Metric Martyrs ... The Legal Argument
In the period between being made aware of this and the case being listed for trial, we received a letter from a Metric Martyrs and British Weights and Measures Association supporter, which detailed a response he had received from the Reinhard Klein of the European Commission's Enterprise and Industry Directorate-General on behalf of the Vice President of the Commission, Gunther Vereugen. He had sought clarification from the Commission in light of the headlines in which he stated that the Metrication Regulations were never intended to apply to market traders.
In the letter of response Reinhard Klein states:
" The Commission does not consider it necessary to change the current provisions on the use of pre-2000 weighing instruments in imperial only because the Directive does not prohibit the use of such instruments."
This clarification quite obviously has a significant bearing on this case, and also the first conviction of Steve Thoburn.
The Directive is shown below:
COUNCIL DIRECTIVE of 20 December 1979 on the approximation of the laws of the Member States relating to units of measurement and on the repeal of Directive 71/354/EEC (80/181/EEC)
Article 4
The use of units of measurement which are not or are no longer legal shall be authorised for:
- products and equipment already on the market and/or in service on the date on which this Directive is adopted,
- components and parts of products and equipment necessary to supplement or replace components or parts of the above products or equipment.
However, the use of legal units of measurement may be required for the indicators of measuring instruments.
What the Commissioner has done is clarify that 'equipment' also includes pre-2000 weighing instruments.
Therefore, as both Steven and Janet were using scales which were expressly authorised by the Directive then the Local Authority's Trading Standards Officers were acting unlawfully when removing the stamps 'because they were not capable of weighing in metric,' an action which could be seen as an abuse of process.
The subsequent prosecutions under the 1985 Weights and Measures Act 11(2) for having / using scales 'which did not bear an official stamp' could therefore be unlawful as the stamps had been removed unlawfully.
Indeed, it could well be that the Trading Standards Officers could themselves face criminal charges under Section 241 Trade Union and Labour Relations (Consolidation) Act 1992
namely that they have compelled a person (the trader) to abstain from doing an act which that person has a legal right to do wrongfully and without legal authority and has intimidated that person in doing so and injured that person's property.
241 Intimidation or annoyance by violence or otherwise
(1) A person commits an offence who, with a view to compelling another person to abstain from doing or to do any act which that person has a legal right to do or abstain from doing, wrongfully and without legal authority—
(a) uses violence to or intimidates that person or his wife or children, or injures his property,
(b) persistently follows that person about from place to place,
(c) hides any tools, clothes or other property owned or used by that person, or deprives him of or hinders him in the use thereof,
(d) watches or besets the house or other place where that person resides, works, carries on business or happens to be, or the approach to any such house or place, or
(e) follows that person with two or more other persons in a disorderly manner in or through any street or road.
(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale, or both.
(3) A constable may arrest without warrant anyone he reasonably suspects is committing an offence under this section.
In Lord Hunt of Kings Heath's letter to Chris Mullin MP of 29th August 2007 in response to my request for a Royal Pardon he states:
" It is the practice of the Secretary of State to recommend the use of the Royal Prerogative of Mercy to grant a Free Pardon only in cases where:
(2) new evidence has come to light, which has not been before the courts, which demonstrates beyond any doubt that no offence was committed or that the defendant did not commit the crime.
This obvious conflict, now clarified by the Vice President of the European Commission between the Directive and its application or interpretation throws doubt on the conviction of Steve Thoburn who only faced the charges after his scales had been 'de-stamped' and will be argued in Janet Devers case.
Therefore, Steven Thoburn and Janet Devers in using pre-2000 weighing equipment were complying with the law at the time and as European Law has precedence then to 'de-stamp' perfectly lawful scales creates obvious incompatibility between EU Law and the domestic legislation arising from the directive, or the UK Government's interpretation.
Therefore, if UK law was not in compliance with EU law then this incompatibility could lead to infringement proceedings against the UK Government in the ECJ.
The alternative route is the miscarriage of justice before the Criminal Cases Review Commission, again because a 'force majeure' put Steven (and Janet) in a position where they then 'committed' a criminal act by having 'de-stamped' scales.
In the letter of response Reinhard Klein states:
" The Commission does not consider it necessary to change the current provisions on the use of pre-2000 weighing instruments in imperial only because the Directive does not prohibit the use of such instruments."
This clarification quite obviously has a significant bearing on this case, and also the first conviction of Steve Thoburn.
The Directive is shown below:
COUNCIL DIRECTIVE of 20 December 1979 on the approximation of the laws of the Member States relating to units of measurement and on the repeal of Directive 71/354/EEC (80/181/EEC)
Article 4
The use of units of measurement which are not or are no longer legal shall be authorised for:
- products and equipment already on the market and/or in service on the date on which this Directive is adopted,
- components and parts of products and equipment necessary to supplement or replace components or parts of the above products or equipment.
However, the use of legal units of measurement may be required for the indicators of measuring instruments.
What the Commissioner has done is clarify that 'equipment' also includes pre-2000 weighing instruments.
Therefore, as both Steven and Janet were using scales which were expressly authorised by the Directive then the Local Authority's Trading Standards Officers were acting unlawfully when removing the stamps 'because they were not capable of weighing in metric,' an action which could be seen as an abuse of process.
The subsequent prosecutions under the 1985 Weights and Measures Act 11(2) for having / using scales 'which did not bear an official stamp' could therefore be unlawful as the stamps had been removed unlawfully.
Indeed, it could well be that the Trading Standards Officers could themselves face criminal charges under Section 241 Trade Union and Labour Relations (Consolidation) Act 1992
namely that they have compelled a person (the trader) to abstain from doing an act which that person has a legal right to do wrongfully and without legal authority and has intimidated that person in doing so and injured that person's property.
241 Intimidation or annoyance by violence or otherwise
(1) A person commits an offence who, with a view to compelling another person to abstain from doing or to do any act which that person has a legal right to do or abstain from doing, wrongfully and without legal authority—
(a) uses violence to or intimidates that person or his wife or children, or injures his property,
(b) persistently follows that person about from place to place,
(c) hides any tools, clothes or other property owned or used by that person, or deprives him of or hinders him in the use thereof,
(d) watches or besets the house or other place where that person resides, works, carries on business or happens to be, or the approach to any such house or place, or
(e) follows that person with two or more other persons in a disorderly manner in or through any street or road.
(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale, or both.
(3) A constable may arrest without warrant anyone he reasonably suspects is committing an offence under this section.
In Lord Hunt of Kings Heath's letter to Chris Mullin MP of 29th August 2007 in response to my request for a Royal Pardon he states:
" It is the practice of the Secretary of State to recommend the use of the Royal Prerogative of Mercy to grant a Free Pardon only in cases where:
(2) new evidence has come to light, which has not been before the courts, which demonstrates beyond any doubt that no offence was committed or that the defendant did not commit the crime.
This obvious conflict, now clarified by the Vice President of the European Commission between the Directive and its application or interpretation throws doubt on the conviction of Steve Thoburn who only faced the charges after his scales had been 'de-stamped' and will be argued in Janet Devers case.
Therefore, Steven Thoburn and Janet Devers in using pre-2000 weighing equipment were complying with the law at the time and as European Law has precedence then to 'de-stamp' perfectly lawful scales creates obvious incompatibility between EU Law and the domestic legislation arising from the directive, or the UK Government's interpretation.
Therefore, if UK law was not in compliance with EU law then this incompatibility could lead to infringement proceedings against the UK Government in the ECJ.
The alternative route is the miscarriage of justice before the Criminal Cases Review Commission, again because a 'force majeure' put Steven (and Janet) in a position where they then 'committed' a criminal act by having 'de-stamped' scales.
posted by Neil Herron at 2:59 AM
1 Comments:
Here is a question. Can I be forced by Trading Standards officers to sell beer in imperial measurements as per the Weights and Measures Act 1985? Or can I voluntarily adhere to the 2000 EU directive and use metric 0.5 lites and 0.3 litres when selling beer and other drinks? I have a Polish bar in the UK selling Polish beer with stamped 0.5l and 0.3l glasses. Please advise.
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