Bakewell Management Limited (Resondents) v. Brandwood and others (Appellants)
55. The last sentence of this quotation has often been cited, and it was referred to by Dillon LJ in Hanning's case. After discussing the authorities Dillon LJ drew this conclusion (at p 20):
Kennedy LJ (at p 23) also referred to Cargill v Gotts and reached a similar conclusion. These formulations of the principle will in almost every case produce the same result as is obtained by asking the question: Could the right claimed have been lawfully granted by deed? The canal company in Rochdale, the highway surveyor in Neaverson and the lower riparian owner (and his predecessors) in Hulley were not in a position to make a lawful grant because they had no power to authorise acts which affected not only their own private interests, but also wider public interests.
56. The present case is exceptional because of the unusual nature of the offence created by section 193(4) of the Law of Property Act 1925. It creates a criminal offence but it is, most unusually, an offence in respect of which the owner of the soil of the common has a dispensing power. It is common ground that that is the effect of the words "without lawful authority" in subsection (4). Moreover the landowner does not hold his dispensing power in any sort of fiduciary capacity. He is not bound to exercise it in the public interest. He can if he thinks fit exercise his dispensing power in his own private interest, by levying a charge for the grant of his authority. Miss Williamson QC (for the respondent) candidly agreed that from her client's point of view the appeal is ultimately about money.
57. That extraordinary feature of the criminal liability created by section 193(4) was noted by the Court of Appeal in Hanning, since it was the ground on which the case had been decided (in favour of prescription) at first instance. But Dillon LJ equated the judge's approach with that of the Court of Appeal (the so-called "public conscience" test) in Tinsley v Milligan  Ch 310. Dillon LJ (who was giving judgment after this House had reserved judgment, but before it gave judgment in Tinsley v Milligan  1 AC 340) correctly anticipated the House's disapproval of the "public conscience" test. He said at p 18:
He then analysed some of the authorities which I have mentioned and reached the general conclusion set out above. Kennedy LJ (at p 23) did not regard this as an area in which the Court had any discretion. Sir Roger Parker agreed with both judgments.
58. Dillon LJ (at p 20) also cited a general statement by Lord Maugham in George Legge & Son Ltd v Wenlock Corporation  AC 204, 222,
I do not consider that that wide proposition has any application here, since a statutory prohibition in respect of which a private citizen has an unfettered dispensing power, exercisable if he thinks fit for his own private purposes, cannot easily be described as enacted in the public interest.
59. My Lords, in my view this House should not readily conclude that the decision of the Court of Appeal in Hanning was mistaken, especially as it has been followed, not only by the Court of Appeal in this case, but also on other occasions. Nevertheless I am satisfied that the wide formulations of the principle by Templeman LJ in Cargill v Gotts and by the Court of Appeal in Hanning, although producing the right result in the generality of cases, are too wide in a case like the present. That is not to say that the residents of houses near Newtown Common did not commit a criminal offence (of a fairly venial nature) when they drove across the common to and from their houses. The principle of legal certainty requires the criminality or lawfulness of an act to be determined at the time when it takes place, and not with the advantage (or disadvantage) of hindsight. Nevertheless the prior authority of the owner of the common would have provided a complete defence to any criminal charge. In the ordinary case of prescription of a private right of way, the prior authority of the landowner (in the solemn form of a grant by deed) is presumed or inferred from long user, even though every act of user during the prescription period takes place without his actual prior authority and is a tortious (though not a criminal) act. I cannot see that any public interest would be served by holding that the absence of the landowner's actual prior authority should produce a completely different result in cases where section 193(4) is in play.
60. I do not see this as reintroducing the "public conscience" test which this House disapproved in Tinsley v Milligan. It is merely a recognition that the maxim ex turpi causa must be applied as an instrument of public policy, and not in circumstances where it does not serve any public interest (see for instance National Coal Board v England  AC 403, 419). In my opinion it is the landowner's unfettered power of dispensing from criminal liability, exercisable at his own discretion and if he thinks fit for his own private profit, which is the key to the disposal of this appeal. Since a dispensing power of that sort is very unusual, it is unlikely to apply to many other cases of criminal illegality.
61. I would therefore allow this appeal.
BARONESS HALE OF RICHMOND