England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		26th November 2008

1. MR JUSTICE DAVIS: Mr Inegbu, the respondent to this appeal by way of case stated, was travelling with his wife on 25th January 2007 on a train from London King's Cross to Edinburgh. The train was operated by GNER. It is said that there was a dispute about the validity of his wife's ticket. According to the prosecution, Mr Inegbu became abusive and aggressive towards train staff. When the train arrived at Doncaster, at all events, he and his wife got off the train and he was spoken to by police. He denied that he had been abusive or aggressive, but expressed regret that matters had gone as far as they had.
2. In the event, an information was preferred on 15th June 2007 in the Doncaster Magistrates' Court. It charged Mr Inegbu, whilst on the railway, with using threatening, abusive, obscene or offensive language contrary to railway byelaws 6(1) and 24 made under the Transport Act 2000.
3. After adjournments, the matter was heard by a District Judge (Magistrates' Courts) at Doncaster Magistrates' Court on 19th March 2008. But the case was not decided then on what might be called the merits, that is to say: were the matters charged proved? On the contrary (and as flagged up at previous hearings which had been adjourned) the lawyers acting for Mr Inegbu took a point which was entirely technical. They said that the railway byelaws in question, relied on in the information, had not been properly proved in accordance with any applicable statutory provision. The District Judge (Magistrates' Courts) acceded to that argument and accordingly dismissed the information, no further evidence having been offered in the light of the ruling.
4. The prosecuting authorities decided to appeal and a case was in due course stated. The question posed is as follows:

"When an information is laid that alleges an offence contrary to byelaws made under section 219 Transport Act 2000 (now repealed but such byelaws continue to have effect by virtue of section 46(4) Railways Act 2005), in preserving the byelaws, did Parliament similarly preserve the manner in which those byelaws are produced in evidence?"

5. In order to understand the legal point so arising, it is necessary to refer to the legislation. The Transport Act 2000, by section 201, created a body corporate known as the Strategic Rail Authority (referred to in that part of the 2000 Act as "the Authority" and which I will call "SRA"). Power was conferred on the SRA by section 219 to make byelaws in these terms:

"(1) The Authority may make byelaws regulating --

(a) the use and working of railway assets,

(b) travel on or by means of railway assets,

(c) the maintenance of order on railway assets, and

(d) the conduct of persons while on railway assets

. . . . .

(3) Schedule 20 makes further provision about byelaws under this section."

6. Turning then to Schedule 20, the relevant paragraph for present purposes is paragraph 7. It may be noted, all the same, that by paragraph 1 "byelaws" was defined so as to mean byelaws under section 219, and, by paragraph 3, that byelaws should not come into operation until they had been confirmed by the Secretary of State. Paragraph 7 of schedule 20 reads as follows:

"The production of a printed copy of byelaws which have been confirmed and on which there is indorsed a certificate purporting to be signed by the chief executive of the Authority, or a person authorised by the Authority to act for him, stating --

(a) that the byelaws were made by the Authority,

(b) that the copy is a true copy of the byelaws,

(c) that on a specified day the byelaws were confirmed by the Secretary of State, and

(d) the date when the byelaws came into operation,

shall be prima facie evidence of the facts stated in the certificate."

Pausing there, that plainly is intended to provide a convenient and relatively informal way of proving the validity and currency of the applicable byelaws.

7. In due course, railway byelaws were made under section 219. They are detailed. The seal of the SRA was affixed to them on 24th May 2004; and they were subsequently confirmed by the Secretary of State, who fixed 7th July 2005 as the date on which they would come into operation. In particular, for present purpose, byelaw 6(1) provides:

"No person shall use any threatening, abusive, obscene or offensive language on the railway."

And byelaw 24(1) provides:

"Any person who breaches any of these byelaws commits an offence and, with the exception of byelaw 17, may be liable for each such offence to a penalty not exceeding level 3 on the standard scale."

8. On 7th April 2005 the Railways Act 2005 was passed. That substantially repealed the Transport Act 2000 with various commencement dates for various sections of the 2005 Act. It was provided by section 1 that Schedule 1 had effect. That Schedule relates, amongst other things, to the transfer of function from the SRA to the Secretary of State. Those transfers have been completed, and we were told that the SRA itself ceased to exist as a corporate body on 1st December 2006.
9. The 2005 Act itself made provisions for making byelaws. That power is set out in section 46 of the 2005 Act. Section 46(1) reads in this way:

"A railway operator may make byelaws regulating one or more of the following --

(a) the use and working of a relevant asset;

(b) travel on or by means of a relevant asset;

(c) the maintenance of order on relevant assets;

(d) the conduct of persons while on relevant assets."

By subsection (3):

"Schedule 9 (which makes provisions about byelaws under this section) has effect."

Subsection (4) has prime importance for the purposes of this appeal and reads as follows:

"Byelaws which --

(a) were made by the Strategic Rail Authority under section 219 of the 2000 Act, and

(b) are in force immediately before the repeal of that section by this Act,

shall continue to have effect after the coming into force of that repeal as if every reference in those byelaws to that Authority were a reference to the Secretary of State."

In subsection (7) it is stated that "railway operator" meant an operator of a railway asset who was authorised to be an operator of that asset in the specified circumstances and other such matters. It is common ground before us that the SRA was not a railway operator within the meaning of this section.

10. As for section 219 of the Transport Act 2000, that was repealed by virtue of paragraph 36(c) of Schedule 1 to the 2005 Act, and by virtue of section 59 and Schedule 13 of the 2005 Act. Schedule 20 of the 2000 Act was likewise repealed by section 59 and Schedule 13 of the 2005 Act. Part 2 of paragraph 2 of Schedule 13, however, expressly provided that the repeal of section 219 of the 2000 Act had effect subject to section 46(4) of the 2005 Act.
11. As to Schedule 9 of the 2005 Act, incorporated by section 46(3), that provided by paragraph 7 as follows:

"The production of a printed copy of byelaws which is indorsed with a certificate --

(a) stating one or more matters specified in subparagraph (2), and

(b) purporting to be signed by an officer of the railway operator by whom the byelaws purport to have been made,

is evidence of what is stated.

(2) Those matters are --

(a) that the byelaws were made by the railway operator in question;

(b) that the copy is a true copy of the byelaws;

(c) that the byelaws were confirmed by the appropriate national authority on the date specified in the certificate;

(d) the date of the coming into force of the byelaws."

It may be noted that "byelaws" were so defined in paragraph 1 of Schedule 9 as to mean byelaws under section 46 and "railway operator" was defined to have the same meaning as in section 46.

12. Pausing there, the scheme of the 2000 Act is, for this purpose, clear enough. It conferred power on the SRA to make byelaws and, by paragraph 7 of Schedule 20, provided a simple and convenient means of proving such byelaws by a process of certification. The scheme of the 2005 Act was in this regard a corresponding scheme. It conferred power on railway operators to make byelaws and, by paragraph 7 of Schedule 9, similarly provided a simple and convenient means of proving such byelaws by a process of certification.
13. In the present case, the byelaws relied on in the information were made pursuant to the 2000 Act. But by virtue of section 46(4) of the 2005 Act, and Part 2 of Schedule 13 to the 2005 Act, they continue to have effect, notwithstanding the repeal of section 219 of the 2000 Act. There is no dispute before us that that is so. As Mr Atkinson put it, it is reasonably clear that a smooth transition in this regard was intended.
14. The District Judge (Magistrates' Courts) was in fact told, as were we, that, so far as is known, no individual railway operator had made fresh byelaws under the 2005 Act. They have, thus far, been content to rely on the present byelaws. We were in fact told that in the last year, 2,283 prosecutions have been brought under those byelaws.
15. The point raised successfully below on behalf of Mr Inegbu, and repeated before us today, was based on the proposition that Schedule 20 of the 2000 Act has been repealed by the 2005 Act, but the actual certificate produced before the District Judge (Magistrates' Courts) was self-evidently based on Schedule 20 of the 2000 Act. Such certificate was in this form. It is undated and states:

"It is hereby certified that --

(1) the above byelaws were made by the Strategic Railway Authority;

(2) this is a true copy of the byelaws;

(3) on 22 June 2005 the byelaws were confirmed pursuant to Schedule 20 of the Transport Act 2000 by the Secretary of State for Transport; and

(4) the byelaws came into operation on 7th July 2005."

That certificate was signed by an individual designated as Secretariat Team Manager of the Strategic Rail Authority.

16. The argument of the respondent thus goes that there was no power to certify in that way, just because Schedule 20 of the 2000 Act has been repealed. There is power to certify under paragraph 7 of Schedule 9 of the 2005 Act: but that cannot assist the prosecution here, because such certification under the 2005 Act is only available to byelaws made by "railway operators" under the 2005 Act and the SRA was not, as it is accepted, such a railway operator.
17. Accordingly, it was and is said that the prosecuting authorities would have to prove the existence and validity of the railway byelaws by some other means, such as calling oral evidence or adducing section 9 written evidence -- for example, from an officer of the GNER or a former official of the SRA -- to explain how the byelaws were made and otherwise to verify the matters set out in the schedule. Put shortly, therefore, the respondent says that whilst the effect of the railway byelaws was preserved by section 46(4) and Part 2 of Schedule 13 of the 2005 Act, nothing has been done to preserve the mechanism by which the byelaws could be proved; that is to say by paragraph 7 of schedule 20 of the 2005 Act.
18. Such a conclusion is -- as Mr Thomas on behalf of the respondent frankly acknowledged -- devoid of any sense, although he did say that it was not an entirely absurd conclusion in that at least some alternative means of proof would be available. Both the 2000 Act and the 2005 Act had, as I have indicated, expressly contemplated that proof of the byelaws made under the respective Act could be provided without evidential complexity by certification. There can have been no purpose whatsoever in giving rise to some different result for breaches of byelaws made under the 2000 Act which continue in effect by reason of section 46(4) of the 2005 Act. Certainly, Mr Thomas could offer no such reason. It cannot have been the Parliamentary intention to reintroduce evidential inconvenience for such categories of cases. But Mr Thomas says, nevertheless, that that is the effect of the actual wording of the legislation and, this being a penal statutory provision, penal in effect, it should, he submitted, properly be read restrictively.
19. I cannot agree with Mr Thomas's submissions, ably put though they were. The general rule that penal statutes should be read restrictively does not, in all circumstances, require a court to construe them senselessly (see for example Europe Limited v First Choice Distribution [2000] 1 WLR 586 at 592 C to 593 and R (Crown Prosecution Service) v Bow Street Magistrates' Court [2007] 1 WLR 291). If there is here a seeming lacuna in the legislation, plainly not filling Parliament's intention, I think that in this particular case it can be properly filled by the court by a process of interpretation: and section 46(4) of the 2005 Act in my view is, on its wording, sufficient to convey the continuing applicability of Schedule 20 to byelaws made under the 2000 Act which continue in effect.
20. I think, in fact, some further assistance is available in this regard, if needed, under the provisions of the Interpretation Act 1978. We were referred by Mr Atkinson to two sections in this regard. Section 16 in the relevant respect provides as follows:

"Without prejudice to section 15, where an Act repeals an enactment, the repeal does not, unless the contrary intention appears . . .

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment . . . "

I have difficulty in accepting that those provisions can apply to the circumstances of this case, given the chronology that we have recited. But rather more in point, Mr Atkinson referred to section 17 of the Interpretation Act 1978. Subsection (2) reads as follows:

"Where an Act repeals and re-enacts, with or without modification, a previous enactment then, unless the contrary intention appears . . .

(b) in so far as any subordinate legislation made or other thing done under the enactment so repealed, or having effect as if so made or done, could have been made or done under the provision re-enacted, it shall have effect as if made or done under that provision."

21. In the context of the Interpretation Act 1978, we were referred by Mr Atkinson to the case of Aitken v South Hams District Council [1995] 1 AC 262. In that particular case, a notice was served in 1983 under section 58 of the Control of Pollution Act 1974 requiring the abatement of a noise nuisance. That section was repealed by the Environmental Protection Act 1990, with effect from 1st January 1991, and a new procedure for statutory nuisance was substituted. On 25th January 1992, an information was preferred alleging recurrence of a noise nuisance between August and October 1991, contrary to section 58 of the 1974 Act. It was held that the notice served in 1983 remained valid, notwithstanding the subsequent repeal by the Environmental Protection Act 1990, and the ability to enforce the obligation was preserved by section 16(1) of the Interpretation Act 1978. Thus, the situation there was not on all fours with the present case.
22. Even so, as it seems to me, the approach of the House of Lords is instructive, and it is to be noted that at page 272 of his judgment, Lord Woolf stressed that it was for the repealing Act to manifest the contrary intention. He said this, after citing the case of Floor v Davies [1980] AC 695, at page 272 G:

"It is the repealing Act, not the Act of 1974, which is required to manifest the contrary intention so as to exclude the operation of section 16. Were the position otherwise the object of section 16, which is to make it unnecessary to include in the subsequent legislation the provisions contained in section 16, would be frustrated. The silence of the subsequent legislation is consistent and not inconsistent with section 16 applying."

As it seems to me, that kind of approach is likewise capable of being applicable to section 17.

23. In his written argument (although in oral argument he was reluctant to accept the point), Mr Thomas had accepted that the sections of the Interpretation Act 1978 may have been applicable here had the previous method of certification simply been revoked with no new method introduced. Mr Thomas, at all events, submitted that there was here a contrary intention since, he asserted, the 2005 Act did introduce a new method of certification in paragraph 7 of Schedule 9.
24. I cannot agree with that. That paragraph, I repeat, is dealing with new byelaws made by railway operators. It is not dealing with, or in terms replacing, the position for byelaws made by the SRA under the 2000 Act, which byelaws are capable of being continued in effect under section 46(4) of the 2005 Act. As it seems to me, the overall general scheme of the 2005 Act in this regard, with modification, is that a thing done (that is to say, certification) under the 2000 Act could have been done under the re-enacted provision, even though it is the case that paragraph 7 of Schedule 9 of the 2005 Act in terms necessarily only relates to new byelaws prospectively made by railway operators.
25. It follows, as it seems to me, that this court is not compelled to reach a senseless interpretation of the statutory provisions, particularly section 46(4), of the 2005 Act advanced by the respondent. Further, reading section 46(4) in the way indicated can give rise to no possible detriment to persons in the position of Mr Inegbu.
26. With all respect, I think that the District Judge (Magistrates' Courts) was persuaded into error on this point. Accordingly, in my judgment, the question posed is to be answered in the affirmative and I for my part would allow the appeal.
27. LORD JUSTICE LATHAM: I agree. It seems to me that the intention of Parliament can be clearly gleaned from the structure of the amended legislation which envisaged that the byelaws would continue in effect, which could only be an effective provision if continued together with the procedural provisions in Schedule 2. It seems to me that there is no need to go, therefore, beyond section 46(4) in order to provide the right answer.
28. However, in case it were to be thought that that is going too far in statutory construction terms, I agree with my Lord that section 17(2) of the Interpretation Act provides, in itself, a clear solution to the problem. Between the two of them, they have produced a sensible statutory scheme whereby the byelaws made under the 2000 Act can continue, as intended by section 46 of the 2005 Act, until such time as replaced by byelaws under the 2005 Act. I accordingly, like my Lord, would allow this appeal.
29. MR ATKINSON: My Lord, there are two consequential matters. The first is in relation to a potential retrial of Mr Inegbu, which is a matter referred to in my learned friend's skeleton. My Lords will be aware that the prosecution offered no further evidence following the ruling of the District Judge. I am instructed to ask for an order that there be a retrial and the matter be remitted to the Magistrates' Court for trial, although I do that against the background that there was an offering of no further evidence by the prosecution.
30. LORD JUSTICE LATHAM: That is your first application, yes?
31. MR ATKINSON: The second application is the application for the appellant's costs of the proceedings.
32. LORD JUSTICE LATHAM: Mr Thomas, as far as retrial is concerned, you say so much time has passed since what was a relatively -- but if the prosecution evidence was correct, not a very pleasant incident, and realistically it is raking over old coals.
33. MR THOMAS: That is my argument.
34. MR JUSTICE DAVIS: Was this matter privately funded by Mr Inegbu?
35. MR THOMAS: My instructions are that his costs were being paid by central funds. That would mean yes, he was privately funded.
36. MR JUSTICE DAVIS: So if there is an adverse consequence on costs, there has been a sting in these proceedings.
37. MR THOMAS: In the Magistrates' Court it was privately funded. In these courts he has a representation order. So I would ask if there was to be an order for costs against him for the usual order. Firstly, I would say that there should not be costs, which I can develop. Secondly, I would say that if that was the case it be the usual order that costs are not to be enforced without leave of the court.
38. LORD JUSTICE LATHAM: I am not sure Mr Atkinson's application includes an application in relation to costs below.
39. MR ATKINSON: My Lord, my application is solely for the costs of these proceedings.
40. LORD JUSTICE LATHAM: All right.
41. MR THOMAS: My response in terms of substantive on costs is that the Crown brought these proceedings. They could have in the Magistrates' Court sought to prove the byelaws by way of another --
42. LORD JUSTICE LATHAM: Mr Thomas, that is hopeless.
43. MR THOMAS: I simply make the point that they could have pursued it by another method, which is accepted in this court could have been done. I would ask for the usual order, not to be enforced without leave of the court.
44. LORD JUSTICE LATHAM: That nowadays is the responsibility of the taxing judge.
45. MR THOMAS: I would have to ask for a detailed assessment as well.
46. LORD JUSTICE LATHAM: Thank you very much, Mr Thomas. As far as retrial is concerned, we consider that the time that has passed in relation to the seriousness of the offence does not suggest that justice requires a retrial in this case. So there will not be a retrial.
47. As far as costs are concerned, the respondent is to pay the appellant's costs, but those are to be subject to a detailed assessment and consideration in the usual way by the costs judge of the issue arising out of the fact that your client has a representation order.
48. MR THOMAS: I am grateful.