Department for Environment, Food and Rural Affairs v ASDA Stores Limited & Anor

The House of Lords held that the amendments to the Agriculture and Horticulture Act 1964 effected by the European Communities Act 1972, read together with the Grading of Horticultural Produce (Amendment) Regulations 1973 (SI 1973/22), operate in an ambulatory way so as to apply automatically to Community grading rules made after 1972. In particular, the modified form of section 14(1) of the 1964 Act created offences in respect of contraventions of Community grading rules "for the time being" applying to the produce, and that expression includes Community rules made after the United Kingdom joined the Community.

The court rejected the view expressed in the Divisional Court in Ministry of Agriculture, Fisheries and Food v Mayne that the implementing regulations should be read as excluding future amendments to Community rules unless the implementing instrument expressly provided for them. The reasoning emphasised statutory language and context: the exclusion from "regulated produce" and the power to apply the Act "as if" such produce were regulated were both framed by the ambulatory phrase "for the time being".

Accordingly the Lords declared that the offences charged were offences known to the law, quashed the magistrates' adjudication, set aside the Divisional Court order and remitted the informations for trial.

Background and facts. On 1 November 2000 an inspector from the Horticultural Marketing Inspectorate inspected Asda's Fareham store and identified multiple apparent contraventions of EC marketing and grading rules (mainly inadequate labelling and some sub-standard produce). The Department laid 14 informations under section 14(1) of the Agriculture and Horticulture Act 1964 (as amended), alleging offences constituted by offering for sale produce in contravention of Community grading rules.

Procedural history. At trial in the South Hampshire Magistrates' Court Asda and a store manager pleaded not guilty but raised a preliminary legal point that the court had no jurisdiction because the offences alleged were not "known to the law." District Judge Woollard upheld that submission. The Divisional Court (Rose LJ and Gibbs J) dismissed the Crown's appeal. The Department appealed to the House of Lords.

Nature of the claim / relief sought. The appellants sought a declaration that the offences alleged were offences known to the law and that the magistrates had jurisdiction to try the informations; consequentially they sought to quash the magistrates' decision and to overturn the Divisional Court.

Issues framed. (i) Whether the amendments to the 1964 Act made by the European Communities Act 1972, and the 1973 implementing regulations, operate so as to apply automatically to Community grading rules made after 1972; (ii) whether the modified section 14(1) created criminal offences in respect of contraventions of Community grading rules "for the time being" and so covered the Community regulations relied on by the prosecution; (iii) whether the contrary construction in Ministry of Agriculture, Fisheries and Food v Mayne was correct.

Court's reasoning. The Lords analysed the statutory wording and context. The exclusion of produce "for the time being subject to Community grading rules" from the domestic definition of "regulated produce" and the matching regulation-making power to apply the 1964 Act "as if" such produce were regulated demonstrate an ambulatory scheme intended to track changes in Community rules. Regulation 2 of the 1973 Regulations echoed the same "for the time being" language and accordingly operated automatically when new Community grading rules became directly applicable in the United Kingdom. The amended section 14(1) thus created offences in relation to Community grading rules applying at the time of the conduct. Arguments based on concerns for legal certainty did not outweigh the clear statutory language and context. The court further noted that the Community rules are directly applicable and civil remedies may exist (citing the Frumar authority on direct effect), but the present question was statutory interpretation of domestic implementing provisions.

Disposition. The House allowed the appeal, declared the offences charged to be offences known to the law, quashed the magistrates' adjudication, set aside the Divisional Court order and remitted the informations for trial. The court noted subsequent non-retrospective 2003 Regulations were made as a stop-gap but these did not affect the appeal's issues.

Appeal allowed. The House held that subsection (3) added to section 11 of the Agriculture and Horticulture Act 1964 by the European Communities Act 1972, together with the Grading of Horticultural Produce (Amendment) Regulations 1973, operate to apply the 1964 Act to produce "for the time being" subject to Community grading rules. The ambulatory phrase "for the time being" carries its ordinary meaning and encompasses Community grading rules made after 1972; accordingly the modified section 14(1) created offences in relation to contraventions of such Community rules. The prior decisions below were set aside and the matter remitted for trial.

Magistrates' Court (South Hampshire) – District Judge Woollard held the court had no jurisdiction and accepted a preliminary submission that the offences were not known to the law. Appeal by way of case stated to the Divisional Court ([2002] EWHC 1335 (Admin)) – appeal dismissed. Further appeal to the House of Lords ([2003] UKHL 71) – appeal allowed; magistrates' adjudication quashed and matter remitted for trial.