THE THOBURN CASE
(Yardstick Aug 2001)

Among the numerous editorial articles that appeared in the world's press condemning the Sunderland judgement, three were so perceptive and eloquent as to merit reproduction here for general interest and future reference. The first was a leading article in The Daily Telegraph on 10th April, headed "Bananas".
"The conviction of Steven Thoburn for selling bananas by the pound is outrageous on so many levels that it is difficult to know where criticism should begin. Leave aside, for a moment, the matter of why a new system of measures is being imposed on consumers who have never asked for it. Disregard the fact that a decision of this magnitude should have been properly debated in Parliament, not slipped through as secondary legislation. Forget the question of whether Sunderland City Council could not have found a better use than this for its council taxpayers' money. Ignore, if you can, the issue of what any of this has to do with Brussels.
Clear all these things from your mind, and focus instead on the sheer nastiness of what is going on. An otherwise honest man now faces a criminal record for no worse offence than continuing to offer his customers a service that they want. What on earth could Sunderland's councillors have been thinking of when they authorised this prosecution? The authorities have revealed that peculiar blend of cowardice and viciousness that sometimes characterises municipal Britain in its dealings with the little man. Had the council lost, it would have expected the DTI and other local authorities to contribute to-wards its costs. Having won, it refuses to rule out claiming huge costs against a lone market trader: a statement yesterday spoke ominously of not serving a cost order "at this stage." We hope that Mr Thoburn will indeed challenge the decision, and that the many Daily Telegraph readers who have supported him financially will continue to do so. For yesterday's judgement marks a defeat for Britain - not just in the literal sense of confirming the supremacy of EU law over domestic law, but also in the wider sense of striking at the values of freedom and fair play on which our own justice system has always rested. The gradual continentalisation of our legal system is also infecting our attitude to government. There was a time when a case such as this would never have been brought: it would have been seen as an unthinkable infringement of liberty. That it should have been carried through to a conviction says nothing good about us as a nation."

The second (abridged here) was a feature article, headed "A Pound of Flesh - Not an ounce of sense", in the leading New York newspaper, The Wall Street Journal, on 11th April:
"For most Britons, the case of the "Metric Martyr" pits petty legalism against commonsense. Here they have the highest crime rate in Europe, and their police are busy nabbing a fruiterer for selling bananas by the pound. Britons are just as pugnaciously attached to the pound-weight as they are to the pound-sterling - a currency whose original value derived from a pound of silver. And this decision seems another pushy, culturally insensitive imposition on British daily life from clinical Continental bureaucrats. Yet those British Luddites are not being merely sen-timental. Quantity, size and fair value for money have an objective and subjective aspect; they rely not only on scientifically calibrated scales but also, if you will, on feel. According to a survey of 1,000 customers of the British grocery giant Tesco last year, 90% of consumers still "think" in pounds and ounces. Thus most British shoppers mentally translate 'one kilo' into '2.2 pounds', a quantity that however awkward is still more meaningful. But while dual labelling remains common in supermarkets, as of 2009 putting imperial measurements anywhere on the label will be against the law.
You can force new measurements onto pack-ages, but you cannot force them into the way people think. The U.S., for example, has tried repeatedly to install the metric system, starting with Thomas Jefferson, then smitten with all things French. But after spending some $70 million on the latest push toward metric in the 1990s, most states are turning back the clock. Kilometers are dropping from road signs, metres and centimetres from building codes. The U.S. Federal Highways Administration's plan to spend $100 million on interstate-highway signs has been scrapped after widespread interest. Current federal legislation mandates additional inch-pound labelling for metric imports, so America's European trading partners might think twice about that metric-only labelling in 2009. What truly matters about units of measurement is that we understand the amounts and distances to which they correspond.
If you have a good feel for the size of an ounce without doing any calculations, it doesn't matter that dividing a pound by sixteen is inconvenient. As Mr Thoburn despaired on his arrest: "I shout my prices around the market. It would sound ridiculous if I started shouting about grams and kilos. Folks know what they're getting when you talk pounds and ounces." Mr Thoburn's customers know that 25 pence per pound for bananas - about 37 U.S. cents - is a good price. Isn't that the point?"

The third was Richard Northedge's column in Sunday Business on 15th April.
"Steve Thoburn's big mistake was not that he sold his bananas in pounds rather than in kilos - it was that he did it in Southwick market in Sunderland, rather than in one of the City's many markets. The EU metricators' writ may rule in every British superstore and fruit-and-veg market, but it is completely ignored in the markets of the City. If Thoburn popped into the International Petroleum Exchange near Tower Bridge, he could buy a barrel of oil - each barrel containing ex-actly 36 imperial gallons. Petrol may be in litres when it comes out of the pump, but it is definitely in gallons when it comes out of the ground. And if he drove over to the London Metal Exchange in Leadenhall Street, he could buy some silver. But it will be sold in troy ounces - each ounce comprising 12 penny-weights (not eurocent-weights) and each pennyweight comprising 24 grains. Or, back by Tower Bridge, Thoburn can buy or sell natural gas futures - trading in therms, even though metric-minded scientists have abandoned them in favour of joules. As every schoolboy knows, a therm equals 100,000 British Thermal Units. Note that, Brussels: they are British thermal units.
So will the flat-footed Sunderland trading standards officers descend on the imperial City and prosecute London's wicked market traders? I suspect not: the markets in the Square Mile are too large an example of commerce to be made an example of - and it is still the Square Mile. Anyway, it would also be necessary to charge the Bank of England for auctioning our gold in ounces. If only Thoburn had been selling Brent crude or sterling silver from his market stall instead of Granny Smiths and King Edwards, he might have avoided his criminal record."

There was also a nice strip cartoon, illustrating a dialogue between a solicitor and a barrister who are clutching papers marked 'Metric Banana Trial'. The former says, "This trial's a bit of a sledgehammer to smash a nut", to which the latter replies, "Society must have a constant standard of weights and measures. Enforcing the law is worth every guinea of our fee."

The BBC, as usual, did its very best to ignore the whole issue. As Steve Tamblin pointed out, the 10 p.m. national news on the night of the judgement mentioned it in a single line, seven stories up; Newsnight didn't mention it at all; C4 news at 7 p.m. treated it flippantly; and the next morning's edition of Today on Radio 4 gave it five minutes out of two hours, "talking to Steve Thoburn and Neil Herron in the same way that Esther Rantzen's That's Life once dealt with ferret racing or naked hang-gliding and other such eccentric British rural habits." (One of the metric establishment's favourite tricks, forever played by the BBC, is to treat young people's alleged incomprehension of the imperial system as a virtue but older people's difficulties with the metric system as sheer stupidity. Political correctness and 'progressive' education regard ignorance of customary measures as something to boast about, but ignorance of the metric sys-tem as something to be pitied. One of Steven Thoburn's most valuable characteristics as an imperial hero, is that, at only 38 years of age, he cannot be dismissed as an old fuddy-duddy!)
A marvellous article by the renowned anthropologist Desmond Morris appeared in The Times on 4 May. It was headed "How customs are excised by the EU" and opened: "The current buzzword among conservationists is 'biodiversity'. But what about cultural diversity? Who is protecting local customs?" It ended: "The idea that an honest English grocer is being treated as a criminal because Brussels will not allow him to mark up his produce in pounds, rather than in some vile metric units, has been enough to turn me against the European Union. I am now forced to reject it totally, seeing it only as a great idea that has been reduced to homogenising folly by a bunch of ignorant, free-loading Eurocrats."  [Our emphasis] Has anybody ever put it better? This is no xenophobe but a world-famous scientist who, as mentioned in the arti-cle, had visited 23 different countries in the first four months of this year. We must quote his powerful statement at every opportunity.

David Delaney had an article on the Thoburn judgement published in the April issue of The European Journal. He also had this letter published in the 19-25 April issue of European Voice - the influential English weekly newspaper, owned by The Economist, published in Brussels: "David Heathcoat-Amory wrote (Letters, 12-18 April) about how the political class is out of line with popular feeling by causing a greengrocer to be found guilty in a British court of selling bananas by the pound. The real significance of the trial was the statements by the judge about the UK's loss of sov-ereignty. He said: "Parliament surrendered its sovereignty in 1972…the ancient principle, that where two laws are incompatible the later one is good, is no longer relevant…European Union laws have overriding force…the chapters on the supremacy of Parliament are now only of his-torical perspective, they are non-binding."
These comments, stated in a court of law, come as a deep shock to most Britons. In 1971 we were told by Prime Minister Edward Heath that "there was no question of any erosion of essential national sovereignty." Some remember the 1975 referendum "Say Yes!" pamphlet issued by the Labour government of the day, sent to every home, which said: "Another anxiety expressed about Britain's membership of the Common Market is that Parliament could lose its supremacy, and we would have to obey laws passed by non-elected 'faceless bureaucrats' sitting in their headquarters in Brussels." The judge has lit the touch-paper - now stand back!"
Yet now Judge Morgan has stated that "it would destroy the concept of a union if member states could go off on legislative frolics on their own." So that's what a thousand years of democracy is reduced to - a 'legislative frolic'! This directly contradicts the great Judge Megarry's dictum (in the case of Manuel v Manuel 1983 - i.e. ten years after the UK's entry into the EU) that "Parliament is omnipotent save in its ability to destroy its own omnipotence". As a Mr D R Bourne said of the Sunderland magistrate, in a letter in The Daily Telegraph on 12 April, he "confirmed that he was sitting in what had previously been one of the Queen's courts, where her law had previously been supreme, only to find that this was not the case. Here was Her Majesty's judge acting on behalf of a foreign power under the false impression that it was an English court room adjudicating in accordance with a law, foreign in origin, thus breaking the Queen's Coronation Oath."
Furthermore, Mr Richard Sheringham's letter in The Times on 11 April: "The right to buy and sell in our traditional weights and measures was described by a judge…as a "legislative frolic" that could destroy the concept of a European Union. What about the far more prolific legis-lative outpourings of the EU itself? These are often introduced by bureaucratic directive based on the most limited form of democracy as we understand it. District Judge Bruce Morgan appears to accept that they can be allowed to de-stroy the United Kingdom. "Frolic" is normally associated with ideas of cheerful merriment, but EU legislation lacks any such playfulness. Indeed, it penetrates, in a sinister manner, the nooks and crannies of our nation's life and freedoms."

Michael Plumbe, our Chairman, had this letter published in the same issue of The Times: "This is the first time a judge in England has specifically ruled that an Act of Parliament (The Weights and Measures Act 1985) must be disregarded in favour of EU regulations. Our Houses of Parliament might as well disband for all the power they have left."
It was not only the Prime Minister's assurances that have now been given the lie by Judge Morgan - or, alternatively, that make a nonsense of his judgement. His co-signatory of the accession treaty was Geoffrey Rippon, Chancellor of the Duchy of Lancaster, who said in the House of Commons (Hansard, 15 February 1972, page 270): "The House as a whole may therefore be reassured that there is no question of this Bill making a thousand years of British law subservient to the Code Napoleon." Furthermore, this was reinforced by the Lord Chancellor in Command 3301 on "The Constitutional Implications of British Membership of the EC" (1967): "There is no reason to think that the impact of Community law would weaken or de-stroy any of the basic rights and liberties of indi-viduals under the law in the United Kingdom." The Prime Minister later emphasized that: "It is important to realize that Community law is mainly concerned…with corporate bodies rather than private individuals. By far the greater part of our domestic law would remain unchanged. The constitutional rights and liberties of the individual such as habeas corpus and the presumption of innocence will, of course, not be affected, nor in any material sense will our criminal law."
Then, writing in support of the "Yes" campaign in the 1975 referendum, Roy Jenkins said: "The position of the Queen is not affected. English Common Law is not affected." And the great Lord Denning, in a later judicial interpretation of the European Communities Act, declared that "the [EC] Treaty concerns only those matters that have a European element; that is to say, matters which affect people or property in the 9 [now 14] countries of the Common Market besides ourselves. The treaty does not touch any of the matters which concern solely the mainland of Britain and the people in it."

So which is it: were the Prime Minister, and the Minister responsible for negotiating the treaty of accession, and the Lord Chancellor, Home Secretary and Lord Denning - as well as every other government spokesman in both the Heath and Wilson administrations - all liars, or is the prosecution's argument, on which the Sunderland judgement was based, fatally flawed? We trust that the forthcoming Appeal against Steven Thoburn's conviction proves that the latter is correct. For as recently as 21 July 1993, the Speaker of the House of Commons issued this reminder to the Courts: "There has, of course, been no amendment to the Bill of Rights…the House is entitled to expect that the Bill of Rights will be fully respected by all those appearing before the Courts." [Our emphasis] And even more recently, in 1997, Lord Wilberforce declared in the House of Lords: "Perhaps I should remind noble Lords of what our essential civil rights, as guaranteed by common law, are: the presumption of innocence; the right to a fair hearing; no man to be obliged to testify against himself; the rule against double jeopardy; no retrospective legislation; no legislation to be given effect con-trary to international law…; freedom of expression and freedom of association …firmly secured already by the common law of this country, and not intended to be superseded or modified by new inter-state obligations" [our emphasis].
While researching Hansard, we also came across the following passage (11 April 1989, page 842 - edited) from the debate on the EC directive, which Francis Maude, the junior Foreign Office Minister concerned, was piloting through Parliament. How ironic that the Tory spokesman responsible for introducing the metric regulations is now, as the Shadow Foreign Secretary, leading the opposition to all such EU domination, whereas the objections he had to overcome eleven years ago came mainly from Labour and Lib.Dem. leaders who are now un-ashamed Europhiles! In fairness, however, a few exceptions such as the leading Lib.Dem. Alan Beith (quoted here), have always attacked the metric tyranny.
"Mr Beith: Given that weighed-out loose goods, weighed out from bulk in front of the consumer, are not items which are traded across the Community, what possible reason can there be to require a small shop-keeper to refuse to serve a consumer 5 lb of potatoes or 1 lb of peas from bulk goods? What will happen to the shop-keeper or consumer if, after the set date, the customer asks for, and the shop-keeper serves, 5 lb of potatoes?
Mr Maude: [after much waffle] The consequence of this directive would be that at the appropriate time - which, if this proposal remains in the directive, would not need to be until the end of the century - we would have to amend our domestic legislation according to these proposals.
Mr Beith: What is the answer to my question?
Mr Maude: The hon. Gentleman may not be aware of the fact that it is possible now for the trading standards authorities to prosecute people now who sell goods in quantities and units which are not authorised under the legislation. There is nothing novel about that. [Interruption] Amendments have been made continually to the list of such authorised units over many years.
Mr Beith: Is the Minister seriously saying that he envisages that weights and measures inspec-tors will prosecute little old ladies for buying 5 lb of loose potatoes after 1999?
Mr Maude: It cannot be a criminal offence for the customer to buy goods in those circumstances. It would be, as it is now, a criminal offence for a trader to sell goods in units which are not authorised…[more waffle] If he is asking whether trading standards officers will do it, my answer is that it will be a matter for those officers. But I should be surprised if, on the day after these measures come into operation, trading standards officers will be stamping around the streets trying to find people selling goods in pounds and ounces. If the hon. Gentleman believes that is a possibility, he has a lesser view than I do of the enforcement officers." [Maybe he's changed his mind since then!]

Patricia Nugent, one of our most active Members, wrote a letter on 9 April to the following MPs: Chris Mullen of Sunderland South, Bill Etherington of Sunderland North, Alan Campbell of Tynemouth, Stephen Byers of Tyneside North, Nick Brown of Newcastle East & Wall-send, Jim Cousins of Newcastle Central, Douglas Henderson of Newcastle North, Fraser Kemp of Houghton, Stephen Hepburn of Jarrow, David Clark of South Shields, and Joyce Quin of Gateshead, as well as her own MP, Graham Brady, asking each of them what (s)he intended to do to help Mr Thoburn. For good measure, she also sent suitably modified versions to Messrs Blair and Hague.
Among the responses (mostly feeble) was this positive assurance from Graham Brady: "I am pleased that my party's manifesto will pledge to do something about this appalling state of affairs." Now that we have a new Parliament, will all Members please write to their local MPs now, asking what they will do to support the forthcoming Appeal?

John Gardner, with invaluable help once again from Brian Mooney, sent a letter to over 1,500 newspapers and other media on 19 April, explaining that the Sunderland judgement "is wholly unconstitutional" and is bound to be appealed; and inviting donations "payable to the Steven Thoburn (Metric Martyr) Defence Fund, to be sent to PO Box 526, Sunderland SR1 3YS, or over the counter at any NatWest branch, quoting sort-code 55-61-11 and account number 36-457-469." It also draws attention to additional information on his website: www.bwmaOnline.com. This letter has been published in dozens of newspapers from John O'Groats to Land's End, and widely referred to elsewhere.