Mar 18 2009

“…our concern remains that the court should have been misled in this way”

R v Chambers, [2008] EWCA Crim 2467, is an English Court of Appeal decision (thanks to Ruthie for pointing to it) in which prosecuting counsel instructed by HMRC was eviscerated by the court for failing to do his homework: the prosecution was for a supposed breach of regulations which had effectively been repealed seven years before, as was discovered by chance when an appeal against conviction of this non-crime was about to be refused. The excuse was that, um, neither HMRC nor successive prosecution counsel knew, er, that the OPSI website only publishes subordinate legislation as originally passed, not as amended; so the prosecution was based on the original regulations. There seem to have been many such prosecutions:accused, defence solicitors and counsel, and courts had all guilelessly taken HMRC’s word for it that the regulations founded on were still in force. Toulson LJ (who seems to have been surprisingly accepting of the excuse; I would have thought any competent counsel would be well aware that neither OPSI nor the Statute Law Database publishes subordinate legislation as amended1) commented  “It is clear that the problem is a systemic one …”. As he points out, there is a problem “of constitutional importance” in the difficulty in finding out what the law is: ” … To a worryingly large extent, statutory law is not practically accessible today, even to the courts whose constitutional duty it is to interpret and enforce it“.

This case exemplifies the false economy in failing to consolidate subordinate legislation, or to publish consolidated versions online. How much would it have saved HMRC to have taken the trouble to compose an up to date edition of the Excise Goods Regulations 1992, rather than waste the costs of all these prosecutions? What indeed was the point of amending the regulations at all, if HMRC didn’t know they had been?

Here are three recent decisions, from different jurisdictions, on this theme of secret and inaccessible law; all issued in the last week or so.

Heinrich

The first, on 10 March, is the decision of the European Court of Justice in Heinrich, an Austrian reference. This is so well analysed by the EU Law Blog that it seems rather pointless to publish a rival summary and commentary. Suffice it to say that Herr Heinrich had taken tennis racquets on board an aircraft when, by secret and unpublished regulations, such conduct had supposedly been banned, and had lost his flight . The Austrian administrative court had held that “keeping secret the rules of conduct with which individuals are required to comply constitutes such a severe impairment of the most elementary principles of the rule of law … that regulations which … are not published … are legally non-existent and hence cannot be binding.” The ECJ, taking a slightly more technical approach, reviewed the statutory requirements for publication before concluding to the same effect “an act adopted by a Community institution cannot be enforced against natural and legal persons in a Member State before they have the opportunity to make themselves acquainted with it by its proper publication in the Official Journal of the European Union … In particular, the principle of legal certainty requires that Community rules enable those concerned to know precisely the extent of the obligations which are imposed on them. Individuals must be able to ascertain unequivocally what their rights and obligations are and take steps accordingly.” Eleven national governments had intervened; the UK Government had claimed that the reference should have been regarded as inadmissible, for no very clear reason, and had cheekily gone on to suggest that the Court should declare the secret regulations to be binding until replacement regulations were made and published.

Farinella

Next comes US v Farinella, a decision of the 7th Circuit of the US Court of Appeals. This was a prosecution for selling Henri’s Salad Dessing after its ‘best purchased before’ date (the evidence, incidentally, was that this date was meaningless, because the salad dressing was good for another ten years in the bottle). For a full commentary from a criminal defence perspective, see Simple Justice which also notes the extent of prosecutorial misconduct, ending with the Court’s comment thereon “The government’s appellate lawyer told us that the prosecutor’s superior would give her a talking-to. We are not impressed by the suggestion“. Part (not the worst) of that misconduct had been the leading of a civil servant to give supposedly expert evidence of what he thought the law was2. For present purposes, I quote only this: “It is a denial of due process of law to convict a person of a crime because he violated some bureaucrat’s secret understanding of the law. The idea of secret laws is repugnant. People cannot comply with laws the existence of which is concealed.

X

Now back to Britain. The English High Court recently examined the use of a secret policy to detain and expel asylum seekers in a case in which the Home Office had dishonestly told a man he was being taken for interview before bundling him onto a plane and flying him out of the country. Newman J found that the reliance on an unpublished policy was unlawful, and that there had been a deliberate attempt to mislead the claimant and his lawyers. The decision is as yet available only in samizdat form; for details, see this post on Free Movement, which concludes “Do the Home Office care that they break the law so grossly and so often? It seems not, as there is certainly no effective internal action to stop such things from happening. The pathetic emails between civil servants recorded in the Abdi and Others judgment (”maybe this is unlawful?” “my bad! so it is” “shall we tell the minister?” “I think not”) suggest a culture of acceptance that the Home Office acts unlawfully“.

A ‘culture of acceptance that the Home Office acts unlawfully‘… shurely not. The current debate as to whether judicial reviews in which the Home Office is respondent should be expelled from the Court of Session is based, in part, on a consultation paper from the Home Office which misleadingly suggests that court intervention is a waste of time because only 2% succeed. We know, from an excellent Scottish study3, that the success rate in this jurisdiction is actually almost 25%; and FOI requests by the Public Law Project and the Refugee Law Centre have shown that the English success rate is almost 10%: lower than ours, perhaps (the Public Law Project surmises) because of differences in representation, but still five times as high as the Home Office suggested.

To conclude:

The problem identified in Chambers, that of regulations which are published but only in an inaccessible format,  is not as extreme as those identified in Henrich, Farinella, and X. But it has the same practical effect, and it is far more widespread. In each case, the law is concealed, and “People cannot comply with laws the existence of which is concealed.” Much subordinate legislation in Scotland is, effectively, concealed. No serious attempt is being made, either for UK or Scottish subordinate legislation, to improve the situation. In 2006 and 2007 the Subordinate Legislation Committee of the Scottish Parliament did a lot of good work in suggesting how the process of making and publicising secondary legislation might be improved. Many of these proposals were uncontentious and easy to implement. None of them have been effectively implemented. The Scottish Parliament should revisit this in the Interpretation and Legislative Reform (Scotland) Bill. In spite of its name, this at present includes no significant proposals to reform the legislative process in the direction of openness.

  1. Piece of techie advice for non-lawyers here. The search facilities on both OPSI and the SLD are clunky, and the easiest way to check for amendments to an SI is to use a Google search on site:www.opsi.gov.uk (it won’t work on the Statute Law Database) for the name of the principal regulations as a phrase, together with ‘amend*’ as a separate word, as in this example. [back]
  2. In America, as here, “the law (unless foreign) that a jury applies is the law given to it by the judge in his instructions, not the legal opinion offered by a witness, including an expert witness. United States v. Chube II, 538 F.3d 693, 701 (7th Cir. 2008); Nationwide Transport Finance v. Cass Information Systems, Inc., 523 F.3d 1051, 1058.” [back]
  3. Challenging asylum and immigration tribunal decisions in Scotland – an evaluation of onward appeals and reconsiderations‘. This paper, by Craig, Fletcher, and Goodall, deserves far wider circulation in the Scottish legal world than it has received; I can think of no better recent study into how cases actually proceed in the Court of Session. [back]
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