R v Wicks

The availability in criminal proceedings of a collateral public-law challenge to an administrative act on which the prosecution depends is a question of construction of the governing statute. There is no universal ultra vires defence applicable to every statutory power.

Under section 179(1) of the Town and Country Planning Act 1990, an enforcement notice means a notice issued by the planning authority which complies on its face with the Act and has not been quashed on appeal or judicial review. A defendant cannot resist prosecution by alleging bias, bad faith, improper purpose or reliance on immaterial considerations in the decision to issue such a notice. Those residual grounds must be pursued by judicial review.

R v Wicks concerned the failure of a landowner to comply with a planning enforcement notice. His statutory appeal against the notice had been dismissed. When prosecuted under section 179(1) of the Town and Country Planning Act 1990, he sought to allege that the council had acted in bad faith, had considered immaterial matters and had failed genuinely to decide whether enforcement was expedient.

The Crown Court ruled that those matters could be raised only by judicial review. The appellant then pleaded guilty and was bound over for 12 months. The Court of Appeal dismissed his appeal.

The central issue before the House was whether residual public-law objections to a formally valid, unquashed enforcement notice could be raised as a defence to a prosecution for non-compliance.

1. Appeal dismissed unanimously. Lord Hoffmann delivered the principal speech on the construction of the planning legislation. Lord Nicholls of Birkenhead agreed with his construction. Lord Browne-Wilkinson, Lord Jauncey of Tullichettle and Lord Hope of Craighead agreed with both speeches.

2. Per Lord Hoffmann, the existence and scope of a collateral ultra vires defence depend on the proper construction of the statute under which the prosecution is brought. No general theory can determine whether every act done under statutory authority may be challenged in criminal proceedings. A statute may require proof of an act valid against every public-law objection. It may instead require only an act which is formally valid and has not been quashed.

3. Per Lord Hoffmann, Part VII of the Town and Country Planning Act 1990 established an elaborate and progressively restrictive enforcement code. Its appeal procedure, statutory time limits and coercive criminal sanctions showed that the validity of an enforcement notice was intended to be determined promptly. The statutory appeal grounds covered the planning merits. Residual objections such as bad faith, bias and improper purpose were suitable for judicial review, rather than determination by a planning inspector or criminal court.

4. Accordingly, an “enforcement notice” in section 179(1) means a notice issued by the planning authority which complies on its face with the Act and has not been quashed on statutory appeal or judicial review. The appellant had failed to comply with such a notice. His proposed allegations about the council’s motives were therefore irrelevant to the criminal charge.

5. Lord Nicholls reached the same conclusion. General principles governing collateral challenges remain subject to contrary indications in the relevant legislation. The detailed planning code supplied that indication in this case.

6. Lord Nicholls and Lord Hoffmann expressed substantial reservations, without deciding the point, about the distinction drawn in Bugg v Director of Public Prosecutions [1993] Q.B. 473 between substantive and procedural invalidity. In particular, they questioned the suggestion that breach of a procedurally invalid byelaw necessarily remains criminal unless the byelaw was first quashed.

7. The certified questions were answered: (1) a defendant prosecuted under section 179(1) has no right to raise the proposed ultra vires defence; (2) there is no exception for alleged bad faith; and (3) the question whether judge or jury would determine validity does not arise.

1. House of Lords: In R v Wicks [1997] UKHL 21, the House unanimously dismissed the appeal and affirmed that the proposed public-law challenge could not be raised in the criminal proceedings.

2. Court of Appeal (Criminal Division): The court dismissed the appeal from the Crown Court ruling. It held that defects not appearing on the face of the enforcement notice had to be pursued through statutory appeal or judicial review.

3. Crown Court: The judge excluded the proposed challenge to the council’s decision to issue the notice. The appellant then pleaded guilty and was bound over for 12 months to come up for judgment if called upon.