LAW REPORT: Court cannot rule on railway smoking ban

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Boddington v British Transport Police; Queen's Bench Divisional Court (Lord Justice Auld, Mrs Justice Ebsworth) 5 July 1996

The lawfulness or reasonableness of an administrative decision, such as a blanket ban on smoking in trains, which was not obviously invalid, could not be challenged by a defendant in criminal proceedings charged with its contravention. He should instead apply for judicial review.

The Queen's Bench Divisional Court dismissed Peter James Boddington's appeal by case stated against the decision of the stipendiary magistrate for East Sussex who, on 28 July 1995, found him guilty of smoking a cigarette in a carriage on a train where smoking was expressly prohibited by the British Railways Board by a notice conspicuously exhibited to that effect.

David Pannick QC and Francis Jones (Kenwright & Lynch) for the appellant; Nicholas Ainley (CPS) for the respondent.

Lord Justice Auld said the offence occurred on 5 November 1994 when the appellant was a passenger on a Network South Central train travelling between Falmer and Brighton. The whole train had conspicuous notices prohibiting smoking. Network South Central, a wholly owned subsidiary of British Railways Board, had introduced a policy on 1 January 1993 prohibiting smoking on all its trains.

The statutory basis for the prohibition was section 67(1) of the Transport Act 1962, as amended, which empowered the Board to

make bylaws regulating the use and working of, and travel on, their railways . . . and in particular bylaws . . . (c) with respect to the smoking of tobacco in railway carriages . . .

Bylaw 20 of the Board's 1965 Bylaws provided:

No person shall smoke . . . in any . . . vehicle . . . where smoking is expressly prohibited by the Board by a notice exhibited in a conspicuous position in such . . . vehicle . . .

Mr Boddington contended that the bylaw, as implemented by Network South Central, was ultra vires. Section 67 permitted regulation, not total prohibition, of smoking on trains, and in any case total prohibition was unreasonable.

In Bugg v DPP [1993] QB 473, Woolf LJ distinguished between challenges to substantive validity where the instrument founding the prosecution was "bad on its face", and challenges to procedural validity. The former might be made as a defence in criminal proceedings; the latter could only be made by proceedings for judicial review.

Two questions of principle arose. First, did the entitlement to challenge the substantive validity of subordinate legislation in criminal proceedings extend to an administrative decision made pursuant to that subordinate legislation? Second, what was the proper mode of challenge to the substantive validity of subordinate legislation or an associated administrative decision which was not bad on its face?

Normally a statutory power to regulate an activity did not without more include a power totally to prohibit it. Bylaw 20 did not prohibit smoking. It merely enabled the Board to enforce such no smoking policy as it decided, providing it exhibited the appropriate notices. There could, it seemed, be no complaint about the bylaw itself.

As to the policy of total prohibition, it could not be said that the decision in question was bad on its face. Mr Boddington was not charged with smoking in contravention of a general policy; he was charged with smoking in a part of a train where the Board, by exhibiting a notice, had forbidden smoking. Second, and more importantly, even if the bylaw had expressly permitted the Board to communicate its prohibition in some more general way, say by notices in the press or at train stations, the vires of such general prohibition, including questions of rationality and fairness, as distinct from the bylaw itself, could not be left for individual determination in criminal proceedings as they arose.

To permit the criminal courts to embark on a wide-ranging examination as to the vires of administrative decisions not invalid on their face or, worse, as to their rationality, would be to beckon chaos.

Accordingly, Mr Boddington was not entitled to challenge by way of defence in the criminal proceedings before the magistrate the substantive validity of the prohibition, either as a matter of construction of section 67 and bylaw 20, or as to whether it was irrational. The proper proceedings for their determination should have been by way of judicial review.