DPP v Inegbu
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE DAVIS,LORD JUSTICE LATHAM |
| Judgment Date | 26 November 2008 |
| Neutral Citation | [2008] EWHC 3242 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 November 2008 |
| Docket Number | CO/5447/2008 |
[2008] EWHC 3242 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
Lord Justice Latham
Mr Justice Davis
CO/5447/2008
Mr D Atkinson (instructed by the CPS) appeared on behalf of the Claimant
Mr R Thomas (instructed by Howells) appeared on behalf of the Defendant
Mr Inegbu, the respondent to this appeal by way of case stated, was travelling with his wife on 25th January 2007 on a train from London King's Cross to Edinburgh. The train was operated by GNER. It is said that there was a dispute about the validity of his wife's ticket. According to the prosecution, Mr Inegbu became abusive and aggressive towards train staff. When the train arrived at Doncaster, at all events, he and his wife got off the train and he was spoken to by police. He denied that he had been abusive or aggressive, but expressed regret that matters had gone as far as they had.
In the event, an information was preferred on 15th June 2007 in the Doncaster Magistrates' Court. It charged Mr Inegbu, whilst on the railway, with using threatening, abusive, obscene or offensive language contrary to railway byelaws 6(1) and 24 made under the Transport Act 2000.
After adjournments, the matter was heard by a District Judge (Magistrates' Courts) at Doncaster Magistrates' Court on 19th March 2008. But the case was not decided then on what might be called the merits, that is to say: were the matters charged proved? On the contrary (and as flagged up at previous hearings which had been adjourned) the lawyers acting for Mr Inegbu took a point which was entirely technical. They said that the railway byelaws in question, relied on in the information, had not been properly proved in accordance with any applicable statutory provision. The District Judge (Magistrates' Courts) acceded to that argument and accordingly dismissed the information, no further evidence having been offered in the light of the ruling.
The prosecuting authorities decided to appeal and a case was in due course stated. The question posed is as follows:
“When an information is laid that alleges an offence contrary to byelaws made under section 219 Transport Act 2000 (now repealed but such byelaws continue to have effect by virtue of section 46(4) Railways Act 2005), in preserving the byelaws, did Parliament similarly preserve the manner in which those byelaws are produced in evidence?”
In order to understand the legal point so arising, it is necessary to refer to the legislation. The Transport Act 2000, by section 201, created a body corporate known as the Strategic Rail Authority (referred to in that part of the 2000 Act as “the Authority” and which I will call “SRA”). Power was conferred on the SRA by section 219 to make byelaws in these terms:
“(1) The Authority may make byelaws regulating —
(a) the use and working of railway assets,
(b) travel on or by means of railway assets,
(c) the maintenance of order on railway assets, and
(d) the conduct of persons while on railway assets
… . .
(3) Schedule 20 makes further provision about byelaws under this section.”
Turning then to Schedule 20, the relevant paragraph for present purposes is paragraph 7. It may be noted, all the same, that by paragraph 1 “byelaws” was defined so as to mean byelaws under section 219, and, by paragraph 3, that byelaws should not come into operation until they had been confirmed by the Secretary of State. Paragraph 7 of schedule 20 reads as follows:
“The production of a printed copy of byelaws which have been confirmed and on which there is indorsed a certificate purporting to be signed by the chief executive of the Authority, or a person authorised by the Authority to act for him, stating —
(a) that the byelaws were made by the Authority,
(b) that the copy is a true copy of the byelaws,
(c) that on a specified day the byelaws were confirmed by the Secretary of State, and
(d) the date when the byelaws came into operation,
shall be prima facie evidence of the facts stated in the certificate.”
Pausing there, that plainly is intended to provide a convenient and relatively informal way of proving the validity and currency of the applicable byelaws.
In due course, railway byelaws were made under section 219. They are detailed. The seal of the SRA was affixed to them on 24th May 2004; and they were subsequently confirmed by the Secretary of State, who fixed 7th July 2005 as the date on which they would come into operation. In particular, for present purpose, byelaw 6(1) provides:
“No person shall use any threatening, abusive, obscene or offensive language on the railway.”
And byelaw 24(1) provides:
“Any person who breaches any of these byelaws commits an offence and, with the exception of byelaw 17, may be liable for each such offence to a penalty not exceeding level 3 on the standard scale.”
On 7th April 2005 the Railways Act 2005 was passed. That substantially repealed the Transport Act 2000 with various commencement dates for various sections of the 2005 Act. It was provided by section 1 that Schedule 1 had effect. That Schedule relates, amongst other things, to the transfer of function from the SRA to the Secretary of State. Those transfers have been completed, and we were told that the SRA itself ceased to exist as a corporate body on 1st December 2006.
The 2005 Act itself made provisions for making byelaws. That power is set out in section 46 of the 2005 Act. Section 46(1) reads in this way:
“A railway operator may make byelaws regulating one or more of the following —
(a) the use and working of a relevant asset;
(b) travel on or by means of a relevant asset;
(c) the maintenance of order on relevant assets;
(d) the conduct of persons while on relevant assets.”
By subsection (3):
“Schedule 9 (which makes provisions about byelaws under this section) has effect.”
Subsection (4) has prime importance for the purposes of this appeal and reads as follows:
“Byelaws which —
(a) were made by the Strategic Rail Authority under section 219 of the 2000 Act, and
(b) are in force immediately before the repeal of that section by this Act,
shall continue to have effect after the coming into force of that repeal as if every reference in those byelaws to that Authority were a reference to the Secretary of State.”
In subsection (7) it is stated that “railway operator” meant an operator of a railway asset who was authorised to be an operator of that asset in the specified circumstances and other such matters. It is common ground before us that the SRA was not a railway operator within the meaning of this section.
As for section 219 of the Transport Act 2000, that was repealed by virtue of paragraph 36(c) of Schedule 1 to the 2005 Act, and by virtue of section 59 and Schedule 13 of the 2005 Act. Schedule 20 of the 2000 Act was likewise repealed by section 59 and Schedule 13 of the 2005 Act. Part 2 of paragraph 2 of Schedule 13, however, expressly provided that the repeal of section 219 of the 2000 Act had effect subject to section 46(4) of the 2005 Act.
As to Schedule 9 of the 2005 Act, incorporated by section 46(3), that provided by paragraph 7 as follows:
“The production of a printed copy of byelaws which is indorsed with a certificate —
(a) stating one or more matters specified in subparagraph (2), and
(b) purporting to be signed by an officer of the railway operator by whom the byelaws purport to have been made,
is evidence of what is stated.
(2) Those matters are —
(a) that the byelaws were made by the railway operator in question;
(b) that the copy is a true copy of the byelaws;
(c) that the byelaws were confirmed by the appropriate national authority on the date specified in the certificate;
(d) the date of the coming into force of the byelaws.”
It may be noted that “byelaws” were so defined in paragraph 1 of Schedule 9 as to mean byelaws under section 46 and “railway operator” was defined to have the same meaning as in section 46.
Pausing there, the scheme of the 2000 Act is, for this purpose, clear enough. It conferred power on the SRA to make byelaws and, by paragraph 7 of Schedule 20, provided a simple and convenient means of proving such byelaws by a process of certification. The scheme of the 2005 Act was in this regard a corresponding scheme. It conferred power on railway operators to make byelaws and, by paragraph 7 of Schedule 9, similarly provided a simple and convenient means of proving such byelaws by a process of certification.
In the present case, the byelaws relied on in the information were made pursuant to the 2000 Act. But by virtue of section 46(4) of the 2005 Act, and Part 2 of Schedule 13 to the 2005 Act, they continue to have effect, notwithstanding the repeal of section 219 of the 2000 Act. There is no dispute before us that that is so. As Mr Atkinson put it, it is reasonably clear that a smooth transition in this regard was intended.
The District Judge (Magistrates' Courts) was in fact told, as were we, that, so far as is known, no individual railway operator had made fresh byelaws under the 2005 Act. They have, thus far, been content to rely on the present byelaws. We were in fact told that in the last year, 2,283 prosecutions have been brought under those byelaws.
The point raised successfully below on behalf of Mr Inegbu, and repeated before us today, was based on the proposition that Schedule 20 of the 2000 Act has been repealed by the 2005 Act, but the actual certificate produced before the District Judge (Magistrates' Courts) was self-evidently based on ...
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