Divisional Court
| DOI | 10.1177/002201838705100101 |
| Published date | 01 February 1987 |
| Date | 01 February 1987 |
| Subject Matter | Divisional Court |
DIVISIONAL
COURT
WHEN
IS
A BREACH OF A
STATUTORY
DUTY
AN OFFENCE?
R.
v.
Horseferry
Rd.
Justices, exparte
I.
B.A.
The question raised in
Exparre
I.B.A.
[1986] 3
W.L.R.
132,
is one
of
general importance going beyond the somewhat bizarre, and
perhaps trifling, event which led to the issue
of
a summons in that
case and to the interpretation
of
section
4(3)
of
the Broadcasting
Act
1981.
That sub-section provides that it shall be the duty
of
a
broadcasting authority to satisfy themselves that their programmes
do not include any technical device which, by using images
of
very
brief duration, possibly conveys a message
to,
or
otherwise
influences the minds of, members
of
the audience. The
broadcasting authority was charged with an offence contrary to the
subsection. The summons was issued on the information
of
a person
who claimed that, in a series
of
programmes entitled “Spitting
Image”, an image was transmitted for *4/~looths
of
a second
of
a
“grotesque and ridiculing image
of
my face superimposed on the
top
of
the body
of
a naked woman.” The I.B.A. sought to prevent a
hearing by writing to the justices stating that the summons disclosed
no offence. On being told that the justices were bound to hear such
evidence as the complainant might wish
to
offer, they sought by way
of
judicial review to quash the summons and prohibit the hearing.
The
sole
question was whether the sub-section, by imposing a duty
upon the applicants, thereby created a criminal offence in the form
of
any breach
of
that duty.
The principle called in aid by the complainant was that
of
the
doctrine
of
contempt
of
statute. It is stated in
Coke’s fnsritures
(1979
ed.), p.
163,
that “whenever an Act
of
Parliament doth generally
prohibit anything
.
. .
the offender shall be punished at the King’s
suit for contempt
of
his law.” Thus, Hawkins’ P.C. concludes that
“every contempt
of
statute is indictable,
if
no other punishment be
limited.” Since those early statements, a long line
of
authority
established the principle that in the absence
of
any express penalty,
a breach
of
statutory duty could be dealt with by indictment and
I
Journal
of
Criminal Law
might lead to such fine as the court might see fit to impose. That
principle was imposed in any case in which it could not be said that
the statute itself had not “manifestly excluded it”. In 1976,
however, the Law Commission described the doctrine
of
contempt
of
statute as obsolete, but not dead; and its formal abolition was
recommended. It is stated in
Maxwell’s Interpretation
of
Statutes
(12th ed., 1969), p.
334,
that indictment for breach
of
statutory duty
is never used today.
In
Ex
parte I.B.A.,
the court concluded that the doctrine
of
contempt
of
statute was never more than a rule
of
construction.
That rule was understandably applied to ancient statutes, which
often did not define any offence or impose any specific penalty. In
the court’s opinion, however, modern statutes should not be
construed as creating offences unless they expressly or by necessary
implication
so
provided. Modern statutes create a multiplicity
of
duties imposed on individuals and corporate bodies. More
particularly in the latter case, these statutes are found to have
manifestly no connection with the criminal law. The court
mentioned the Civil Aviation Authority (to keep accounts and
report to the Secretary
of
State), the .Parole Board (to advise the
Secretary
of
State) and the Law Commission (to keep the law under
review). A failure to perform such duties obviously does not involve
the criminal law. The court, while declining to hold that the rule has
ceased to exist, pointed out that with modern legislation it is easier
to infer that Parliament did not intend to apply the sanction
of
the
criminal law and there is no presumption that a breach
of
a duty
imposed by a modern statute is indictable. Section
4(3)
of
the
Broadcasting Act 1981 merely requires the authority to satisfy
themselves that their programmes do not contain subliminal
images. It does not prohibit such images. It defines no offence: it
imposes no penalty. The mandatory duty which it imposes is
enforceable by judicial review. This being the case, the court held
that the proper inference was that Parliament had not intended to
create a criminal offence. The application to prevent the hearing of
the summons was therefore granted.
2
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