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Summary of the Judgement

District Judge Morgan read out his judgement in open court on April 9th, 2001. Here follows a summary of that statement, based on the notes of BWMA's representatives who were in the court room on the day:

District Judge Mr Bruce Morgan apologised that his judgement was not yet available in printed form and that he was going to read from his 50 pages of handwritten notes. He stated that this was a test case of national importance that would decide on issues never before debated in court.

He said that this case is about the most famous bunch of bananas in British legal history. He said our weights and measures legislation is of a Byzantine complexity. If a legislative assembly had chosen to confuse the public then it has succeeded in this case. The law was not clear, as it should be, even to a greengrocer in Sunderland. There has been freedom of choice to use the metric and imperial systems since 1864. Recent legislation, however, has the declared intention of abolishing imperial measures in favour of metric units.

The defence submission was that the 1985 Weights and Measures Act has not been repealed by statutory instrument. But the 1972 European Communities Act gave powers to ministers to issue regulations in "any future legislation". In our accession to the European Economic Community in 1973 it was confirmed that acts adopted by the EEC are binding on member states. Included in these acts was a directive on weights and measures, which stated that the imperial system was to be demised at a future date. EC 76/770 was accepted without objection. Article 1 (3) says that states shall cease to authorise imperial units [I may have some of these references wrong- Ed] Parliament never intended ministers to act otherwise than the way they did.

Our accession to the EC was confirmed by referendum although certain matters, such as the abolition of the imperial system, were not drawn to the attention of the British public.

We are now living under a "new legal order". The 1972 European Communities Act section 2/4 refers specifically to enactments "passed and to be passed". These are new constitutional powers. Parliament surrendered its sovereignty in 1972. The old principal, which said that where two laws are incompatible the later one is good, is no longer relevant. The doctrine of the primacy of European law now holds good. European Union laws have overriding force with priority over our law. The 1972 EC Act is a "bold new source of law." The traditions described in the annals of our legal system by such as Dicey and Blackstone now represents the "yesteryear". The articles on the supremacy of Parliament are now only of historical perspective, they are non-binding.

The 1998 Human Rights Act is similar in nature to the 1972 EC Act. It states that the courts can overthrow any act that contravenes it in the future. Nothing can conflict with the 1972 and 1998 Acts. UK legislation is disapplied when in conflict with the European Union.

Membership of the European Union, however, is not entrenched. Under international law a state cannot be coerced against its will to be subjugated to another power. We, however, willingly joined the "EU club ". We are bound by the rules of the European Union and if states went on frolics of their own they would destroy the concept of a Union. The 1972 Act was a "one-off", not an ordinary treaty, but a new way of life.

The 1972 Act intentionally surrendered Parliament's sovereignty to the primacy of EC law and the European courts. Every national court must set aside any national law that conflicts with Community law. Therefore implied repeal of the 1972 Act cannot apply in Relation to the 1985 Weights and Measures Act. Neither is there an abuse of "Henry VIII powers" as these are now in common use and parliament has shown no sign of abolishing them.

Judge Morgan found the case proved.

Prosecuting counsel said there would be no demand for penalties. The two sets of scales would be available for conversion to metric; otherwise they would be forfeit. Counsel made no requests for costs but suggested that the divisional Court would decide costs if the case were appealed. If it goes to divisional Court the Local Authority would seek costs against Mr Thoburn "and his supporters". They would make no cost order against Mr Thoburn if he did not appeal.

Defending council said that this case need never have been called. The prosecuting authority, or the minister, could have sought a declaration by judicial review with no criminal trial. This would not have involved the defendant and he would not be faced with a criminal record, a fine and the possibility of a substantial award of costs against him.

Judge Morgan, addressing the defendant, said that he was not seeking to defraud his customers. He told Mr Thoburn he recognised that he was a decent, hardworking man simply trying to do right by his customers. "I accept that what he did he did because he believed he was right. He is a second generation greengrocer carrying on from his father and he wished to retain what he regarded as part of his cultural heritage, the imperial scale." He would not order costs against him, the scales would be forfeited and he would be given a conditional discharge for six months. If he offended after six months than he would be returned court for sentence.

Prosecuting and defence counsel complemented judge on the excellence and clarity of his presentation. As a token of respect they gave him a signed Matt cartoon (showing a victim being mugged and crying out "Help, police, bananas 25p a pound!"

David Delaney BWMA 10/4/01

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