Illegal video supply convictions stand despite failure to comply with European law
3 July 2010
CA and DC: Lord Judge CJ, David Clarke, Lloyd Jones JJ: 29 June 2010 – read judgment
A new High Court decision has struck a blow for legal certainty and enforced the sometimes forgotten right under human rights law against retrospective criminal sanctions, which applies even in cases where the UK had failed to enact European Community legislation. In this case, the lack of retroactivity meant that a company and two men could not have their convictions for supplying videos illegally quashed.
The High Court held that where defendants had been convicted of criminal offences under national legislation which was unenforceable owing to a failure by the UK to comply with a pre-enactment procedural requirement imposed by EU law, it was not incumbent upon the Court of Appeal to re-open their cases out of time unless their convictions had given rise to any substantial injustice.
The Video Recordings Act 1984 made it an offence to supply pornographic videos “from” rather than “in” a licensed sex shop (Section 12); it was also an offence under the Act (Section 10 (1)) to supply videos with no classification certificate. The applicants had been convicted under these sections in 2004 and 2008 respectively.
In fact it transpired in 2009 that offences under the 1984 Act and the related regulations were technical regulations and therefore should have been notified by the Government to the European Commission under Directive 83/189. The failure of the Government to comply with the notification requirement rendered the 1984 Act and the regulations unenforceable against individuals. When this non-compliance came to light the government repealed the 1984 Act although it was re-enacted in identical terms under the Video Recordings Act 2010 with the appropriate regulations notified to the Commission.
The applicants sought to quash their convictions, a proposition which Lord Judge reacted to in strong terms, saying that they advanced
seemingly startling proposition that, notwithstanding the respective applicants’ undoubted guilt, a conviction recorded on the basis of a statute enacted by our sovereign Parliament must be quashed because of an adventitious failure by the United Kingdom Government, before its enactment, to comply with a Directive from the European Community
The appellants argued that the court was required to exercise its discretion to reopen the decision of the Divisional Court and to grant leave to appeal to the Court of Appeal out of time because the earlier decisions were contrary to EU law. They argued that failure to grant the relief sought would infringe the principle of effectiveness in EU law. They contended that because of the government’s failure to notify the regulations under which they were convicted to the Commission, their convictions and punishment infringed the prohibition on retrospective punishment under Article 7 of the European Convention on Human Rights.
No retrospective punishment
The Court dismissed the applications.
Although the precise circumstances of the instant applications appeared not to have previously arisen, in analogous circumstances where a conviction was based on the law as it was understood to be, a subsequent change in the law would not be a valid ground for leave to appeal out of time unless substantial injustice had been done: R v Benjafield (Karl Robert) (Confiscation Order) (2002) UKHL 2, (2003) 1 AC 1099. In terms of national law the convictions had not given rise to any substantial injustice and therefore there were no grounds to set them aside.
As far as the EU principle of effectiveness was concerned, the court concluded that this was not infringed by the application of the established rules of national procedure. EU law did not require a national court to reopen a final judicial decision, even if failure to do so would make it impossible to remedy an infringement of a provision of EU law, and the principle of effectiveness did not require that EU rights would be enforced by national courts in all circumstances.
Many procedural rules in national law, such as limitation of actions or time limits for procedural steps, may have the effect of restricting to some extent the right of the affected parties to invoke EU rights before national courts. Nevertheless, such procedural rules did not normally infringe the principle of effectiveness because they were justified by the requirement of legal certainty.
Turning to the argument based on Article 7 of the Human Rights Convention the court found nothing in the Strasbourg jurisprudence that imposed upon signatory states an obligation to undo all the consequences of a national law which was later held to be incompatible with the Convention. As in EU law, the principle of legal certainty dispensed with any such need. There was no obligation on the court, under either EU law or the Convention, to set aside the convictions, which remained safe.
The question concerning the power of the court to reopen a final determination of an appeal to the Divisional Court or to extend time for appealing against conviction to the Court of Appeal was referred to the Supreme Court for determination.
This ruling is a welcome addition to the somewhat thin jurisprudence on Article 7 of the Convention. The principle of non-retroactivity of criminal law is common to all the legal orders of the Member States of the EU: the Kent Kirk case (C-63/83  ECR 2689 established that national measures imposing criminal sanctions with retroactive effect are incompatible with Community law. But there are restrictions on the prohibition of retroactive criminal liability. There is (rather old) Strasbourg case law that establishes that the provision does not guarantee to the accused the benefit of changes in the law between the offence and trial (X v Germany (1978) 13 DR 70).
But the instant case makes a much wider point regarding the relative importance of due process rights versus legal certainty. Obviously any legislation which criminalises conduct which, at the time it was committed was lawful, will be in breach of Article 7; and in a highly technical sense this was the situation obtaining when the applicants were convicted which is why no doubt they thought it worth partially basing their claim on Article 7. There is no getting around the fact that breach of the obligation to notify under Directive 83/189 rendered non-notified technical regulations inapplicable so that they were unenforceable against individuals.
But the fact that the EU law that had been infringed was a procedural requirement and that it made no difference in substance to the legislation – the statute as it was re-enacted to fulfil these requirements contains the same offences – no doubt influenced the thinking of the court. A more interesting question would have arisen had the law substantially changed following the discovery of its non-compliance with a Directive; would the convictions have been considered unsafe?
A certain amount of flexibility has to be built into the system, which is why the court gives emphasis to the notion of “substantive injustice”, allowing a nuanced approach in this difficult area.