Milk Marketing Scheme — Milk producers obliged to keep records and make accurate returns — Applicant failed to make returns — Penalties imposed — Whether board had jurisdiction to entertain charges — High Court holding that it did not — Court of Appeal allowing appeal — Judgment for the board
Under the milk marketing scheme all milk producers had to be registered with the board and were in general obliged to supply all their milk to the board unless it agreed otherwise. It sold the milk thus supplied at differing prices, depending on the use. The board pooled the proceeds of sale and, after deducting expenses and any moneys required for reserves, distributed the proceeds to producers who received the average wholesale producers price (“AWPP”). However, the board permitted certain producers to sell their milk otherwise than to the board (“withholders”), and sell to producer retailers and producer processors. Such persons received prices in excess of the AWPP. For the purposes of equalisation withholders had to keep accurate records of their direct sales and make accurate returns to the board. A failure to do so might enable the withholders to secure an unfair advantage over the producers who sold direct to the board.
The board claimed that the applicant had not made proper returns thereby securing an advantage by depriving the board of sums to which it was entitled. Charges of making false statements within para 77(1) of the Milk Marketing Scheme (as amended) were levelled against the applicant arising out of the monthly returns he made during the period January 1988 to March 1989. The disciplinary committee of the board found some of the charges proved and decided that the applicant should pay penalties and repay losses to the board. The High Court held that the committee had no jurisdiction to entertain the complaints and quashed the findings and the penalties imposed. Section 9(2) of the 1958 Act provided that no penalty should be imposed in respect of contravention of the scheme which constituted an offence under this or “any other Act”. Section 2(1)(c) of the Theft Act 1978 provided that where a person by deception dishonestly obtained any exemption from or abatement of liability to make a payment he should be guilty of an offence. Under section 77(1)(d) no penalty should be imposed in respect of a contravention which constituted an offence under any Act other than the 1958 Act.
Held The board’s appeal was allowed.
1. If a matter before the disciplinary committee potentially overlapped with a criminal liability, but did not in fact or of necessity require the proof of each and every ingredient of the criminal offence, it did not constitute an offence under “any other Act”. The word “constitutes” in para 77(1)(d) meant that a tribunal was debarred from imposing a penalty on a registered producer only if the board, in order to succeed must establish each and every ingredient of the criminal offence.
2. Having regard to the charges which the applicant faced, it could be said that the crime included all the ingredients of the breach and that they shared some ingredients. The board had to prove that the applicant was under an obligation to make a returns to the board and that in doing so he knowingly made a false statement as to the milk produced and sold by him. Dishonesty was not an ingredient of the alleged breach of the scheme: it was under section 2(1)(c) of the 1978 Act. Nothing which was said on behalf of the board to the committee with reference to the applicant’s conduct could serve to alter what Parliament laid down as having to be proved as a breach of the scheme. The board only had to establish the ingredients of the charge arising out of the legislation, no more and no less.
Stephen Coward QC and Simeon Maskrey (instructed by Wedlake Bell) appeared for the board; Cherie Booth (instructed by Beviss & Beckingsale, of Chard) appeared for the applicant.
