Boddington v British Transport Police
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE AULD |
| Judgment Date | 05 July 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0705-6 |
| Docket Number | CO/4232/95 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 July 1996 |
[1996] EWCA Civ J0705-6
Lord Justice Auld
CO/4232/95
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand
London WC2
MR D PANNICK QC and MR F JONES (Instructed by Kenwright and Lynch Totting, London SW17) appeared on behalf of the Applicant.
MR N AINLEY (Instructed by Crown Prosecution Service, Brighton, East Sussex, BN2 ZLG) appeared on behalf of the Respondent.
( )
Friday, 5th July 1996
This is an appeal by Peter James Boddington by way of a case stated against a decision of the Stipendiary Magistrate for East Sussex. On 28th July 1995 the Magistrate found him guilty of smoking a cigarette on a carriage on a train where smoking was expressly prohibited by the British Railways Board by a notice conspicuously exhibited to that effect. The offence was laid contrary to Bylaw 20 of the British Railways Board's Bylaws 1965, made under Section 67 of the Transport Act 1962, as amended. The Magistrate fined the appellant £10 and ordered him to pay costs. The facts, as summarised in the case stated, were as follows.
On 5th November 1994 the appellant was a passenger on a Network South Central train travelling between Falmer and Brighton. According to the stated case, Network South Central was then a wholly owned subsidiary of the British Railways Board providing railway services to the South Coast. He was smoking during the journey in a part of the train where there was a conspicuous notice prohibiting smoking. He ignored a request of an employee of Network South Central that he should stop smoking. As a result the British Transport Police became involved, and they instituted this prosecution against him for breach of the Bylaw.
The whole of the train had conspicuous notices prohibiting smoking. According to the stated case, this was pursuant to a policy introduced by Network South Central on 1st January 1993, applying the prohibition throughout all its trains. The policy was apparently for "purely commercial reasons". Network South Central undertook customer research and gave notice to the travelling public before introducing it. However, there was no prior consultation with the Rail Users Consultative Committee, there being no statutory requirement for it. We understand that other subsidiaries of the British Railways Board have introduced the same policy, though it does not apply to Inter City trains operating between London and Brighton.
The statutory basis for the prohibition is to be found in Section 67(1) of the Transport Act 1962, as amended. It empowers the British Railways Board to:
"make bylaws regulating the use and working of, and travel on, their railways…,and in particular bylaws—…(c) with respect to the smoking of tobacco in railway carriages and elsewhere and the prevention of nuisances…"
Bylaw 20 provides, so far as material:
"Smoking restrictions
No person shall smoke…in any…vehicle…where smoking is expressly prohibited by the Board by a notice exhibited in a conspicuous position in such…vehicle…"
The scheme is thus that the Bylaw only operates as a prohibition of smoking on trains if and to the extent that the Board decides on such prohibition by exhibiting notices to that effect.
Before the Magistrate the British Transport Police maintained that the Bylaw was within the Board's power under Section 67 and that Mr Boddington was in clear breach of it. Mr Boddington contended that he was not guilty of any offence because the Bylaw as implemented by Network South Central was ultra vires Section 67 of the 1962 Act. He contended that Section 67 permitted regulation, not total prohibition, of smoking on trains, and that total prohibition was, in any event, unreasonable.
The Magistrate rejected those contentions. He held that there was a rebuttable presumption that subordinate legislation is intra vires and that he had no jurisdiction to determine whether there was such rebuttal. However, he went on to express the following opinions. First, he held that the word "regulate" in Section 67 was capable of meaning prohibit totally. Second, he said that, in any event, the prohibition was not total, since the Board had not applied it to its Inter City trains. Third, he held that the Bylaw and its implementation were reasonable, the latter as a protection for non-smoking passengers and staff against the harmful consequences of smoking and for the Board against the risk of litigation by "passive smokers".
On 30th November 1995 the Magistrate stated a case for the opinion of this Court asking, in substance, three questions.
The first question is whether Section 67 empowers the British Railways Board to prohibit by bylaw smoking throughout all Network South Central trains rather than in certain carriages of its trains. The second question—barely distinguishable in the circumstances of this case—is as to the rationality of that prohibition. The third is whether a prohibition by Network South Central was a prohibition by the British Railways Board within the meaning of the Bylaw.
All three questions are directed, not so much at the validity of the Bylaw as a matter of construction, but at its use as a means of enforcing Network South Central's policy of total prohibition. They go to the validity of the prohibition, and to the question of Mr Boddington's entitlement to challenge its validity by way of a defence in criminal proceedings. There is authority that a defendant may challenge in criminal proceedings the validity of a bylaw or other subordinate legislation under which he is being prosecuted. However, in Bugg v. DPP [1993] QB 473, DC, Woolf LJ, as he then was, giving the judgment of the Court, distinguished between challenges to substantive validity where the instrument founding the prosecution is "bad on its face" and challenges to procedural validity. The former, he held, may be made as a defence in criminal proceedings; the latter can only be made by proceedings for judicial review.
This case raises two important questions of principle. First, does the entitlement to challenge the substantive validity of subordinate legislation in criminal proceedings extend to a challenge of an administrative decision made pursuant to that subordinate legislation? Second, what is the proper mode of challenge to the substantive validity of subordinate legislation or an associated administrative decision which is not "bad on its face"?
Before dealing with each of those questions we turn briefly to the vires of the Bylaw itself, both as a matter of construction and of its reasonableness. The British Railways Board is primarily a commercial undertaking, albeit providing a general service to the public. Accordingly, the Court should examine the vires of the Bylaw with particular care. See Kruse v. Johnson [1898] 2 QB 91, DC, per Lord Russell of Killowen CJ at 99.
Normally, a statutory power to regulate an activity does not without more include a power totally to prohibit it. See Municipal Corporation of the City of Toronto v. Virgo [1896] AC 88, PC, per Lord Davey at 93–4; Attorney-General for Ontario v. Attorney-General for the Dominion [1896] AC 348, PC, per Lord Watson; and Tarr v. Tarr [1973] AC 254, HL, per Lord Pearson at 265–7. Clearly, partial prohibition of an activity, say as to place or time or in the absence of certain conditions governing it, may be regulation of the activity. It was not suggested in this case, for example, that the Board had no power under Section 67 to make a bylaw prohibiting smoking in certain carriages or parts of carriages of its trains. The scope of activities, in addition to smoking, which Section 67(1) gives the Board power to regulate makes plain that Parliament must have contemplated some, often considerable, measure of prohibition in each case. For convenience, we now set out the provision in full.
"67. 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."
Mr David Pannick, QC, on behalf of Mr Boddington, submitted, in reliance on the authorities to which we have referred, that the Magistrate wrongly held that the power in Section 67 to regulate smoking in trains included a power to the British Railways Board to prohibit smoking in and throughout all Network South Central trains. He referred to what he submitted were the operative words in Section 67 that the Board may "make bylaws regulating…the conduct of all persons…with respect to…smoking…in railway carriages", and to the absence of any provision enabling the Board to make bylaws prohibiting such activity.
Mr Nicholas Ainley, for the British Transport Police, submitted that, having regard to the primary and subordinate legislation to which the Section and the Bylaw are respectively successors, and as a matter of their construction, the power to regulate may in this...
To continue reading
Request your trial
-
DPP v T
...into account submissions relating to its validity. It is accepted by Mr Gelbart, who appears for the Crown, that the case of Boddington v British Transport Police [1999] 2 AC 143 gives authority for the proposition that if an order of this type is plainly invalid, then the Magistrates can c......
-
PricewaterhouseCoopers Bermuda (A Firm) v Kingate Global Fund Ltd ((in Liquidation)) and Kingate Euro Fund Ltd ((in Liquidation))
...... AssociationELR (1882) 20 Ch D 137 Boddington v British Transport PoliceELR [1999] 2 AC 143 ......
- Sivarasa Rasiah v Badan Peguam Malaysia and Another
-
R (McIntyre) v Gentoo Group Ltd
...O'Reilly v. Mackman [1983] 2 AC 237 and Cocks v Thanet District Council [1983] 2 AC 286. However, as Lord Steyn stated in Boddington v the British Transport Police [1999] 2 AC 143 at p172, “Since O'Reilly v. Mackman decisions of the House of Lords have made clear that the primary focus of t......