Convictions over breaking sanctions upheld

LAW REPORT: Thursday 2 March 1995

Regina v Searle and others. Court of Appeal (Criminal Division) (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice McKinnon and Mr Justice Judge) 24 February 1995.

Convictions for the breach of trade sanctions against Serbia and Montenegro were validly obtained under charges under the Customs and Excise Management Act 1979.

The Court of Appeal dismissed four appeals against convictions of contravening sanctions imposed by the Serbia and Montenegro (United Nations Sanctions) Order 1992 (SI no 1302) and EC Council Regulations 1432/1992 and 990/1993.

The appellants were prosecuted for breaches of the Customs and Excise Management Act 1979 by evading the sanctions in the 1992 Order and EC Regulations which restricted exports from and imports to Serbia and Montenegro.

The issues were whether the EC Regulations were validly made within the ambit of the Community's common commercial policy under article 113 of the EC Treaty, whether the 1992 Order was valid as it was incompatible with or duplicated the EC Regulations, and whether there was effective statutory machinery for enforcing the sanctions by penalties.

Geoffrey Cox (Registrar of Criminal Appeals; Janes); David Cocks QC (Registrar of Criminal Appeals; Titmuss Sainer & Webb) for the appellants; Gerald Barling QC and Stephen Kramer (Customs & Excise Solicitor) for the Crown.

LORD TAYLOR CJ said that the restrictions in the regulations on the face of article 113 could and did form part of the Community's common commercial policy. The Community adopted the restrictions as falling within the ambit of article 113 to ensure a uniform implementation throughout the Community of the measures set out in the UN resolution 757(1992).

It made no difference that the reason for imposing the restrictions was to implement UN sanctions. That conclusion was reached with confidence, and it was unnecessary to refer the issue to the European Court.

There was no incompatibility between the Order and the Regulations. The United Kingdom had a duty to act directly to implement the UN Resolution. What was necessary to be done was a matter for the national authorities to decide. There was no question of the Order being incompatible with the Regulations or seeking to disapply them. Article 234 operated to prevent the Community from impeding the UK's performance of its obligations under the UN Charter.

Section 2(1) of the European Communities Act 1972 permitted liabilities and restrictions arising under the European Community treaties to come into force within the UK without further enactment.

As the Regulations came within section 2(1), they constituted the necessary enactment prohibiting or restricting importation or exportation of goods, to be enforced in the UK in accordance with domestic legislation.

In the UK, it was an offence to act in a way prohibited by the 1979 Act. The enforcement of the Regulations required no further domestic legislation: the sanctions available under the 1979 Act immediately applied. Therefore, the Regulations could properly form the basis for a criminal conviction within the UK under the 1979 Act.

As to whether an incorrect reference to the Order rather than the Regulations, or vice versa, in the particulars of offence provided a sufficient basis for setting aside the convictions, the essential requirement in the particulars of offence was that the defendant should be provided with reasonable information about the "nature" of the charge brought against him. Any wrong choice between the Order and the Regulations would not have the slightest practical significance.

As there would have been no miscarriage of justice, the proviso to section 23(1) of the Criminal Appeal Act 1968 would have been applied.

Ying Hui Tan, Barrister