Percy v Hall
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE PETER GIBSON,LORD JUSTICE SCHIEMANN |
| Judgment Date | 10 May 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0510-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBENF 95/0714/C |
| Date | 10 May 1996 |
[1996] EWCA Civ J0510-1
Lord Justice Simon Brown
Lord Justice Peter Gibson
Lord Justice Schiemann
QBENF 95/0714/C
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
(Sir Peter Webster)
Royal Courts of Justice
Strand
London WC2
MR J HOWELL QC and MR R TAM (Instructed by the Treasury Solicitor, SW1H 9JS) appeared on behalf of the Appellants
MR N PLEMING QC and MR K STARMER (Instructed by Stephens Innocent, EC4A 1AP) appeared on behalf of the Respondents
( )
Friday, 10th May 1996
During the 18-month period from April 1990 to October 1991 Lindis Elizabeth Percy and Rachel Diana Greaves (the plaintiffs) between them were arrested over 150 times and removed from the vicinity of the Menwith Hill Station, a military communications installation in North Yorkshire used jointly by the US National Security Agency and by GCHQ personnel. The plaintiffs' activities, they say, are designed to stop abuses of power by the Ministry of Defence (MOD).
Trespass is not, of course, an arrestable offence —not, indeed, a criminal offence at all. The plaintiffs were arrested rather for alleged breaches of the HMS Forest Moor and Menwith Hill Station Byelaws 1986 ( SI 1986 No.481) (the Byelaws). It is the validity, and effect of any invalidity, of these which are the issues at the heart of this appeal. In a sentence, the plaintiffs contend that the Byelaws were void for uncertainty and can never, therefore, have founded any lawful arrest.
The defendants are 66 constables of the MOD Police who carried out the arrests, together with the Chief Constable of North Yorkshire and the Attorney-General. The individual constables are each sued for wrongful arrest and false imprisonment. The Chief Constable is sued pursuant to section 48 of the Police Act 1964 in respect of the plaintiffs' various detentions by civilian police officers into whose custody the military police had passed them —further occasions of alleged false imprisonment. The Attorney General is sued in place of the Secretary of State for Defence pursuant to section 17 of the Crown Proceedings Act 1947, his liability being said to arise by way of breach of statutory duty for making allegedly defective byelaws.
On 21st July 1994 Master Miller ordered the trial of two preliminary issues: first, as to the validity or otherwise of the Byelaws; second, as to whether, if the Byelaws were invalid, the plaintiffs' claims against the constables must necessarily succeed —whether, in short, such a finding of invalidity would deny the constables any defence of lawful justification. Those issues were substantially re-formulated by Sir Peter Webster (sitting as a Deputy High Court Judge) at the trial. For present purposes, however, the precise formulations do not matter: it is sufficient to indicate merely that the judge found essentially for the plaintiffs on the first issue and for the defendants on the second. Neither side, however, is entirely happy with the judge's actual rulings on either issue and both now are either appealing or at least seeking variations of them.
With that brief introduction let me at once turn to the relevant parts of the Byelaws and the empowering legislation. The Byelaws were made by the Secretary of State for Defence under Part II of the Military Lands Act 1892. Section 14(1) of that Act provides:
" Power of Secretary of State to make byelaws as to use of land held for military purposes and securing safety of public
(1) Where any land belonging to a Secretary of State or to a volunteer corps is for the time being appropriated by or with the consent of a Secretary of State for any military purpose, a Secretary of State may make byelaws for regulating the use of the land for the purposes to which it is appropriated, and for securing the public against danger arising from that use, with power to prohibit all intrusion on the land and all obstruction of the use thereof.
Provided that no byelaws promulgated under this section shall authorise the Secretary of State to take away or prejudicially affect any right of common."
(That proviso, it may be noted, although immaterial to the present appeal, proved fatal to the Greenham Common Byelaws —see DDP v Hutchinson [1990] 2 AC 783.)
To understand the full territorial scope of section 14(1) the following additional two provisions are relevant:
"14(3) For the purposes of this section, 'land belonging to a Secretary of State' means land under the management of a Secretary of State, whether vested in Her Majesty or in the Secretary of State, or in a person as trustee for Her Majesty or the Secretary of State; and 'land belonging to a volunteer corps' means any land vested in that corps or in any person as trustee for that corps."
Section 23 provides that:
"….the expression 'land' includes any easement in or over lands….."
Section 17(1) provides:
" Notice and enforcement of byelaws
A Secretary of State, before making any byelaws under this Act, shall cause the proposed byelaws to be made known in the locality, and give an opportunity for objections being made to the same, and shall receive and consider all objections made; and when any such byelaws are made, shall cause the boundaries of the area to which the byelaws apply to be marked, and the byelaws to be published, in such a manner as appears to him necessary to make them known to all persons in the locality; and shall provide copies of the byelaws being sold at the price of [5p] for each copy to any person who desires to obtain the same."
Section 17(2) (more directly relevant to the second issue than the first) provides:
"If any person commits an offence against any byelaw under this Act, he shall be liable, on conviction before a court of summary jurisdiction, to a fine not exceeding [level 2 on the standard scale], and may be removed by any constable or officer authorised in manner provided by the byelaw from the area, whether land or water, to which the byelaw applies, and taken into custody without warrant, and brought before a court of summary jurisdiction to be dealt with according to law, and any vehicle, animal, vessel, or thing found in the area in contravention of any byelaw, may be removed by any constable or such officer as aforesaid, and on due proof of such contravention, be declared by a court of summary jurisdiction to be forfeited to Her Majesty."
As will appear, section 2 (5) of the Military Lands Act 1900 (an Act to be construed as part of the 1892 Act —see section 6) is also relevant upon the issue of certainty:
"Where an area to which byelaws under this section apply consist of any sea or tidal water, or the shore thereof, and the boundaries of the area cannot, in the opinion of the authority making the byelaws, be conveniently marked by permanent marks, those boundaries shall be described in the byelaws, and shall be deemed to be sufficiently marked within the meaning of section seventeen of the Military Lands Act 1892, if, while the area is in use for military of naval purposes, sufficient means are taken to warn the public from entering the area."
Now to the Byelaws themselves. They were made on 10th March 1986 to come into operation on 26th March 1986. Byelaw 1, under the heading "Application of Byelaws", reads:
"The areas to which these byelaws apply consist of lands belonging to the Secretary of State in the parishes of Menwith with Darley and Birstwith and Felliscliffe and Norwood and Fewston in the County of North Yorkshire, which lands are for convenience of identification shown by a thick black line on the plan annexed to these byelaws and identified as 'Plan of HMS FOREST MOOR and Menwith Hill Station" all of which is hereinafter referred to as 'the protected Areas'."
The plan annexed is clearly small-scale (it is put by the plaintiffs at about 1:25,000). It depicts two large areas (respectively Forest Moor and Menwith Hill) defined by thick black lines separated at one point by what appears to be a road. In places the areas depicted are crossed by what a legend shows to be public footpaths. A third very small square area appears just north of Menwith Hill, perhaps connected to it by a footpath.
Byelaw 2 specifies the prohibited activities which include entering the protected areas except by way of an authorised entrance, and remaining in them after being directed to leave. Byelaw 3 provides that anyone contravening or attempting to contravene Byelaw 2 shall be guilty of an offence. Byelaw 4 defines the persons "authorised to remove from the Protected Areas and to take into custody without warrant any person committing an offence against Byelaw 2" (and to remove too any objects found inside).
An explanatory note at the end contains information as to where copies of the Byelaws and plan may be inspected and obtained.
Let me next indicate something more of the history of this dispute. Having been prosecuted for a number of breaches of the Byelaws Miss Percy (and a man named John Bugg, now deceased, earlier a third plaintiff in the action) were in May 1991 acquitted of all charges by the stipendiary magistrate at Ripon. It is not necessary to relate the precise course of those proceedings; suffice it to say that the enforceability of the Byelaws was in question.
The following month Miss Greaves was twice arrested, whereupon, acting in person, she sought judicial review of her arrests. She attacked the validity of the Byelaws on a number of different grounds. Her renewed application for leave was refused by the...
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