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House of Lords
Session 1997-98
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Judgments - Boddington v. British Transport Police


  Lord Chancellor   Lord Browne-Wilkinson   Lord Slynn of Hadley   Lord Steyn   Lord Hoffmann





ON 2 APRIL 1998


My Lords,

    On 28 July 1995, Peter James Boddington was convicted by the stipendiary magistrate for East Sussex of the offence of smoking a cigarette in a railway carriage where smoking was prohibited, contrary to byelaw 20 of the British Railways Board's Byelaws 1965. The byelaw was made under section 67 of the Transport Act 1962, as amended. The magistrate fined Mr. Boddington £10 and ordered him to pay costs. He appealed by way of case stated to the Divisional Court, which dismissed his appeal. However, the Divisional Court certified two points of law of general public importance arising in the case and granted leave to Mr. Boddington to appeal to this House against his conviction.

    The points of law of general public importance certified by the Divisional Court were essentially whether a defendant could raise as a defence to a criminal charge a contention that a byelaw, or an administrative decision made pursuant to powers conferred by it, is ultra vires; and if he could, whether he could succeed only if he could show the byelaw or administrative decision to be "bad on its face."

    The stipendiary magistrate found the following facts:

     "(a) On 5 November 1994 at 2020 hours the appellant was a passenger on a train between Falmer and Brighton.

     (b) The appellant was smoking during the course of the journey in a part of the train where a conspicuous notice was visible prohibiting smoking.

     (c) The appellant was in an area of the train which was designated non smoking and had visible signs in the form of window stickers indicating a penalty of £50 for smoking in that area of the train.

     (d) The appellant was approached by a uniformed revenue protection officer and asked to put out his cigarette, which he did not do. Initially he made no response to the officer until the officer cautioned him that in the event of continuing smoking he would report him for an offence contrary to the byelaw. The appellant invited the officer to do as he liked. The appellant declined a request to give the officer his name and address and was advised that the police would be called.

     (e) Upon arrival at Brighton, a uniformed police officer, P.C. Ansell, was advised of the position in the presence and hearing of the appellant and the appellant provided his name and address.

     (f) Network South Central is a wholly owned subsidiary company of the British Railways Board whose duty is to provide railway services to the South Coast. There has been a great reduction in the amount of smoking on trains and since 1 January 1993 a complete smoking ban was applied by Network South Central to all their trains. Although this complete prohibition applies to other subsidiaries of the British Railways Board such as Thameslink, it does not apply to Inter City trains making the journey between London and Brighton.

     (g) Network South Central instituted the ban for purely commercial reasons.

     (h) The decision to implement the total prohibition was made after research was undertaken and notice was given to the travelling public via customer announcements and stickers on train windows.

     (i) Despite the total prohibition, smoking on the trains continued primarily but not exclusively in the buffet and the appellant was aware of the total ban from about early 1993. He continued to smoke on the trains until that date. There was little sign of the prohibition being actively pursued beyond the use of the stickers.

     (j) There was no consultation with the Rail Users Consultative Committee in relation to the prohibition, there being no legal requirement for such consultation."

    Mr. Boddington's appeal raises this important question: to what extent may a defendant to a criminal charge laid under subordinate legislation argue by way of defence that the subordinate legislation, or an administrative act bringing that legislation into operation (such as, in this case, the posting of no smoking notices throughout all railway carriages), was itself ultra vires and unlawful?

The statutory framework

    Section 67(1) of the Transport Act 1962, as amended, provides:

     "The Railways . . . Board may make bylaws regulating the use and working of, and travel on, their railways, the maintenance of order on their railways and railway premises, including stations and the approaches to stations, and the conduct of all persons, including their officers and servants, while on those premises, and in particular bylaws--

     (a) with respect to tickets issued for entry on their railway premises or travel on their railways and the evasion of payment of fares and other charges,

     (b) with respect to interference or obstruction of the working of the railways,

     (c) with respect to the smoking of tobacco in railway carriages and elsewhere and the prevention of nuisances,

     (d) with respect to the receipt and delivery of goods, and

     (e) for regulating the passage of bicycles and other vehicles on footways and other premises controlled by the Board and intended for the use of those on foot."

    Byelaw 20 of the British Railways Board's Byelaws was made under that provision, and provides:

     "No person shall smoke or carry a lighted pipe, cigar or cigarette in any lift or vehicle or elsewhere upon the railway, where smoking is expressly prohibited by the Board by a notice exhibited in a conspicuous position in such lift or vehicle or upon or near such other part of the railway or if requested by an authorised person not to do so in or upon any part of the railway where smoking or carrying a lighted pipe, cigar or cigarette may be dangerous."

Thus, the byelaw does not by itself prohibit any activity: a further, administrative act is required (in the form of the posting of a notice or the making of a request) before a person becomes at risk of committing an offence. It is not suggested that Byelaw 20 was itself ultra vires the powers which the primary legislation conferred upon the British Railways Board. Objection is, however, made to the administrative decision by which no smoking notices came to be displayed on the trains.

Mr. Boddington's defence

    Mr. Boddington attempted to put forward as a defence an argument that the decision of the rail company, Network South Central, to post notices in all of the carriages of its trains prohibiting smoking and so to activate the operation of byelaw 20, was ultra vires its powers to bring byelaw 20 into operation. He argued before the magistrate and before the Divisional Court that the power conferred by section 67(1) of the Transport Act 1962 was only a power to regulate the use of the railway, in respect of smoking on carriages; and that complete prohibition of smoking on all carriages by the posting of no smoking notices in all carriages went beyond permissible regulation. He argued that the unlawfulness of the decision to post these notices had the effect of nullifying their validity, so that byelaw 20 was not properly brought into operation. This, he said, gave him a defence to the offence with which he was charged.

    He also sought to raise a related, but distinct, defence: that the notices were posted by Network South Central rather than the British Railways Board as such. He argued that neither the primary legislation nor byelaw 20 authorised Network South Central to post the notices, and that the British Railways Board could not delegate the decision to post notices. Mr. Boddington did not pursue this argument before your Lordships.

    Mr. Boddington's primary defence, therefore, raises the question of the extent to which a defendant to a criminal charge may defend himself by pointing to the unlawfulness of subordinate legislation, or an administrative act made under that legislation, the breach of which is alleged to constitute his offence. The Divisional Court held that Mr. Boddington was not entitled to put forward his public law defence in the criminal proceedings against him.

Raising public law defences to criminal charges

    These arguments are regularly raised in the courts in cases in the public law field, concerned with applications for judicial review. The issue is whether the same arguments may be deployed in a criminal court as a defence to a criminal charge.

    Challenge to the lawfulness of subordinate legislation or administrative decisions and acts may take many forms, compendiously grouped by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374 under the headings of illegality, procedural impropriety and irrationality. Categorisation of types of challenge assists in an orderly exposition of the principles underlying our developing public law. But these are not water tight compartments because the various grounds for judicial review run together. The exercise of a power for an improper purpose may involve taking irrelevant considerations into account, or ignoring relevant considerations; and either may lead to an irrational result. The failure to grant a person affected by a decision a hearing, in breach of principles of procedural fairness, may result in a failure to take into account relevant considerations.

    The question of the extent to which public law defences may be deployed in criminal proceedings requires consideration of fundamental principle concerning the promotion of the rule of law and fairness to defendants to criminal charges in having a reasonable opportunity to defend themselves. However, sometimes the public interest in orderly administration means that the scope for challenging unlawful conduct by public bodies may have to be circumscribed.

    Where there is a tension between these competing interests and principles, the balance between them is ordinarily to be struck by Parliament. Thus whether a public law defence may be mounted to a criminal charge requires scrutiny of the particular statutory context in which the criminal offence is defined and of any other relevant statutory provisions. That approach is supported by authority of this House.

    In Director of Public Prosecutions v. Head [1959] A.C. 83 a defendant was convicted of an offence under section 56(1)(a) of the Mental Deficiency Act 1913, of carnal knowledge of "a woman . . . under care or treatment in an institution or certified house or approved home, or whilst placed out on licence therefrom." She had been sent to an institution for defectives as a "moral defective," under an order made by the Secretary of State in purported exercise of his powers under the Act and subsequent orders had been made to transfer her to other institutions. At the time of the alleged offences, she was out on licence from one of these institutions. At the trial, the prosecution conceded that the original order had been made without proper evidence that the woman was a "moral defective" and that it could be successfully challenged on an application for certiorari or a writ of habeas corpus. The Court of Criminal Appeal quashed the conviction, on the ground that the woman was not lawfully detained in the institution. This House, by a majority, upheld that decision.

    The majority and Viscount Simonds treated the issue as turning the proper construction of section 56 of the Act. As a matter of construction did it require the prosecution to prove that the woman was lawfully detained in the institution? The majority (Lords Reid, Tucker and Somervell of Harrow) held that, whilst proof of detention in an institution established a prima facie case that a woman was a defective lawfully under care, that presumption could be rebutted if the defendant showed that the detention was in fact unlawful: see especially p. 103, per Lord Tucker. The defendant in the case was assisted by the fact that the prosecution had itself adduced the evidence from which the invalidity of the order appeared. But the language of Lord Tucker, delivering the leading speech for the majority, is consistent with an entitlement in the defendant to adduce such evidence himself. If the defendant had adduced other evidence, for instance to show that the Secretary of State had made his order for some improper purpose, so that it could be quashed, I think the majority's view would have entailed the criminal court reviewing this evidence to determine whether the defendant had made out a defence on the basis of it.

    Lord Denning, who was in the minority, was of the view that the order was valid as at the date of the alleged offence, so that the alleged offence was made out (p. 113), even although the order was voidable and therefore liable to be quashed on certiorari. The majority, however, did not accept that the order was voidable rather than void, but in any event doubted that, even if it was to be characterised as voidable rather than void, a defendant could not raise the matter by way of defence. As Lord Somervell of Harrow put it, at p. 104:

     "Is a man to be sent to prison on the basis that an order is a good order when the court knows it would be set aside if proper proceedings were taken? I doubt it."

    Viscount Simonds, at p. 98, Lord Reid, at p. 98 and Lord Tucker, at pp. 103-104, agreed with these views. In my judgment the answer to Lord Somervell's question must be "No." It would be a fundamental departure from the rule of law if an individual were liable to conviction for contravention of some rule which is itself liable to be set aside by a court as unlawful. Suppose an individual is charged before one court with breach of a byelaw and the next day another court quashes that byelaw--for example, because it was promulgated by a public body which did not take account of a relevant consideration. Any system of law under which the individual was convicted and made subject to a criminal penalty for breach of an unlawful byelaw would be inconsistent with the rule of law.

    In my judgment the views of the majority in Director of Public Prosecutions v. Head [1959] A.C. 83 have acquired still greater force in the light of the development of the basic principles of public law since that case was decided. Lord Denning had dissented on the basis of the historic distinction between acts which were ultra vires ("outside the jurisdiction of the Secretary of State"), which he accepted were nullities and void, and errors of law on the face of the relevant record, which rendered the relevant instrument voidable rather than void. He felt able to assign the order in question to the latter category. But in 1969, the decision of your Lordships House in Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147 made obsolete the historic distinction between errors of law on the face of the record and other errors of law. It did so by extending the doctrine of ultra vires, so that any misdirection in law would render the relevant decision ultra vires and a nullity: see Reg. v. Hull University Visitor, Ex parte Page [1993] A.C. 682, 701-702, per Lord Browne-Wilkinson (with whom Lord Keith of Kinkel and Lord Griffiths agreed, at p. 692), citing the speech of Lord Diplock in O'Reilly v. Mackman [1983] 2 A.C. [1983] 2 A.C. 237, 278. Thus, today, the old distinction between void and voidable acts on which Lord Denning relied in Director of Public Prosecutions v. Head no longer applies. This much is clear from the Anisminic case [1969] 2 A.C. 147 and these later authorities.

    What was in issue in the Anisminic case was a decision of the Foreign Compensation Commission. The plaintiffs brought an action for a declaration that the decision was a nullity. The Commission replied that the courts were precluded from considering the question by section 4(4) of the Foreign Compensation Act 1950. It provided:

     "The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law."

Lord Reid summarised the case for the Commission in this way, at p. 169:

     "The respondent maintains that these are plain words on capable of having one meaning. Here is a determination which is apparently valid: there is nothing on the face of the document to case any doubt on its validity. If it is a nullity, that could only be established by raising some kind of proceedings in court. But that would be calling the determination in question, and that is expressly prohibited by the statute."

    This submission was rejected in Lord Reid's speech. He made it clear that all forms of public law challenge to a decision have the same effect, to render it a nullity: see especially p. 171B-F. (Also see pp. 195A-196C, per Lord Pearce and p. 207D-H, per Lord Wilberforce). The decision of the Commission was wrong in law, and therefore a nullity, rather than a "determination" within the protection of the ouster clause: see pp. 170D-171B.

    Thus the reservation of Lord Somervell in Director of Public Prosecutions v. Head [1959] A.C. 83, 104 (with which the majority allied themselves) whether the order of the Secretary of State could be described as voidable has been vindicated by subsequent developments. It is clear, in the light of Anisminic and the later authorities, that the Secretary of State's order in Director of Public Prosecutions v. Head would now certainly be regarded as a nullity (i.e. as void ab initio), even if it were to be analysed as an error of law on the face of the record. Equally, the order would be regarded as void ab initio if it had been made in bad faith, or as a result of the Secretary of State taking into account an irrelevant, or ignoring a relevant, consideration - that is, matters not appearing on the face of the record, but having to be established by evidence.

    Subordinate legislation, or an administrative act, is sometimes said to be presumed lawful until it has been pronounced to be unlawful. This does not, however, entail that such legislation or act is valid until quashed prospectively. That would be a conclusion inconsistent with the authorities to which I have referred. In my judgment, the true effect of the presumption is that the legislation or act which is impugned is presumed to be good until pronounced to be unlawful, but is then recognised as never having had any legal effect at all. The burden in such a case is on the defendant to establish on a balance of probabilities that the subordinate legislation or the administrative act is invalid: see also Reg. v. Inland Revenue Commissioners, Ex parte T.C. Coombs & Co. [1991] 2 A.C. 283.

    This is the principle to which Lord Diplock referred in F. Hoffmann-La Roche & Co. A.G. v. Secretary of State for Trade and Industry [1975] A.C. 295. There the Secretary of State sought an interlocutory injunction under section 11(2) of the Monopolies and Restrictive Practices (Inquiry Control) Act 1948, to restrain the appellant from charging prices in excess of those fixed by a statutory instrument the Secretary of State had made. The appellant argued that the statutory instrument was ultra vires, because it had been based upon a report by the Monopolies Commission, which the appellant maintained had been produced without due regard to principles of natural justice. The Secretary of State objected to giving a cross undertaking in damages and this House ruled that he was not required to give such an undertaking. The ratio of the decision, as subsequently explained in Kirklees Metropolitan Borough Council v. Wickes Building Supplies Ltd. [1993] A.C. 227, per Lord Goff of Chieveley, at pp. 271E-273D and 274B-F, was that a public authority is not required as a rule to give such an undertaking in a law enforcement action. However, in his speech, Lord Diplock expressed views about the legal status of the statutory instrument in question. He made it clear that the courts could "declare it to be invalid" if satisfied that the Minister acted outwith his powers conferred by the primary legislation, whether the order was "ultra vires by reason of its contents (patent defects) or by reason of defects in the procedure followed prior to its being made (latent defects):" [1975] A.C. 295, 365. He then said:

     "Under our legal system, however, the courts as the judicial arm of Government do not act on their own initiative. Their jurisdiction to determine that a statutory instrument is ultra vires does not arise until its validity is challenged in proceedings inter partes either brought by one party to enforce the law declared by the instrument against another party or brought by a party whose interests are affected by the law so declared sufficiently directly to give him locus standi to initiate proceedings to challenge the validity of the instrument. Unless there is such challenge and, if there is, until it has been upheld by a judgment of the court, the validity of the statutory instrument and the legality of acts done pursuant to the law declared by it are presumed. It would, however, be inconsistent with the doctrine of ultra vires as it has been developed in English law as a means of controlling abuse of power by the executive arm of Government if the judgment of a court in proceedings properly constituted that a statutory instrument was ultra vires were to have any lesser consequence in law than to render the instrument incapable of ever having had any legal effect upon the rights or duties of the parties to the proceedings (cf. Ridge v. Baldwin [1964] A.C. 40). Although such a decision is directly binding only as between the parties to the proceedings in which it was made, the application of the doctrine of precedent has the consequence of enabling the benefit of it to accrue to all other persons whose legal rights have been interfered with in reliance on the law which the statutory instrument purported to declare."

    Thus, Lord Diplock confirmed that once it was established that a statutory instrument was ultra vires, it would be treated as never having had any legal effect. That consequence follows from application of the ultra vires principle, as a control on abuse of power; or, equally acceptably in my judgment, it may be held that maintenance of the rule of law compels this conclusion.

    This view of the law is supported by the decision of this House in Wandsworth London Borough Council v. Winder [1985] A.C. 461. That case concerned rent demands made by a local authority landlord on one of its tenants. The local authority, pursuant to its powers under the Housing Act 1957, resolved to increase rents generally. The tenant refused to pay the increased element of the rent. When sued by the local authority for that element, he sought to defend himself by pleading that the resolutions and notices of increase were ultra vires and void, on the grounds that they were unreasonable in the Wednesbury sense (i.e. irrational: see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223), and counterclaiming for a declaration to that effect. It seems clear from the particulars given in the defence (set out at pp. 466D-467B) that the tenant proposed adducing some evidence to support his case of unreasonableness. The local authority sought to strike out the defence and counterclaim as an abuse of process, on the grounds that the tenant should be debarred from challenging the conduct of the local authority other than by application for judicial review under R.S.C., Ord. 53. This House ruled that Mr. Winder was entitled as of right to challenge the local authority's decision by way of defence in the proceedings which it had brought against him. The decision was based squarely on "the ordinary rights of private citizens to defend themselves against unfounded claims:" per Lord Fraser of Tullybelton, delivering the leading speech, at p. 509D. As a matter of construction of the relevant legislation, those rights had not been swept away by the procedural reforms introducing the new R.S.C., Ord. 53: pp. 509F-510C.

    In my judgment, precisely similar reasoning applies, a fortiori, where a private citizen is taxed not with private law claims which are unfounded because based upon some ultra vires decision, but with a criminal charge which is unfounded, because based upon an ultra vires byelaw or administrative decision. The decision of the Divisional Court in Reg. v. Reading Crown Court, Ex parte Hutchinson [1988] Q.B. 384 (and the principal authorities referred to in it, including the classic decision in Kruse v. Johnson [1898] 2 Q.B. 91) is in accord with this view. There it was held that a defendant to a charge brought under a byelaw is entitled to raise the question of the validity of that byelaw in criminal proceedings before magistrates or the Crown Court, by way of defence. There was nothing in the statutory basis of the jurisdiction of the justices which precluded their considering a challenge to the validity of a byelaw: pp. 391D-393D, per Lloyd J.

    In Bugg v. Director of Public Prosecutions [1993] Q.B. 473 the Divisional Court departed from this trend of authority. They expressed the view, at p. 493, that "except in the "flagrant" and "outrageous" case a statutory order, such as a byelaw, remains effective until it is quashed." Three authorities were cited which were said to support this approach: London & Clydeside Estates Ltd. v. Aberdeen District Council [1980] 1 W.L.R. 182, 189-190 in the speech of the Lord Hailsham of Saint Marylebone L.C.; Smith v. East Elloe Rural District Council [1956] A.C. 736, 769-770, in the speech of Lord Radcliffe and F. Hoffmann-La Roche & Co. A.G. v. Secretary of State for Trade and Industry [1975] A.C. 295, 366, in the speech of Lord Diplock. This approach was then elevated by the Divisional Court into a rule that byelaws which are on their face invalid or are patently unreasonable (termed "substantive" invalidity) may be called in question by way of defence in criminal proceedings, whereas byelaws which are invalid because of some defect in the procedure by which they came to be made (termed "procedural" invalidity) may not be called in question in such proceedings, so that a person might be convicted of an offence under them even if the byelaws were later quashed in other proceedings.