MR TH STEAD (instructed by CPS Central Casework, York YO I I PQ) appeared on behalf of the Applicants

MR I BURNETT QC (instructed by The Treasury Solicitors) appeared as Amicus Curiae.

MISS S MAGUIRE for MRS V BAIRD (instructed by the Harrison Bundey & Co Solicitors, Leeds S17 3DX) appeared on behalf of the Respondent, John.

The Second Respondent, Miss Lee appeared in person.

JUDGMENT
(As Approved)
Friday, 22nd January 1999

LORD JUSTICE BUXTON: This is a prosecutor's appeal by way of Case Stated from a decision of the Crown Court sitting at York on an appeal from Magistrates.

The Magistrates found that various offences had been committed by the two defendants, Mrs John and Mrs Lee. Those offences are set out on pages 4 to 5 of the Case Stated and they were all of a similar nature; that is to say, either that the persons concerned had entered the area of the Royal Air Force Station at Menwith Hill in Yorkshire, or that they have failed to leave that area as soon as practicable. Those offences were contrary to the Menwith Hill Byelaws of 1996 and related to what was described as the "applicable area" of the RAF Station at Menwith Hill, an area which is delineated on a map that is attached to the byelaws. Both the defendants successfully appealed to the Crown Court.

As I say, the prosecutor now appeals to this Court. I say by way of background that the offences were apparently committed, if they were committed at all, as a means of marking a protest made by the Defendants and other persons against the activities that they alleged were being carried on at the Menwith Hill Radio Station, the area where the offences took place and to which the byelaws apply. It does not need to be said, but I will say, that this court is not concerned, any more than either of the courts below were concerned, with the merits of that dispute. We are only concerned with whether criminal offences, as alleged, have in fact been committed.

Before us Mrs John was represented, as she had been represented below, by Mrs Vera Baird of counsel. Mrs Lee represented herself before us, as I understand she did in the court below. She broadly adopted the same arguments as Mrs Baird put forward but, in addition, she addressed this court at some length on her own behalf. Since it was at one stage feared that the Defendants would not have the benefit of professional representation before this Court, the Attorney-General was good enough to appoint Mr lan Bumett QC to act as an Amicus Curiae. Mr Burnett gave us very considerable assistance both in writing before the hearing and during the course of argument.

Menwith Hill, as I will for the moment refer to it, is owned by the Ministry of Defence. It is titularily an RAF station, but is in fact used under arrangements with the British Government, largely but, as we understand it not exclusively, by personnel of the United States Forces; and also those persons include or are alleged to include civilian employees of the United State's Government.

It was alleged before the Magistrates, and on the appeal to the Crown Court, that in making the byelaws with which we are concerned the minister had acted in bad faith. It was also concurrently alleged, as we understand it, that unlawful activities of various sorts were being carried on at Menwith Hill, in particular in relation to its use as a radio or listening station mainly by United States citizens. Those allegations, insofar as they were relevant at all to the matters before the Crown Court, were held by that court not to have been made out and we are not further concerned with them.

We understand, however, that some five days of evidence was occupied before the Crown Court in investigating those allegations which were clearly gone into in considerable detail. As will become apparent, the matter with which this Court is now concerned did not emerge in the hearing before the Crown Court until a late stage of these proceedings.

We as I say are concerned and concerned only with the validity in law of the byelaws. Those byelaws include a list at paragraph four of the byelaws (page 55 of our bundle) of what are described as "prohibited activities". I shall have to return in more detail to this list at a later stage of the judgment but, for the moment, it is sufficient to note that paragraph 4(2)(a) of the byelaws provides that "no person shall enter the applicable area" and paragraph 4(2)(b) that: "...no person shall-

(a)....
(b) fail as soon as practicable to leave the applicable area in accordance with the directions of a constable or a lawful user in uniform."

It was those two provisions that were the basis of the criminal charges with which we are concerned. Those two provisions provide in broad terms for the exclusion of members of the public from the area to which the byelaws applied, described as I have already said as "the applicable area" which is shown on the map annexed to the byelaws.

The Crown Court found, and it is not contested before us, that on the facts found by them the accused persons were, in fact, guilty of such prohibited activities if the byelaws were valid.

The vires of the byelaws is to be found in Part II of the Military Lands Act 1892, in section 14(1) of that Act. It will be convenient to read as part of this judgment, however, not only section 14(1) but also (2) and (3). Section 14(1):

It will also be convenient to read section 2(3) of the Defence (Transfer of Functions) Act 1964 which reads as follows:

The significance of that section will become apparent in due course.

I deal first with a number of preliminary points to get them out of the way.

1. There is now no doubt that it is open to the defendants to raise the vires ofbyelaws in a criminal prosecution (that was decided in the case ofBoddington [1998] 2 WLR 639).

2. The burden is on the defendants to establish that the byelaws are invalid (that is to be found in the Boddington case at page 647A of that report per Lord Irvine ofLairg LC).

3. On the question of the interpretation of section 14(1) do both of the purposes stated in the side note to the section, that is to say regulating the use of land and securing the public against danger have to be satisfied? Mrs Baird, for Mrs John, accepted that only one such purpose needs to be satisfied and in the estimation of this Court that was plainly right.

4. In the case of what I will call the "danger" limb, does the danger have to be that as found or determined by the

Crown Court at paragraph 6(viii) of their Case Stated:

"..'securing the public against danger' could only mean physical danger to persons on or near to the applicable area, and that no such danger had existed in this case."

The prosecution as we understand it before the Crown Court and, certainly, originally in these proceedings, sought to argue against that conclusion and say that "danger" could encompass a threat to the public at large, and such a threat as might emanate, if an activity necessary for national defence such as the operation of a listening station were interfered with. That argument was not persisted in oral argument before us, in our judgment, correctly.

5. No point appears to be taken, or if such point is taken it is misconceived, that the presence of the United States Forces on this site prevented the use ofMenwith Hill coming under the category of "military purposes". The various statutory provisions as to visiting forces ensure that that is so.

The Crown Court accepted that looking at the first limb, that is to say, the power to make byelaws as to the use of land held for military purposes, these byelaws that exclude the public from the whole of what I will call the Menwith Hill site, and regulating activities over the whole of the site, did not fall within the powers granted by section 14(1) of the 1892 Act. That was because not all of the land to which the byelaws applied were in use for a military purpose. That in the Crown Court's estimation made the byelaws wholly invalid. We were told that this point was not taken by any of the Defendants at the trial, but was first introduced at or towards the end of the trial by the court itself. That had certain consequences for the conduct of the appeal before the Crown Court which do not affect our present judgment, but which I shall have to revert to briefly at the end of my observations.

The Crown Court's reasoning can be seen from the facts that they found and the opinions that they set out in their Case Stated. If we start at paragraph 5(iv) of the facts, the Crown Court found:

They then set out in paragraph 6 of their Case Stated various conclusions or opinions that they had formed. Those relevant for present purposes are these:

In so holding, the Crown Court in my judgement misinterpreted the effect of section 14(1). That can only, however, be demonstrated by a careful analysis of the terms of that subsection. That analysis took place before us with the benefit of valuable submissions from all counsel engaged in the case. As I have said this point only emerged, we are told, in the Crown Court's hearing of the trial at a late stage of those proceedings. Counsel did have an opportunity to address the court upon it, of course, but they did not do so with the benefit of the mature reflection with which we have been assisted.

In the analysis of that section, we will assume that because the byelaws refer indifferently to the whole of the applicable land, as a single parcel, therefore, if it were demonstrated that there was no vires to make those byelaws in relation to a sufficient part, or perhaps any part, of the applicable land, the byelaws would be void for uncertainty.

I turn to the first requirement of section 14(1). It says that there should be land belonging to the Secretary of State that is for the time being appropriated for a military purpose. There is no dispute, as I have said, that the applicable land does belong to the Secretary of State. The question then is whether 'for the time being' (that is, at the date of the making of the byelaws) it was appropriated by the Secretary of State for any military purpose.

"Appropriation" in this section, in my judgement, means "set aside for" or "allocated to" a particular purpose. That concept, which is familiar to public lawyers from local government law, is clearly used here to limit the Secretary of State's powers to land which, within the whole range of land belonging to him, has been allocated to a military purpose. Contrary to what the Crown Court appears to have thought, that question has nothing to do with the current use of the land in question. It is important to note that although the heading to Part II of the 1892 Act speaks of land used for a military purpose, the actual text of section 14(1) in its inception does not do so. Rather, the statute limits the power to make byelaws by providing that it is not enough that the land to which the byelaws relate is owned by the Secretary of State: additionally, it must have been set aside or allocated by him for a 'military purpose', as opposed to any other purpose of government.

"Military purpose" is defined in the 1892 Act in section 23. I do not pause to read that definition, but say that it is clearly an extensive definition: that is to say, that anything that would in normal parlance fall within the expression "military purpose" is certainly comprehended within it.

There was no evidence before the Crown Court, and in my estimation no reason to think, that the whole of the applicable area had not been appropriated to military purposes in the sense that I have just described, nor any evidence to suggest it was not so appropriated at the time the byelaws were made. The facts alleged by the Defendants and found by the Crown Court do not establish that the "applicable area"; (that is to say, the Menwith Hill site as a whole and as delineated by the byelaws) was not appropriated for military purposes. That is because all of the findings are about "user" and none of them are about "appropriation". I mention as an example the finding in paragraph 6(vi) of the Case Stated that I have already read. The question is not whether all of the land is for the moment used for a military purpose, but whether any part of it had not been appropriated for such a purpose: which the defendants had failed to show was not the case.

Indeed, insofar as any finding was made that could be relevant to that question, it seems to me to be against the Defendants. Picking up the Defendants arguments that the base was not a military base at all, or at least not a British or RAF base, the Crown Court made the finding of fact in paragraph 5(iv) of its Case Stated:

Mrs Baird complained that because the present point only emerged at the end of the trial, she and the other Defendants had then deprived of the chance of seeking and calling evidence to demonstrate that the applicable land had not been appropriated to military purposes at the time of the making of the byelaws. There is, in my judgement, no force in that complaint. First, although the ruling authority at the time of the trial was the case ofBugg v DPP (1993) QB 473 and not Boddington. it would have been open to the Defendants to take this point, being an issue of substantial invalidity or vires even under the Bugg rule: which they had not done. Secondly, we found it impossible to envisage what evidence or type of evidence might have served the purpose indicated by Mrs Baird and she was not able to assist us on that point.

The fact that the byelaws were made at all, in the form they were, although that could not in itself amount to an appropriation of the land, is, in my judgement, a strong indication that the base in the byelaws had been so appropriated, and we do not see how any evidence, certainly any evidence that was suggested to us, could have undermined that indication.

I turn now to the specific reference in section 14(1) to the byelaw-making powers of the Secretary of State, granted that the precondition to those powers, that they are exercised over land appropriated for a military purpose, is satisfied in this case. The court suggested at the opening of this appeal that the proper construction of section 14(1) was that it created four discrete powers on the part of the Secretary of State. Taking the section, we suggested that the powers were that the Secretary of State might make byelaws:

(i) for regulating the use of the land for purposes to which it is appropriated;

(ii) for securing the public against danger arising from that use;

(iii) to prohibit all intrusion on the land; and,

(iv) to prohibit all obstruction of the use thereof:

reading, as I do, from the section that I have already set out.

We invited argument to demonstrate that that construction was wrong, and in particular argument that the power to prohibit intrusion or obstruction of land was not, as it were, separate or freestanding, but was in some way dependent upon, or had to be read in the context of, regulation of the use of the land. In the event, we did not understand any counsel before us to dissent from the reading that we have suggested, nor did we understand Mrs Lee so to do; although Mrs Baird contended that the general power to prohibit intrusion and obstruction of use, recognised by that reading, still did not suffice to uphold these particular byelaws. We return to that latter submission below.

As to the further construction of section 14(1), I would simply say that I am fortified in thinking that the power to "make byelaws for regulating the use of land for the purposes to which it is appropriated" is separate from the powers with regard to intrusion and obstruction of use by the fact that persons who intrude or obstruct the use of the land cannot, by definition, be persons using the land for the purposes for which it is appropriated. To speak colloquially, the latter are insiders, the intruders and objectors are outsiders. It may of course be said that it is strange and unnecessary to have a provision that enables byelaws to be made to control the conduct of persons who are authorised to be on the land, because the Secretary of State will have other means, by reason of the chain of military command, to cause them to behave in the way he requires. I was for a time troubled by that point, but I have concluded that it is very far from self-evident.

First, I note the reference in the 1892 Act to volunteer corps. Such corps have long since been subsumed in the Territorial Army, but I am prepared to take notice of the fact that in the late 19th Century, when the Act was passed, such corps were, as I understand it, effectively private organisations with no very close connection with the War Office or the Secretary of State. That, in any event, would seem to have been the case by reason of the fact that it was thought necessary to make specific provision about them in an act principally concerned with activities controlled by the Secretary of State. Secondly, the facts of this case show that persons may be properly using the land for purposes to which it is allocated without being under the direct military control of the Secretary of State. Thirdly, the Secretary of State could properly conclude that persons, albeit using the land for military purposes, should nonetheless be subject to control by civil and not merely military means or discipline in respect, at least, of some of their activities. An example would be the driving of military vehicles on roads that are private roads or, at least, not highways.

I therefore conclude that the power to prohibit intrusion or obstruction of use is a separate power of the Secretary of State, dependent on showing that the land is appropriated for a military purpose, but not dependent on showing that the land is currently used for military purposes. That construction is reinforced by section 14(2). That clearly envisages the making ofbyelaws under powers granted by section 14(1) where the land to which those byelaws apply is not used for the military purpose for which it is appropriated. I regard that as fatal in any event to the Crown Court's construction of the section.

The prosecution before us, and we understand also before the Crown Court, further relied on section 2(3) of the Defence (Transfer of Functions) Act 1964 that I have already read. In the light of the argument set out above it was not necessary for the prosecutor to have recourse to section 2(3) in order to uphold these byelaws. However, the argument put was that the reference in that subsection to "any purpose of the Secretary of State's Department" entails that any use of land by the Secretary of State makes that use a purpose of his department and thus a military use. The farming in this case was therefore a purpose of the Secretary of State, in that it was a use permitted by the Secretary of State and thus a military use, I cannot agree with that extension of the argument. It is the use of land that has to be the relevant purpose of the Secretary of State and, in my judgement, that was not achieved, or certainly was not clearly achieved, when he merely let someone else use the land. Further, I am not able to agree with the argument that the prosecution's construction entails, that if, for instance, the Secretary of State had taken it into his head to start a farm that had no connection with any military activity that would be a purpose of his department for the purposes of section 2(3).

I do, however, think, on the particular facts of this case, that the holding of the Menwith Hill site as a whole and single parcel of land was a purpose of the Defence Department and, therefore, if it were necessary to decide the point in order to uphold these byelaws (which, as I have indicated, it is not) in terms of section 14(1) read with section 2(3) of the 1964 Act that whole parcel of land was, at the date of the byelaws, "used for a military purpose".

For completeness I should say that Mrs Baird in her skeleton argument before us objected to the argument based on section 2(3) of the 1964 Act, because she said the farmed part of the applicable land was not "land under the management of the Secretary of State" but land under the management of the farmers. She abandoned that argument on mature reflection before she opened her argument before us, but Mrs Lee was minded to adopt it. It is misconceived. "Land under the management of the Secretary of State" is not to be read in the literal or colloquial sense. The expression is a term of art drawn from section 14(3) of the 1892 Act, which I have already read. This provision is inserted simply to cover cases where the Secretary of State is not the owner of the land, and not cases such as that before us where he is, in fact, the owner.

I would, therefore, hold that the byelaws are not rendered void by the fact that part of the land was not being actually used for military or "operational" purposes (the latter a term adopted by the Crown Court but not used in the statute) at the time when the byelaws were passed. I am not sorry to have reached that conclusion. If it were the case that failure to use any specific part of the land for operational or military purposes rendered the whole of the byelaws ultra vires, serious difficulty would be caused in drafting any such future provision. First, it is extremely difficult to see where the line should be drawn. Here it was alleged, although we were reminded not proved, that 70% of the land was used for other than military purposes.

But what if it had been 7%? It would seem on the Defendants argument that the byelaws would still be void for uncertainty. Second, what types of activity failed to qualify under the use rule? The enlarging of a barracks is a specific military purpose as provided by section 23 of the 1892 Act, but it would seem that the holding of land in anticipation of such an extension would not or, at least, might not, qualify as use for that military purpose. Third, changes in use. Let us hypothesise that 70% of the land had simply been vacant at the date of the byelaws with no farming activity. Would that have invalidated them or would they simply become invalid when farming, and if so how much farming, was permitted to occur?

Accepting, as we understood it, the force of the arguments that I have endeavoured to set out, Mrs Baird nonetheless said that these byelaws went beyond power to prohibit intrusion on the land and the obstruction of the use thereof and were, therefore invalid, on that score.

The amicus helpfully drew our attention to a number of authorities relating to that argument. The two principles are as follows:

I. A legislative instrument that is bad in part might be upheld if the valid part was substantially severable; that is to say, essentially unchanged in its legislative purpose, to pick up the expression of the House of Lords in DPP v Hutchinson (1990) 2 A.C. 784.

2. When words in a byelaw are ambiguous they must, if possible, be given a meaning that makes the byelaw reasonable and valid. That was held by the Court of Appeal in the case of Percy v Hall (1996) 4 All ER 523 applying the observations of Lord Denning in Faweett Properties v Buckinghamshire County Council (1961) AC 636 at 677 to 678.

To apply these tests to Mrs Baird's argument, it is necessary to analyse that part of the byelaw that deals with the prohibited activities. That is paragraph 4(2) of the byelaws which it is necessary now to read in full, having referred already to part of it. It states that:

As I have said, all the convictions complained of in this case were obtained under either paragraph (a) or paragraph (b), both of which are clearly within the vires of section 14(1). Applying the Hutchinson rule to this case, those two subparagraphs are plainly severable, so the present observation fails in any event. However, I go on to say, for completeness, that I am not persuaded that any of the other prohibitions are ultra vires either, so no severance is required. I reach that conclusion on the reasonable construction of each of those provisions without recourse to the particular rule in Percy v Hall that I have just set out.

I will go through the subparagraphs briefly to indicate why I form that view.

We were told (there was no evidence to the fact) that farmers who farm the land have to have written permission and to register their particulars according to the fourth limb of the "lawful user" provision. We will assume that is so: Mrs Baird told us that on instructions from her client who is clearly well informed of what goes on at this site. On the basis of that assumption, it was submitted that obstruction of the farmers would not be obstruction of use for a military purpose, nor obstruction of use of the land for such purpose. However, even if the farmers are such lawful users, it seems to me that it would be a very artificial construction of paragraph (c) to construe it as extending to them and protecting their activities. "The discharge of his functions" seems to me to be an extraordinarily pompous way of describing a farmer going about his farming work. I do not think that in using that phrase the draughtsman had him in mind. In any event, that formulation is found without differentiation in a clause the first part of which is all about construction of military purposes. I would construe paragraph (c) as not extending to protect farmers, and therefore being without question valid.

Paragraph (d) is subordinate to paragraph (c) and, in my judgement, it is to be upheld with it. I note, in passing that it refers to not complying with the requirements of a lawful user "in uniform". That indicates clearly that the lawful use envisaged by this part of the byelaws are official figures who may be expected to wear uniform or have uniform available to them.

Subparagraph (e), in my judgement, is plainly valid as relating to intrusion.

Subparagraph (f) (interference with the relevant property) the latter is defined higher up the same page of the bye-laws as meaning:

The farmers do fall under paragraph 4(l)(b) or (c) just by being lawful users. There is no reason to think that the permissions referred to there are not limited to military activities and I would construe them as such.

Paragraph (g) seems to me to be subject to the same analysis as paragraph (c). I note again the expression "discharge of his functions".

I reached those conclusions, as I say, without recourse to the rule in Percy v Hall. but it seems to me that that rule must reinforce the reading of the byelaws in that sense.

For those two separate reasons, which are separate and distinct, the Defendants' objection based upon the construction of the byelaws therefore also falls in any event.

I would therefore allow the appeal in this case. I would remit the case to the Crown Court with a direction to dismiss the appeals that were made to that court.

The Crown Court set out a number of questions in the Case Stated. Those questions were largely based on an assumption as to the law which I have held to be wrong, and I hope it will not be thought discourteous if I say I do not think that it would add to the guidance that I have endeavoured to give in this court if I were to formulate specific replies to those questions. The only question I should mention is Question (g) where the Crown Court asked, first, whether:

The answer to that is "Yes", in the light ofBoddington which I should say had not been decided when the case was before the Crown Court. Secondly, Question (g)(2):

I interpose to say, as a matter of record, that we were told that the point was not in fact taken by Mrs Baird in the closing speech but, initially, taken by the court in the course of that speech. Be that as it may, on the finding that I would make in this case as to the law, further evidence as to the facts (certainly, further evidence called by the prosecution) would not have been appropriate or relevant. Therefore, the answer directed to the Crown Court's question is "No". However, I do feel constrained to say that where a new point emerged that was seen by the Court as being of importance, but which had not initially appealed to either party, and which raised issues which were substantially different from those on which the case had been fought and evidence had been given, it might have been helpful if all the parties had been given more opportunity for reflection and the introduction of further argument, if need be by way of adjournment. I understand why neither party asked for an adjournment in this case after a five day hearing, but the point certainly did need further reflection. If both parties had been given that opportunity, albeit possibly for a short time, it might not, in any event, have been necessary to trouble this Court at all.

I say that by way of footnote, because it is a striking point of this case that the matters with which we have been concerned only emerged at a late stage, of the hearing before the Crown Court. In the event, however, I would dispos of the appeal to us in the sense I have indicated.

MR JUSTICE COLLINS: I agree.

LORD JUSTICE BUXTON: Are there any applications?

MR STEAD: No, my Lord.

LORD JUSTICE BUXTON: I would like to renew the thanks that we gave to all counsel engaged in the case for the great assistance they gave us.

See also the Menwith Hill Page - supported by: