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|Judgments - Reg. v. Wicks
Lord Hoffmann Lord Hope of Craighead
(ON APPEAL FROM THE COURT OF APPEAL
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.
LORD JAUNCEY OF TULLICHETTLE
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.
LORD NICHOLLS OF BIRKENHEAD
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.
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  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  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  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 criminal courts. Similarly with the risk of inadequate evidence: evidence may have to be called in the criminal court to establish, for instance, whether land to which a byelaw purports to extend is subject to rights of common and outside the authorised reach of the byelaw. Likewise, in those ultra vires cases which admittedly are within the purview of the criminal courts, the decision in the criminal court does not formally set aside the impugned order. And in those cases the protective time limits and discretions are not available. Indeed, as to this last point, it is highly questionable whether a judicial discretion to grant or withhold relief should have a significant role when a criminal consequence hangs upon the lawfulness or unlawfulness of the impugned order.
Procedure and discretion
The matter goes further. These reasons, important as they are, are largely reasons of practical convenience. They are said to support the need for two different categories. But hard and fast rules should have no place when deciding questions of practical convenience. There is a place for guidelines, and for prima facie rules, or residual rules. But circumstances in individual cases vary infinitely. If convenience is the governing factor, then at some point in the system there should be space for a discretionary power, to be exercised having regard to all the circumstances. For instance, not all questions of invalidity, whether substantive or procedural, are sophisticated and complex. And sometimes a short point of disputed fact, concerning what happened when a local authority was deciding to make the impugned order, might be determined as easily, or better, in a criminal court than in judicial review proceedings in the Divisional Court. If a discretion as to the more suitable forum were to exist, factors to be taken into account would include the extra expense involved for an accused in having to initiate separate proceedings of his own in the Divisional Court (the "cumbrous duplicity of proceedings" mentioned by Lord Bridge of Harwich in Chief Adjudication Officer v. Foster  A.C. 754, 766-767), and the greater difficulty of the accused in obtaining legal aid in civil proceedings.
One possible way ahead, therefore, is to abandon the attempt to define a boundary. Rather, the guiding principle should be that prima facie all challenges to the lawfulness of an impugned order may be advanced by way of defence in the criminal proceedings, but that the criminal court should have a discretionary power to require an unlawfulness defence to be pursued, if at all, in judicial review proceedings. Thus, to return to the example I mentioned at the outset, in the exercise of its discretion the criminal court might decide that the two defences should be decided together by the same court. That court would be either the criminal court or the Divisional Court, depending on the circumstances. Even more radical is the suggestion of Carl Emery, in his illuminating article in  C.L.J. 308, that the criminal court should itself have power to refer an issue for decision to the Divisional Court.
A more fundamental problem
I say no more about this aspect of the underlying question, because there is lurking here a more fundamental problem which will have to be resolved before the boundary dispute can be settled finally. Thus far I have considered, as reasons for the boundary's existence and its location, reasons which are primarily practical. Bugg v. Director of Public Prosecutions introduced another reason, of an altogether more basic character. Woolf L.J. said, at page 500:
On this reasoning there is not only a boundary between the two different types of invalidity. There is also an imperative need for the boundary line to be fixed and crystal clear. There can be no room for an ambiguous grey area. On this reasoning the boundary is not merely concerned with identifying the proceedings in which, as a matter of procedure, the unlawfulness issue can best be raised. Rather, the boundary can represent the difference between committing a criminal offence and not committing a criminal offence.
According to this reasoning, a decision on invalidity has sharply different consequences, so far as criminality is concerned, in the two types of case. Setting aside an impugned order for procedural invalidity, as distinct from substantive invalidity, has no effect on the criminality of earlier conduct. Despite a court decision that the order was not lawfully made, the accused is still guilty of an offence, by reason of his prior conduct.
Further, it would seem to follow that in the case of procedural invalidity, the accused could be convicted even after the order is set aside as having been made unlawfully, so long as the non-compliance occurred before the order was set aside. In cases of substantive invalidity the citizen can take the risk and disobey the order. If he does so, and the order is later held to be invalid, he will be innocent of any offence. In cases of procedural invalidity, the citizen is not permitted to take this risk, however clear the irregularity may be.
This reasoning, with the consequences just mentioned, calls for the most careful and rigorous examination. At present I am not persuaded of its soundness. I am not persuaded that, for the purpose of affording a defence to a criminal charge, there is a distinction as suggested in Bugg or, if there is, that the boundary line is as suggested in that case, with the availability of a defence depending, for instance, on whether the invalidity is patent as distinct from latent.
I have emphasised the italicised words because issues concerning the invalidity of an impugned order arise in a variety of contexts. The consequence of invalidity may not be the same in all contexts and in respect of all persons. An order may be void for one purpose and valid for another: see the helpful discussions in Wade and Forsyth, Administrative Law, 7th ed., pp. 339-344, and Craig on Administrative Law, 3rd ed., pp. 451-466. Thus, when considering the consequences of different grounds of invalidity the purpose in hand is always important, as well as the particular statutory context.
Enforcement notices and the planning legislation
I have said enough to show that the questions raised by the observations in Bugg are far-reaching in their importance. They involve more basic issues than those canvassed in argument on this appeal.
In the event it is not necessary to decide these questions. It is unnecessary because the general principles discussed so far must always take effect subject to any contrary indication in the relevant legislation. With some byelaws, for instance, the enabling legislation is likely to give no guidance on the forum in which challenges to the lawfulness of the byelaw may be made. Then the general principles will guide. In other cases, of which the present is an example, the legislation will itself afford the necessary guidance.
The criminal offence of not taking steps required by an enforcement notice, created by section 179 of the Town and Country Planning Act 1990, is embedded in an elaborate statutory code, with detailed provisions regarding appeals. For the reasons given by my noble and learned friend Lord Hoffmann, I agree with him that as a matter of statutory interpretation "enforcement notice" in section 179(1) means a notice issued by the authority which is formally valid and has not been set aside. The appellant's contention, that the decision to issue the enforcement notice was influenced by bias and improper motives on the part of a councillor, is not a contention he can raise before the criminal court. I too would dismiss this appeal.
Mr. Wicks is the owner of a building behind a row of houses in Tivoli Road, Margate. It used to be an old storehouse. In October 1987 and again in 1989 it was damaged by storms. Mr. Wicks took down the roof and the upper part of a wall and began to rebuild. Thanet District Council, the local planning authority, said that his works were producing a different building and required planning permission. In particular, one wall was higher than before and overshadowed the gardens of houses in a side-street off Tivoli Road. On 27 February 1990 the council wrote warning Mr. Wicks that he was in breach of planning control and asked him to stop. On 9 March 1990 the council wrote again, warning that an enforcement notice might be served.
On 13 March 1990 the council served an enforcement notice under section 87 of the Town and Country Planning Act 1971 substituted (after previous amendments by 1974 Act) by Local Government and Planning (Amendment) Act 1981, s. 1 and Sched., para 1. It is now section 172 of the Town and Country Planning Act 1990 and for convenience I shall refer to the Act of 1990, which came into force on 24 August 1990. The provisions dealing with enforcement notices are in Part VII. The material parts of section 172 read as follows: