Boddington v. British Transport Police, (1998) 227 N.R. 13 (HL)

• Case Date: January 15, 1998
• Jurisdiction: Canada (Federal)
• Citations: (1998), 227 N.R. 13 (HL)

Boddington v. British Transport Police (1998), 227 N.R. 13 (HL)

MLB headnote and full text

Boddington (appellant) v. British Transport Police (respondent)

Indexed As: Boddington v. British Transport Police

House of Lords

London, England

Lord Chancellor Irvine of Lairg, Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Steyn, and Lord Hoffmann

April 2, 1998.

Summary:

Boddington was charged with the offence of smoking a cigarette in a railway carriage where smoking was prohibited, contrary to bylaw 20 of the British Railways Board's Bylaws 1965 made under s. 67 of the Trans­port Act. Boddington argued that s. 67 of the Transport Act only conferred the power to regulate the use of the railway in respect of smoking in carriages and that a complete prohibition on smoking in all carriages by the posting of no smoking notices went beyond the permissible regulation and the decision to post those notices was unlawful.

The stipendiary magistrate for East Sussex held that Boddington could not challenge the validity of subordinate legislation and that the issues raised were beyond his jurisdic­tion. The magistrate nevertheless rejected the challenges to the administrative decision to implement the ban and convicted Bodding­ton. Boddington appealed.

The Divisional Court declined to rule on the merits of Boddington's argument. The court held that Boddington was not entitled to challenge the substantive validity of the smoking prohibition by way of defence in the criminal proceedings and that such mat­ters could only be considered in judicial review proceedings. The court certified points of law which raised the question of whether a defendant could raise as a defence to a criminal charge a contention that a bylaw, or an administrative decision made pursuant to the powers conferred by it, was ultra vires. Boddington appealed.

The House of Lords held that it was open to a defendant in a criminal prosecution to raise the contention that a bylaw or an ad­ministrative act undertaken pursuant to it was ultra vires. However, the court dis­missed Boddington's appeal, holding that the administrative decision to impose the ban on smoking was valid.

Administrative Law - Topic 7525

Delegated powers - Validity of delegated powers - Rules or regulations - Ultra vires - [See Trials - Topic 1112 ].

Administrative Law - Topic 7533

Delegated powers - Validity of delegated powers - Administrative acts - [See Trials - Topic 1112 ].

Practice - Topic 6270

Judgments and orders - Administrative orders - Collateral attack - [See Trials - Topic 1112 ].

Trials - Topic 1112

Summary convictions - Defences - In­valid­ity of legislation or order made there­under - Boddington was convicted of smoking a cigarette in a railway carriage where smok­ing was prohibited, contrary to bylaw 20 of the British Railways Board's Bylaws 1965 made under s. 67 of the Transport Act - Boddington had argued that s. 67 of the Transport Act only con­ferred the power to regulate the use of the railway in respect of smoking and that a complete prohibition on smoking by the posting of no smoking notices went beyond the permissible regu­lation and the decision to post those notices was unlawful - The House of Lords held that it was open to a defendant in a criminal prosecu­tion to raise the contention that a bylaw or an administrative act un­dertaken pursuant to it was ultra vires - However, the court affirmed Boddington's conviction, holding that the administrative decision to impose the ban on smoking was valid.

Cases Noticed:

Council of Civil Service Unions et al., Re, [1985] A.C. 374; 62 N.R. 336 (H.L.), refd to. [para. 11].

Director of Public Prosecutions v. Head, [1959] A.C. 83 (H.L.), consd. [para. 14].

Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147 (H.L.), consd. [para. 17].

Page v. University of Hull, [1993] A.C. 682; 147 N.R. 337 (H.L.), refd to. [para. 17].

O'Reilly v. Mackman, [1983] 2 A.C. 237 (H.L.), refd to. [para. 17].

R. v. Inland Revenue Commissioners, Ex parte Coombs (T.C.) & Co., [1991] 2 A.C. 283, refd to. [para. 20].

Hoffmann-La Roche (F.) & Co. A.G. v. Secretary of State for Trade and Indus­try, [1975] A.C. 295 (H.L.), consd. [para. 21].

Kirklees Metropolitan Borough Council v. Wickes Building Supplies Ltd., [1993] A.C. 227 (H.L.), consd. [para. 21].

Wandsworth Borough v. Winder, [1985] A.C. 461; 62 N.R. 232 (H.L.), consd. [para. 22].

Associated Provincial Picture Houses Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223 (C.A.), refd to. [para. 22].

R. v. Reading Crown Court, Ex parte Hutchinson; Same v. Devizes Justices, Ex parte Lee; Same v. Same, Ex parte Director of Public Prosecutions, [1988] Q.B. 384 (D.C.), refd to. [para. 23].

Kruse v. Johnson, [1898] 2 Q.B. 91, refd to. [para. 23].

Bugg v. Director of Public Prosecutions; Director of Public Prosecutions v. Percy, [1993] Q.B. 473 (D.C.), not folld. [para. 24].

London & Clydeside Estates Ltd. v. Aberdeen District Council, [1980] 1 W.L.R. 182 (H.L.), refd to. [para. 24].

Smith v. East Elloe Rural District Council, [1956] A.C. 736 (H.L.), refd to. [para. 24].

R. v. Wicks, [1998] A.C. 92 (H.L.), consd. [para. 25].

Plymouth City Council v. Quietlynn Ltd., [1988] Q.B. 154 (D.C.), refd to. [para. 36].

Pyx Granite Co. v. Ministry of Housing and Local Government, [1960] A.C. 260 (H.L.), refd to. [para. 37].

Toronto (City) v. Virgo, [1896] A.C. 88 (Can. P.C.), refd to. [para. 43].

Tarr v. Tarr, [1973] A.C. 254 (H.L.), refd to. [para. 43].

Percy v. Hall, [1997] Q.B. 924, refd to. [para. 49].

Calvin v. Carr, [1980] A.C. 574 (P.C.), refd to. [para. 49].

Mercury Communications Ltd. v. Director General of Telecommunications, [1996] 1 W.L.R. 48, refd to. [para. 70].

Roy v. Kensington and Chelsea and West­minster Family Practitioner Committee, [1992] 1 A.C. 624 (H.L.), refd to. [para. 70].

Chief Adjudication Officer v. Foster, [1993] A.C. 754 (H.L.), refd to. [para. 70].

Director of Public Prosecutions v. Hutchin­son and Smith, [1990] 2 A.C. 783; 113 N.R. 12 (H.L.), refd to. [para. 70].

Eleko v. Nigeria (Government)(Officer Administering), [1931] A.C. 662, refd to. [para. 71].

Ridge v. Baldwin, [1964] A.C. 40 (H.L.), refd to. [para. 73].

R. v. Chief Constable of Thames Valley Police, Ex parte Cotton, [1990] I.R.L.R. 344 (C.A.), refd to. [para. 73].

Authors and Works Noticed:

Beatson, J., Public and Private in English Administrative Law (1987), 103 L.Q.R. 34, pp. 59, 60, 61 [para. 65].

Craig, Administrative Law (3rd Ed. 1994), pp. 447 to 466 [para. 65].

de Smith, S.A., Woolf and Jowell, Judicial Review of Administrative Action (5th Ed. 1995), paras. 5.044 to 5.048 [para. 49].

Emery, Carl, Public or Private Law: The Limits of Procedural Reform, [1995] P.L. 450, pp. 455 to 461 [para. 65].

Feldman, David, Collateral Challenge and Judicial Review; The Boundary Dispute Continues, [1993] P.L. 37, generally [para. 65].

Forsyth, Christopher, The Metaphysic of Nullity, Invalidity, Conceptual Reasoning and the Rule of Law, generally [para. 65]; p. 159 [para. 69].

Forsyth and Hare, The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade (1998), pp. 152, 153 [para. 65].

Wade, H.W.R., Administrative Law (6th Ed. 1988), p. 354 [para. 77].

Wade, William, and Forsyth, Christopher, Administrative Law (7th Ed. 1997), pp. 41 [para. 69]; 321 to 324 [para. 65]; 323, [paras. 54, 67]; 324, 342, 343, 344 [para. 54].

Woolf, Harry, Protection of the Public - A New Challenge (1987), generally [para. 65].

Counsel:

Francis Jones, for the appellant;

Anthony Scrivenor, Q.C., and N. Ainsley, for the respondent;

Jonathan Caplan, Q.C., and Ian Burnett, amicus counsel.

Agents:

Kaori & Co., for the appellants;

Crown Prosecution Service, for the re­spon­dents;

Treasury Solicitor, amicus agents.

This appeal was heard on November 10 and 11, 1997, and January 15, 1998, before Lord Chancellor Irvine of Lairg, Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Steyn and Lord Hoffmann, of the House of Lords. The decision of the House was given on April 2, 1998, when the fol­lowing speeches were delivered:

Lord Irvine of Lairg, L.C. - see para­graphs 1 to 47;

Lord Browne-Wilkinson - see paragraphs 48 to 50;

Lord Slynn of Hadley - see paragraphs 51 to 56;

Lord Steyn - see paragraphs 57 to 78;

Lord Hoffmann - see paragraph 79.