Budimir & Anor, R. v (Rev 1)

An unnotified technical regulation is unenforceable against an individual who invokes the notification failure before the national court. The failure does not make the underlying Act of Parliament void or non-existent.

EU law does not generally require a court to reopen a final judicial decision in order to remedy an EU-law error. National rules protecting finality remain effective where they are equivalent, proportionate and do not make the EU right impossible or excessively difficult to exercise.

For articles 7 and 10 of the Convention, a clear and foreseeable criminal provision remains “law” although an unnotified technical regulation could have been disapplied if the point had been taken at trial.

Two unconnected applications concerned convictions under the Video Recordings Act 1984. Interfact Limited sought to reopen a Divisional Court decision which had upheld convictions for supplying or offering R18 video recordings other than in a licensed sex shop. Budimir and Rainbird sought a substantial extension of time to appeal convictions for possessing unclassified video recordings for supply.

After the convictions, the Government accepted that the Act and associated regulations should have been notified under Directive 83/189/EEC. It accepted that the unnotified provisions were unenforceable against individuals. The applicants contended that EU law and articles 7 and 10 of the Convention required their final convictions to be set aside.

The central question was whether the notification failure created an injustice requiring the reopening of final proceedings or a late criminal appeal.

1. The applications for leave were granted, but the consequent appeals were dismissed. The convictions remained safe. The court certified a question of general public importance for possible consideration by the Supreme Court.

2. Under Directive 83/189/EEC, failure to notify a technical regulation means that a national court must disapply it when an individual relies on the failure. The consequence is unenforceability against that individual, not that the measure is void, null or non-existent. Section 2 of the European Communities Act 1972 therefore required disapplication only where the EU right was invoked.

3. EU law did not require a national court to reopen a final judicial decision merely to correct an EU-law infringement. The Kapferer principle applied to final judicial decisions even where domestic law gave a court a discretionary power to reopen. The distinct rule concerning administrative decisions in Kühne & Heitz did not alter that conclusion.

4. The national rules satisfied effectiveness. They applied equally to EU and domestic claims, served legitimate interests in finality and legal certainty, and permitted relief where substantial injustice would otherwise arise. The applicants could have raised the need for notification at trial: the nature of the 1984 Act and its possible effect on the free movement of goods were apparent. Their lack of knowledge did not show that the EU right was impossible or excessively difficult to exercise.

5. Articles 7 and 10 of the Convention did not require a different result. The offences were accessible, clearly defined and foreseeable when committed. The later discovery that the Act could have been disapplied if notification had been challenged did not make the prosecutions arbitrary or mean that the Act was not “law” for Convention purposes. Legal certainty did not require final convictions to be undone.

• Court of Appeal (Criminal Division) and Divisional Court: Leave to reopen and to appeal out of time was granted, but the resulting appeals were dismissed.
• Divisional Court: In Interfact Limited v Liverpool City Council [2005] EWHC 995 (Admin), the appeal by case stated was dismissed and the convictions were upheld. Leave to appeal to the House of Lords was refused.
• Crown Court at Bournemouth: Budimir and Rainbird pleaded guilty on 10 March 2008 to offences under the Video Recordings Act 1984.
• Liverpool Magistrates’ Court: Interfact was convicted on 27 April 2004 of offences under the Video Recordings Act 1984.