Boddington v. British Transport Police

The House of Lords held that a defendant in criminal proceedings may raise a collateral public law defence that subordinate legislation or an administrative act made under it is ultra vires. The court rejected the distinction drawn in Bugg v. DPP between "substantive" and "procedural" invalidity as a barrier to such a defence and reaffirmed that Anisminic and related authorities treat unlawful administrative acts as nullities. The burden is on the defendant to prove invalidity on the balance of probabilities. The court further construed section 67(1) of the Transport Act 1962 and concluded that the word "regulating" can include a total prohibition of smoking on railway carriages; accordingly the byelaw and Network South Central's implementation were within the powers conferred.

This is an appeal from a conviction for smoking in a railway carriage in breach of byelaw 20 of the British Railways Board's Byelaws 1965, made under section 67(1) of the Transport Act 1962. The appellant, Mr Boddington, sought to defend himself by contending that the administrative decision to post no-smoking notices in all carriages (thereby activating the byelaw) was ultra vires and unlawful.

The factual background was that Network South Central had, from January 1993, applied a complete ban on smoking in its trains for commercial reasons and posted conspicuous no-smoking notices; the appellant continued to smoke and was convicted by a stipendiary magistrate. The Divisional Court dismissed his appeal by case stated but certified points of general public importance relating to whether (i) a defendant may raise in criminal proceedings a challenge that a byelaw or administrative act under it is ultra vires; and (ii) whether such a challenge is restricted to instances where the instrument is "bad on its face."

(i) Nature of the claim/application: The appellant sought to rely as a defence on the unlawfulness of the decision to post no-smoking notices (an administrative act activating byelaw 20) and argued that "regulating" in section 67(1) did not authorise a total prohibition.

(ii) Issues framed by the court: whether collateral public law defences are admissible in criminal trials; whether the Bugg distinction between substantive and procedural invalidity should be maintained; the standard and burden of proof for establishing invalidity; and the proper construction of section 67(1) of the Transport Act 1962.

(iii) Reasoning and disposition: The House held that defendants may raise collateral challenges to subordinate legislation or administrative acts in criminal proceedings, absent clear statutory provision to the contrary: the right to defend oneself in the proceedings where liberty is at stake is fundamental and the presumption is that Parliament did not intend to remove it. The court rejected the rigid substantive/procedural distinction in Bugg, relying on Anisminic and subsequent authorities which treat unlawful subordinate legislation or administrative acts as nullities. The appellant bore the burden, on the balance of probabilities, of proving invalidity. On the facts, and on construction of section 67(1), the Lords found that "regulating" the use and travel on the railway could include a total ban on smoking; Network South Central's implementation was within power. Accordingly the appeal was dismissed.

Appeal dismissed. The House held (1) that a defendant in criminal proceedings may raise as a defence the contention that subordinate legislation or an administrative act made under it is ultra vires and, if proved, affords a defence; (2) the distinction in Bugg between substantive and procedural invalidity should not bar such a defence; (3) the burden is on the defendant to establish invalidity on the balance of probabilities; and (4) on the construction of section 67(1) of the Transport Act 1962, the byelaw and the decision to post no-smoking notices were within the powers conferred and therefore lawful.

Conviction by stipendiary magistrate (Brighton, 28 July 1995); appeal by way of case stated to the Divisional Court of the Queen's Bench Division (appeal dismissed; two points of law certified) [1997] C.O.D. 3 (Divisional Court); appeal to the House of Lords [1998] UKHL 13.