Judgment - Boddington v. British Transport Police  continued

(back to preceding text)

    Strong reservations about the decision of the Divisional Court in Bugg v. Director of Public Prosecutions [1993] Q.B. 473 have recently been expressed by this House in Reg. v. Wicks [1998] A.C. 92. I have reached the conclusion that the time has come to hold that it was wrongly decided.

    I am bound to say that I do not think that the three authorities to which I have referred support the position as stated in Bugg's case. In my judgment Lord Diplock's speech in the F. Hoffmann-La Roche case, when read as a whole, makes it clear that subordinate legislation which is quashed is deprived of any legal effect at all, and that is so whether the invalidity arises from defects appearing on its face or in the procedure adopted in its promulgation. Lord Diplock himself cited, at p. 366F-G, the speech of Lord Radcliffe in Smith v. East Elloe Rural District Council [1956] A.C. 736, 769-770 and regarded him as saying no more about the presumption of validity than he (Lord Diplock) was saying. I agree with that view.

    In my judgment, Lord Hailsham, in the passage of his speech relied upon by the Divisional Court in Bugg's case, was simply making the observation that in a flagrant case of invalidity a private citizen might feel sure enough of his ground to proceed and rely on his rights to assert the "defect in procedure" (as Lord Hailsham describes it) as a defence in proceedings brought against him; that, on the other hand, where a defect in procedure is trivial (i.e. one which would not render the public body's act ultra vires), the public body may feel safe to proceed without taking further steps to shore up the validity in law of what it had done by reconsideration of the matter; and that in cases in the grey area between these clear examples, it might be necessary for the private citizen to safeguard his position by taking the prudent course of seeking a declaration of his rights, or the public body to reconsider for the matter. But that would be for the citizen or the public body, as the case might be to decide. Subject to any statutory qualifications upon his right to do so, the citizen could, in my judgment, choose to accept the risk of uncertainty, take no action at all, wait to be sued or prosecuted by the public body and then put forward his arguments on validity and have them determined by the court hearing the case against him. That is a matter of right in a case of ultra vires action by the public authority, and would not be subject to the discretion of the court: see Wandsworth London Borough Council v. Winder [1985] A.C. 461. In my judgment any other interpretation of Lord Hailsham's speech could not be reconciled with the decision of this House in the Anisminic case [1969] 2 A.C. 147.

    In my judgment the reasoning of the Divisional Court in Bugg's case, suggesting two classes of legal invalidity of subordinate legislation, is contrary both to the Anisminic case and the subsequent decisions of this House to which I have referred. The Anisminic decision established, contrary to previous thinking that there might be error of law within jurisdiction, that there was a single category of errors of law, all of which rendered a decision ultra vires. No distinction is to be drawn between a patent (or substantive) error of law or a latent (or procedural) error of law. An ultra vires act or subordinate legislation is unlawful simpliciter and, if the presumption in favour of its legality is overcome by a litigant before a court of competent jurisdiction, is of no legal effect whatsoever.

    The Divisional Court in Bugg's case [1993] Q.B. 473 themselves drew attention to Lord Denning's dissenting speech in Director of Public Prosecutions v. Head and, whilst avowing that "The distinction between orders which are void and voidable is now clearly not part of our law" identified his approach as interesting, because Lord Denning "was drawing a distinction, as we are seeking to do, between different types of invalidity:" see p. 496G. However, the distinction which Lord Denning drew is one which was made redundant by the decision in the Anisminic case, in which all categories of unlawfulness were treated as equivalent and as having the same effect.

    Further, the Divisional Court thought that there was no authority where it had been held that it is proper for a criminal court to enquire into questions of procedural irregularity. With respect to the court, I think it overlooked that that was one basis for the decision of the majority of this House in Director of Public Prosecutions v. Head [1959] A.C. 83. Lord Tucker, at p. 103, envisaged that documents upon which the administrative order were based might be adduced in evidence to rebut the presumption of invalidity. Lords Reid and Somervell agreed with his speech. Lord Somervell, at p. 104, thought that the facts of the case itself could also be analysed not as a case of patent error, but as a case where it was shown by evidence that the Minister had made his order without having any evidence available to him to justify it, that is, a case of latent procedural, rather than patent, error. Viscount Simonds, Lord Reid and Lord Tucker all agreed. Indeed, on the facts of the case, and this, in my view, was Lord Somervell's point, it was simply fortuitous that the Minister's order had made reference on its face to the medical certificates. The result of the case could not have been any different if it had not done so, but appeared on its face to be normal and valid.

    Also, in my judgment the distinction between orders which are "substantively" invalid and orders which are "procedurally" invalid is not a practical distinction which is capable of being maintained in a principled way across the broad range of administrative action. This emerges from the discussion of Wandsworth London Borough Council v. Winder [1985] A.C. 461 by the Divisional Court in Bugg v. Director of Public Prosecutions [1993] Q.B. 473, 495G-496B. The court regarded it as a case of "substantive invalidity," i.e. in which either the decision to increase rents or the rent demands themselves were on their face invalid. I disagree. The rent demands appeared perfectly valid on their face. The decision was said by the tenant to be Wednesbury unreasonable, because irrelevant matters had, or relevant matters had not, been taken into account, as set out in his pleading. At trial, he would have had to adduce evidence to make out that case. It was not an error on the face of the decision. In Reg. v. Wicks [1998] A.C. 92, 114, Lord Hoffmann made the same point and at pp. 113-114, referred to another problem of the application of the categories proposed by the Divisional Court. Many different types of challenge, which shade into each other, may be made to the legality of byelaws or administrative acts. The decision in Anisminic freed the law from a dependency on technical distinctions between different types of illegally. The law should not now be developed to create a new, and unstable, technical distinction between "substantive" and "procedural" invalidity.

    In this case, the judgment of Auld L.J. in the Divisional Court justifies such distinctions on pragmatic grounds: the difficulties for magistrates in having to deal with complicated points of administrative law and the dangers of inconsistent decisions, both between different benches of magistrates and between magistrates and the Divisional Court. There is certainly weight in these arguments, although I do not think that magistrates should be underestimated and the practical risks of inconsistency are probably exaggerated. But the remedy proposed, which is in effect to have two systems of challenge to subordinate legislation or administrative action: one in magistrates' courts which is frozen in the pre- Anisminic mould and a modern version operated in the Divisional Court, is in my view both illogical and unfair.

    Finally, in relation to Bugg's case, the consequences of the proposed distinction is that, in a case of "procedural" invalidity, a court (whether in civil or criminal proceedings) is to regard byelaws and other subordinate legislation as valid until set aside in judicial review proceedings; and that an individual who contravenes a byelaw commits an offence and can be punished, even if the byelaw is later set aside as unlawful: p. 500C-D. I can think of no rational ground for holding that a magistrates' court has jurisdiction to rule on the patent or substantive invalidity of subordinate legislation or an administrative act under it, but has no jurisdiction to rule on its latent or procedural invalidity, unless a statutory provision has that effect. In my judgment, this conclusion in substance revives the distinction between voidable and void administrative acts and is contrary to the decisions of this House to which I have already referred. If subordinate legislation is ultra vires on any basis, it is unlawful and of no effect in law. It follows that no citizen should be convicted and punished on the basis of it. For these reasons I would overrule Bugg v. Director of Public Prosecutions.

    However, in every case it will necessary to examine the particular statutory context to determine whether a court hearing a criminal or civil case has jurisdiction to rule on a defence based upon arguments of invalidity of subordinate legislation or an administrative act under it. There are situations in which Parliament may legislate to preclude such challenges being made, in the interest, for example, of promoting certainty about the legitimacy of administrative acts on which the public may have to rely.

    The recent decision of this House in Reg. v. Wicks [1998] A.C. 92 is an example of a particular context in which an administrative act triggering consequences for the purposes of the criminal law was held not to be capable of challenge in criminal proceedings, but only by other proceedings. The case concerned an enforcement notice issued by a local planning authority and served on the defendant under the then current version of section 87 of the Town and Country Planning Act 1971. The notice alleged a breach of planning control by the erection of a building and required its removal above a certain height. One month was allowed for compliance. The appellant appealed against the notice to the Secretary of State, under section 174 of the Town and Country Planning Act 1990, but the appeal was dismissed. The appellant still failed to comply with the notice and the local authority issued a summons alleging a breach of section 179(1) of the Act of 1990. In the criminal proceedings which ensued, the appellant sought to defend himself on the ground that the enforcement notice had been issued ultra vires, maintaining that the local planning authority had acted in bad faith and had been motivated by irrelevant considerations. The judge ruled that these contentions should have been made in proceedings for judicial review and that they could not be gone into in the criminal proceedings. The appellant then pleaded guilty and was convicted. This House upheld his conviction. Lord Hoffmann, in the leading speech, emphasised that the ability of a defendant to criminal proceedings to challenge the validity of an act done under statutory authority depended on the construction of the statute in question. This House held that the Town and Country Planning Act 1990 contained an elaborate code including provision for appeals against notices, and that on proper construction of section 179(1) of the Act all that was required to be proved in the criminal proceedings was that the notice issued by the local planning authority was formally valid.

    The decision of the Divisional Court in Quietlynn Ltd. v. Plymouth City Council [1988] 1 Q.B. 114 is justified on similar grounds: see Reg. v. Wicks [1998] A.C. 92, 117-118, per Lord Hoffmann. There, a company was operating sex shops in Plymouth under transitional provisions which allowed them to do so until their application for a licence under the scheme introduced by the Local Government (Miscellaneous Provisions) Act 1982 had been "determined." The local authority refused the application. The company was then prosecuted for trading without a licence. It sought to allege that the local authority had failed to comply with certain procedural provisions and that its application had therefore not yet been determined within the meaning of the Act. The Divisional Court held as a matter of construction that the local authority's decision was a determination, whether or not it could be challenged by judicial review. In the particular statutory context, therefore, an act which might turn out for a different purpose to be a nullity (e.g. so as to require the local authority to hear the application again) was nevertheless a determination for the purpose of bringing the transitional period to an end.

    However, in approaching the issue of statutory construction the courts proceed from a strong appreciation that ours is a country subject to the rule of law. This means that it is well recognised to be important for the maintenance of the rule of law and the preservation of liberty that individuals affected by legal measures promulgated by executive public bodies should have a fair opportunity to challenge these measures and to vindicate their rights in court proceedings. There is a strong presumption that Parliament will not legislate to prevent individuals from doing so: "It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights in not to be excluded except by clear words:" Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1960] A.C. 260, 286, per Viscount Simonds; cited by Lord Fraser of Tullybelton in Wandsworth London Borough Council v. Winder [1969] A.C. 461, 510A-C.

    As Lord Diplock put it in F. Hoffmann-La Roche & Co. Ltd. v. Secretary of State for Trade and Industry [1975] A.C. 295, 366C:

     "the courts lean very heavily against a construction of an Act which would have this effect (cf. Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147)."

    The particular statutory schemes in question in Reg. v. Wicks [1998] A.C. 92 and in the Quietlynn case [1988] 1 Q.B. 114 did justify a construction which limited the rights of the defendant to call the legality of an administrative act into question. But in my judgment it was an important feature of both cases that they were concerned with administrative acts specifically directed at the defendants, where there had been clear and ample opportunity provided by the scheme of the relevant legislation for those defendants to challenge the legality of those acts, before being charged with an offence.

    By contrast, where subordinate legislation (e.g. statutory instruments or byelaws) is promulgated which is of a general character in the sense that it is directed to the world at large, the first time an individual may be affected by that legislation is when he is charged with an offence under it: so also where a general provision is brought into effect by an administrative act, as in this case. A smoker might have made his first journey on the line on the same train as Mr. Boddington; have found that there was no carriage free of no smoking sign and have chosen to exercise what he believed to be his right to smoke on the train. Such an individual would have had no sensible opportunity to challenge the validity of the posting of the no smoking signs throughout the train until he was charged, as Mr. Boddington was, under Byelaw 20. In my judgment in such a case the strong presumption must be that Parliament did not intend to deprive the smoker of an opportunity to defend himself in the criminal proceedings by asserting the alleged unlawfulness of the decision to post no smoking notices throughout the train. I can see nothing in section 67 of the Transport Act 1962 or the byelaws which could displace that presumption. It is clear from Wandsworth London Borough Council v. Winder [1985] A.C. 461 and Reg. v. Wicks [1998] A.C. 92, 116, per Lord Hoffmann that the development of a statutorily based procedure for judicial review proceedings does not of itself displace the presumption.

    Accordingly, I consider that the Divisional Court was wrong in the present case in ruling that Mr. Boddington was not entitled to raise the legality of the decision to post no smoking notices throughout the train, as a possible defence to the charge against him.

    Lord Nicholls of Birkenhead noted in Reg. v. Wicks, at pp. 106-107, that there may be cases where proceedings in the Divisional Court are more suitable and convenient for challenging a byelaw or administrative decision made under it than by way of defence in criminal proceedings in the magistrates' court or the Crown Court. Nonetheless Lord Nicholls held that "the proper starting point" must be a presumption that "an accused should be able to challenge, on any ground, the lawfulness of an order the breach of which constitutes his alleged criminal offence:" see p. 106. No doubt the factors listed by Lord Nicholls may, where the statutory context permits, be taken into account when construing any particular statute to determine Parliament's intention, but they will not usually be sufficient in themselves to support a construction of a statute which would preclude the right of a defendant to raise the legality of a byelaw or administrative action taken under it as a defence in other proceedings. This is because of the strength of the presumption against a construction which would prevent an individual being able to vindicate his rights in court proceedings in which he is involved. Nor do I think it right to belittle magistrates' courts: they sometimes have to decide very difficult legal questions and generally have the assistance of a legally qualified clerk to give them guidance on the law. For example when the Human Rights Bill now before Parliament passes into law the magistrates' courts will have to determine difficult questions of law arising from the European Convention on Human Rights. In my judgment only the clear language of a statute could take away the right of a defendant in criminal proceedings to challenge the lawfulness of a byelaw or administrative decision where his prosecution is premised on its validity.

Is Mr. Boddington's defence made out?

    The burden was on Mr. Boddington to establish, on a balance of probabilities, that the decision of Network South Central to post no smoking notices in all the carriages of its trains was unlawful. His argument turned on the construction of the statute. He maintained that the primary legislation--section 67(1) of the Transport Act 1962-- in its relevant part, empowered the British Railways Board to make byelaws "regulating . . . the conduct of all persons . . . with respect of . . . smoking . . . in railway carriages," and that "regulating" could not include prohibition. Whilst Mr. Boddington did not contend that the byelaw itself was unlawful, he did argue that, in the context of the primary legislation, the decision to post notices to prohibit, rather than regulate, smoking, was unlawful. He relied upon authorities to the effect that normally a power to regulate does not include a power to prohibit: Municipal Corporation of the City of Toronto v. Virgo [1896] A.C. 88, 93,; Tarr v. Tarr [1973] A.C. 254, 265G-268A, per Lord Pearson.

    In my judgment, whilst ordinarily the word "regulate" may be used to indicate something less than total prohibition, the meaning to be attributed to it in any statute must depend on the particular statutory context. Authorities relating to other statutes are of limited assistance.

    The opening part of section 67(1) of the Transport Act 1962 is expressed in very general terms. There are two limbs of the provision which are relevant. First, it confers a power to make byelaws to regulate "the use and working of, and travel on, [the] railways." Second, it confers a power to make byelaws "regulating . . . the conduct of all persons . . . while on [railway premises]." The reference in the section to the making of byelaws on particular matters, including "(c) with respect to the smoking of tobacco in railway carriages and elsewhere and the prevention of nuisances," is governed by both limbs of the opening of the provision. Control of smoking on railway carriages is, however, in my view, governed by the first limb of the opening part of subsection (1). This is because the second limb relates to conduct of persons "on . . . railway premises" a term used in the subsection in distinction from "on [the] railways." The term "railway premises" includes "stations and the approaches to stations," and in context means the land on which the railway company carries on its business. The power to regulate what may take place on board the railway carriages is, therefore, derived from the first limb of the subsection.

    The word "regulating" applies to the general activities of "the use and working of, and travel on" the railway, and not directly to the specific activity of smoking. No doubt a byelaw could not be made to prohibit the use of the railway, or travel on the railway, since that would not be justified by the use of the term "regulating" in relation to those activities. But in my opinion a ban on smoking on all railway carriages is a form of regulating the use of the railway, or travel on the railway. Paragraph (c) makes it plan that regulation of the use of the railway may extend to dealing with the subject of smoking of tobacco in railway carriages. One way in which a railway company may, perfectly reasonably, decide to regulate the use of its railway so far as concerns smoking on carriages, is to ban smoking. That was what Network South Central did in the present case, in bringing byelaw 20 into operation, and there was nothing unlawful in their doing so.

    I would therefore dismiss the appeal.


My Lords,

    I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Steyn, with which I agree. For the reasons which he gives I would dismiss this appeal.

    I have also read the speech of my noble and learned friend, Lord Irvine of Lairg L.C. with which, but for one point, I also agree. The Lord Chancellor attaches importance to the consideration that an invalid bye-law is and always has been a nullity. The byelaw will necessarily have been found to be ultra vires; therefore it is said it is a nullity having no legal effect. I adhere to my view that the juristic basis of judicial review is the doctrine of ultra vires. But I am far from satisfied that an ultra vires act is incapable of having any legal consequence during the period between the doing of that act and the recognition of its invalidity by the court. During that period people will have regulated their lives on the basis that the act is valid. The subsequent recognition of its invalidity cannot rewrite history as to all the other matters done in the meantime in reliance on its validity. The status of an unlawful act during the period before it is quashed is a matter of great contention and of great difficulty: see Percy v. Hall [1997] Q.B. 924, 950-952, per Schieman L.J. and the authorities there referred to; de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed. (1995), paras. 5.044-5.048; Calvin v. Carr [1980] A.C. 574, 589G-590B.

    I prefer to express no view at this stage on those difficult points. It is sufficient for the decision of the present case to agree with both my Lords in holding that a man commits no crime if he infringes an invalid byelaw and has the right to challenge the validity of the byelaw before any court in which he is being tried.


My Lords,

    I have had the advantage of reading in draft the speeches prepared by noble and learned friends, the Lord Chancellor and Lord Steyn. Like them I hold that it is open to a defendant to raise in a criminal prosecution the contention that a byelaw or an administrative act undertaken pursuant to it is ultra vires and unlawful and that if he establishes that he has committed no crime. For magistrates to be required to convict when they are satisfied that an administrative act is unlawful is unacceptable. It is not a realistic or satisfactory riposte that defendants can always go by way of a judicial review. In any event although the procedural advantages of raising such damages by way of judicial review have long been recognised, an application for judicial review is not a straight-jacket which must be put on before rights can be asserted. The decisions in cases in your Lordships' House sighted by Lord Steyn make this clear.

    The risk of divergent decisions by magistrates is of course present but if a decision by a court of criminal jurisdiction that a byelaw or administrative act pursuant to it is ultra vires is of importance to a prosecuting authority the latter can always challenge it. It is indeed a matter for consideration whether some simple form of reference by magistrates' courts to the Divisional Court of questions of invalidity could not be set up.

    I further agree, for the reasons given by my noble and learned friends, that for this purpose the distinction between substantive and procedural error should not be upheld. Like Lord Steyn I am in agreement with the passage quoted by him of the opinion of Lord Nicholls of Birkenhead in Reg. v. Wicks [1998] A.C. 92, 108.

    I consider that the result of allowing a collateral challenge in proceedings before courts of criminal jurisdiction can be reached without it being necessary in this case to say that if an act or bye-law is invalid it must be held to have been invalid from the outset for all purposes and that no lawful consequences can flow from it. This may be the logical result and will no doubt sometimes be the position but courts have had to grapple with the problem of reconciling the logical result with the reality that much have may have been done on the basis that an administrative act or a byelaw was valid. The unscrambling may produce more serious difficulties than the invalidity. The European Court of Justice has dealt with the problem by ruling that its declaration of invalidity should only operate for the benefit of the parties to the actual case or of those who had began proceedings for a declaration of invalidity before the courts' judgment. In our jurisdiction the effect of invalidity may not be relied on if limitation periods have expired or if the court in its discretion refuses relief, albeit considering that the act is invalid. These situations are of course different from those where a court has pronounced subordinate legislation or an administrative act to be unlawful or where the presumption in favour of their legality has been overruled by a court of competent jurisdiction. But even in these cases I consider that the question whether the acts or byelaws are to be treated as having at no time had any effect in law is not one which has been fully explored and is not one on which it is necessary to rule in this appeal and I prefer to express no view upon it. The cases referred to in Wade and Forsyth, Administrative Law 7th ed. (1997), pp. 323-324, 342-344 lead the authors to the view that nullity is relative rather than an absolute concept (p. 343) and that "void" is "meaningless in any absolute sense. Its meaning is relative:" This may all be rather imprecise but the law in this area has developed in a pragmatic way on a case by case basis. The result, however, in the present case is clear that the validity of the administrative act may be challenged by way of defence.

    Although the appellant has served a useful function in bringing this appeal and establishing the right to raise in the magistrates court the invalidity of the administrative act of putting up no smoking notices in the railway carriages, his appeal must still fail. For the reasons given by Lord Irvine of Lairg L.C. it seems to me plain that on the wording of section 67(1) of the Transport Act 1962 Network South Central acted within their powers.

    I would accordingly dismiss the appeal.


My Lords,


    It is a truth generally acknowledged among lawyers that the complexity of a civil or criminal case does not depend on the level of the hierarchy of courts where it is heard. On a given day a bench of magistrates may have to decide a more difficult case than an appeal being heard by the Appellate Committee of the House of Lords. Magistrates are the bedrock of the English criminal justice system: they decide more than 95 per cent. of all criminal cases tried in England and Wales. Frequently they are called upon to decide complex questions of fact and, with the aid of the justices' clerk, difficult questions of law. For example, in criminal cases justices may have to exercise control over proceedings through the abuse of process jurisdiction; they may have to decide issues of fact on which they heard conflicting scientific evidence; they may have to deal with intractable problems of similar fact evidence or sensitive questions under the Police and Criminal Evidence Act 1984; they may have to decide whether as a matter of law undisputed or disputed conduct by a defendant is or may be a criminal offence; and so forth. The working assumption has been that every court of criminal jurisdiction including magistrates courts must decide all issues of fact or law which need to be determined in order to establish the guilt or innocence of a defendant. But in the last ten years, in the wake of the expansion of judicial review and the resultant increase in the power of the Divisional Court, the idea has gained ascendancy that it is not part of the jurisdiction of a criminal court to determine issues regarding the validity of byelaws or administrative decisions even if the resolution of such issues could be determinative of the guilt or innocence of a defendant. Such a view was put forward by the Divisional Court in Quietlynn v. Plymouth City Council [1988] Q.B. 114 but that decision is explicable on the basis of the policy of the statute in question. In Reg. v. Reading Crown Court, Ex parte Hutchinson [1988] Q.B. 384 a differently constituted Divisional Court doubted the correctness of some of the general observations in the Quietlynn case. The leading decision suggestive of such a restriction on the jurisdiction of magistrates, and indeed of all criminal courts, is Bugg v. Director of Public Prosecutions [1993] Q.B. 473. In that case Woolf L.J., giving the judgment of the Divisional Court, distinguished in the context of byelaws between substantive and procedural validity and he held that while a criminal court may decide an issue as to substantive validity a question as to procedural validity is beyond its power. The decision of the Divisional Court in the present case [1997] C.O.D. 3 went significantly further. Auld L.J., sitting with Ebsworth J. and giving the reserved judgment of the Divisional Court, held that any issue of the validity of a byelaw or administrative action is beyond the jurisdiction of criminal courts. The present appeal affords an opportunity to examine the correctness of these important decisions.


    It is necessary to describe how it comes about that Mr. Boddington's appeal enables your Lordships House to examine the general jurisdictional issues. Mr. Boddington regularly travelled by train between London and Brighton. He is a smoker. Until 1 January 1993 he was able to smoke on his journeys since there was always one carriage in which smoking was permitted. On that date Network South Central ("N.S.C."), a part of the British Railways Board, which provided the relevant services, put into effect a decision to ban smoking on all carriages of its trains. The statutory basis of the action taken by N.S.C. was as follows. Section 67(1)(c) of the Transport Act 1962 provides:

     "The Railways Board . . . may make bylaws regulating the use, and working of, and travel on, their railways . . . and the conduct of all persons . . . while on [their] premises and in particular bylaws--. . . (c) with respect to the smoking of tobacco in railway carriages and elsewhere and the prevention of nuisances;"

On 22 June 1965, purportedly acting under section 67(1)(c) the British Railways Board made "Railway Byelaws." Byelaw 20 provides:

     "No person shall smoke or carry a lighted . . . cigarette . . . on any vehicle . . . where smoking is expressly prohibited by the Board by a notice exhibited in a conspicuous position in such . . . vehicle."

Byelaw 1(1) defines "vehicle" as follows:

     "'Vehicle' means any railway vehicle on the railway and includes any compartment of such vehicle."

Relying on byelaw 20 N.S.C. exhibited notices prohibiting smoking in all carriages on their trains.

    In early 1993 Mr. Boddington became aware of the ban. He did not accept the legality of the ban. He continued to smoke on his journeys. On 5 November 1994 he smoked as usual during his journey to Brighton. An officer asked him to put out his cigarette. He refused to do so. In due course he was charged with an offence under the relevant byelaw read with section 67 of the Transport Act as amended. He was tried by a stipendiary magistrate sitting at Brighton. Mr. Boddington's defence was twofold. First, he apparently contended that byelaw was unreasonably wide and therefore ultra vires. Secondly, he contended that the administrative decision to implement the ban was unreasonable and invalid. The stipendiary magistrate convicted Mr. Boddington. He was asked to state a case and he did so. From the stated case it appears that the stipendiary magistrate, having had the decision in Bugg v. Director of Public Prosecutions [1993] Q.B. 473 cited to him, concluded that subordinate legislation can only be challenged "in a court with locus standi to challenge the validity of subordinate legislation." Nevertheless the stipendiary magistrate rejected the challenges to the validity of the byelaw and the administrative decision to implement the ban.

    That is how the appeal by way of case stated came before the Divisional Court. Counsel for the appellant concentrated his argument on the validity of the administrative decision. But after extensive citation of authority and full argument Auld L.J., sitting with Ebsworth J., ruled "that Mr. Boddington was not entitled to challenge by way of defence in the criminal proceedings before the magistrate the substantive validity of the prohibition, whether as a matter of the construction of section 67 and the byelaw or as to whether it was irrational." From the context it is clear (1) that Auld L.J. had in mind that all issues of procedural and substantive invalidity of byelaws were beyond the jurisdiction of a criminal court and (2) that any challenge to the validity of an administrative decision was also beyond the jurisdiction of a criminal court. In the result Auld L.J. declined to rule on the merits of Mr. Boddington's argument: he held that such matters could only be considered in judicial review proceedings. This is the context in which the Divisional Court certified that points of law of general importance are involved.