Court of Appeal decides that EU law principle of effectiveness does not require past criminal convictions to be quashed

29/06/10

Interfact Limited v Liverpool City Council

R v Rainbird; R v Budimir

This case raises constitutional questions about the effect of EU law.  The Court of Appeal today held that convictions under the Video Recordings Act 1984 for offences relating to the sale of pornographic material remain safe despite the failure of the Government to notify the legislation to the European Commission pursuant to the Technical Standards Directive.

It was common ground that the failure to notify the Act rendered it unenforceable; that much had been established by the European Court of Justice.  The Appellants argued that the EU law principle of effectiveness and/or the ECHR consequently required past convictions secured under the Act to be quashed.

The Lord Chief Justice, who gave the judgment of the Court, disagreed.  The consequence of non-notification was not to render the Video Recordings Act a nullity; no court has the power to strike down an Act of Parliament (as opposed to disapplying it to give effect to EU law in an individual case).  Furthermore, the Court accepted the Secretary of State's submission that the principle of effectiveness did not require the Court to quash the convictions.  The Appellants could have taken the point at the time of their prosecution.  The application of domestic procedural rules safeguarding the finality of judicial decisions did not therefore make it impossible or excessively difficult for the Appellants to exercise their EU law rights.

The judgment is here.