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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mayne & Anor v Ministry Of Agriculture, Fisheries & Food [2000] EWHC Admin 368 (13 July 2000)
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Cite as: [2000] EWHC Admin 368
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QUENTIN MAYNE and CHITTY WHOLESALE LTD v. MINISTRY OF AGRICULTURE ,FISHERIES AND FOOD [2000] EWHC Admin 368 (13th July, 2000)
Case Nos: CO/786/00 & CO/750/00
IN THE SUPREME COURT OF JUDICATURE
(QUEEN'S BENCH DIVISION)
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
13th July 2000
LORD JUSTICE KENNEDY
and
MR JUSTICE JACKSON
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QUENTIN MAYNE & CHITTY WHOLESALE LTD |
Appellant | |
- and - |
||
MINISTRY OF AGRICULTURE ,FISHERIES AND FOOD |
Respondent |
-
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Richard Perkoff for Quentin Mayne (instructed by Clyde & Co, Guildford) and Malcolm Mr. G. Foster for Chitty Wholesale (instructed by Charles Russell Baldocks, Guildford)
Christopher Vajda QC and Mary McCarthy (instructed by the Legal Department of MAFF for the respondents)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE KENNEDY:
This is a defendants' appeal by way of Case Stated from a decision of Mr Roger Davies, a Metropolitan Stipendiary Magistrate, sitting at Staines who in November 1999 considered informations which alleged that the appellants on various dates between October 1995 and February 1996 were concerned in the export of nine lorry loads of beef from the United Kingdom to France without the meat being accompanied by valid Export Health certificates contrary to Regulation 6 of the Products of Animal Origin (Import and Export) Regulations 1992.
2. The Agreed Facts
Certain facts were agreed and are set out in paragraph 2 of the Case Stated. For present purposes those facts can be summarised thus -
(1) all 9 loads belonged to Heine Foods Ltd of which the 1st Applicant was a director. The company was a wholesale meat company based in Kent. It is now in receivership and was not prosecuted.
(2) The loads consisted of 101.3 tonnes of bone-in quarters of beef supplied by West Devon Meats Ltd, and 36.6 tonnes of boneless cuts prepared by the 2nd Applicant, a meat cutting plant used by Heine. West Devon Meats Ltd was also prosecuted, but sought a Crown Court trial.
(3) No load was accompanied by a valid Health Certificate although, as the court found at the material time Health Certificates in form EC3311 were in constant use in abattoirs and cutting plants and the need for them must have been well-known to anyone in the meat exporting business.
3. The Legislative Framework
The prosecution case is fully set out set out in paragraph 4 of the Case Stated but it is convenient to start by setting out the framework in terms of European Law, domestic law and actions of the respondent in chronological order and in a little detail.
In 1964 the EEC in Council Directive 64/433 addressed the problem of differing health requirements imposed by Member States in relation to meat. As a move towards harmonisation it by Article 3 required each member state to ensure that only fresh meat which satisfied certain criteria was sent to other member states, and that in each case the meat was accompanied by a Health Certificate.
Then came the move towards abolition of frontier controls, and in anticipation of that the EEC on 11th December 1989 issued Council Directive 89/662 to move veterinary checks away from frontiers and back to a product's point of origin. So Article 3 of that Directive provided -
"Member States shall ensure that the only products intended for trade are those referred to in Article 1 which have been obtained, checked, marked and labelled in accordance with Community Rules for the destination in question and which are accompanied to the final consignee mentioned therein by a health certificate, animal-health certificate or by any other document provided for by Community veterinary rules."
Article 9 required each Member State to notify other Member States and the Commission of any outbreak in its territory of any zoonoses, diseases or other cause likely to contribute a serious hazard to animals or to human health. The article also required the Member State affected to take the necessary control or precautionary measures.
In 1991 the EEC issued Council Directive 91/497 to amend and consolidate the 1964 Directive. It set out a staged requirement as to the documentation which was to accompany meat, and by article 3 required Member States by 1st January 1993 to bring into force the laws necessary to comply with the new directive. The 1991 Directive replaced the text of the 1964 Directive so that thereafter, and so far as material, article 3 of the 1964 Directive read -
"Each Member State shall ensure that -
A. Carcasses, half carcasses ..... and quarters:
(f) are accompanied during transportation by:
(ii) from 1st July 1993 an accompanying commercial document......
(iii) a health certificate in accordance with chapter XI (it should read XIII) of annex 1 in the case of meat from a slaughter house situated in a restricted region or area or meat to be sent to another member state after transit through a third country in a sealed lorry.
B. Acts or pieces smaller than those referred to in section A, or boned meat:
(f) meet the requirements of section A .... (f)"
Mr Vajda QC, for the respondent points to the use of the word "transportation" rather than "export" as illustrative of the new regime, and the other words which I have emphasised are those which underlie the main issue in this case.
Chapter XIII of Annex 1, entitled "Health Certificate 65" reads:
"The original copy of the Health Certificate which must accompany meat during transportation to the place of destination must be issued by an official veterinarian at the time of loading. The certificate must correspond in form and content to the model in Annex IV and must be drawn up in the official language or languages of the place of destination at least. It must consist of a single sheet of paper."
Annex IV contains a specimen health certificate, the contents of which I need not recite, but it ends with this health attestation -
"I, the undersigned official veterinarian, certify that the meat described above was obtained under the conditions governing production and control laid down in Directive 64/433/EEC:
- in a slaughter house situated in a restricted region or area,
-and is intended for a Member State after transit through a third country."
The last two lines can be deleted if not applicable.
The United Kingdom government then implemented the 1992 Regulations to which I have already referred, and which, with limited exceptions, came into force on 1st January 1993. According to the Explanatory Note the purpose of those regulations was to implement Council Directive 89/662 and regulation 6, so far as material, reads -
"(1) No person shall export or consign for export to another Member State any product of animal origin unless
(a) if it is controlled by one or more of the directives in Schedule 3, it complies with the relevant provisions of those directives (including any option permitted by those directives which has been exercised by the Member State of destination) and any additional requirements or health conditions of the Member State of destination and is accompanied by any documents required under the directive or by the Member State of destination:
(b) in any case, it fulfils all the health requirements of the Member State of destination, including any documentary requirements.
(2) Each person who has control of an establishment shall ensure that all products of animal origin intended for export to another Member State comply with the requirements in paragraph (1) above."
The 1964 and 1991 Council Directives appear as relevant directives in Schedule 3 to the regulations, and regulation 1(4) provides -
"Any reference in these Regulations to a directive is a reference to that directive as amended."
I turn now to the Fresh Meat (Hygiene and Inspection) Regulations 1992 which gave effect to part of Council Directive 91/497 amending and updating Directive 64/433. Part IV of these regulations deals with the conditions for the marketing of fresh meat, and in that part regulation 15 deals with transport documentation. It requires the occupier of premises licensed under the regulations (slaughter houses, cutting premises, cold stores, etc) to ensure that fresh meat other than some game shall be accompanied during transportation from the premises by -
"(a) in the case of fresh meat intended for consignment to another Member State and which -
(i) is obtained from a slaughter house situated in a region or area subject to a prohibition or restriction under the Animal Health Act 1981; or
(ii) will be transported through a third country in a sealed vehicle
the health certificate referred to in Schedule 16."
The health certificate in Schedule 16 contains this attestation -
"I, the undersigned, official veterinary surgeon, certify that the fresh meat described above was obtained under the conditions governing production and control laid down in Council Directive 64/433/EEC:
- in a slaughter house situated in a restricted region or area, or
- is intended for consignment to a member state after transit through a third country."
The footnote makes it clear that either alternative can be deleted if not applicable. These 1992 regulations were replaced in 1995 immediately prior to the period which is central in this case.
Then worries about bovine spongiform encephalopathy began to emerge. On 20th May 1994 the respondent issued to veterinary officers Animal Health Circular 94/73. No one contends that such a document had any legislative effect, but the state of knowledge in the trade may be relevant, and this circular shows that at that time there was no perceived requirement for a health certificate to accompany boneless or bone-in beef provided the derivation of the latter was guaranteed.
On 27th July 1994 the European Commission by decision 94/474 prohibited the export of some meat from the United Kingdom and by article 4 provided -
"1. The United Kingdom shall not send from its territory to that of other member states fresh bone-in bovine meat, unless the following sentence is added to the health certificate referred to in Annex IV to Directive 64/433/EEC:
"Fresh bovine meat derived from bovines which have resided only on holdings on which no case of BSE has been confirmed during the previous six years".
2. The United Kingdom shall not send from its territory to that of other member states fresh bovine meat derived from animals which have resided at any time on a holding in which a case of BSE has been confirmed during the previous six years, unless the following sentence is added to the health certificate referred to in Annex IV to Directive 64/433/EEC:
"Fresh deboned bovine meat in the form of muscle from which the adherent tissues, including obvious nervous and lymphatic tissues have been removed."
So the health certificate required by the 1991 version of the 1964 Directive was amended, the amendment being different depending on whether the meat was fresh bone-in bovine meat or deboned bovine meat. The Commission did not envisage its decision having direct effect, because articles 6 and 7 of the decision read as follows -
"6. Members states shall amend the measures which apply to trade so as to bring them into compliance with this decision. They shall immediately inform the Commission thereof.
7. This Decision is addressed to the Member States."
In anticipation of Commission Decision 94/474 the respondent on 22nd July 1994 wrote to trade organisations and on the same day issued Animal Health Circular 94/118 which advised that the new Commission Decision -
"Prohibits the export of fresh meat from the United Kingdom to other member states unless accompanied by certification ....."
The wording which the Council Decision required to be added to health certificates is then quoted in the circular, which says that certification should be provided on form EC3311 (the Health Certificate Form) and provides a specimen. Of course the respondents' interpretation of the effect of Decision 94/474 was only correct if, as a matter of European law, the effect of the decision was to render the United Kingdom a restricted region or area.
In a circular to veterinary staff sent out by the respondent in question and answer form on 3rd August 1994 as an addendum to Circular 94/118 the respondent again made clear its understanding of the effect of Decision 94/474 -
"Q. Can beef be sent with a commercial document?
A. No: all beef exported from the UK to other Member States must be accompanied by the appropriate veterinary health certificate."
There are two circulars issued in 1995 to which our attention was also invited but for present purposes I need not refer to them.
On 14th December 1994 the BSE crisis having developed a stage further, the European Commission by decision 94/794 replaced article 4 of the July 1994 Decision with a new article 4 which reads -
"1. The United Kingdom shall not send from its territory to that of the other Member States fresh meat of the bovine species.
2. The prohibition mentioned in paragraph 1 shall not apply to the following meat.
(i) Fresh meat derived from bovine animals born after 1 January 1992, in which case the following sentence shall be added to the health certificate referred to in annex IV of Directive 64/433/EEC:
"Fresh bovine meat derived from bovines born after 1 January 1992" or
(ii) Fresh meat derived from bovines which, while in the United Kingdom, have resided only on holdings on which no case of BSE has been confirmed during the previous 6 years, in which case the following sentence shall be added to the health certificate referred to in Annex IV of Directive 64/433/EEC:
"Fresh bovine meat derived from bovines which while in the United Kingdom have resided only on holdings on which no case of BSE has been confirmed during the previous 6 years"
(iii) Fresh meat derived from bovines born after 1 January 1992 which have resided at any time on a holding on which one or more cases of BSE have been confirmed during the previous 6 years, if the following sentence is added to the health certificate referred to in Annex IV to Directive 64/433/EEC:
"Fresh deboned bovine meat in the form of muscle from which the adherent tissues, including obvious nervous and lymphatic tissues, have been removed."
Articles 2 and 3 of the December 1994 Decision repeat articles 6 and 7 of the July 1994 Decision so once again it is made clear that the decision is addressed to Member States but they must amend the measures which apply to trade to bring them into compliance with the Decision.
On 1st April 1995 the United Kingdom government brought into force the Fresh Meat (Hygiene and Inspection) Regulations 1995 which revoked and replaced the Hygiene and Inspection regulations 1992. The 1995 Regulations are described in their explanatory note as giving effect to council directive 91/497 which amends and updates directive 64/433. The requirement for a health certificate to accompany fresh meat intended for export to another member state is replaced by the requirement to have a commercial document which shall accompany all fresh meat produced in a licensed premises (slaughter house, cutting premises, cold store, etc.). The relevant regulation is regulation 14(1) which reads :
"Subject to paragraph (2) below (which for present purposes is not relevant) the occupier of licensed premises shall ensure that fresh meat is accompanied during transportation from the premises -
(a) by an invoice or delivery note containing the following information -
(i) the name and address of the consignor and the consignee;
(ii) the approval number of the premises from which the meat is to be transported;
(iii) the date of issue of the document and a number enabling it to be identified;
(iv) a description of the product transported; and
(v) the total quantity dispatched; and
(b) in the case of fresh meat intended for consignment to a relevant EEA state which -
(i) is obtained from a slaughter house situated in a region or area subject to a prohibition or restriction under the Animal Health Act 1981; or
(ii) will be transported through a third country in a sealed vehicle,
by the health certificate referred to in schedule 16."
It is common ground that at the material time there was in force no prohibition or restriction under the 1981 Act. If a contravention of the 1995 Regulations is alleged it is possible to raise a defence of due diligence which, as Mr Gibney for the second appellant points out, is not available if proceedings are taken under the Import and Export Regulations 1992.
On 18th July 1995 the European Commission, by its decision 95/287 further amended its July 1994 decision 94/474 by once again replacing article 4. So far as material it was now to read -
"1. The United Kingdom shall not send from its territory to that of the other Member States fresh meat of the bovine species.
2. The prohibition mentioned in paragraph 1 shall not apply to the following meat:
(i) fresh meat derived from bovine animals aged less than 2½ years at slaughter, in which the following sentence shall be added to the health certificate referred to in Annex IV of Council Directive 64/433/EEC (1):
"fresh bovine meat derived from bovines aged less than 2½ years at slaughter": or
(ii) fresh meat derived from bovines which, while in the United Kingdom, have resided on holdings on which no case of BSE has been confirmed during the previous six years, in which case the following sentence shall be added to the health certificate referred to in Annex IV of Directive 64/433/EEC :
"fresh bovine meat derived from bovines which while in the United Kingdom have resided only on holdings on which no case of BSE has been confirmed during the previous six years" or
(iii) fresh meat derived from bovines aged over 2½ years at slaughter which have resided at any time on a holding on which one or more cases of BSE have been confirmed during the previous six years, if the following sentence is added to the health certificate referred to in Annex IV of Directive 64/433/EEC :
"fresh deboned bovine meat in the form of muscle from which the adherent tissues, including obvious nervous and lymphatic tissues have been removed.""
As usual the decision was expressly addressed to Member States which were required to amend the measures which apply to trade so as to bring them into compliance with the decision. As Mr Vajda points out, the prohibition in paragraph 1 of article 4 is by this decision rendered absolute, subject to the exception in paragraph 2.
It was at this stage, between October 1995 and February 1996, that the appellants are alleged to have committed the offences which brought them before the magistrate, by being concerned in the export of nine loads of beef. The EEC ban on the export of British Beef was imposed on 28th March 1996. So the relevant exports took place in the six months immediately preceding the imposition of that total ban.
4. The Magistrate's Decision, and the questions asked.
Having considered the submissions of the appellants the Magistrate concluded in paragraph 7 of the case stated -
"(i) The UK was a restricted region because conditions and requirements had been imposed upon it by the relevant EEC Decisions to be observed before beef could be exported to member states;
(ii) Accordingly the UK was a `restricted region' and a certificate was required by Directive 64/433 as amended by 91/497 without any further amendments;
(iii) therefore export health certificates were required for each load."
The magistrate then set out six questions for our consideration. The important questions are those numbered 2, 3 and 4, which read as follows :
"2. Was I wrong in law to conclude that the UK was a `restricted region or area' between October 1995 and February 1996 inclusive for the purposes of article 3.1(A)(f)(iii) of EEC Directive 64/433 as amended?
3. Was I wrong in law to conclude that EC Decisions 94/474, 94/794 and 95/287 were given effect in the United Kingdom as amendments to EC Directives 64/433 by reason of the Products of Animal Origin (Import and Export) Regulations 1992 and, in particular, by Regulation 1(4) thereof?
4. Was I, therefore, wrong in law not to find that, since not incorporated in the domestic law of the United Kingdom, EC Decisions 94/474, 94/794 and 95/287 were unenforceable against the appellants under the European Community Law which was binding on the Court?"
5. Question 2
On behalf of the appellants it is pointed out that no EEC decision and no UK government decision can be identified which expressly rendered the United Kingdom or any part of it a "restricted region or area". On any view, even if the respondent is right, there would have been much to be said for a more direct approach indicating in July 1994 in terms that for the purposes of article 3 of Council Directive 64/433 the United Kingdom is now in relation to beef a restricted region or area. Mr Perkoff for the 1st appellant and Mr Gibney for the second appellant submit that without an express provision of that kind the European law is uncertain, and in accordance with normal principles the United Kingdom regulations which seek to ensure compliance with European law by means of criminal penalties should only be found to have been broken if the legal position is clear. It is accepted that in dealing with European legislation the court will adopt a purposive approach (see Litster v Forth Dry Dock Co Ltd [1990] 1 AC 546 at 558 and 559), and it is accepted that the three decisions upon which the respondents rely - 94/474, 94/794 and 95/287 imposed restrictions, but it is submitted that those restrictions did not sub silentio result in the United Kingdom becoming a restricted region or area. As Mr Perkoff puts it in paragraph 16 of his skeleton argument -
"To argue that the amended wording to an existing form of health certificate which is only required if an area or region is already restricted makes that area or region restricted is circular and entirely without logical foundation."
For the respondent Mr Vajda submits that the effect of the three decisions was two-fold -
"(1) The United Kingdom became for beef a `restricted region or area' and -
(2) certain BSE declarations had to be added to the health certificate set out in directive 64/433 as amended."
On the facts the point is perhaps most clearly made by reference to decision 95/287 which by article 4 imposes an absolute prohibition on beef exports from the United Kingdom subject to exceptions. Furthermore as, Mr Vajda points out, the three decisions only really make sense if their effect was to render the United Kingdom a restricted region or area for the purposes of directive 64/433 as amended, and to amend the health certificate thereby required. Otherwise pursuant to directive 64/433 the United Kingdom (not being a restricted region or area) could continue to export beef without any health certificate or with a health certificate that did not include a BSE attestation, and in context such a result would be absurd.
In my judgment Mr Vajda is right for the reasons he gives, and as a matter of European law, I am satisfied that at the material time the United Kingdom was, in respect of beef, a restricted region or area. I would therefore answer the second question posed by the Case Stated in the negative.
6. Questions 3 and 4
These two questions go together. It may be that, as I accept, the United Kingdom became in European law a restricted region or area, but the Commission decisions which had that effect were all made after the Import and Export Regulations 1992 became law and it is regulation 6 of those Regulations which the appellants are said to have contravened in this case.
Unquestionably when the regulations were made beef exported from the United Kingdom without a health certificate would not necessarily have contravened the directives to which the regulations, and in particular regulation 6 refer. So the question is whether in domestic law the obligation imposed by regulation 6 changed as a result of a change in European law without any intervention by the United Kingdom legislature. Mr Vajda invites our attention to regulation 1(4), but that, as it seems to me, only deals with the position at the time the regulations were made. It does not purport to take account of future amendments, and although it can be said that if it does not do so it is really unnecessary it does help to clarify the position in an area where directives are subjected to fairly frequent and drastic amendments.
For the appellants Mr Perkoff invited our attention to the decision of Nourse J. in Willows v Lewis [1982] STC 141. There the words under consideration in section 540(3) of the Income and Corporation Taxes Act 1970 were -
"Any reference in this Act to any other enactment shall, except so far as the context otherwise requires, be construed as a reference to that enactment as amended or applied by or under any other enactment, including this Act".
The Commissioners' submission to the judge involved reading those words as including amendments made under any other future enactment whenever passed. That was rejected by the judge who said at 147d -
"In my judgment that is to give section 540(3) a width of application which wording at the best equivocal cannot bear, particularly in a taxing statute. The words are equally, and I would say more naturally, capable of referring only to amendments made on or before the passing of the 1970 Act itself and I find it impossible to say that they go, or were intended to go, further than that."
Mr Vajda submits that the decision in Willows is distinguishable, and invites our attention to the speech of Lord Mustill in L'Office Cherifien v Yamashita [1994] 1 AC 486. The issue in that case was whether a section of the Arbitration Act 1950 which was inserted on 1st January 1992 could be relied on to dismiss a claim for want of prosecution when the delay relied on took place prior to 1st January 1992. At 524G Lord Mustill said -
"It would be impossible now to doubt that the court is required to approach questions of statutory interpretation with a disposition, and in some cases a very strong disposition, to assume that a statute is not intended to have a retrospective effect. Nor indeed would I wish to cast any doubt on the validity of this approach for it ensures that the courts are constantly on the alert for the kind of unfairness which is found in, for example, the characterisation as criminal of past conduct which was lawful when it took place, or in alterations to the antecedent national, civil or familial status of individuals."
He then went on to express reservations about the generality of the presumption, and to stress the importance of fairness, a requirement which, Mr Vajda submits, was met by the publicity which the respondent gave to the European decisions in the present case. So if Mr Vajda is right whether or not regulation 6 can be used to enforce changes in European law depends in the last resort on the extent of the publicity which the changes have received, and that I find difficult to accept.
But in my judgment the decision in L'Office Cherifien is of no assistance in relation to the question whether a regulation which imposes criminal sanctions for failure to comply with directives drawn up by a third party can continue to be used to enforce the directive if it is altered by the third party. It seems to me that if that possibility is to arise it can only arise if the wording of the regulation is such as to clearly to take account of the possibility of future amendments to the directive, and I do not find that to be the position in this case. I would therefore answer the third and fourth questions in the affirmative and allow the appeal.
7. Conclusion
That conclusion makes it unnecessary to consider Mr Gibney's submission that as the informations could have been laid under the 1995 Regulations they should be regarded as outside the ambit of the regulations under which they were laid. Questions 1 and 5 must be answered in the affirmative because of the answers which I have given to questions 3 and 4, and as Mr Gibney no longer seeks to pursue the point raised by question 6 that question need not be answered. The case can therefore be returned to the magistrate with a direction to acquit.
MR JUSTICE JACKSON: I agree.
LORD JUSTICE KENNEDY: We are grateful to counsel for the helpful corrections they have made to the draft judgment. For the reasons set out in the judgment which has been handed down, the appeal will be allowed to the extent indicated and the questions posed will be answered in the way which is set out in the judgment.
MR PERKOFF: If your Lordship pleases, I have only one application in relation to Mr Mayne. He was not legally aided and, therefore, I ask that the costs here and below should be paid out of Central Funds with detailed assessment.
LORD JUSTICE KENNEDY: I do not imagine anyone would wish to object to that application. There will be an order accordingly.
MR FOSTER: My Lord, may I apologise on behalf of Mr Gibney who has not been able to be appear today. Can I adopt that application.
LORD JUSTICE KENNEDY: Are you in the same position?
MR FOSTER: Yes.
LORD JUSTICE KENNEDY: You too may have costs out of Central Funds, thank you.
© 2000 Crown Copyright