R v Wicks

JurisdictionUK Non-devolved
Judgment Date21 May 1997
Judgment citation (vLex)[1997] UKHL J0521-5
Date21 May 1997
CourtHouse of Lords

(On Appeal from the Court of Appeal (Criminal Division))

[1997] UKHL J0521-5

Lord Browne-Wilkinson

Lord Jauncey of Tullichettle

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Hope of Craighead



My Lords,


For the reasons given in the speeches of my noble and learned friends Lord Nicholls of Birkenhead and Lord Hoffmann with which I agree I would dismiss the appeal and answer the certified questions as proposed by my noble and learned friend Lord Hoffmann.


My Lords,


I have had the advantage of reading a draft of the speeches of my noble and learned friends Lord Nicholls of Birkenhead and Lord Hoffmann. For the reasons they give, I too would dismiss this appeal.


My Lords,


The underlying question in the present case is best approached by taking the example of a public body which, in exercise of statutory powers, makes an order or byelaw or issues a notice failure to comply with which is a criminal offence. Subsequently an individual is charged with having committed the offence. At his trial the accused wishes to challenge the lawfulness of the order or byelaw or notice (for brevity I shall use the compendious description of the "impugned order"). He wishes to contend, first, that the impugned order is ultra vires, having been made in terms not authorised by the statute and, secondly and further, that in any event the impugned order was not validly made because the public body was motivated by immaterial considerations and made the order for an unauthorised purpose. (The second defence corresponds to the defence the appellant Mr. Wicks wished to raise before the Crown Court in the present case, in respect of an enforcement notice.)


The underlying question calling for consideration on the present appeal is whether in such a case the accused can raise both these defences in the criminal proceedings or whether, although he can raise the first, he cannot raise the second. The question is whether, unlike the issue raised by the first defence, the issue raised by the second defence is beyond the jurisdiction of the criminal court and can only be decided in judicial review proceedings brought for the purpose. So, in respect of the second defence the accused must start his own judicial review proceedings in the Divisional Court against the public body which made the order, and seek an adjournment of the criminal proceedings until the judicial review proceedings have been concluded. The second line of defence is outside the boundary of the issues which can be raised in and decided by the criminal court, even though (or so one might expect) no offence will have been committed by the accused if the issue raised by the second defence is decided in his favour by the Divisional Court.


I have phrased the underlying question in this way because it is now well-established that where the criminal offence lies in failure to comply with an order made under statutory powers, it is open to the defendant to challenge the lawfulness of the order on certain grounds, by way of defence in the criminal proceedings. Among the most well-established of these grounds is lack of vires to make the material part of the order where this is apparent merely from a reading of the order in conjunction with the enabling Act: see, for instance, Reg v. Rose, Ex parte Wood (1855) 19 J.P. 676. That is the first of the two defences which the accused wishes to raise in my example.


Conversely, there are decisions to the effect that not all challenges to the lawfulness of an impugned order can be raised by way of defence in the criminal proceedings. Some must be decided in judicial review proceedings. Included in this category are some, but not, it seems, all challenges to the procedure which led to the making of the impugned order.


The boundary


However, there is at present some confusion over where, as a matter of general principle, the boundary between the two categories is, or should be, drawn. The uncertainty is a by-product of developments in the law of judicial review over the last 30 years. The greatly widened supervisory role now exercised by the court emerged largely from a much expanded application of the concept of ultra vires. Thus, if the ancient boundary line, distinguishing simply between challenges based on lack of vires and other challenges, were applied today the result would be to bring within the purview of the criminal courts a much wider range of challenges than formerly. This result would not attract universal approval.


I refer briefly to four recent decisions as illustrations. In Quietlynn Ltd. v. Plymouth City Council [1988] Q.B. 114, 131, the Divisional Court espoused a narrow view of the jurisdiction of the criminal court, confining this to invalidity on the face of the decision in question. In R. v. Reading Crown Court, Ex parte Hutchinson [1988] Q.B. 384, 391, Lloyd L.J. supported the broad view that if the validity of a local authority's decision is an essential element in the proof of a crime, that should be open to challenge in the magistrates' court or the Crown Court. In Bugg v. Director of Public Prosecutions [1993] Q.B. 473, 494-495, 499-500, the Divisional Court favoured a more restricted role for the criminal courts. Woolf L.J. drew a distinction between substantive invalidity and procedural invalidity. The former is a matter for the criminal court, the latter is not. The former category includes orders which on their face are invalid, as dealing with matters outside the scope of the enabling legislation or patently unreasonable. The issue raised in this category is a question of law, on which evidence is not required. Woolf L.J. recognised that, additionally, there may be a grey area, where an abuse of power is alleged because of bad faith on the part of the byelaw maker. Fourthly, in the instant case the Court of Appeal took an even more restrictive approach to the jurisdiction of the criminal court. Keene J. delivered the judgment of the court comprising Lord Taylor of Gosforth C.J., Mantell J. and himself. Keene J. considered that the terms "substantive" and "procedural" invalidity were no doubt appropriate when dealing with byelaws, as in Bugg, but that they could give rise to misunderstandings in other contexts. In the field of enforcement notices he preferred the distinction between defects on the face of a notice rendering it a "nullity" and those matters which may render a notice "invalid."


To some extent these differences in approach reflect the different statutory regimes applicable to the orders in question, but this is not a complete explanation. Hutchinson and Bugg were both byelaw cases.


The reasons for the boundary


Against this background one turns to seek the general principle or principles which underlie the boundary and the need for it. The terms of the enabling legislation will always need to be considered, and I shall come to this important aspect presently. Leaving that on one side for the moment, what are the reasons why some challenges to the lawfulness of an impugned order can only be raised in judicial review proceedings? Prima facie one would expect, surely, that in the criminal proceedings an accused should be able to challenge, on any ground, the lawfulness of an order the breach of which constitutes his alleged criminal offence. That seems the proper starting point.


The primary reasons put forward are that the Divisional Court is a more suitable tribunal than the criminal court for deciding certain types of issue. Challenges to the lawfulness of an order often raise complex and sophisticated issues, suited for decision by the specialist judges in the Divisional Court. The criminal courts, and lay magistrates in particular, are not equipped to handle them.


Further, judicial review proceedings have built-in safeguards, in the public interest. There are tight time limits, and the court has a measure of discretion in deciding whether to permit proceedings to be brought and in granting or withholding relief. This protection would be circumvented if a similar challenge could be raised as of right by way of defence in the criminal court.


Still further, the public body whose order is being impugned will be a party to judicial review proceedings. The public body can ensure that all the necessary evidence and legal submissions are presented. This will not always be so with criminal proceedings.


Finally, a decision in the criminal proceedings will not bind the public body. There is a risk of inconsistent decisions in different cases. This is not so in judicial review proceedings. There, if the challenge is successful, the impugned order will be quashed and set aside.


These reasons, taken cumulatively, show that there will be cases where proceedings in the Divisional Court are, in practice, much more suitable and convenient. Having said that, it must also be said that the guidance they give on where the boundary should be drawn and, indeed, on whether there should be a boundary at all, is questionable. These arguments stand in danger of proving too much. If they are persuasive they might be thought to lead to the conclusion that, save in glaringly obvious cases, all challenges to the lawfulness of an impugned order should be made directly to the Divisional Court rather than indirectly by way of defence in the criminal court. In respect of challenges which even on the narrowest view may be raised by way of defence, lay magistrates can be confronted with tricky questions of law. So far as there is a risk of inconsistent decisions, or a problem regarding parties, that also exists in those cases where the challenges may be raised as a defence in the...

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