Boddington v British Transport Police

CourtHouse of Lords
Judgment Date02 Apr 1998
JurisdictionEngland & Wales

[1998] UKHL J0402-2


Lord Chancellor

Lord Browne-Wilkinson

Lord Slynn of Hadley

Lord Steyn

Lord Hoffmann

British Transport Police

(On Appeal from a Division Court of the Queen's Bench Division)


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.



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