lord Nicholls delivered the leading speech. Lord Hoffmann, Lord Hobhouse, Lord Millett and Lord Walker agreed. The offences charged were offences known to law. The adjudication of the justices and the Divisional Court's order were set aside, and the informations were remitted for trial.

2. Per Lord Nicholls, section 11(3) of the Agriculture and Horticulture Act 1964 excluded produce “for the time being” subject to Community grading rules from the domestic regulation-making scheme. Its corresponding power permitted ministers to apply the Act to the same produce as if it were regulated produce. The exclusion and the new power were co-extensive. The ambulatory wording contemplated changes in Community rules after 1972.

3. Per Lord Nicholls, regulation 2 of the Grading of Horticultural Produce (Amendment) Regulations 1973 echoed that ambulatory language. Whenever Community grading rules changed, the specified provisions of the 1964 Act applied automatically to produce covered by the new rules. Modified section 14(1) consequently criminalised contraventions of the Community grading rules applicable to the produce at the time of the relevant sale or offer.

4. Per Lord Nicholls, offence-creating provisions must be sufficiently clear and precise. That requirement does not create a presumption that implementing legislation excludes future amendments to Community legislation. Parliament may adopt an ambulatory mechanism, especially where Community rules change frequently. The question in every case is the intention reasonably attributable to the legislature or minister using the ordinary interpretative aids. The contrary approach in Ministry of Agriculture, Fisheries and Food v Mayne [2001] EHLR 5 was displaced.

5. Lord Hoffmann added that the evident purpose of amending the 1964 Act was to avoid making a new statutory instrument whenever a Community grading rule changed. If repeated instruments had been intended, they could already have been made under section 2(2) of the European Communities Act 1972.

1. House of Lords: Allowed the Department's appeal unanimously; declared that the offences were known to law, set aside the lower orders and remitted the informations for trial.
2. High Court, Divisional Court: Rose LJ and Gibbs J dismissed the Department's appeal by case stated: [2002] EWHC 1335 (Admin).
3. South Hampshire Magistrates' Court: District Judge Woollard accepted the defendants' preliminary submission that the alleged offences were unknown to law and that the court therefore lacked jurisdiction to try them.