R v Andrew Jonathan Chubb Cooper

A criminal court may generally consider whether a notice or administrative act is invalid, but Parliament may assign that question exclusively to another procedure. Where the statutory scheme gives a defendant a clear and ample opportunity to challenge validity before prosecution, the notice remains valid and enforceable unless revoked, varied or set aside through the prescribed procedure or judicial review. The court should consider the scheme’s purpose, wording and practical consequences. A ruling that validity cannot be challenged at trial does not prevent a defendant receiving a trial. A guilty plea is not rendered unsafe merely because the ruling removes the proposed invalidity defence.

The applicant, a farmer, renewed applications for an extension of time and leave to appeal against his conviction in the Crown Court at Exeter for contravening a Stop Notice under regulation 26 of the Environmental Impact Assessment (Agriculture) (England) (No 2) Regulations 2006. He had unsuccessfully challenged the relevant notices through statutory appeals and judicial review.

Before trial, the Crown Court ruled that the Stop Notice was valid and could not be challenged in the criminal proceedings. The applicant then pleaded guilty. The central issues were whether validity could be raised as a defence, whether consequential evidential rulings were correct, and whether the guilty plea made the conviction unsafe.

The renewed applications for an extension of time and for leave to appeal against conviction were refused. No order was made for the respondent’s costs.

1. Challenge to validity. Boddington v British Transport Police [1999] 2 AC 143 established the need to examine the statutory context when deciding whether a criminal court may entertain a challenge to the validity of subordinate legislation or administrative action. Stannard v The Crown Prosecution Service [2019] 1 WLR 3229 showed that, where a defendant has a statutory appeal route or judicial review, Parliament may intend the notice to remain valid and enforceable unless varied or set aside.
2. Application of the statutory scheme. The applicant had a clear and ample opportunity to challenge the Stop Notice before prosecution, including an appeal to the Secretary of State and judicial review. Regulation 31(8) kept the requirements of the notice in effect pending appeal. Regulation 25(4) identified the circumstances in which the notice ceased to have effect. Allowing a collateral challenge in the criminal proceedings would undermine the statutory procedure, create a perverse incentive to ignore it, and produce the absurd result that the notice was both valid and invalid. The Crown Court was therefore correct to rule that the notice was valid throughout the indictment period and could not be challenged as a defence.
3. Guilty plea and consequential rulings. The ruling was a ruling on the central legal issue, not an order preventing a trial. Had the applicant maintained a not-guilty plea, the judge would have directed the jury that the Stop Notice was valid, but the jury would still have determined the verdict. There was no applicable exception to the general rule that a conviction following a guilty plea is safe. Evidence was admissible only if relevant to a live issue, and the rulings on evidence and witnesses were consequently made on the correct basis. The judge was also entitled to grant special measures without depriving the applicant of cross-examination.
4. Remaining matters. Complaints concerning proceedings under regulation 22, disclosure, the prosecution of the applicant alone, and alleged procedural manipulation had no substance. The time limit began when the guilty plea was entered, and an extension would serve no purpose. In view of the applicant’s limited means, no costs order was made.

• Court of Appeal (Criminal Division): refused the renewed applications for an extension of time and leave to appeal against conviction. [2022] EWCA Crim 922.
• Single judge: refused the applications on paper for the reasons given in writing.
• Crown Court at Exeter: the applicant pleaded guilty to contravening a Stop Notice and was sentenced to a fine, imprisonment in default, prosecution costs and the applicable surcharge.