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that the 1985 Weights and Measures Act has not been repealed by statutory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
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
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
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
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