Practice and Procedure


PUBLISHED July 8, 2003

A criminal court was required to consider the appellants' defence to charges of selling and storing pesticides without Ministerial approval, based on the alleged incompatibility with EC law of the UK's arrangements for approval of parallel imports of pesticides.Appeal against a ruling by HH Judge Teare in the crown court that the defence raised by the appellants was not open to them. The appellants were charged with several counts of selling and storing pesticides without the requisite Ministerial approval under the Food and Environment Protection Act 1985. Their defence was based on the alleged invalidity of the UK's "Control Arrangements", made under the Control of Pesticides Regulations 1986 SI 1986/1510, for verification of pesticides that were parallel imports. In particular, the appellants sought to contend that the Control Arrangements disproportionately restricted inter-state trade contrary to Art.28 and Art.30 EC Treaty. The appellants entered guilty pleas as a result of the judge's ruling that their pleaded defence was not open to them. On appeal, they argued that they were entitled to raise their defence at a substantive criminal trial in keeping with the general principle in Boddington v British Transport Police (1999) 2 AC 143 that a criminal defendant was entitled to raise any available plea, including the alleged invalidity of subordinate legislation under which they were charged.HELD: (1) The judge erred in deciding that the general principle in Boddington (supra) was not applicable. That principle was applicable and required that the criminal court consider the defence. There was no indication in Boddington that the importance of the subject area in which the dispute arose was a relevant consideration. (2) The ruling of the judge was set aside, as were the appellants' convictions. A re-trial was ordered, at which there would be substantive consideration of the appellants' defence. (3) If a criminal court concluded that the Control Arrangements disproportionately interfered with the right to import goods from other member states, it was bound to treat the Control Arrangements as not part of English law. (C-106/77 Simmenthal (1978) ECR 629).Appeal allowed.

[2003] EWCA Crim 1910