For some years Mr. Buqq, Miss Greaves and Ms Percy have been conducting a campaign designed to challenge the legality of the Ministry of Defence's attempt to exclude members of the public from service bases. Mr. Bugg has become a considerable authority on the law relating to bye-laws and he has used his knowledge to cause considerable embarrassment to the Ministry of Defence and the Director of Public Prosecutions in legal proceedings. Before this court, he appears in person. He had prepared an extremely full and lucid written argument (it would be wholly inappropriate to describe it as a skeleton argument) which was subsequently supplemented by written and oral argument. Unfortunately, Mr. Bugg is now suffering from serious ill health and therefore he could only attend part of the hearing and the court was deprived of the opportunity of hearing the full argument which he wished to develop. However, I am satisfied that with the benefit of the written argument and the assistance of such oral argument as he was able to present together with the assistance of counsel (all of whom took commendable care to ensure that the court properly understood Mr. Bugg's contentions, with which they were more familiar no doubt because of other proceedings, than were the court) that the disadvantage of Mr. Bugg not being present throughout was reduced to a minimum. Mr. Bugg described the appeals as being "friendly actions". We are happy to be able to accept that description and to commend all the lawyers involved for the helpful way the appeals have been advanced. It was fortunate that this should be the position because Mr. Readhead, for the Director of Public Prosecutions, indicated that a number of prosecutions were being held in abeyance pending receiving the guidance of the court on these appeals and issues required to be properly argued.

Before we come "to consider those points we consider that it is right to indicate that if Mr. Bugg has achieved nothing else in consequence of this litigation, he has at least convinced us that over the last 30 years there has been a regrettable decline in the standards adopted by the Ministry of Defence in complying with their obligations in respect of bye-laws. Mr. Bugg has placed before the court a large number of bye-laws made on different dates by the Department. A quick perusal of those bye-laws indicates the extent of the decline. Mr. Bugg would have liked us to have examined the various bye-laws in detail in court but time constraints did not permit this. However, I have, with his help and by our own researches seen enough to satisfy ourselves that there is now an urgent need for the Department to reassess its attitude towards the preparation of bye-laws. It is not satisfactory that there can be in existence different editions of the same bye-laws which refer to plans which are annexed differ to a material extent. It cannot be right that members of the public should have such difficulty in obtaining copies of bye-laws when the contravention of those bye-laws can amount to an offence.

On the Alconbury Bye-law appeal, the Crown Court seeks the opinion of this court on a number of different issues. In the Forest Moor appeal, the second appeal, the court was only asked for its opinion in relation to two related issues. This was because on that appeal Mr. Barry made certain preliminary rulings upon legal submissions which were made to him and after he had announced his ruling the Director offered no evidence so all the charges were dismissed. The ruling Mr. Barry made was as to the extent of the burden of proof on the prosecution and the defence when the validity of bye-laws is in issue and the prosecution have "proved the existence and content of the material bye-laws by handing a copy .... into the court purporting to be printed for Her Majesty's Stationery Office." The Director contended that in those circumstances the defendants had the burden placed upon them of establishing on the balance of probabilities that the bye-laws were invalid. The defendants contended that once a clear specific objection was taken to the bye-laws then the prosecution had the burden of establishing beyond reasonable doubt that the bye-laws were valid. Mr. Barry came to the conclusion that the true position was somewhere in between those contentions He ruled:

The matter having been dealt with in that way, the first issue which Mr. Barry raises is whether it is appropriate to state case for the opinion of the High Court.

So far as that issue is concerned we need say no more than that we can see no objection to the course which was adopted. The situation has similarities with that which exists when a judge makes a ruling in the course of a trial as a result of which a defendant pleads guilty. The defendant is still entitled to appeal notwithstanding he then changed his plea. His appeal against conviction will be entertained and allowed if the ruling was wrong.

Challenging the validity of Bye-laws in the Course of Criminal Proceedings

Before deciding what burden, if any, is on a defendant to establish the invalidity of a bye-law, it is necessary to consider to what extent, if at all, it is appropriate for magistrates hearing criminal proceedings to enquire into the question of the invalidity of legislation. The need to consider this subject follows from the developments which have taken place in judicial review over the last 25 years. There are two important developments which are relevant. The first is a movement away from seeking to categorise unlawful administrative action into different compartments each with their separate label such as void or voidable or ultra vires or nullity and instead to emphasise the grounds upon which a court can intervene and to require that intervention before an administrative action will be categorised as invalid. The change was accurately identified by Lord Hailsham in London and Clydeside v. Aberdeen District Council and Another [1980] 1 W.L.R. 182, at p. 189B. Lord Hailsham described what has happened by saying:

This approach means that except in the "flagrant" and "outrageous" case a statutory order such as a bye-law remains effective until it is quashed. This was recognised by Lord Radcliffe in Smith v. East Elloe Rural District Council [1956] A.C. 736, at p. 769, when he said:

A similar approach was adopted specifically in relation to subordinate legislation by Lord Diplock in Hoffinann La Roche v. The Secretary of Trade and Industry [1985] A.C. 295A-C. What Lord Diplock said was:

I would draw particular attention to the reference by Lord Diplock to a court of "competent jurisdiction".

The other development is the expansion of the circumstances in which the courts will intervene to quash decisions. The principles on which the court can intervene can be traced back a great many years but the circumstances in which the courts, particularly on applications for judicial review, will apply those principles to invalidate administrative action in general and bye-laws in particular has extended dramatically. We would adopt with gratitude the description of the change given by Carl Emery in his article "The Vires Defence- Ultra Vires", As a Defence to Criminal or Civil Proceedings, Cambridge Law Journal, July 1992, at p. 309:

These developments are, in our judgment, of importance when considering the proper role of a criminal court where a defendant, who is charged with breaching a bye-law seeks to challenge the validity of that bye-law. It is possible to identify at least two different situations in which this will arise. The first is where the bye-law is on its face invalid because either it is outwith the power pursuant to which it was made, because, for example, it seeks to deal with matters outside the scope of the enabling legislation or it is patently unreasonable. This can be described as substantive invalidity. The second situation is where there has been non-compliance with a procedural requirement with regard to the making of that bye-law. This may, for example, be due to the manner in which the bye-law was made if there was a failure to consult or relate to how the antecedent decision as to whether to make the bye-law or not was taken. The latter decision which precedes the making of the bye-law may be for example, to use the shorthand, Wednesbury unreasonable. (We emphasise that it is the decision which precedes the making of the bye-law because we are considering that decision here as part of the machinery for the making of the bye-law. If that decision alone was under attack and not a wider attack as part of that machinery it could be regarded as being substantially invalid if the attack succeeds.) The bye-law which is invalid in this sense, can be described as procedurally invalid. This situation has to be distinguished from the situation where it is alleged that the bye-law is itself unreasonable for the purposes of establishing that the bye-law is substantively invalid. In that situation what has to be established is that the bye-law is unreasonable in the way in which it operates. This aspect of substantive invalidity was illustrated by Lord Russell, C.J., in Kruse v. Johnson [1898] 2 Q.B. at p. 99, as occurring, for instance if the bye-laws "were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men".

That there is a distinction between the two categories of invalidity has long been recognised in relation to statutory grounds for applying to the High Court against Ministerial orders in compulsory purchase and planning legislation. The difference being that in the case of substantive invalidity an applicant need only show the invalidity whereas in the case of procedural invalidity there is also the necessity for the applicant to show that he has suffered substantial prejudice. The distinction which appears clearly in current legislation can be traced back to at least the Local Government Act 1933. Section 162(1) of that Act provides that any person aggrieved by a compulsory purchase order can apply to the High Court and "if upon any such application the courts are satisfied that the order is invalid, then, where the invalidity of the order arises from a failure comply with any provision governing the procedure for making confirmation thereof, are further satisfied that the interest of the applicant, have been substantially prejudiced by that failure, the court nay quash the order, ...."

There is another practical difference between the two types of invalidity. In the case of substantive invalidity, it is a matter of law whether, for example, a bye-law is unreasonable in operation or is outwith the authorising power. No evidence is required; the court decides the issue by looking at the terms of the primary legislation and the subordinate legislation which is invalid. The situation is different with procedural invalidity. Evidence will be required, for example, as to what happened during the course of the making of the bye-law in order to see whether or not it has been validly made.

It has been long established that in criminal proceedings and formerly in civil proceedings a defendant can challenge the substantive invalidity of an instrument or order for the breach of which a prosecution or claim is brought. So far as criminal proceedings are concerned the earliest case to which we were referred where this occurred was R. v. Rose, ex p. Mary Wood (1855) 19 J.P. at p. 676. In that case the applicant, who had been convicted of an offence under a bye-law, successfully applied for an order of certiorari because the offence created by the bye-law related to neglecting properly to clean and remove all snow rather than just the filthy snow which the Divisional Court regarded as being all that was within the scope of the enabling Act. The Act contained a non-certiorari clause but this did not affect the bye-law since, as Lord Campbell, C.J. explained, "we think that if the bye-law was, in fact, in excess of authority given by the statute, he had not jurisdiction to convict and therefore certiorari is not taken away." This approach is so clearly established, it is not necessary to cite further authority in support. However, the position is different with regard to procedural invalidity. Counsel has been unable to refer us to any authority where, after argument, it has been held that it is proper for a criminal court to enquire into questions of procedural irregularity. Mr. Wynne Jones did refer us to the case of May v. Beatty [1927] 2 K.B. 353 where before the justices it was argued that there was procedural invalidity and a defence based upon this invalidity succeeded before the justices. There was then an appeal by case stated which was successful but this was dealt with on the merits without agreement as to whether the issue of procedural invalidity had been raised properly by way of defence. Mr. Wynne Jones also referred to us to the case of The Company of Proprietors of the Margate Pier v. George Hannon (1819) 3 B & Aid 266 which involved a civil action for trespass against justices on the basis that they were not validly appointed. However, the court came to the conclusion that, while it was unlawful for the justice to act, his acts were not invalid and I do not regard that case as providing assistance. He also relied upon the decision of the House of Lords in Wandsworth v. Winder [1985] A.C. 461 as being an example of a public law defence being available in a private law action for possession and he submitted that if this was the position in civil actions the position should be the same in criminal proceedings. However, the defence which was relied upon in the Winder case was a defence of substantive invalidity as to the reasonableness of the resolution of the council to increase the rents generally of council house tenants, the present distinction was not raised in argument and the principal issue in dispute was whether the reliance upon the defence of the invalidity of the resolution was an abuse of process. The House

of Lords decided it was not. This is a different question from what is being considered here. In any event we would not accept that because the issue of procedural invalidity can be investigated in civil proceedings it would mean that a similar investigation could take place in criminal proceedings. The case of Cannock Chase v. Kelly [1978] 1 W.L.R. I was also a civil case and a decision on its merits and not on the issues with which we are here concerned.

Mr. Wynne Jones was able to obtain more assistance from the case of R. v. Brisby (1849) 1 Den. 416. However, as appears from the headnote in Brisby, although it was decided that justices hearing a second application were entitled to enquire into an earlier decision, to see whether or not it was invalid, in Brisby the earlier order was bad on its face so there was no requirement for the justices to investigate matters of procedural invalidity. As Lord Denman, C.J., said, "the first order was clearly void or the first principle; it therefore has no operation whatever." As Patterson J. said, it was "waste paper"

Turning to more recent authority, the case of the Director of Public Prosecutions v. Head [1959] A.C. 83 is often cited as being authority for the ability to rely on the invalidity of an order as a defence in criminal proceedings. The offence of which the respondent had been convicted was carnal knowledge of a mental defective contrary to s. 56(1) of the Mental Deficiency Act 1913. The majority in the House of Lords (Lord Reid, Lord Tucker and Lord Somerville of Harrow) decided the appeal on the basis that the woman concerned had been illegally detained as

appeared from the face of the documents produced and received in evidence (this was in fact conceded by the Attorney-General) and while if the document produced had been valid there would have been the presumption of validity this presumption no longer applied and so the conviction could not stand. All three of their Lordships had reservations as to the speech of Lord Denning. In his speech Lord Denning drew a distinction which would no longer be apposite between orders which are void and orders which are voidable and so far as the latter category were concerned, he took the view that it would be necessary for there to be an application to the High Court for certiorari to quash it before it could be relied upon as a defence. The distinction between orders which are void and voidable is now clearly not part of our law. However, the approach of Lord Denning is interesting because he was drawing a distinction, as we are seeking to do, between different types of invalidity.

The next case to which we should refer is the Quietlynn Ltd. case [1988] 1 Q.B. 114. In that case three different local authorities had brought criminal proceedings against the company for contravention of the legislation dealing with the licensing of sex establishment's. The company relied on various procedural irregularities. In some instances the company was successful in others it was convicted. There was ultimately an appeal to the Divisional Court and it was held by the Divisional Court that under the statutory code for licensing sex establishments, it was for the local authority to determine whether to grant a licence and any question of validity of the local authority's decision was to be determined by the High Court in proceedings for judicial review and that until this happened the local authority's decision was to be presumed to be validly made (unless it was invalid on its face). Accordingly on a prosecution for an offence neither the justices nor the Crown Court had jurisdiction to consider the validity of the decision to refuse a licence. It followed that the finding of the Crown Court that the refusal of the licence were invalid had been made without jurisdiction.

In the course of giving the judgment of the court Webster J. said this:

We would respectfully agree with this approach.

We now turn to consider R. v. Reading Crown Court, ex p. Hutchinson [1988] I Q.B. 384. The main judgment was given by Lloyd L.J. It is interesting to note that the other member of the court was Mann J. Mann J., together with Watkins L.J., had been a member of the Court in Quietlynn. Mann J. had also given the main judgment in the case of the D.P.P. v. Bugg (unreported, 19th December, 1986) where Mr. Laws had reserved for the House of Lords the question of whether the validity of bye-laws could

be explored otherwise than by way of judicial review and in which Watkins L.J. had said obiter:

In Ex p. Hutchinson the justices had refused to enquire into the question of the validity of bye-laws. Lloyd L.J. considered that this was clearly wrong. He indicated that "until a few

years ago the answer to the question" as to whether or not they could consider that issue "would have been regarded as obvious". He regarded the Quietlynn case as suggesting "that the lone established practice where justices have ruled on the validity

of bye-laws has been overtaken by s. 31 of the Supreme Court Act 1981. Justices are no longer to be expected "to assume the function of the Divisional Court" and decide questions of law which can be more readily decided on judicial review". However,

despite this Lloyd L.J. went on to hold that "justices have always had jurisdiction to enquire into the validity of a bye-law. They are not only entitled but bound to do so when the defendant relies on the invalidity of the bye-law by way of defence." Lloyd L.J. rejected the suggestion that O'Reilly v. Mackman [1983] 2 A.C. 237 could have any bearing on such a case. He then went on to say that the decisions in the Quietlynn cases Lord Bridge indicated that a court faced with a challenge to validity of bye-laws in criminal proceedings should approach its task indicates that he did not have in mind any form of invalidity other than that caused by delegated legislation which on its face exceeded the powers contained in the enabling legislation (The Military Lands Act 1892) under which it purported to be made.

From this lengthy, we fear too lengthy, examination of the authorities, it appears to us it is open to this court to determine as a matter of principle that it is not for a criminal court to investigate matters of procedural invalidity. Mr. Wynne Jones advanced a forceful argument which was supported by Mr. Steadman and Mr. Bugg for following the approach of Lloyd L.J. in the case of a challenge to procedural validity of bye-laws on grounds of principle. He drew our attention to the fact that in R. v. The Oxford Crown Court, ex p. Smith [1989] L.G.R. 458, Simon Brown J. had followed the decision in Ex p. Hutchinson. However, in that case again, what appears to have been central to the decision was whether or not to seek to attack a bye-law in criminal proceedings was an abuse of process. In the case of procedural validity this is not the reason why the criminal court cannot enquire into the matter. The reason is that the criminal courts are not equipped properly to carry out the investigation and do not have the jurisdiction to do so. As in this case, until the Ministry of Defence was invited to present argument before this court, the party interested in upholding the bye-laws and who is responsible for carrying out the procedures which would be under attack was not a party to the proceedings. It is wholly unsatisfactory to review procedural matters of this nature without the body responsible for making the bye-law being a party. In addition the evidence before one court could well differ from the evidence before another court on different prosecutions. This could result in differing outcomes. Differing outcomes which could not be resolved on appeal since in the case of a procedural irregularity the evidence is all important. The same problem does not arise with regard to substantive invalidity because there is no need for evidence to establish such invalidity. What has happened in the present cases in the lower courts is testament for the inappropriateness

of trying to investigate issues of this sort.

Mr. Wynne Jones' argument, reflected the approach of Sir William Wade in Administrative Law, at p. 354. There he said:

The true scope for discretion is in the law of remedies, "operates within narrow and recognised limits and is far less objectionable. If the courts were to undermine the principle of ultra vires by making it discretionary, no victim of an excess or abuse of power could be sure that the law would protect him."

So far as "true excess or abuse of power properly so called is concerned, we would not dissent from this eloquent statement. However, we do not categorise procedural invalidity as being properly a question of excess or abuse of power. The spectrum can vary between defects which are of a substantive nature and defects which are of a procedural nature. However, as reflected in the legislation to which we have made reference, in the case of procedural invalidity whether or not a defendant is prejudiced

is and should be a material consideration. You cannot in respect of the public law duties of public bodies treat individual members of the public in the same way whether or not their private rights have been infringed. They have no private right which entitles them to complain of procedural defects in delegated legislation. So far as domestic law is concerned, the proper approach is to regard bye-laws and other subordinate legislation as valid until they are is set aside, A member of the public is required to comply with bye-laws even if he believes they have a procedural defect unless and until the law is held to be invalid by a court of competent jurisdiction. If before this happens he contravenes the bye-law he commits an offence and can be punished. Where the law is substantively invalid the position is different. No citizen is required to comply with a law which is bad on its face. If the citizen is satisfied that that is the situation, he is entitled to ignore the law.

The issue as to burden of proof

Having drawn the distinction between substantive and procedural invalidity, the question of burden of proof resolves itself. In the case of substantive invalidity no evidential burden of proof issue can arise on attack upon the validity of a bye-law. The prosecution has to produce the bye-law in evidence and when this has been done, the bye-law together with the enabling legislation will provide a defendant with all that he needs. So far as procedural validity is concerned, the court at a criminal trial is not required to make a determination and so there again is no problem. However, we do accept that there may be cases within a grey area. We have particularly in mind cases where it is suggested that there has been an abuse of power because of malafides on the part of the bye-law maker. In the case of bad faith an allegation of this sort may be an issue which the criminal court can determine and if so evidence will be required. It may therefore be helpful if we indicate, having considered the detailed arguments that have been advanced before us, that irrespective of any statutory provision to this effect, but subject to any statutory provision to the contrary, that it is probably the position that as once the bye-law has been produced in evidence, it is prima facie valid there is then an evidential burden upon a defendant to show that on the balance of probability there has been malafides upon the part of the bye-law maker. It cannot be for a defendant to prove the matter beyond reasonable doubt, nor can it be sufficient for him merely to challenge the validity of the bye-law. The nature of the allegation which has to be made, in our judgment, confirms that this is the position.

Having made those general remarks it is now necessary to turn to the specific questions which are raised on the appeals

Both sets of bye-laws are made by the Secretary of State in the exercise of his powers under Part II of the Military Lands Act 1892 ("MLA"). Section 14 of the MLA contains the relevant power authorising -the making of the bye-laws which are in issue.

The section provides:

By s. 2(3) of the Defence (Transfer of Functions) Act 1964 Part II of the MLA (which includes s. 14) was extended to apply to land under the management of the Secretary of State for, inter alia, naval or air force purposes as if any such purpose were a military purpose within the meaning of Part II of the MLA. The Secretary of State therefore had the authority to make the bye-laws notwithstanding the fact that in the case of the first appeal they related to RAF Alconbury and in the case of the second appeal to HMS Forest Moor and Menwith Hill Station.

Section 14(3) defines for the purposes of the section "land belonging to a Secretary of State" as meaning land under the management of a Secretary of State. The Secretary of State contends both establishments were under his management.

Section 17 of the MLA, according to its heading, deals with "notice and enforcement of bye-laws". Subsection (1) provides:

It should be noted that this subsection begins by setting out the procedure to be followed before the bye-laws are made and the second half of the subsection deals with what is to happen after the bye-laws are made.

Section 17(3) provides that a bye-law under the Act is to be deemed a regulation "within the meaning of the Documentary Evidence Act 1868, and may be proved accordingly". The Documentary Evidence Act 1868 sets out a number of methods by which prima facie evidence of the regulation may be given in all courts of justice and in all legal proceedings. One such method is the production of a copy of the regulation "purporting to be printed by the Government Printer" and for this purpose s. 2 of the Documentary Evidence Act 1882 provides that a copy of the regulation shall have the same effect if it purports to be printed under the "superintendence or authority of Her Majesty's Stationery Office". This last provision is of some relevance here since both sets of bye-laws state on their back that they are "Printed for Her Majesty's Stationery Office" by a named printer. The RAF Alconbury Bye-laws 1985 ("Alconbury Bye-laws") came into operation on 6th September, 1985, and the HMS Forest Moor and Menwith Hill Station Bye-laws 1986 ("Forest Moor") came into operation on 26th March, 1986.

Both sets of bye-laws are in a similar form. However, the manner in which the area to which the bye-laws are to apply as described in the bye-laws is not the same. Thus in the case of the Alconbury bye-law the description is as follow:

In the case of the Forest Moor bye-law the description differs in so far as there is no reference to the boundary of the lands as being "marked by and includes the outer perimeter fence and gates". In addition there is no reference in the Forest Moor bye-law to "certain other areas" as there is in the case of the Alconbury bye-law.

In the case of each set of bye-laws bye-law 3 makes it an offence to contravene the bye-laws, in bye-law 5 of the Alconbury bye-laws it is provided that:

There is a similar provision in different language in the Forest Moor bye-laws.

In the Forest Moor bye-laws but not in the Alconbury bye-laws there is a statement that "nothing in these bye-laws shall affect the lawful exercise by any person of any public right of way"

To each set of bye-laws there is attached a plan. The plan has the thick black line marked upon it. It was common ground that that black line would represent approximately 60 feet on the ground. In addition the plan in different editions of the Forest Moor bye-laws did not correspond with each other.

Bye-laws such as are here under consideration which create offences must clearly state what action is required to be avoided in order not to commit an offence. A person who is subjected to the bye-law is therefore entitled to be given the necessary details to enable him to avoid contravening the bye-law. Here, Mr. Bugg makes two different criticisms of the bye-laws which are related but raise separate issues. His first contention is that

both sets of bye-laws are uncertain because "the Protected Area" to which the offences relate is insufficiently identified.

Secondly, he contends that the bye-laws are uncertain because the boundary is not marked on the ground as required by s. 17 of the MLA. As to the first contention, in the case of the Alconbury bye-law the major area covered by the bye-law is perfectly properly described by the reference to the boundary "which is marked by and includes the outer perimeter fence and gates of RAF Alconbury". Assuming when the bye-law was made there was such a fence and gates then the perimeter is perfectly properly identified. However, in addition to that area the bye-law apply to "certain other areas". The plan, although it is only "for convenience of identification", does give an approximate idea of the other areas but bearing in mind the nature of the prohibited activities under the bye-laws, we do not regard the plan as providing the degree of certainty which is required, having regard to the width of the black line on the plan which marks those areas. In the case of the Forest Moor bye-law, there is no description contained in bye-law as to the boundary of the protected area. The only reference is to the lands belonging to the Secretary of State. Mr. Bishop says this does not matter because of the obligation under s. 17 (1) of the MLA of the Secretary of State to mark the boundary on the ground. However, if this submission is right, it would mean that the area subject to the bye-law would be dependent upon action being taken by the Secretary of State which he may or may not take and which would enable him to fix the boundary at will as long as he defined that boundary within his own lands. We do not accept that this can be the situation. In our judgment before the Secretary of State is entitled to rely on what is marked on the ground, or for that matter on some other document, there must be some reference to the marking on the ground or the other document in the bye-laws themselves. This does not occur in the case of Forest Moor. The importance of this being the position is emphasised by what the evidence suggested could have happened to the perimeter fence referred to in the Alconbury bye-laws. Since those bye-laws were made the perimeter fence has been moved and the area enclosed substantially extended. The extension cannot alter the boundary of the area covered by the bye-laws. I therefore regard the Forest Moor bye-laws as being defective on their face in this regard. So far as the Alconbury bye-laws are concerned however, I would take the view that the reference to certain other areas can be struck out as being both textually and substantially severable in accord with the principle identified by Lord Bridge in The D.P.P. v. Hutchinson [1990] 2AC at p804G.

We turn to Mr. Bugg's second contention. It is only necessary to consider this contention in respect of the Alconbury bye-laws. He submits the duty to mark the boundary under s. 17 of the MLA is a continuing obligation. We agree. The fact that the boundary has been altered and in particular altered so as to take in a right of way, Clay Lane, means that that continuing obligation is not being complied with by the Secretary of State. However, it is submitted that changing the position of the perimeter fence can not affect the validity of the bye-law, albeit that Mr. Bugg would be entitled to seek an order of mandamus to have the boundary properly marked.

We accept that failure to mark does not of itself affect the validity of the bye-laws, in the case of Alconbury the Secretary of State was not only under the s. 17 duty to mark but has chosen to describe the land subject to the bye-laws by the marking present, when the bye-law was made, by way of perimeter fence and gates, when the bye-laws were made. The fence was subsequently moved quite deliberately so as substantially to increase the amount of land within the fencing. In our judgment, it would be contrary to the intention of Parliament to find a person guilty of offences under the bye-laws when the boundaries of the relevant area are not marked or as in this case the boundaries as defined by the bye-laws are substantially different from and less extensive than those deliberately marked on the ground on behalf of the Secretary of State. The point has more force when the relevant area is defined in the bye-laws by reference to a perimeter fence because a person coming to the site might reasonably assume that the fence he observed was in the same position as that mentioned in the bye-laws when the bye-law was made. He would have no ready means of checking the area included within the bye-laws. He should be acquitted without having to rely upon the defence under bye-law 5(3).

In these circumstances the Defendants subject of both appeals could not properly be convicted of the offences with which they are charged.

Having regard to the conclusions to which we have already come, it is not therefore strictly necessary for us to deal with the many other points which have been raised by the appeal in relation to the Alconbury bye-laws. However, in view of the arguments which were advanced before us and because the questions raised by that appeal are said to be ones where there exists undesirable uncertainty as to the legal position, we will deal with some but not all of the many questions raised. As, however, our comments will be obiter as not being necessary for this judgment we propose to deal with them shortly.

The obligation of the Secretary of State under s. 17(1) MLA is to "cause the proposed bye-laws to be made known in the locality, giving an opportunity for objections being made to the same". In order to comply with this requirement the Secretary of State is required to take reasonable steps to publish the fact that he is intending to make bye-laws and to indicate where a copy of the proposed bye-laws can be inspected in the locality. The sort of action which would fulfil this requirement is the insertion of an appropriate notice in the local paper and the display of a notice on the site in a position where it can be conveniently read by persons in-the locality. In the case of the Alconbury bye-laws His Honour Judge Astil found that this requirement had been complied with because correspondence about the proposed bye-laws were produced which indicated that there had been communication between the Secretary of State and the Huntingdon District Council as to their effect. Correspondence with the District Council of this nature does not establish compliance with the statutory requirement. While the judge was no doubt was correct in saying that the correspondence "demonstrates that the purport of what he was proposing was published to the District Council", it is not publication to the District Council which is required but publication in the locality.

The bye-laws are statutory instruments. (Section 1(2) Statutory Instruments Act 1946.) They were therefore required to be sent to the Queen's Printer and numbered in accordance with the regulations made under the Act. (Section 2(1), 1946 Act.) The bye-laws are not, however, in the nature of a public Act but are in the nature of a local and personal private Act, as those terms are used ins. 8 of the Statutory Instruments Act 1946.

Arising out of the fact that there is a police station on the Alconbury base, it was argued that the Alconbury bye-laws were inconsistent with the 1984 Act. There is absolutely no substance in this point. As Mr. Readhead pointed out if it was necessary for the appellants to visit the police station to exercise their rights under the 1984 Act, they had only to seek permission for this purpose which there was no reason to think would be unreasonably refused so as to exercise that right.

Bye-law 5(3) of the Alconbury bye-laws provides:

The language of bye-law 5(3) clearly places the onus upon a defendant to bring himself within the defence which it provides. This is a strong pointer to the offences which appear under the heading "Prohibited Activities" in bye-law 2 being absolute offences not requiring mens rea which we consider is usually the position. The nature of the offences points in the same direction except in the case of bye-law 2(j) where the bye-law starts off with the word "wilfully". The use of the word wilfully does indicate that there is a requirement of mens rea in case of this offence. What is required is that the Defendant should intentionally "damage destroy or deface any sign, wall, fence, structure, floor, pavement or other surface with the Protected Area".

The bye-laws indicate on their back page that they are "Printed for Her Majesty's Stationery Office by ...." Our initial reaction was that this indicated that the bye-laws had been printed under the authority of Her Majesty's Stationery Office which would be sufficient to bring the bye-laws within s. 2 of the Documentary Evidence Act 1882. However, having heard Mr. Bugg's submissions as to the possible significance of the use of the word "for" as opposed to the words "with the authority of" it would be preferable not to express any view on this subject. We consider the evidence before us does not enable us to resolve this issue

That brings us to the end the specific points on which it will be appropriate for us to express our views. As to the remaining issues, we anticipate that the distinction which we have drawn between substantive and procedural validity should prevent magistrates having to cope again in the future with the technicalities of the sort which were canvassed on the Alconbury appeal to the Crown Court. If therefore only remains for us, before setting out the results of the appeals, to draw attention to the fact that caution should be exercised in seeking to rely on judgments given for applications for leave to apply for judicial review. In the case before us the parties did seek to rely upon a judgment given in the Divisional Court, when constituted as at present, in an application for leave, by Miss Greaves. The court did not have the advantage of full argument before giving that judgment and in those circumstances too much reliance should not be placed upon it.

As a result, of this judgment, the appeal of the Director of Public Prosecutions in relation to the Forest Moor bye-laws will be dismissed. Mr. Bugg's and Miss Greaves' appeals in relation to the Alconbury bye-laws will be allowed. In view of the history of both appeals, we would not have regarded it as appropriate to remit the cases for re-hearing.

We thank all counsel and Mr. Bugg for their very considerable assistance.