27 August 2009

What Are Technical Regulations?

After yesterday's wikileak, which explains that since sections 9 and 10 of the Video Recordings Act 1984 (and the Video Recordings (Labelling) Regulations 1985 - but no internet links available) are technical regulations, the Act and Regulations have not been ratified. Hence, it is ambiguous (to say the least) whether or not they can be used as a basis of prosecuting someone.

So, what are technical regulations? These ones are found in the directive 83/189/EEC at

Article 1(5) " "technical regulation", technical specifications, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing or use in a Member State or a major part thereof, except those laid down by local authorities;"

Going back to ss 9 and 10 of the Video Recordings Act 1984, we can see that the "classification certificate" part of the sections is the technical regulation, since (i) it is an "administrative provision" and (ii), it "is compulsory".

The gov letter goes on to refer to European case law (CIA Securities C-194/94) where the European Court said,

"2. Articles 8 and 9 of Directive 83/189, ..., are to be interpreted as meaning that individuals may rely on them before the national court which must decline to apply a national technical regulation which has not been notified in accordance with the directive."

This could be quite worrying. What would happen if someone gets drunk, tries to drive home and gets stopped by the police. If the driver fails a breath test would this evidence be admissible in court if the technical specifications of the breathalyser had not been declared in accordance with directive 83/189?

This happened in Belgium (Lemmens C-226/97); however, this time the court ruled,

"Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations is to be interpreted as meaning that breach of the obligation imposed by Article 8 thereof to notify a technical regulation on breath-analysis apparatus does not have the effect of making it impossible for evidence obtained by means of such apparatus, authorised in accordance with regulations which have not been notified, to be relied upon against an individual charged with driving while under the influence of alcohol."

Where that leaves us isn't clear.

It makes sense for the government minister to claim that the non-notification, with respect to the Act and Regulations, may not have any effect on past cases (contrary to what the tone of my previous note may have implied). However, there are going to be people up and down the land who may be going to lawyers to find out whether or not they can get some recompense.

Lastly, the letter expresses concern about offences relating to "industrially manufactured products which require a prior authorisation before they can be supplied or used."

As to speculating and finding oversights in this field ...

Update - 28th Jan 2010 "How often does Parliament enact unenforceable laws?"

"More difficult is the question raised in both Houses of Parliament of what now happens to those defendants who were prosecuted and convicted under the 1984 Act and who are out of time to appeal, or who did appeal and had their appeals dismissed. Since they were, as the Government and Parliament agree, convicted under a law that was in truth unenforceable [or, didn't even exist. How could it if it wasn't the law, which, it wasn't] (although the defendants could not have known that, any more than could the prosecution, until the Government discovered the unhappy facts last summer), should their convictions now be revoked as not being in accordance with law? "

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