Regina v Budimir and Another: CACD 29 Jun 2010

The defendants sought leave to appeal out of time saying that their convictions had been under the 1984 Act which was later found to have been unenforceable for failure to comply with notification requirements under European law. The 1984 Act had had to be repealed and re-enacted in the 2010 Act.
Held: Leave was refused. The exact circumstances were unique, but ‘the House of Lords and the Court of Appeal had consistently held that, in analogous circumstances, where a conviction was based on the law as it was then understood to be, a subsequent change of the law or in the understanding of the law would not be a valid ground for leave to appeal out of time, unless substantial injustice had been done.’ There had been no injustice in these convictions.
‘failure to notify did not have the effect of rendering the national measure a nullity, void or non-existent. As to the consequences of non-notification in national law the most fundamental point was that no court had the power to strike down an Act of Parliament or to declare it a nullity. In any event what would otherwise appear to be a remarkable consequence was not required by EU law. As a matter of national law, therefore, these convictions were valid unless and until they were set aside.’

Lord Judge CJ, David Clarke, Lloyd Jones JJ
[2010] EWCA Crim 1486, [2010] WLR (D) 166, [2010] EWHC 1604 (Admin)
Bailii, WLRD
Council Directive 83/189/EEC of 28 March 1983, Video Recordings Act 1984, European Communities Act 1972, Video Recordings Act 2010
England and Wales
See AlsoInterfact Ltd v Liverpool City Council Admn 29-Jun-2010
The claimant had been convicted in 2005 of an offence under the 1984 Act. It later became clear that the Act failed properly to implement a European Directive and was unenforceable. The company now sought leave to appeal out of time. The case was . .
CitedInterfact Ltd and Another v Liverpool City Council Admn 23-May-2005
The defendants, operators of licensed sex shops, appealed convictions for offences under the Act. The shops had supplied videos rated R*18 by mail order from the shops. The Trading Standards Officer said this did not satisfy the requirement that . .
CitedCIA Security International v Signalson and Securitel ECJ 30-Apr-1996
1. Under the procedure provided for by Article 177 of the Treaty, it is for the national court to assess the scope of national provisions and the manner in which they are to be applied. Since the national court is best placed to assess, in view of . .
CitedCriminal Proceedings Against Johannes Martinus Lemmens ECJ 16-Jun-1998
Evidence called by prosecutor of breathalyser machine was admissible even though the regulations for the type of machine used had not been notified for this purpose as required to the European Commission. The failure created no obstacle to trade. . .
CitedSapod Audic v Eco-Emballages SA ECJ 6-Jun-2002
Europa Directive 83/189/EEC – Procedure for the provision of information in the field of technical standards and regulations – Obligation to communicate draft technical regulations – Directives 75/442/EEC and . .
CitedSchwibbert (Intellectual Property) ECJ 28-Jun-2007
Europa Directive 98/34/EC Procedure for the provision of information in the field of technical standards and regulations – Obligation to communicate draft technical regulations National law requiring the . .

Cited by:
CitedCadder v Her Majesty’s Advocate SC 26-Oct-2010
Statement without lawyer access was inadmissible
The accused complained that he had been convicted for assault and breach of the peace on the basis of a statement made by him during an interview with the police where, under the 1995 Act, he had been denied access to a lawyer.
Held: The . .
CitedGordon v Scottish Criminal Cases Review Commission (Scotland) SC 22-Mar-2017
The appellant the Commission’s decision not to refer his case back to the court. They had agreed that a miscarriage of justice might have occurred, but concluded that it was not in the interests of justice to make such a referral. His statement had . .

Lists of cited by and citing cases may be incomplete.

Crime, European, Constitutional

Updated: 01 November 2021; Ref: scu.418442