Wicks, R v. [1997] UKHL 21; [1998] AC 92; [1997] 2 All ER 801; [1997] 2 WLR 876 (21st May, 1997)

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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.

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.

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 [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.

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.

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 [1993] 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 [1992] C.L.J. 308, that the criminal court should itself have power to refer an issue for decision to the Divisional Court.

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.

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:

The enforcement notice of which a copy was served on Mr. Wicks recited that it appeared to the council that there had been a breach of planning control by the erection of a two-storey building and that the council considered it expedient, having regard to the provisions of the development plan and to all other material considerations, to issue the enforcement notice. It required the removal of all parts of the building higher than 2.5 metres in order to alleviate the injury to amenity caused by the development. It specified 24 April 1990 as the date on which, in accordance with section 172(5), the enforcement notice would take effect. Finally, in accordance with section 173(5), it allowed one month for the work to be done. The Act calls this "the compliance period": see section 178(7). There is no dispute that the notice complied upon its face with all the provisions of the Act.

Section 174 gives a right of appeal against an enforcement notice to the Secretary of State. Subsection (2) lists eight grounds upon which appeals may be brought. Mr. Wicks appealed on four of them:

(The other four, (d), (e), (f) and (h), are, in brief, that the breach took place more than four years before the notice was served or, in the case of a change of use, before 1964, that copies of the notice were not properly served and that the compliance period is too short).

Section 175(4) provides that where an appeal is brought under section 174, the enforcement notice shall be of no effect pending the final determination of the appeal. Mr. Wicks was entitled under section 175(3) to ask for a public inquiry by one of the Department's inspectors but agreed to have the appeal determined on written submissions. Just over a year later, on 10 May 1991, the inspector dismissed the appeal on all four grounds.

Another year passed during which there were some negotiations between Mr. Wicks and the planning authority but he did not take the steps required by the notice. Section 179 provides as follows:

On 11 June 1992 the council caused a summons to be issued before the Ramsgate justices, alleging a breach of section 179(1). Mr. Wicks elected to be tried on indictment. An indictment was prepared on 2 February 1993 and the trial before His Honour Judge Rooke and a jury began on 27 September 1993.

After the jury had been sworn but before anything else had been done, there was a discussion between counsel and the judge about what Mr. Wicks's defence might be. The enforcement notice had been properly served and was, as I have said, formally valid. There was no dispute that he had failed to comply. He could not reopen the questions which had been decided against him by the inspector, because section 285(1) says:

Mr. Wicks's counsel said that he wanted to challenge the service of the enforcement notice on the grounds falling outside the eight statutory grounds of appeal. He said that whatever the planning merits of the enforcement notice, the council's decision to serve it had been improper. It had not genuinely considered, in accordance with section 172(1)(b), whether service of the notice was "expedient." The council had acted in bad faith and had been motivated by immaterial considerations. He proposed to adduce evidence on these matters and submitted that as they involved questions of fact, they should be decided by the jury.

Counsel for the prosecution did not dispute that in principle Mr. Wicks could challenge the validity of the enforcement notice on these grounds. But he submitted that they should have been raised by way of an application for judicial review. At the criminal trial, a notice which had not actually been quashed by the Secretary of State or the court should be treated as valid.

The judge accepted the prosecution's submission and gave a ruling that he would not allow the defence to question the propriety of the decision to issue the notice. He suggested that, as Mr. Wicks was now left with no defence, he should plead guilty and test the ruling on appeal. Mr. Wicks changed his plea to guilty and was bound over for 12 months to come up for judgment if called upon to do so. This meant that Mr. Wicks had to comply with the notice. If he did not do so, he would be liable to a daily fine on summary conviction under section 179(5). On a certificate granted by the judge, he appealed to the Court of Appeal.

The Court of Appeal (Lord Taylor of Gosforth C.J., Mantell and Keene JJ.) dismissed the appeal. Keene J., who gave the judgment of the court, referred to the well-known distinction which Upjohn L.J. had made in Miller-Mead v. Minister of Housing and Local Government [1963] 2 Q.B. 196, 226 between an enforcement notice which was a nullity ("waste paper") and one which was invalid only in the sense of being liable to be quashed. A notice which on its face failed to comply with some requirement of the Act was a nullity. A notice which could be quashed on the basis of extrinsic facts (for example, because in fact no breach of planning control had taken place) was invalid but not a complete nullity.

Miller-Mead v. Minister of Housing and Local Government concerned the power of the Secretary of State to amend or vary an enforcement notice under what is now section 176(2) of the Act of 1990. The Court of Appeal decided that he could amend a notice which was otherwise invalid but not one which was upon its face a nullity. The purpose for which the distinction was used was therefore different from the issue in this case. But, as Keene J. observed, a very similar distinction was employed by the Divisional Court in Bugg v. Director of Public Prosecutions [1993] Q.B. 473 to describe the grounds upon which a defendant to a prosecution under a local byelaw could challenge the validity of the byelaw in the criminal proceedings.

Mr. Bugg was prosecuted for breach of a byelaw made under the Military Lands Act 1892. He claimed that on various grounds the byelaw was ultra vires and the question was whether he could raise these points before the magistrates. Woolf L.J. drew a distinction between "substantive invalidity", where, as he put it, the byelaw is:

and "procedural invalidity," in which the complaint is of some impropriety in the way the byelaw was made. Substantive invalidity could be raised as a defence before the magistrates but procedural invalidity could not. If the byelaw was valid on its face, it should be treated as valid until set aside by judicial review proceedings in the Divisional Court.

Keene J. said that the distinction between substantive and procedural invalidity corresponded with Upjohn L.J.'s distinction between nullity and invalidity. Defects on the face of the enforcement notice could be relied upon in the criminal proceedings but (procedural) invalidity was a matter either for the Secretary of State on appeal or the Divisional Court on judicial review. The learned judge went on to give reasons why it was appropriate to apply this distinction in the case of an enforcement notice, to which I shall in due course return.

Before your Lordships' House Mr. Speaight Q.C. on behalf of the appellant launched a sustained attack on the principle formulated in Bugg v. Director of Public Prosecutions He said, by reference to cases on prosecutions under byelaws going back many years, that the distinction between substantive and procedural invalidity was an entirely new invention, retrospectively imposed upon cases which had said in perfectly general terms that a defendant in criminal proceedings was entitled to challenge the vires of the byelaw under which he was being prosecuted. The most recent such general statement was by Lloyd L.J. in the Divisional Court in Reg. v. Reading Crown Court, Ex parte Hutchinson [1988] Q.B. 384, another prosecution for breach of byelaws made under the Military Lands Act 1892. The Act provided, in section 14(1), that "no byelaws promulgated under this section shall authorise the Secretary of State to take away or prejudicially affect any right of common" and the defendants claimed that a byelaw prohibiting access to a military base at Greenham Common infringed this proviso. The Crown Court decided that as this was not a defect appearing upon the face of the byelaw and would have to be proved by evidence, it could not be raised as a defence to criminal proceedings. Lloyd L.J. disagreed and said in robust and general terms that:

Woolf L.J. distinguished Reg. v. Reading Crown Court, Ex parte Hutchinson on the ground that there the defence was one of substantive invalidity and could therefore properly be raised. The distinction between substantive and procedural invalidity had not been argued. However, if substantive invalidity means a defect apparent on the face of the byelaw, I confess to some difficulty in seeing how the Greenham Common defence came within this category. Evidence must have been needed to establish the existence and nature of the common rights which were prejudicially affected. It is true that in subsequent litigation Lord Bridge of Harwich said that certain of the byelaws were "ultra vires as they stand." But "as they stand" was being contrasted with what might be their effect if they were modified by some form of severance. It was necessary to have evidence from the Commons Register of the common rights which would be prejudicially affected.

On the other hand, it is certainly true that the Greenham Common defence cannot be said to have concerned a procedural matter. This suggests, as do some other authorities, that the line between the substantive and procedural in the normal sense of those words does not necessarily coincide with the distinction between matters which appear on the face of the instrument and those which need to be established from extrinsic facts. Woolf L.J. appears to have been conscious of this difficulty: he conceded the existence of a "grey area," occupied in particular by:

The breadth of the principle, which did not appear to be confined to byelaws, was also said to be inconsistent with the reasoning in cases like Wandsworth London Borough Council v. Winder [1985] A.C. 461. There a tenant was sued for non-payment of rent. He was held entitled to raise as a defence in the county court an allegation that the council's decision to increase rents had been Wednesbury unreasonable. In Bugg v. Director of Public Prosecutions this case was also said to have involved substantive invalidity. As a matter of ordinary language, this seems to be right: the tenant's complaint was that "the [Council's] decisions to increase the rent were such as no reasonable man could consider justifiable." This appears concerned with the decision itself and not the way it was made. But the ground of invalidity would not have appeared upon the face of the resolution fixing the new rents. A good deal of detailed evidence would probably have been required.

Woolf L.J. also said that Winder was concerned with civil proceedings. He may have had in mind that a circuit judge could probably cope rather better with difficult questions of administrative law than magistrates. But there are other matters to be taken into account. Lord Fraser of Tullybelton said of the defendant in Winder:

It is reasonable to suppose that Lord Fraser would have regarded these sentiments as applying with even greater force to a defendant to a criminal prosecution.

There are two statements in cases in this House which are often cited in this context. One is by Lord Radcliffe in Smith v. East Elloe Rural District Council [1956] AC 736, 769-770 and the other by Lord Diplock in F. Hoffmann-La Roche & Co. A.G. v. Secretary of State for Trade and Industry [1975] A.C. 295, 366. In the former, Lord Radcliffe said of a compulsory purchase order:

These remarks were made specifically about the effect of a compulsory purchase order. They are not capable of being generalised so as to have any bearing on the question of whether, and to what extent, an ultra vires defence may be raised in criminal proceedings. All that can be gained from this citation is that it is conceptually possible to have an act which is entirely valid and effective until quashed in appropriate proceedings. Whether a particular exercise of statutory power should be regarded as such an act is an altogether different question.

In the other passage, Lord Diplock deprecated the use of terms like "voidable," "void" or "a nullity" as useful descriptions of the status of subordinate legislation "before its validity has been pronounced on by a court of competent jurisdiction":

The context of these remarks was the question of whether the Crown should be obliged to give a cross-undertaking in damages in return for an interlocutory injunction enforcing a statutory instrument which was alleged by the defendant to be ultra vires. The presumption of validity to which Lord Diplock referred was in my view an evidential matter at the interlocutory stage and the presumption existed pending a final decision by the court. Lord Diplock was not putting forward the sweeping proposition that subordinate legislation must be treated for all purposes as valid until set aside. He did not distinguish between substantive and procedural invalidity and such a proposition would have gone far beyond anything said in Bugg v. Director of Public Prosecutions.

As your Lordships will have gathered, I think that there is considerable force in Mr. Speaight's criticisms of the principle enunciated in Bugg. It is not necessary in these proceedings to express any concluded opinion on its application to byelaws. It does however seem to be the case, as Lloyd L.J. said in Reg. v. Reading Crown Court, Ex parte Hutchinson [1988] 1 Q.B. 384, 391, that defendants prosecuted for breaches of local byelaws have always in the past been allowed to challenge their vires without discrimination as to the grounds upon which they were doing so. I have some doubt as to whether this ancient jurisdiction of the local justices can be cut back in the manner suggested or whether it would be wise to do so. Like Lloyd L.J., I am impressed by the submission of the defendant before him in Reg. v. Reading Crown Court, Ex parte Hutchinson, which he recorded as follows:

I recognise that there is a good deal in the point that the issues which arise in modern judicial review proceedings are sometimes unsuited for decision by a magistrates' court. Ultra vires was a relatively unsophisticated doctrine in the days of Kruse v. Johnson [1898] 2 QB 91; today it requires a good deal of specialised legal knowledge and a sensitivity to the proper boundaries between legislative, executive and judicial power. The distinction between substantive and procedural invalidity is presumably intended to confine magistrates' courts to points of law on which the justices can be advised by their clerk. It is meant to avoid them having to apply complicated rules of administrative law to their findings of fact. But, as the cases show, the distinction between substantive and procedural invalidity appears to cut across the distinction between grounds of invalidity which require no extrinsic evidence and those which do.

If the argument is that developments in judicial review have brought about a change in the old law about challenging byelaws, there is great difficulty in identifying when the change took place. I agree with Lloyd L.J. that it could hardly have been as a result of changes in the procedure for judicial review or the practice introduced by O'Reilly v. Mackman [1983] 2 AC 237. It may be that the problem cannot be solved by judicial creativity and that, as Lord Fraser of Tullybelton said in Wandsworth London Borough Council v. Winder [1985] AC 461, 510, if it is thought inconvenient to have questions of ultra vires decided by magistrates, Parliament must change the law.

Furthermore, I have read in draft the speech of my noble and learned friend Lord Nicholls of Birkenhead and I agree that the implications of Director of Public Prosecutions v. Bugg, in particular its generalisation of the passages from the speeches of Lord Radcliffe and Lord Diplock to which I have referred, go wider than questions of procedure. They suggest that someone who contravenes a bye law commits an offence even if the bye law is afterwards quashed for procedural invalidity. For my part, I would (in the absence of specific legislation) find their conclusion unacceptable.

But, my Lords, while I am willing for the sake of argument to accept Mr. Speaight's submission that there is a wide right for anyone prosecuted under a local byelaw to challenge its validity, the point at which we absolutely part company is when he submits that this right can be extrapolated to enable a defendant to challenge the vires of every act done under statutory authority if its validity forms part of the prosecution's case or its invalidity would constitute a defence. In my view no such generalisation is possible. The question must depend entirely upon the construction of the statute under which the prosecution is brought. The statute may require the prosecution to prove that the act in question is not open to challenge on any ground available in public law, or it may be a defence to show that it is. In such a case, the justices will have to rule upon the validity of the act. On the other hand, the statute may upon its true construction merely require an act which appears formally valid and has not been quashed by judicial review. In such a case, nothing but the formal validity of the act will be relevant to an issue before the justices. It is in my view impossible to construct a general theory of the ultra vires defence which applies to every statutory power, whatever the terms and policy of the statute.

The correct approach is in my view illustrated by the decision of the Divisional Court in Quietlynn Ltd. v. Plymouth City Council [1988] Q.B. 114. This case arose out of a prosecution under paragraph 20(1) of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 for using premises as a sex establishment without a licence. The Act had introduced a system of licensing. By paragraph 28(1) of the Schedule a person who was using premises as a sex establishment before the Schedule came into force and who had applied for a licence was entitled to continue so to use the premises "until the determination of his application." The local council, as licensing authority, refused the application but the defendants continued the business. When prosecuted, they wished to argue that the decision to refuse had been vitiated by the council having regard to irrelevant considerations and failing to observe rules of natural justice. Consequently, they said that there had not yet been a "determination" of their application and their right to use the premises under paragraph 28(1) continued. The question for the Divisional Court was whether it was a defence that the refusal was in this sense ultra vires or whether, for the purposes of paragraph 28(1), the application was "determined" when the Council gave what purported to be its decision, notwithstanding that it might be liable to be quashed in proceedings for judicial review.

Webster J. said, at p. 129: "it is open to us to treat the question before this court as one which can be determined by the proper construction of [the licensing] code."

He referred to the case of The Queen v. Davey [1899] 2 QB 301, in which a woman was charged with obstructing the execution of an order of a magistrate under section 124 of the Public Health Act 1875, made ex parte on the application of a local council official, which required the removal of her child, who had scarlet fever, to the local hospital. The question was whether, as a defence to the prosecution, she was entitled to say that the order should never have been made. The Divisional Court held that she could not. Darling J. said:

He gave examples of various anomalies which might arise and said, at p. 129: "Results of this kind would, in our view, frustrate the clear policy of the statutory code." He said, at p. 131, that although it had:

these practices had grown up before judicial review had been given statutory recognition in section 31 of the Supreme Court Act 1981. He went on to say:

I have emphasised the references to the 1982 Act because in Reg. v. Reading Crown Court, Ex parte Hutchinson [1988] Q.B. 384, 394-396 Lloyd L.J. criticised the Quietlynn case on the basis that it laid down a general principle applicable to all statutory powers--in particular, to local byelaws. This is not the case. The judgment makes it clear that the court is concerned only with the construction of the Act of 1982; indeed, strictly speaking, only with the meaning of the word "determination" in paragraph 28(1) of Schedule 3 to the Act of 1982, read in the light of the scheme of the relevant parts of the Act.

In my view the question in this case is likewise one of construction. What is meant by "enforcement notice" in section 179(1) of the Act of 1990? Does it mean a notice which is not liable to be quashed on any of the standard grounds in public law? Or does it mean a notice issued by the planning authority which complies with the formal requirements of the Act and has not actually been quashed on appeal or judicial review? The words "enforcement notice" are in my view capable of either meaning. The correct one must be ascertained from the scheme of the Act and the public law background against which it was passed.

In my view, when one examines Part VII of the Town and Country Planning Act 1990, the scheme of enforcement of planning control which it exhibits and the history of its provisions, one is driven to the conclusion that "enforcement notice" means a notice issued by the planning authority which is formally valid and has not been quashed.

I start with a brief history of the enforcement notice provisions. These have been recast by Parliament on several occasions since they were first introduced in sections 23 and 24 of the Town and Country Planning Act 1947. Originally there was a right of appeal on limited grounds to the local justices and from them to quarter sessions. In some cases the method of dealing with non-compliance was for the planning authority to do the work and claim the cost from the owner. In others, non-compliance was a summary offence. At that time there was plainly no restriction on the way in which the validity of an enforcement notice could be challenged by an owner in criminal proceedings.

A radical change was made by the Caravan Sites and Control of Development Act 1960, when the right of appeal to the justices was abolished and a right of appeal to the minister on wider grounds was substituted. Section 33(8) of that Act provided for the first time that, save by means of the appeal procedure, the validity of an enforcement notice could not be questioned in any proceedings on certain of the grounds on which an appeal could be brought.

The enforcement notice code was further amended and re-enacted by the Town and Country Planning Act 1968 which was consolidated in the Town and Country Planning Act 1971. The latter Act also for the first time made the offence of failure to comply triable on indictment. The code was again amended and re-enacted in the Local Government and Planning (Amendment) Act 1981. It is the provisions substituted by this last Act which are now consolidated in the Town and Country Planning Act 1990.

The history shows that over the years there has been a consistent policy of progressively restricting the kind of issues which a person served with an enforcement notice can raise when he is prosecuted for failing to comply. The reasons for this policy of restriction are clear: they relate, first, to the unsuitability of the subject-matter for decision by the criminal court; secondly, to the need for the validity of the notice to be conclusively determined quickly enough to enable planning control to be effective and to allow the timetable for service of such notices in the Act to be operated; and thirdly, to the fact that the criminal proceedings are part of the mechanism for securing the enforcement of planning control in the public interest.

First, then, the suitability of the subject-matter. The Caravan Sites and Control of Development Act 1960 recognised that the planning merits of the enforcement notice were unsuitable for decision by a magistrates' court. It not only transferred the right of appeal to the minister (now the Secretary of State) but excluded challenge on most such grounds in any other proceedings. The present position is that no challenge is possible on any ground which can form the subject-matter of an appeal.

On the other hand, there remain residual grounds of challenge lying outside the grounds of appeal in section 174(2) of the Act of 1990, such as mala fides, bias or other procedural impropriety in the decision to issue the notice. I shall call these "the residual grounds." Mr. Speaight says that the fact that the residual grounds were not swept up in the appeal procedure supports his argument. If section 285(1) says that the notice cannot be questioned on certain grounds, it follows that it can be questioned on any other grounds. But the fact that the residual grounds are not altogether excluded does not necessarily mean that they can be raised as a defence to a prosecution. They may be available only by some other means. One has to ask why they were not included in the appeal procedure. The reason, as it seems to me, is obvious. Questions of whether the planning authority was motivated by mala fides or bias or whether the decision to issue the notice was based upon irrelevant or improper grounds are quite unsuitable for decision by a planning inspector. The question then is whether Parliament regarded them as suitable for decision by a criminal court.

In deciding this question one is (and here I echo the words of Webster J. in Quietlynn) entitled to take into account the complexity and sophistication of the law relating to the residual grounds; a matter of which Parliament would have been aware when the legislation last received substantive consideration in 1981. I think it no criticism of lay justices to say that many would not find it easy to apply the distinction, which comes so easily to the Divisional Court, between the legality of an administrative act and its substantive merits. It would in practice be difficult to prevent the hearing from turning into a reassessment of the planning merits and thereby subverting the whole scheme of the Act.

In the case of a trial on indictment, which was first introduced by the Act of 1971, Mr. Speaight submits that these questions would have to be decided by the jury after being given proper directions as to the law. Although on my view of the construction of section 179(1) the question does not arise for decision, I think that this is probably wrong. The vires of the enforcement notice is a question of law and should be decided by the judge, even if he has to hear evidence on the point: compare Reg. v. Goldstein [1982] 1 W.L.R. 804; [1983] 1 W.L.R. 151. But if Mr. Speaight is right, the point about the unsuitability of the subject-matter gains added force.

Then there is the question of timing. The enforcement of planning control obviously does not have the same urgency as the measures to prevent the spread of infectious diseases considered in The Queen v. Davey [1899] 2 QB 301. But one is entitled to say that the institution and extension of the appeal procedure shows a policy of having challenges to enforcement notices decided as soon as possible after they have been served. It is not only a question of avoiding undue delay. The policy must be seen against the background of the timetables laid down by the Act. An enforcement notice in respect of a breach of planning control by carrying out building operations without planning permission (such as occurred in this case) must be served within four years from the date of the breach: section 172(4). That may seem a long time but the facts of this case show that if the validity of the enforcement notice is left to be determined in the criminal prosecution, there may not be time to serve another. The breach took place in January or February 1990 and the notice was served with commendable rapidity on 13 March 1990. Despite the case being a relatively simple one and the waiver of any public inquiry, the appeal was not determined until 10 May 1991. There were then negotiations and the summons was not issued until 11 June 1992. Election for trial on indictment had the effect of delaying the trial until 27 September 1993. By that time there would have been less than six months in which to serve a fresh notice and if Mr. Wicks's appeal had been allowed by the Court of Appeal on 11 April 1995 it would have been too late. This was, as I say, an extremely straightforward case and (apart from the period of negotiation in 1991-92) there is nothing to show that the planning authority could have progressed the matter more quickly. Thus the exclusion of the residual grounds from the appeal procedure in section 174(2) would harmonise better with the scheme of the Act if they had to be raised by judicial review within the time limits prescribed for that procedure than if they could be relied upon in a criminal prosecution.

Thirdly, there is the purpose of the provisions for enforcement by criminal proceedings. The provisions of section 179(5), by which failure to comply after a first conviction gives rise to a fresh offence punishable by a daily fine, show that the criminal law is being used not merely to punish for a past act but as an instrument of coercion to encourage compliance in the future. The criminal proceedings thus form part of the general scheme of enforcement of planning control contained in Part VII of the Act and should in my view be interpreted to give effect to the overall policy of the enforcement procedures.

I do not think that construing the Act in this way involves any inroad upon the principle that criminal statutes should be clear and in case of ambiguity construed in favour of the defendant. The duty of the landowner is perfectly clear: if the enforcement notice has not been quashed, he must obey it. It was submitted that the power of the Divisional Court to quash an enforcement notice is discretionary and that criminal liability should not depend upon judicial discretion. As Sir William Wade has said in a passage in his book on Administrative Law, 6th ed. (1988), at p. 354 which was cited in Bugg v. Director of Public Prosecutions [1993] Q.B. 473, 499-500:

In my view this passage, with which I entirely agree, has no application to the present case. The fact that the decision not to quash the notice was an exercise of discretion (for example, because the court was satisfied that although one councillor should not have taken part in the decision, the notice would certainly have been served in any case) does not mean that any discretion enters into the question of whether the owner has committed an offence. The original decision to serve the notice was also a matter of discretion. But the offence is to disobey an enforcement notice which has not been quashed and the fact that the decision to issue it or not to quash it involved the exercise of discretion is irrelevant. On the contrary, it seems to me that the discretion which the Divisional Court has to refuse to quash when it is satisfied that a procedural impropriety would have made no difference is a reason why Parliament would not have intended this question to go to the justices or jury, who would obviously have no such discretion.

I do not think that in practice hardship will be caused by requiring the residual grounds to be raised in judicial review proceedings. The statutory grounds of appeal are so wide that they include every aspect of the merits of the decision to serve an enforcement notice. The residual grounds will in practice be needed only for the rare case in which enforcement is objectively justifiable but the decision that service of the notice is "expedient" (section 172(1)(b)) is vitiated by some impropriety. As Keene J. said in the Court of Appeal, the owner has been served with the notice and knows that he has to challenge it or comply with it. His position is quite different from that of a person who has contravened a byelaw, who may not have heard of the byelaw until he contravened it.

All these reasons lead me to conclude that "enforcement notice" in section 179(1) means a notice issued by a planning authority which on its face complies with the requirements of the Act and has not been quashed on appeal or by judicial review. There was no dispute that Mr. Wicks had failed to comply with such an enforcement notice and he was therefore guilty of the offence. The matters which he proposed to raise at his trial were irrelevant.

The Court of Appeal certified the following points as being of general public importance:

For the reasons given in the speech of my noble and learned friends, Lord Nicholls of Birkenhead and Lord Hoffmann, which I have read in draft and with which I agree, I too would dismiss this appeal. I also agree that the certified questions should be answered as my noble and learned friend Lord Hoffmann has proposed.

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	United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Wicks, R v. [1997] UKHL 21; [1998] AC 92; [1997] 2 All ER 801; [1997] 2 WLR 876 (21st May, 1997) URL: http://www.bailii.org/uk/cases/UKHL/1997/21.html Cite as: [1997] UKHL 21, [1997] 2 All ER 801, [1998] AC 92, [1997] 2 WLR 876

United Kingdom House of Lords Decisions

Wicks, R v. [1997] UKHL 21; [1998] AC 92; [1997] 2 All ER 801; [1997] 2 WLR 876 (21st May, 1997)