Practice and Procedure


PUBLISHED December 18, 2003

Courts should not approach the interpretation of statutes or regulations implementing Community legislation as though there was a presumption that they did not embrace future changes of Community law and under s.14 Agriculture and Horticulture Act 1964 as amended an offence was created of contravening EC marketing standards applicable for the time being.The appellant (DEFRA) appealed against the decision of the Divisional Court that offences under s.14 Agriculture and Horticulture Act 1964 as amended of offering for sale fruit and vegetables in contravention of EC marketing standards were not offences known to the law. In November 2000 an inspector from DEFRA visited an ASDA store and concluded that some of the fruit and vegetables on display contravened EC marketing standards relating to labelling and quality such as Commission Regulation 79/88/EEC. DEFRA laid informations against ASDA alleging offences contrary to s.14(1)(a) Agriculture and Horticulture Act 1964 as amended. Section 14(1) made it an offence to sell or offer for sale regulated produce in contravention of s.12 which imposed a duty to observe the relevant grading and labelling regulations made under s.11. When the United Kingdom joined the EEC in 1973, the 1964 Act was amended to provide that produce subject to Community grading rules would not be regulated produce but that the provisions of the Act would apply to that produce as if it was regulated produce. In that way criminal sanctions were provided in respect of contraventions of Community grading rules. The district judge in the magistrates' court held that only those Community grading rules in force at the time of the enactment of the amendments to the 1964 Act could be subject to the criminal sanction under s.14 of the 1964 Act and that ASDA could not be guilty of any offence since the Community grading rules allegedly contravened by it were all made after 1972. The Divisional Court upheld that decision on the basis that the criminal law had to be clear and that conduct could not be made criminal unless there were clear words in domestic legislation which imposed criminal liability by reference to present regulations and regulations made or amended in the future.HELD: The new regulation-making power introduced by the amendments to the 1964 Act was co-extensive with the introduction of the exclusion for EC regulated produce and as a matter of interpretation of the legislation both of those provisions extended to produce which, for the time being, was subject to Community grading rules. The Grading of Horticultural Produce (Amendment) Regulations 1973 SI 1973/22 provided that certain sections of the 1964 Act as modified by the regulations, including s.14, should apply as if produce of any description for the time being subject to Community grading rules were regulated produce. The effect was that whenever Community grading rules changed, the relevant sections of the 1964 Act, as modified by the 1973 regulations, applied automatically to produce falling within the new rules as if it were regulated produce. The modified form of s.14 accordingly applied to produce for the time being subject to Community grading rules and an offence was created in respect of produce which contravened the Community grading rules at the time of sale. The modified form of s.14 operated automatically as and when new Community grading rules were made. The offences charged were offences known to the law and the matter should be remitted to the justices for trial of the informations laid against ASDA.Appeal allowed.

[2003] UKHL 71