And now for something a little different …

For those longing for an escape from the Will he? Won't he? joys of the Lockerbie affair, a vote of thanks to our Scottish Law Commissioner correspondent George Gretton, who has drawn our attention to the transcript of R v William Chambers [2008] EWCA Crim 2467 and the confession of counsel that he had conducted a Customs prosecution on the basis of a statutory instrument superseded eight years ago.

The exchange between the unfortunate counsel and the presiding judge gives one all the joys of schadenfreude and should be read in fullIt becomes apparent that the Revenue and Customs Protection Office (RCPO) has conducted several cases on the basis of the wrong text of the Regulations in question, obtained from the unamended version thereof on the website of the Office of Public Sector Information.  The case thus raises the question of the lack of a comprehensive, fully up-to-date official statutory database, and Lord Justice Toulson has this to say as part of his judgment:

"It is a matter of considerable concern to us that the Recorder was not taken to the relevant Regulations and nor were we until the 11th hour, when we were on the point of reaching a wrong decision. Mr Cammerman has explained that he based his understanding of the relevant law on the Office of Public Sector Information web site, which shows the Excise Goods Regulations 1992 in their unamended form. We accept his personal explanation and apology, but that does not alleviate our concern.

What happened in this case is not an isolated lapse. Earlier this week we heard another appeal from a confiscation order relating to the evasion of duty on cigarettes. In that case too the prosecution relied on the Excise Goods Regulations 1992. We were unhappy in that case that the prosecution produced those Regulations – which as we now know were the wrong Regulations – only during the course of the appeal, because we did not think that it gave the appellant a fair opportunity of dealing with a potentially difficult point. So we allowed the appeal, with the result that no injustice was in fact done in that case by our being referred to the wrong Regulations.

However, our concern remains that the court should have been misled in this way. It is clear that the problem is a systemic one in that the information on the Office of Public Sector Information web site is defective and has presumably been so for some considerable time. Mr Cammerman has told us that in the present case the prosecution was brought by the Revenue and Customs Prosecutions Office and therefore it is apparent that within that Office there is, or has been until now, considerable ignorance about what were the relevant Regulations in force. That is also a matter of self-evident concern.

In the circumstances, we expect that the Revenue and Customs Prosecutions Office will now conduct an urgent inquiry whether there have been mistakes in other cases in which confiscation orders have been made, no doubt with sentences of imprisonment in default. If that turns out to be so, the defendants in those cases should be given notice in order that they can make late applications for leave to appeal or such other application as may be appropriate if, for example, they have served a default term of imprisonment as a result of a court imposing a confiscation order on an erroneous understanding of the law. We were told by Mr Cammerman this morning that such a review is already underway.

This case also provides an example of a wider problem. It is a maxim that ignorance of the law is no excuse, but it is profoundly unsatisfactory if the law itself is not practically accessible. To a worryingly large extent, statutory law is not practically accessible today, even to the courts whose constitutional duty it is to interpret and enforce it. There are four principal reasons.

First, the majority of legislation is secondary legislation.

Secondly, the volume of legislation has increased very greatly over the last 40 years. The Law Commission's Report on Post-Legislative Scrutiny, (2006) Law Com 302, BAILII: [2006] EWLC 302, gave some figures in Appendix C. In 2005 there were 2868 pages of new Public General Acts and approximately 13,000 pages of new Statutory Instruments, making a total well in excess of 15,000 pages (which is equivalent to over 300 pages a week) excluding European Directives and European Regulations, which were responsible for over 5,000 additional pages of legislation.

Thirdly, on many subjects the legislation cannot be found in a single place, but in a patchwork of primary and secondary legislation.

Fourthly, there is no comprehensive statute law database with hyperlinks which would enable an intelligent person, by using a search engine, to find out all the legislation on a particular topic. This means that the courts are in many cases unable to discover what the law is, or was at the date with which the court is concerned, and are entirely dependent on the parties for being able to inform them what were the relevant statutory provisions which the court has to apply. This lamentable state of affairs has been raised by responsible bodies on many occasions …"

It will be interesting to see whether this has any effect on those whose responsibilities these matters are.