For the Prosecution: Mr. L. Sherrington

Counsel for the Defence:

to you how I will approach this case if it comes to trial, and presumably there is no other legal point going to be made which might prevent its coming to trial, and I am not saying that I shall necessarily adhere to the view of the law that I now express at the end of the case, because these are matters which really are to be decided, in this court particularly, at the end of the day when the evidence has been heard and the effect of that evidence has been canvassed by the court. I shall let you know, of course, clearly if I come to a different conclusion about the proper approach, but the exercise today seems really to be designed to help the parties make up their mind how to conduct their cases and, for me, I intend to approach it in this way, that having found that the production of these documents prima facie establishes that they are offences created under the law on which it is possible to found a criminal, prosecution, on the ordinary rules they carry with them presumptions that they are valid.

Now, presumptions are of various sorts. There are indeed very few - but there are some - irrebuttable presumptions. It is interesting to see how in the modern world even old common law irrebuttable presumptions seem to be under attack nowadays, but there are presumptions behind which we cannot go and, for example, had these been bylaws which had been printed by the Queen's Printer and published by Her Majesty's Stationery Office and the date of their issue had appeared in the list, because statute provides that is conclusive evidence of the date of issue, l would not be allowed to go behind it. That would have the same effect as an irrebuttable presumption.

We have not any of those here. Such presumptions of validity omnia praesumuntur riteesse acta in this case are rebuttable and it seems to me in commonsense and legal experience that there are different grades; there are degrees and qualities of presumptions as much as there are degrees and qualities of evidence of other sorts and some are easier to displace than others.

I presume upon admitting the documents as the bylaws that they are valid in the sense that all the merely clerical or administrative and practical steps required to produce them have been performed and if some purely formal matter is challenged, provided it is done fairly in time for the Prosecution to deal with it, I should require the Prosecution then to prove them and, if the Prosecution failed, that would be the end of the case but one wuld really expect the Prosecution to be able to prove them without any real difficulty.

Usually points taken by the Defence on the failure to carry out one of those merely administrative steps founder because at a little inconvenience and cost the Prosecution are able to show that took place. If they cannot show it took place, they do not deserve success in a prosecution and the defendant will be acquitted.

I think the admission of the document purporting to be

[....]

existence of -the bylaw does carry with it the presumption that the Minister who claims to be acting under his powers in the statute has carried out the mandatory provisions of the Act which enable him to issue the bylaws, inferentially there is a claim, by saying he was acting under his powers, by the secretary of State that before making the bylaws he made their known in the locality where they were proposed, gave an opportunity for objection to be made to the same and that he has received and considered them, and if nobody complains about it cases like this would just go through and the facts would then be looked at, and the presumption that a Minister of the Crown would not totally disregard the obligations put upon him by Parliament is a strong oiie and it is not readily to be abandoned and I do not think, in the same way that a purely ministerial act - I had better avoid the word 'ministerial' - a purely administrative act could be challenged and an adjournment allowed to prove it, just as part of the plea of not guilty, for example, just the fact that such a 'challenge is made would not, it appeared to me on the cases I have heard, justify my saying, "Right," to the Prosecution, "you must now prove to the satisfaction of the Court to the criminal standard that the Secretary of State did obey his duties under 17(1) because that would in so many cases, not just uneconomically and inconveniently but to the obstruction of justice, require the prosecution to call evidence which would not be just formal given by a witness to the effect that the Secretary of State had carried out the requirements of 17(1), it would not in a case where somebody chose to challenge the matter, it seems to me, ever be expected and there would then be an inquiry into the quality of the provision of notice, the efficiency of the system set up to give it, and the quality and efficiency of the process of receiving objections and considering them would also be put in issue and that would be obstructive, it seems to me, in cases where there is a legitimate and strong presumption that the Minister would have taken steps to carry out his duties under the Act.

The fact that there are. many cases where the High Court is striking down Ministerial Orders because Ministers, have failed to do their duty is not, it seems to me, to the point in this issue because omissions can frequently be made; Ministries and Ministers are fallible in the same sense that other people and institutions are fallible and error can slip in. Duties performed by Ministers have to be delegated, very often, to numbers of people. Errors can be made and the Minister can inadvertently err and the courts therefore have to say he has failed to carry out what his intentions were but to start a case like this, it seems to me, the Court has to presume that the Minister has tried to carry out his duties under the Act and the mere fact that a defendant says, "I am not prepared to accept that he has" does not seem to me to rebut the presumption so to cast that heavier onus on the Prosecution at that stage, but it does not mean, it seems to me, and I find nothing in the case of Bugg or the other case, the Devizes Justices -v- Reading Crown Court case which requires me to hold that that means that there is a burden of proof on the defendant to call evidence to show on the balance of probabilities that the Secretary of state has failed, because that seemed to have all the evils that the defendant has submitted to me it would have as creating the burden for defendants who may come from different parts of the country to establish a particuair body of evidence not readily available to them to show that probably the Secretary of State did it wrong. That would be out of the reach of a poor man. It would possibly be out of reach of a rich man who was unfortunate at the time of the prosecution and in an area particularly where there was a shifting population. It may be out of reach of somebody with whom the Ministry was not prepared readily to co-operate, and I do not think - I would be very surprised if I am told subsequently - that Mann J. really did mean in the remarks that he made in the case of Bugg that such an onus of proof fell upon the defendant to rebut the presumption about the validity of bylaws in the face of a challenge of this sort.

The courts quite frequently nowadays have to consider decisions based upon representations and material which is not evidence and not necessarily admissible evidence. Courts are always making bail and custody decisions on material which is before them and approved by Parliament in the Bail Act which would not regarded as evidence, and that is important - it relates to the liberty of the subject.

In looking at evidence of identification, whether to let an identifying witness's evidence go before the jury, the Court again against the interests of a defendant is entitled to consider material which would not admissible evidence but which tends to suggest that the witness who is identifying has got it right, and so it seems to me there is a middle ground where the Prosecution do not start with an obligation to prove the validity of the bylaws by proving the Secretary of State has performed his duties under s.17(1) just because no admissions are made but where there is no onus on the Defence to prove to any standard at all that he has failed to carry it out.

The Court has a duty to inquire into the validity of bylaws. The failure of the Secretary of State to carry out these preliminary steps would make his bylaws invalid and once material is provided to the court which is sufficiently substantial to make the court fear that the bylaw may be invalid, whether - and ideally, of course - by admissible evidence, but in the end even if it is only something that makes it more fair in the interests of justice for the court in its discretion to accept suggestions that the Minister may have failed to carry out his duties, then it seems to me that it becomes the Prosecution's duty to establish to the satisfaction of the Court - in a criminal case I suppose that means to the satisfaction beyond reasonable doubt of the Court - that the Minister has performed his duties under s.l7(l), so I distinguish between an obligation by the Secretary of State to carry out preliminary steps which involve the consultation with the public about the bylaws he proposes - I distinguish between that obligation and the chain of administrative minutiae only within the knowledge of the Ministry to which a defendant has no access about the performance of the Minister's duties once he has made his mind up to issue the bylaws - hold that whereas in the latter case formal proof is usually all that is required and that must be done otherwise the bylaws have not become effective, the court ought only to inquire into an allegation that the Secretary of State has failed totally to carry out his preliminary duties if there is some reason to suppose he has not and the Court has to judge the reasons tendered for coming to that conclusion and upon there being some such reason which troubles the court it then becomes the Prosecution's duty to prove affirmatively, that those preliminary steps have been taken.