Post Office v Estuary Radio Ltd

JurisdictionEngland & Wales
Judgment Date28 July 1967
Judgment citation (vLex)[1967] EWCA Civ J0728-4
CourtCourt of Appeal (Civil Division)
Date28 July 1967
Post Office
and
Estuary Radio Limited

[1967] EWCA Civ J0728-4

Before:

Lord Justice Sellers

Lord Justice Diplock and

Lord Justice Winn

In The Supreme Court of Judicature

Court of Appeal

(Civil Division)

(From: Mr. Justice O'Connor)

SIR PETER RAWLINSON, Q.C. and Mr. J.P. HARRIS (instructed by Messrs. Kingsford, Flower & Pain, Ashford, Kent) appeared on behalf of the Appellants (Defendants).

Mr. JOHN NEWEY and Mr. A. RUSSELL VICK (instructed by The Solicitor to the Post Office) appeared on behalf of the Respondent (Plaintiff).

LORD JUSTICE SELLERS
1

I will ask Lord Justice Diplock to read the judgment of the Court.

LORD JUSTICE DIPLOCK
2

The appellants had been broadcasting from a structure known as Red Sand Tower in the Thames estuary. They had no licence from the Postmaster General to do so. That was unlawful under section 1 of the Wireless Telegraphy Act, 1949, if Red Sand Tower is "in…the United Kingdom or the territorial waters adjacent thereto". (See section 6 (1) (a)). The only issue in this appeal is whether it is. The Post Office contend that Red Sand Tower is situate in the internal waters of the United Kingdom, that is to say that it is "in…the United Kingdom" within the meaning of section 6 (1) (a) of the Wireless Telegraphy Act, 1949. If they are wrong about this, they contend in the alternative that it is situate in the "territorial sea" of the United Kingdom, that is to say that it is "in…the territorial waters adjacent thereto" within the meaning of section 6 (1) (a). We have borrowed the expressions "internal waters" and "territorial sea" from Articles 1 (1) and 5 (1) of the Convention on the Territorial Sea and Contiguous Zone of 1958, where they are used to describe respectively those parts of the sea adjacent to its coast over which a coastal state is in international law entitled to exercise full sovereignty and those over which its sovereignty is subject to the right of innocent passage by foreign ships. It is common ground that if Red Sand Tower is situate either in the internal waters or the territorial sea of the United Kingdom, the Post Office are entitled to the injunction granted by Mr. Justice O'Connor and this appeal must fail.

3

The area which the Crown now claims as constituting the internal waters and the territorial sea of the United Kingdom is to be ascertained from the Territorial Waters Order in Council, 1964, which was promulgated on the 25th September, 1964, before the appellants started to broadcast from Red Sand Tower. It is common ground that the area now claimed is more extensive thanthat which the Crown claimed in 1949 when the Wireless Telegraphy Act, 1949, was passed. Mr. Justice O'Connor decided the question whether Red Sand Tower was "in the United Kingdom or the territorial waters adjacent thereto" upon the basis of the areas claimed by the Crown as the internal waters and the territorial sea of the United Kingdom since 1964. He was compelled to do so by the decision of the Divisional Court in The Queen v. Kent Justices ex parte Pyle (1967 2 Weekly Law Reports page 765), which was binding upon him, and the question whether Red Sand Tower was within an area claimed by the Crown as internal waters or territorial sea in 1949 was not debated before him. It is open to this Court to review the decision of the Divisional Court, and counsel for the appellants has endeavoured to persuade us that the Divisional Court erred in law. Had he succeeded, the Post Office would have sought to establish that on the evidence Red Sand Tower was also within the area claimed by the Crown as territorial sea in 1949. But we have not gone into this for we think that the Divisional Court was clearly right.

4

It still lies within the prerogative power of the Crown to extend its sovereignty and jurisdiction to areas of land or sea over which it has not previously claimed or exercised sovereignty or jurisdiction. For such extension the authority of Parliament is not required. The Queen's Courts, upon being informed by Order in Council or by the appropriate Minister or Law Officer of the Crown's claim to sovereignty or jurisdiction over any place, must give effect to it and are bound by it. (See The Fagerness, 1927 Probate page 311). And so, when any Act of Parliament refers to the United Kingdom or to the territorial waters adjacent there to those expressions must prima facie be construed as referring to such area of land or sea as may from time to time be formally declared by the Crown to be subject to its sovereignty and jurisdiction as part of the United Kingdom or the territorial waters of the United Kingdom, and not as confined to the precise geographical area of the United Kingdom or itsterritorial waters at the precise moment at which the Act received the Royal Assent. The area comprised within the United Kingdom and its territorial waters varies in any event from time to time by natural processes as parts of the coastline change by erosion or accretion. The accreting shingle bank at Dungeness is no Alsatia in which a citizen enjoys immunity from the law of the land. The area to which an Act of Parliament of the United Kingdom applies may vary too as the Crown, in the exercise of its prerogative, extends its claim to areas adjacent to the coast of the United Kingdom in which it did not previously assert its sovereignty. On the construction of the Wireless Telegraphy Act, 1949, we agree with the majority judgments of the Divisional Court in The Queen v. Kent Justices.

5

Accordingly this appeal falls to be decided upon the basis adopted by the learned judge, to wit, whether Red Sand Tower is situate within the area claimed by the Crown after 1964 as comprising the internal waters and the territorial sea of the United Kingdom. The information as to what that area is in to be found in the Territorial Waters Order in Council, 1964. It was promulgated to give effect to the Convention of 1958, to which we have already referred, which was ratified by the United Kingdom on the 14th March, 1960, and came into force on the 10th September, 1964, fifteen days before the Order in Council was made. The Order in Council, although it contains no express reference to the Convention, is not easily intelligible without it. Save in its title it does not use the term "territorial waters"; all it purports to do is to specify "the baseline from which the breadth of the territorial sea adjacent to the United Kingdom, the Channel Islands and the Isle of Man is measured". There is no reference to "internal waters" and no statement as to the breadth of the territorial sea. But it is not disputed that, construing the Order in Council in the light of the Convention and the law as it was before the Order in Council came into operation, the Crown, in the exercise of its prerogative powers, was thereby asserting a claim which the courts are constitutionally bound torecognise, to incorporate within the United Kingdom that area of the sea which lies upon the landward side of the baseline (that is, internal waters) and within three nautical miles on the seaward side of the baseline (that is, the territorial sea).

6

The Post Office claim first that Red Sand Tower is in a part of the sea which lies on the landward side of the baseline drawn across a "bay" in the Thames estuary and therefore in internal waters; alternatively if there is no such "bay" they claim that it is in a part of the sea within three nautical miles of the seaward side of the baseline along the coast of Sheppey in Kent and therefore in the territorial sea.

7

We deal first with the claim that it is in internal waters. While recognising that the Order in Council is the document which we have to construe, it is convenient to look first at the Convention for a number of reasons. The subject-matter of the Order in Council, as already suggested, is not readily intelligible without knowledge of the Convention. Secondly, the Order in Council was promulgated to give effect to the Convention so far as the United Kingdom was concerned. Thirdly, and in this respect it differs from an international convention which requires legislation for its implementation, it deals with a subject-matter which lies within the prerogative power of the Crown, videlicet a claim to exercise territorial sovereignty over an area of the sea adjacent to our shores.

8

A "bay" is not a term of art in English law. In ordinary parlance it is an indentation or concave curvature in the coastline; but for the purposes of determining what are the areas of the sea over which a state is entitled to claim complete or qualified sovereignty in international law it is given a more precise meaning by the Convention. The Convention, although it did not specify the breadth of the territorial sea, a matter upon which it proved impossible to achieve agreement, set out the agreed baselines from which the breadth of the territorial sea was to be...

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