Crown Prosecution Service v Inegbu

Where legislation preserves subordinate legislation after repeal, it may also preserve the procedural mechanism necessary to prove that legislation, if that construction gives effect to Parliament’s evident scheme. The court need not adopt a senseless interpretation merely because the provision has penal consequences. A statutory lacuna may be filled by interpretation where the preserved legislation would otherwise be practically ineffective. Section 17(2) of the Interpretation Act 1978 may provide an additional basis where subordinate legislation or an act done under a repealed enactment could have been made or done under the re-enacted provision.

The Crown Prosecution Service appealed by way of case stated against the dismissal of an information alleging an offence under railway byelaws 6(1) and 24 made under section 219 of the Transport Act 2000. The byelaws remained in force through section 46(4) and Part 2 of Schedule 13 to the Railways Act 2005, but Schedule 20 to the 2000 Act had been repealed.

The District Judge held that a certificate based on Schedule 20 could no longer prove the byelaws, while the replacement certification procedure in Schedule 9 to the 2005 Act applied only to new byelaws made by railway operators. The central question was whether Parliament had preserved the manner of proving the continuing byelaws.

1. Appeal allowed. The question stated for the opinion of the court was answered in the affirmative. The case was not remitted for retrial.
2. The scheme of the Transport Act 2000 provided both for the Strategic Rail Authority to make railway byelaws and for their validity and currency to be proved conveniently by a certificate under paragraph 7 of Schedule 20. The Railways Act 2005 preserved those byelaws through section 46(4), subject to the repeal of section 219.
3. Per Mr Justice Davis, section 46(4), read in the context of the statutory scheme, preserved the continuing applicability of Schedule 20 to byelaws made under section 219 which remained in force. The replacement procedure in paragraph 7 of Schedule 9 concerned new byelaws made by railway operators and did not replace the evidential position for the preserved SRA byelaws.
4. The court rejected an interpretation which would preserve the byelaws but remove the convenient statutory means of proving them. The general rule that penal statutes are construed restrictively did not require a senseless construction. The court could properly fill the apparent lacuna by interpretation where the alternative frustrated the evident legislative intention.
5. Section 16 of the Interpretation Act 1978 was of doubtful application on the chronology. Section 17(2)(b), however, provided further assistance: certification done under the repealed enactment could have been done under the re-enacted scheme and therefore continued to have effect as if done under that provision.
6. Lord Justice Latham agreed. He considered that the structure of the amended legislation clearly required the procedural provisions to continue with the byelaws and, alternatively, that section 17(2) supplied the solution.
7. The respondent was ordered to pay the appellant’s costs, subject to detailed assessment and the usual consideration arising from the representation order.

• High Court (Administrative Court): The appeal by way of case stated was allowed. The District Judge’s ruling was held to be erroneous, but the matter was not remitted for retrial.
• Doncaster Magistrates’ Court: The District Judge dismissed the information after ruling that the railway byelaws had not been properly proved by the certificate produced.