NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1952.tb02112.x |
| Published date | 01 January 1952 |
| Date | 01 January 1952 |
NOTES
OF CASES
LICENCES
IN
ADMINISTRATIVE LAW-RETROSPECTIVE
EFFECT-
LICENCE
BY
ESTOPPEL
THE
House
of Lords managed to do justice in
llowell
v.
Falniouth
Boat Construction, Ltd.
[1951]
2
A11 E.R. 278, but in a way that
may, with every respect, be said to invite trouble in future cases.
It
was held, revcrving the Court of Appeal (see
ante,
Vol. 13, p.
376),
that a licence under the Defence (General) Rcgulations,
1939,
had to be in writing; thus an oral permission was of no avail.
In
ordcr to mitigate the effect of this interpretation the
House
held
that
u
subsequent written licence might on the construction of the
particular regulation be retrospective, despite the general principle
that a licence cannot be retrospective (see
Sovfracht
v.
Vnn
Urlens
Scheepvaart
[1943]
A.C.
at
218). Thus when another case
of
this
kind ariscs everything will turn on two questions
:
whether the oral
permission has been subsequently confirmed in a written licence
which can be construed to be retrospective, and whether an inten-
tion to validate such a retrospective licence can be spun out of the
words of the legislation.
It
is a pity that Denning L.J.’s decision in the Court of Appeal,
[1950]
1
All E.R. 538 (see
13
M.L.R.
876),
found no favour with
their Lordships, for he propounded a bold and imaginate solution
that held great possibilities
of
development. The learned Lord
Justice said that even if a written licencc were legally requisite, the
repairers did not act illegally since
‘‘
whenever government officers
in their dealings with a subject take on themselves to assume
authority in a matter with which the subject is concerned,
hc
is
cntitled to rely
on
their having the authority which they assume.”
Although this. principle was stated with reference to governmental
66
authority,”
it
could have been developed to include every case
where the defendant mas assured by a government agency that his
iict was legal, and
so
have afforded a welcome relief from the rule
that ignorance of the law
is
no excuse. Lord Simonds said he knew
of no such principle in our law as that stated by Dcnning
L.J.,
nor was any authority for it cited.
It
is true that there was no
previous English authority
for
Denning L.J.’s principle, or for the
wider version of it just suggested; but there was good American
authority.
As
an American writer puts it, “confidence in the
government itself would be seriously undermincd if citizens should
be punished for apparently innocent deeds done
in
bona fide reliance
upon the advice of officers who are authoriscd by the state to give
such advice
”
(Perkins in (1089)
88
U.
of Pa.L.Rev. at
48;
and sec
Dession,
Criminal Lazo, Administration,
and Public
OTder,
578-0
;
69
70
THE
MODERN
LAW
REVIEW
VOL.
16
Michael and Wechsler,
Criminal Law and
its
Administration,
706
;
Hall,
Crinzhal Law and Procedure,
557-8).
The effect of
Howell’s Case
seems on its face
to
be that
a
ship-
repairer who acts in bona fide reliance upon an oral governmental
permission is defeated if no written licence is subsequently issued
;
he is therefore at the mercy of the government in the meantime.
Is
this an example of the
‘‘
rule of law
”?
The most that Lord
Normand (who spoke in effect for the House) would concede was
that where the Crown had power to grant a retrospective licence and
did
so,
the omission of an item from the licence would not be fatal
to the contractor’s action on
a
contract in respect of that item, if
the proper officer came forward to depone that all the work done
had in fact his authority.
It
may be noted that this rule, though
required by justice, had no more specific English authority behind
it than Denning L.J.’s principle. Also, it is hard
to
see why it
should be
so
hedged about with limitations. Why should the
government officer have to depone that he gave his oral assent,
if
there is satisfactory evidence aliundc that the assent was given
?
And why should the rule be confined to a case where
a
written
retrospective licence is given but an item omitted: why should
it
not extend to n case where no written licence is subsequently given,
or
where a written licence is given that is stated to be non-
retrospective
?
Perhaps Lord Normand would have been willing to
extend thc rule in this way. But if
so,
the rule becomes that an
oral permission is good without
a
subsequent rctrospective licence if
the government have power to issue such a retrospective licencc.
It
is difficult to comprehend the reason for the condition.
To
return to Denning
L.J.’s
principle, it could have been sup-
ported (as he apparently supported it) as resting on an estoppel
or
quasi-estoppel binding on the Crown. Another instance of an
estoppel in criminal law is the defence
of
autrefois convict
or
acquit.
The former notion that the Crown cannot be bound by an estoppel
in pais is now exploded (Spencer Bower,
Res Judicata,
120;
Williams,
Crown Proceedings,
110-111).
Alternatively, the officer
of the Crown could have been regarded as having authority to state
‘‘
the law
”
for the purpose of the rule that ignorance of the law is
no
CXCUS~
(cp. Jerome Hall,
General Principles
of
Criminal Law,
862-8).
An interesting result
of
Denning L.J.’s view if
it
had been
accepted is that the soldier’s defence of superior orders would have
fallen neatly into place. There
is
no sufficient reason for dis-
tinguishing between a soldier who ncts under seemingly lawful
orders and a citizen who acts under seemingly lawful governmental
authorisation
or
advice.
Another line of authority in the United States is to the following
effect. Where the defendant acted in reliance on a case that had
decided a prohibitory statute
to
be unconstitutional, and this case
was overruled by a superior court after the defendant acted, his
ignorance of the lnw (resulting
as
it did from
n
decision of the
JAN.
1952
NOTES
OF
CASES
71
court) is a defence to a criminal charge. See
State
v.
O’Neil
(1910)
147
Iowa
518, 126
N.W.
454, 38
L.R.A.
(N,s.)
788,
reprinted in
Harno,
Cases and Materials on
Ciim5nal
Law
and Procedure,
67
(and see
ibid.,
69,
n.
2);
Michael and Wechsler,
op.
n’t.,
796;
Mikell,
Cases on Criminal Law,
8rd
ed.,
568;
Hall,
Criminal
Law
and Procedure,
551;
cp.
(1911)
9
Mich.L.Rev.
334.
The question
may arise in England with regard to delegated legislation that is
first held to be ultra vires and later held intra vires. The
principle,
if
valid, would logically apply to an act done in reliance
on subordinate legislation that has not been before the courts,
which is held ultra vires after the defendant has acted (cp. Perkins,
op.
cit.,
at
48-5;
but see Michael and Wechsler,
op.’cit.,
797),
or
in reliance on a case declaring the common law, which case is later
overruled.
The reason usually given for the American exception
is
that
conviction in such circumstances would
be
manifestly unfair, and
this seems to be reason enough. Those who prefer may accept
the suggestion of Hall,
General Principles
of
Criminal,
Law,
860,
that there is not in such circumstances a mistake
of
law. The law,
for the purpose of the rule, is as
it
appears to be laid down by the
legislature,
or
by the courts in decisions that are valid for the
time being.
If
the exception is valid, it would seem to apply to the defendant
who is charged in the case in which the overruling decision is given.
This defendant must therefore be acquitted, although the court
expresses its opinion that the law under which he is charged is
valid. Presumably this expression of opinion will be binding under
the doctrine of precedent, although it does not directly lead to the
determination of the issue.
If
an argument along these lines is accepted, it comes very close
to settling the point in
llozoell’s Case.
The oral permission in that
case was very like a piece of ultra vires delegated legislation, and
the repairers’ reliance on
it
should therefore have excused them
from a criminal charge. This should have been enough to exclude
the plea of illegality in contract.
There seem to have been only two English authorities
on
the
general question before
Howell’s Case.
In
Dennis
Sons
v.
Good
(1918) 88
L.J.K.B.
388,
it was held that an order of the Board of
Agriculture to plough a field was no excuse to
a
farmer for plough-
ing up
a
footpath. The order did not specifically purport to
authorise the ploughing of footpaths,
so
that the present question
hardly arose; but Avory
J.
seemed to think that even
if
the order
had
so
purported, it would have been no defence, because ultra
vires. This view creates an unnecessary injustice. The GppOSite
view would not give the government carte blanche to authorise
breaches of the law, because
(1)
the defence would apply only where
the government order created a mistake of law, and
(2)
the order
would be no defence
to
an action in tort. The existing powers of the
To continue reading
Request your trial