Dorset County Council v House (Rev 1)

A domestic criminal offence expressed as a failure to comply with obligations in a specified European Regulation depends on those obligations remaining in force. It does not automatically apply to substantially similar obligations in a later Regulation which repeals and replaces the specified instrument.

A purposive construction cannot give criminal legislation a strained meaning to address a later situation which the legislature did not contemplate. Clear statutory authority is especially necessary where criminal liability is concerned. Accordingly, the unamended Cattle Identification Regulations 1998 and Cattle Database Regulations 1998 created no offence after the repeal of the Regulation to which they expressly referred.

The appellant, a farmer, was convicted in the Crown Court at Bournemouth of two offences under the Cattle Identification Regulations 1998 and five offences under the Cattle Database Regulations 1998. He was also convicted of unrelated trade-description offences, which were not appealed.

The seven regulatory offences occurred after Council Regulation (EC) No 820/97 had been repealed and replaced by Council Regulation (EC) No 1760/2000. The domestic Regulations still expressly referred to the repealed Regulation until they were amended in 2006. Nearly four years after conviction, the appellant sought permission to appeal out of time.

The central issue was whether the domestic Regulations had independently incorporated the earlier European obligations, or whether criminal liability depended upon those obligations continuing under the repealed Regulation.

1. Appeal allowed. Time for seeking permission to appeal was extended, leave was granted, and the seven convictions under the identification and database Regulations were quashed.

2. The domestic Regulations imposed criminal sanctions for failures to comply with obligations arising under Council Regulation (EC) No 820/97. Their language overwhelmingly described enforcement of obligations imposed by that Regulation. It did not contextually incorporate the Regulation's wording as freestanding domestic obligations.

3. Regulation 29(1) of the Cattle Identification Regulations 1998 made breach of specified provisions of the European Regulation an offence, although it independently restated none of the relevant obligations. Regulation 30(2) similarly attached inspectors' powers to enforcement of Title I of that Regulation. Those provisions showed that the domestic scheme depended upon the continued operation of Council Regulation (EC) No 820/97. It was not tenable to construe some provisions as dependent on it and the offences in issue as independent of it.

4. On their ordinary wording, Regulation 3(4) of the Identification Regulations and Regulation 5(1) of the Database Regulations made an offence depend respectively on non-compliance with Article 4.1 and Article 7.1 of the repealed Regulation. Its repeal on 20 July 2000 therefore meant that the offences charged, all committed later, were unknown to English law.

5. A purposive construction could not supply a criminal offence for a later legislative situation which the domestic rule-maker had not addressed. The court also regarded legal certainty and the principle of doubtful penalisation as reinforcing that conclusion. Article 24(2) of Council Regulation (EC) No 1760/2000 did not substitute the new Regulation for references in domestic legislation.

6. R v Drake was not binding and its contrary construction was incorrect. The differing wording considered in Mayne v Ministry of Agriculture, Fisheries and Food and Department for the Environment, Food and Rural Affairs v ASDA Stores Limited did not assist the Council. Although the application was about four years late, its overwhelming merits, the absence of prejudice, and the history of similar unopposed appeals made an extension just.

• Court of Appeal (Criminal Division). By this judgment, [2010] EWCA Crim 2270, the court extended time, granted leave to appeal, allowed the appeal against seven convictions and quashed them.
• Crown Court at Bournemouth. On 28 October 2005 the appellant was convicted of two identification offences and five database offences, and was fined for those and other counts. The seven regulatory convictions were the subject of this appeal.