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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
    1. Barnard and Others v National Dock Labour Board and Another [1953] 1 All ER 1113
    2. RULES OF THE SUPREME COURT ORDER 53 rule 1
    3. Heywood v Hull Prison Board of Visitors and another [1980] 3 All ER 594
    4. Supreme Court Act 1981
    5. O'Reilly v Mackman and others and other cases [1982] 3 All ER 1124
    6. Wandsworth London Borough Council v Winder [1984] 3 All ER 976
    7. Law v National Greyhound Racing Club Ltd [1983] 3 All ER 300
    8. R v East Berkshire Health Authority, ex parte Walsh [1984] 3 All ER 425
    9. R v Secretary of State for the Home Department, ex parte Benwell [1984] 3 All ER 854
    10. R v Panel on Take-overs and Mergers, ex parte Datafin plc and another (Norton Opax plc and another intervening) [1987] 1 All ER 564
    11. Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 All ER 705
    12. R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611
    13. Boddington v British Transport Police [1998] 2 All ER 203
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Boddington v British Transport Police [1998] 2 All ER 203

LORD IRVINE OF LAIRG LC. 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 s 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... but refused 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'....

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....was itself ultra vires and unlawful?...

The Divisional Court held that Mr Boddington was not entitled to put forward his public law defence in the criminal proceedings against him....

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 DPP v Head [1958] 1 All ER 679, [1959] AC 83 a defendant was convicted of an offence under s 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.

.....As Lord Somervell of Harrow put it ([1958] 1 All ER 679 at 687, [1959] AC 83 at 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".

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.....

This view of the law is supported by the decision of this House in Wandsworth London BC v Winder...

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 R v Crown Court at Reading, ex p Hutchinson, R v Devizes Justices, ex p Lee [1988] 1 All ER 333, [1988] QB 384 (and the principal authorities referred to in it, including the classic decision in Kruse v Johnson [1898] 2 QB 91, [1895(9] All ER Rep 105) is in accord with this view.....

In Bugg v DPP [1993] 2 All ER 815 at 821, [1993] QB 473 at 493 the Divisional Court departed from this trend of authority. They expressed the view that "except in the 'flagrant' and 'outrageous' case a statutory order, such as a byelaw, remains effective until it is quashed"....

Strong reservations about the decision of the Divisional Court in Bugg v DPP [1993] 2 All ER 815, [1993] QB 473 have recently been expressed by this House in R v Wicks [1997] 2 All ER 801, [1998] AC 92. I have reached the conclusion that the time has come to hold that it was wrongly decided.

[I]n 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 BC v Winder by the Divisional Court in Bugg v DPP [1993] 2 All ER 815 at 823(824, [1993] QB 473 at 495(496. The court regarded it as a case of 'substantive invalidity', ie 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 R v Wicks [1997] 2 All ER 801 at 812(813, [1998] AC 92 at 113(114 Lord Hoffmann made the same point and 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 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 LJ in the Divisional Court ([1996] Times, 23 July) 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...is in my view both illogical and unfair....

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 R v Wicks 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 s 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 s 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 s 179(1) of the 1990 Act. 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 the proper construction of s 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....

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 is not to be excluded except by clear words": Pyx Granite Co Ltd v Ministry of Housing and Local Government [1959] 3 All ER 1 at 6....

The particular statutory schemes in question in R v Wicks....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 [that case] 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 (eg 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 signs 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.....

LORD STEYN: My Lords...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..... The leading decision suggestive of such a restriction on the jurisdiction of magistrates, and indeed of all criminal courts, is Bugg v DPP [1993] 2 All ER 815, [1993] QB 473. In that case Woolf LJ, 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 ([1996] Times, 23 July) in the present case went significantly further. Auld LJ, 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....

In Bugg's case the Divisional Court considered whether it is appropriate for magistrates courts hearing criminal proceedings to decide issues regarding the validity of byelaws..... Woolf LJ concluded that a criminal court may decide issues concerning substantive validity but not issues of procedural validity. He stated ([1993] 2 All ER 815 at 827, [1993] QB 473 at 500):

"So far as procedural invalidity is concerned, the proper approach is to regard byelaws and other subordinate legislation as valid until they are set aside by the appropriate court with the jurisdiction to do so. A member of the public is required to comply with byelaws even if he believes they have a procedural defect unless and until the law is held to be invalid by a court of competent jurisdiction. If before this happens he contravenes the byelaw, he commits an offence and can be punished. Where the law is substantively invalid, the position is different. No citizen is required to comply with a law which is bad on its face. If the citizen is satisfied that that is the situation, he is entitled to ignore the law".

Since the issue before the Divisional Court was undoubtedly one of substantive validity the observations of Woolf LJ were strictly obiter. But any observations of Woolf LJ, are entitled to great weight and Woolf LJ is of course a great expositor of public law....

The reasons of Woolf LJ can be grouped under two headings. First, there are his pragmatic reasons for thinking that a criminal court is not equipped to deal with the relevant issues. Woolf LJ said that in cases of substantive invalidity of byelaws no evidence is required whereas in cases of procedural invalidity evidence is required. The fact that evidence is required he said, may lead to different outcomes in different courts. He said that in cases of procedural invalidity the party interested in upholding a byelaw may well not be a party to the proceedings. Secondly, Woolf LJ relied on the developments which have taken place in judicial review over the last 25 years. The principal ground of his reasoning was that, except in 'flagrant' and 'outrageous' cases, a byelaw remains effective until quashed.

Recently in R v Wicks [1997] 2 All ER 801, [1998] AC 92 Lord Nicholls of Birkenhead and Lord Hoffmann expressed views which called into question the correctness of Bugg's case. R v Wicks was a planning case. The defendant was charged with non-compliance with an enforcement notice. He attempted to challenge the validity of the enforcement notice at a criminal trial. In the leading judgment Lord Hoffmann held that as a matter of statutory interpretation 'enforcement notice' in s 179(1) of the Town and Country Planning Act 1990 means a notice issued by the authority which is formally valid and has not been set aside. Accordingly, there was no defence to the criminal charge. That was the unanimous view of the House. In these circumstances the issues raised by Bugg's case did not arise and the House expressed no final view on them. In the present case those issues do arise directly and ought to be decided....

[T]here has been valuable academic discussion of the issues raised by Bugg's case: see David Feldman 'Collateral challenge and judicial review: the boundary dispute continues' [1993] PL 37, Carl Emery 'Public law or private law: the limits of procedural reform' [1995] PL 450 at 455(461, Dr Christopher Forsyth 'The metaphysic of nullity: invalidity, conceptual reasoning and the rule of law', [in] Forsyth and Hare The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade (1998) pp 152(153.....

The pragmatic reasons given by Woolf LJ need to be put in context. As Lord Hoffmann observed in R v Wicks [1997] 2 All ER 801 at 815, [1998] AC 92 at 116: "the distinction between substantive and procedural invalidity appears to cut across the distinction between grounds of invalidity which require no extrinsic evidence and those which do". An issue of substantive invalidity may involve daunting issues of fact, eg an issue as to unequal treatment of citizens in a pluralistic society or other forms of unreasonableness. In such a case the issues of law may also be complex. In contrast an issue of procedural invalidity of a byelaw may involve minimal evidence, eg simply the negative fact that an express duty to consult was breached. And the question of law may be straightforward. This aspect of the pragmatic case is not persuasive..... I therefore regard the pragmatic case in favour of a rule that magistrates may not decide issues of procedural validity, even if the distinction can be satisfactorily drawn, as questionable.

There is also a formidable difficulty of categorisation created by Bugg's case. A distinction between substantive and procedural invalidity will often be impossible or difficult to draw..... A modern commentator has demonstrated the correctness of the proposition that grounds of judicial review have blurred edges and tend to overlap with comprehensive reference to leading cases: see Fordham Judicial Review Handbook (2nd edn, 1997) pp 514(521. Thus the taking into account by a decision maker of extraneous considerations is variously treated as substantive or procedural......It is nevertheless an inevitable consequence of Bugg's case that magistrates may have to rule on the satellite issue whether a particular challenge is substantive or procedural. That may involve hearing wide-ranging arguments. Even then there may be no clear cut answer....

The problems of categorisation pose not only practical difficulties. As Lord Nicholls of Birkenhead explained in R v Wicks [1993] 2 All ER 815 at 827....: " There is also an imperative need for the boundary line to be fixed and crystal clear. There can be no room for an ambiguous grey area".....

[T]he boundary can represent the difference between committing a criminal offence and not committing a criminal offence. According to this reasoning, a decision on invalidity has sharply different consequences, so far as criminality is concerned, in the two types of case....

I regard this reasoning as unanswerable. The rule of law requires a clear distinction to be made between what is lawful and what is unlawful. The distinction put forward in Bugg's case undermines this axiom of constitutional principle.....

That brings me to a matter of principle and precedent. In my view the holding in Bugg's case is contrary to established judicial review principles establish by decisions of high authority. The general rule of procedural exclusivity judicially created in O'Reilly v Mackman was at its birth recognised to be subject to exceptions, notably (but not restricted to the case) where the invalidity of the decision arises as a collateral matter in a claim for infringement of private rights....Since O'Reilly v Mackman decisions of the House of Lords have made clear that the primary focus of the rule of procedural exclusivity is situations in which an individual's sole aim was to challenge a public law act or decision. It does not apply in a civil case when an individual seeks to establish private law rights which cannot be determined without an examination of the validity of a public law decision. Nor does it apply where a defendant in a civil case simply seeks to defend himself by questioning the validity of a public law decision.... One would expect a defendant in a criminal case, where the liberty of the subject is at stake, to have no lesser rights. Proving that the invalidity of the byelaw is or maybe a defence to the charge a criminal case must be the paradigm of collateral or defensive challenge. And in DPP v Hutchinson [1990] 2 All ER 836, a criminal case, the House of Lords allowed a collateral challenge to delegated legislation. The judgment in Bugg's case in effect denies the right of defensive challenge in a criminal case. In my view the observations in Bugg's case are contrary to authority and principle.

There is, above all, another matter which strikes at the root of the decision in Bugg's case. That decision contemplates that, despite the invalidity of a byelaw and the fact that consistently with R v Wicks such invalidity may in a given case afford a defence to a charge, a magistrate court may not rule on the defence. Instead the magistrates may convict a defendant under the byelaw and punish him. That is an unacceptable consequence in a democracy based on the rule of law. It is true that Bugg's case allows the defendant to challenge the byelaw in judicial review proceedings. The defendant may, however, be out of time before he becomes aware of the existence of the byelaw. He may lack the resources to defend his interests in two courts. He may not be able to obtain legal aid for an application for leave to apply for judicial review. Leave to apply for judicial review may be refused. At a substantive hearing his scope for demanding examination of witnesses in the Divisional Court may be restricted. He may be denied a remedy on a discretionary basis. The possibility of judicial review will, therefore, in no way compensate him for the loss of the right to defend himself by a defensive challenge to the byelaw.... My Lords,...the consequences of Bugg's case are too austere and indeed too authoritarian to be compatible with the traditions of the common law......

There is no good reason why a defendant in a criminal case should be precluded from arguing that a byelaw is invalid where that could afford him with a defence. Sometimes his challenge may be defeated by special statutory provisions on analogy with the decision in R v Wicks. The defence may fail because the relevant statutory provisions are held to be directory rather than mandatory. It may be held that substantial compliance is sufficient. But, if an issue as to the procedural validity of a byelaw is raised, the trial court must rule on it......