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Cite as: [2010] EWHC 3435 (Admin)

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Neutral Citation Number: [2010] EWHC 3435 (Admin)
Case No: CO/6080/2010


Sitting at:
Leeds Combined Court
1 Oxford Row
West Yorkshire
8th November 2010

B e f o r e :




- and -




(DAR Transcript of
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Miss Quincy Whitaker (instructed by Ben Hoare Bell LLP) appeared on behalf of the Appellant.
Mr Mark Styles (instructed by the CPS) appeared on behalf of the Respondent.



Crown Copyright ©

    Mr Justice Langstaff:

  1. The best way of describing the circumstances in which this appeal by way of case stated comes before me is to say that it arises out of what is perhaps best described as an unfortunate procedural mess.
  2. The appeal is in essence brought by the applicant, Mr Dodsworth, against his conviction upon his own plea of guilty at the magistrates' court on 14 September 2009 but is, as will become apparent, an appeal which challenged the decision by way of case stated on a specific basis which is no longer pursued.
  3. The background is that the applicant had a collection of eggs. They were wild bird eggs. The taking and the possession of wild bird eggs has been regulated by statute since at least 1954. The statutory background and history is of importance. In 1954, section 1 of the Protection of Birds Act provided so far as material that if any person wilfully "(c) takes ... an egg of any wild bird", he was guilty of an offence. There was no offence of possession of an egg, just an offence of taking one. That essential position remained unchanged in the Protection of Birds Act 1967. It is to be noted that possession for sale was prohibited but not possession itself.
  4. In 1981 the Wildlife and Countryside Act was passed. It came into force in 1982. The wording that then applied in section 1(2) was:
  5. "if any person has in his possession or control—
    (a)any live or dead wild bird or any part of, or anything derived from, such a bird; or
    (b)an egg of a wild bird or any part of such an egg,
    he shall be guilty of an offence."
  6. However, a defence was provided by subsection (3). In the wording enacted in 1981 subsection (3) read as follows:
  7. "A person shall not be guilty of an offence under subsection (2) if he shows that—
    (a)the bird or egg had not been killed or taken, or had been killed or taken otherwise than in contravention of the relevant provisions ; or
    (b)the bird, egg or other thing in his possession or control had been sold (whether to him or any other person) otherwise than in contravention of those provisions ; and in this subsection 'the relevant provisions' means the provisions of this Part and of orders made under it and, in the case of a bird or other thing falling within subsection (2)(a), the provisions of the Protection of Birds Acts 1954 to 1967 and of orders made under those Acts."

  8. Thus after 1982, as before, the taking of wild bird eggs and possession for sale of such eggs was an offence. So also would be it be for an any egg to be taken in contravention of the Wildlife and Countryside Act itself. But if someone had been in possession of an egg which he could show had been taken by somebody else, albeit taken in contravention of the 1954 and 1967 Acts but not taken by him, he could lawfully possess it, so it was not unlawful for a person under the 1981 Act, as it stood until amended, to possess eggs which had been taken before the 1981 Act came into force.
  9. In 2004 the Wildlife and Countryside Act 1981 (England and Wales Amendments) Regulations 2004 were laid before Parliament. They were laid on 9 June 2004 and came into force on 14 July 2004. The Secretary of State of the Department for Environment Food and Rural Affairs purported to exercise the powers in section 2(2) of the European Communities Act 1972 to make a statutory instrument which effected amendments of primary legislation. Amongst the amendments was an amendment to the wording which related to the possession of wild bird eggs. The wording of the offence was changed. After amendment it now read:
  10. "3 A person shall not be guilty of an offence under subsection (2) if he shows that—
    (a)the bird or egg had not been killed or taken, or had been lawfully killed or taken….
    3A. In subsection (3) "lawfully" means without any contravention of—
    (a)this Part and orders made under it,
    (b)the Protection of Birds Acts 1954 to 1967 and orders made under those Acts,
    (c)any other legislation which implements the Wild Birds Directive and extends to any part of the United Kingdom, to any area designated in accordance with section 1(7) of the Continental Shelf Act 1964, or to any area to which British fishery limits extend in accordance with section 1 of the Fishery Limits Act 1976, and
    (d)the provisions of the law of any member State (other than the United Kingdom) implementing the Wild Birds Directive."

    Thus, although it had been lawful to possess an egg which had taken before the Wildlife and Countryside Act 1981 came into force (and thus "historic" bird egg collections were not unlawful) it was not lawful any longer to possess an egg which had not been taken lawfully in the first place. This meant that it now became criminal to continue to hold eggs taken by somebody else other than the person charged with the offence, even though it may not have been an offence to possess them up until that date.

  11. The appellant's essential factual case was that he had a number of eggs which dated in their taking from before the Wildlife and Countryside Act came into force, which it had not been therefore unlawful until 2004 to continue to hold. He had not himself taken those eggs in contravention of the 1954 legislation. Therefore, until this amendment in 2004, he had been committing no criminal offence.
  12. The procedural history

  13. On 10 October 2006 a search warrant was executed under the 1981 Act at the Appellant's home. A number of eggs was discovered. In 2008 (therefore after some two years had passed) he pleaded guilty to two counts of possession of those eggs, and was acquitted in respect of three other counts, at the Crown Court. Ten summary-only offences were remitted to the magistrates' court for trial. On 14 September 2009 (therefore nearly three years after the eggs had been seized) those ten charges came for trial.
  14. A case, dated 17 May 2010, was stated by the district judge (magistrates' courts) before whom those charges came for hearing. District Judge Elsey , sitting at South Shields Magistrates Court says, paragraph 6:
  15. "These matters came before me for trial on 14 September 2009. At that hearing the prosecution indicated that they were minded to accept a guilty plea to one of the ten charges and proposed to adjourn the remainder sine die.."
  16. It appears that the prosecution were content to accept a plea of guilty which had been offered for one of the ten charges, and ultimately a plea of not guilty was marked on the other charges and they were withdrawn. There was thus an element of, if not plea bargaining, at least discussion as to the acceptability of pleas in advance of the tender of this plea.
  17. The appellant was represented by someone whom he tells the court he regarded as an expert in the arcane area of the law relating to the possession of birds' eggs. The case continues at paragraphs 7 and 8:
  18. "7. I understand the issues for trial were to be whether the court accepted the appellant's evidence as to the dates on which the eggs had originally been taken, and the records he had, or whether the Crown were able to prove that the eggs had been taken at a time which rendered possession illegal.
    8. I understand the appellant changed his plea to guilty because the effect of the Wildlife and Countryside Act 1984 (England and Wales Amendment) Regulations 2004 [the SI] was to make it unlawful to hold any eggs taken since 1954 whereas prior to the amendment eggs taken before 1981 could be lawfully held. There was therefore no need for me to adjudicate whether I accepted the appellant's account as to the date on which the eggs had originally been taken."

    Nothing was said to the magistrate which might suggest that the plea was in any sense equivocal. No argument was addressed to him that the charge was a charge unknown to law or that the statutory instrument was a nullity. The matter proceeded, indeed the acceptability discussions as to plea proceeded, obviously upon the basis that there was no such challenge.

  19. What I am told by Miss Whitaker for the appellant is that whilst at court the appellant's solicitor became aware for the first time of the effect of the amendment. I am told that the appellant and his solicitor, and I am told more generally others who held egg collections, had assumed that they could continue to hold their eggs without committing an offence. That position had in fact changed in the light of the law and its amendment, as I have mentioned. The solicitor, however, though discovering this at the magistrates' court for the first time because of a note to that effect prepared for the magistrates by Mr Styles, who appears before me as he did before him, accepted this. He did not ask for an adjournment to consider the matter further.
  20. However, within the 21-day time limit which is permitted by the rules, the appellant through that solicitor lodged a notice of appeal to the crown court against not only the sentence, which was a community order with the requirement of undertaking 100 hours unpaid work, but also against the conviction.
  21. The case continues at paragraph 11:
  22. "On 4 November 2009 the appellant appeared in person before me having made a request for me to reconsider the case. He informed me that he had dispensed with the services of his original solicitors and presented me with a large bundle of documents in no particular order from which there was some suggestion that there was an issue about inadequate consultation when the [statutory instrument] which amended the Act was implemented. However as he was not in a position to formulate a structured argument I indicated that I could not reopen the matter on the information now before me but would keep an open mind."

  23. I have been told by counsel that the district judge spoke of the door remaining open, but I have to go, it seems to me, upon the words he used in the case. There it is clear that he said he could not re-open the matter - that is, no doubt, the plea of guilty as well as the sentence. As to keeping an open mind, it is not easy to understand quite what he meant by that, but the fact is:
  24. "12. I then became aware that Mr Barnes of Ben Hoare Bell Solicitors was now instructed. In informal communication with him I made it clear that my provisional opinion was that any challenge to the vires of the [statutory instrument] should be made within the appeal."
  25. Thus it was plain, first, that the district judge was contacted by solicitors. There was this informal communication – this seems to me irregular, but it occurred – and the provisional opinion expressed was plainly as he says, though it is a matter of concern that if it was a matter of importance it was expressed in this way and not in open court where and on an occasion when both parties might comment.
  26. Matters then moved on to the Crown Court. The Crown Court heard the appeal on 18 January 2010. By then the appellant had secured the services of Mr Barnes, who had, as the district judge reported, spoken to him informally. There is no case stated by the Crown Court. All that the case before me says about the hearing in the Crown Court on 18 January is this:
  27. "I was informed by both advocates that at the successful appeal (which I understand proceeded against sentence only, when the community order was substituted by an absolute discharge) His Honour Judge Lowden, sitting at Newcastle Crown Court on 18 January 2010 had expressed similar views to mine, that any challenge to the vires of the legislation at this stage of proceedings would have to be made to the High Court."
  28. What I am told on behalf of the appellant is essentially this. When Mr Barnes came to the Crown Court there was on the face of the papers an appeal against both conviction and sentence. Mr Barnes had in mind that the subordinate legislation might be invalid because of a failure by Government to go through the proper process of consultation prior to making the statutory instrument. He had not completed his researches. He was not in a position to proceed. He indicated to the Crown Court judge that he was not in a position to proceed.
  29. That has been clarified before me today when enquiry was made from the Bench as to why no adjournment was sought by him, he saying that he had not abandoned the appeal. He did not invite an adjournment. It was simply that he did not have the information which would found an appeal. He did not think that an application for an adjournment would succeed and, unless sentence was dealt with there and then, his client was at risk of having to complete a community service order, two-thirds of which he had already done, and it was important therefore from his perspective that his appeal against sentence should proceed.
  30. The court in any event decided to go ahead. It did not, it would seem, determine the conviction appeal, which was simply not proceeded with, although as far as I can see there is no clear indication in the documentation to that effect. It is a pity that no formal order one way or the other was made, either by the Crown Court at this stage or earlier on 4 November 2009 when, if the magistrate had indeed power to revisit the question of plea, he did not indicate whether he was definitely declining to re-open plea, or what precisely he meant by "keeping an open mind".
  31. Chronologically the case, from which I have quoted paragraph 16, now picks up the story at paragraphs 13, 14 and 15 and forward. Paragraph 13:
  32. "13. I received a request from the Appellant's new solicitor by letter dated 27 January 2010, with enclosures... to hear further representations.
    14. On 18 February 2010 I heard argument from Mr Barnes on behalf of the appellant and Mr Styles of Counsel on behalf of the RSPB.
    15. Mr Barnes submitted that the conviction following the entry of the guilty plea on 14 September 2009 was, or may have been, wrong in law and invited me to reconsider whether I should have accepted the plea. In support of this argument he referred me to information now available which he submitted suggests that consultation prior to enactment of the [statutory instrument] failed to comply with the requirements under section 26 of the Act. In making this application he referred me to the documents forwarded with his letter of 27 January.
    17. I did not make any determination of the merits of the challenge which the Appellant sought to raise and which may or may not have foundation.
    18. My view is that the decision as to whether the [statutory instrument] is ultra vires or not should be determined by the High Court. I also agree that the issue needs to be resolved and has considerable public importance."
  33. The questions which the case posed against this background were these:
  34. "19. …
    a. Was the consultation undertaken prior to the enactment of the [statutory instrument] adequate to comply with the requirements imposed by s.26 of the Act?
    b. Was the [statutory instrument] therefore ultra vires, thereby leaving the Act unamended?
    c. Is it therefore illegal or legal to possess eggs taken between 1954 and 1981?
    d. Was I right in law to accept a guilty plea to the offence of possession of 78 birds' eggs by the appellant on 10 October 2006 at the hearing on 14 September 2009?"

  35. The following comments arise. First, at no stage does the district judge say what power he was exercising to consider the representations to which he referred. In the letter of 27 January reference had been made to s.142 of the Magistrates Courts Act. Section 142 (2) provides that:
  36. "Where a person is convicted by a magistrates' court and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may so direct.
    2A The power conferred on a magistrates' court by subsection (2) above shall not be exercisable in relation to a conviction if—
    (a)the Crown Court has determined an appeal against—
    (i)the conviction; or
    (ii)any sentence or order imposed or made by the magistrates' court when dealing with the offender in respect of the conviction…"

  37. The appellant here had been convicted by a magistrates' court but the Crown Court had determined an appeal against him, under s142(2A)(ii):
  38. "…any sentence or order imposed or made by the magistrates' court when dealing with the offender in respect of the conviction…"

    Accordingly the magistrate had no power, as it seems to me, to entertain any application made under s.142.

  39. Section 142(2) is drafted as it is, I have little doubt, because in the ordinary course of events a conviction will follow a trial, rather than a plea. Therefore it is principally directed towards a retrial rather than an argument as to the vacation of plea, as to which there does not obviously seem to be any particular power to hear representations as did the district judge.
  40. The second comment is this. I am told by the appellant that, on occasions when it is said to the Crown Court that a plea which has been tendered before the magistrates is equivocal and should be vacated, the Crown Court may remit the matter to the magistrates for them to consider the issue. If they remit the matter, of course, they remit the entirety of the matter and do not normally proceed to sentence -- there would be no basis upon which to do so. But there was no remission here, as the case makes plain.
  41. Neither party in their submissions before me has referred me to the Criminal Procedure Rules. The Criminal Procedure Rules deal with the question of an application to withdraw a guilty plea made to a magistrate. Rule 37.9 provides:
  42. "37.9.—(1) This rule applies where the defendant wants to withdraw a guilty plea.
    (2) The defendant must apply to do so—
    (a) as soon as practicable after becoming aware of the reasons for doing so; and
    (b) before sentence
    (1) The application must—
    (a) explain why it would be unjust not to allow the defendant to withdraw the guilty plea".
  43. There are ancillary provisions, including whether the defendant waives legal professional privilege or not. That of course relates to hearings before the magistrates, but there is a virtually identical provision in relation to trial on indictment. Rule 39.3 of the Criminal Procedure Rules 2005:
  44. "39.3.—(1) The defendant must apply as soon as practicable after becoming aware of the grounds for making an application to change a plea of guilty, and may only do so before the final disposal of the case, by sentence or otherwise.
    (2) Unless the court otherwise directs, the application must be in writing and it must—
    (a) set out the reasons why it would be unjust for the guilty plea to remain unchanged;
    (b) indicate what, if any, evidence the defendant wishes to call;
    (c) identify any proposed witness; and
    (d) indicate whether legal professional privilege is waived, specifying any material name and date.
    (3) The defendant must serve the written application on—
    (a) the court officer; and
    (b) the prosecutor."

  45. No-one has suggested that this case was dignified either at the magistrates' court level or at Crown Court level by any such written application as is required by the Rules.
  46. On 1 April 2010 the magistrate was invited to state a case. It would appear from the form of the questions that the magistrate had in mind events which occurred on 14 September 2009. Essentially the argument before him, if it reflects the argument before me, is to the effect that if there is no offence in law because the amendment to primary legislation supposedly effected by statutory instrument had not properly been made because the statutory instrument is in that respect a nullity, or is ultra vires, then there was nothing properly by way of offence for the appellant to plead guilty to. His plea of guilty is thus wrongful and he should not be exposed to criminal jeopardy as a result. Although, as it happens, in the event he has obtained an absolute discharge, there is no reason why he should have that mark upon his record if indeed he has done no wrong. Therefore the argument goes, whether the magistrate knew it or not, he should not have accepted the plea of guilty.
  47. That, no doubt, is why the district judge focussed upon the events of 14 September 2009 when he asked the questions he did. It does, however, give rise to a further problem. The case is stated under s.111 of the Magistrates' Court Act 1980. That Act provides by s111(1) for an application to be made to a court to state a case. By s.111(2) it provides the application "shall be made within 21 days after the day on which the decision of the magistrates court was given."
  48. It should be noted that in paragraph 4 it is provided that:
  49. "On the making of an application under this section in respect of a decision any right of the applicant to appeal against the decision to the Crown Court shall cease."
  50. A magistrates' court's jurisdiction is defined by statute. Neither advocate, though invited to do so, could suggest to me any power that there was within the magistrates to extend time beyond the 21 days. If a case had been stated within 21 days of the plea on 14 September, then there would have been no right to appeal to the Crown Court as indeed was exercised. It is plain that part of the purpose and effect of s.111 and the time limits it contains is thus to provide for two potential alternative routes of appeal from a magistrate's decision, that is firstly to the Crown Court, the other to the High Court by way of case stated.
  51. Thus if I am right in my primary reading of the case and as to its purpose, it was invited very nearly six months after the relevant decision when the application should have been made within three weeks of it. There was therefore no power to state the case without enlargement of this time-limit, but it was stated nonetheless.
  52. The Practice Direction to Order 52 of the Civil Procedure Rules, which governs this court in this appeal in dealing with cases stated by either the magistrates court's or the Crown Court, does not suggest that the jurisdiction of this court depends upon whether the court below was or was not properly within its powers when it exercised and made the case. Accordingly, I do not regard the time points made to me by Mr Styles, in asking me to decline jurisdiction, as matters which enable me to do so.
  53. Before turning to identify the issues before me which require determination, I should first indicate that upon receipt of the case stated and the skeleton argument indicated by the appellant, the court asked some questions of the appellant. Answers were given in a note drafted by counsel Miss Whitaker, dated 10 September, which dealt not just with the consultation argument, though that was its principal focus, but sought also to argue that the use of the power within the European Communities Act had gone further than was proportionate in implementing the provisions of the Wild Birds Directive. She tells me that the argument will be, should the case proceed, that Parliament had indicated in 1981, when it passed the primary legislation by reason of proceedings in Parliament at the time, that it did not wish to criminalise possession after 1981 of eggs which, though unlawfully taken, had not been until then held in breach of the 1954 and 1967 Acts.
  54. Her case is that the words of the statutory instrument are a drafting error, which defeated this intention of Parliament in passing primary legislation, and that the statutory instrument therefore went further than it needed to and had an effect which was, because of the nature of the legislation, inaccessible to those who might be affected by it such that those in the position of the appellant had their conduct criminalised without realising that what they were doing might be an offence. This, therefore, potentially affected his human rights in respect of Articles 5, 6, 7 and 8 and Article 1 of Protocol 1.
  55. The argument, however, has moved on even since then, so that before me it is acknowledged that the argument in respect of consultation, at least as envisaged before the Crown Court judge - though at that stage an inchoate argument and in greater detail no doubt before the district judge in February - and as reflected in the note produced by Miss Whitaker in September, though she was saying then that natural justice rather than the statute required consultation, and thus putting it on a different footing, is now recognised as incapable of success and will no longer be advanced.
  56. It follows - and she accepts – that the first question posed by the case, 19(a), must be answered on the basis that the question is simply not applicable. There is no proper challenge to the legislation on that specific basis.
  57. As to question (b) the problem comes in the wording: "Was the statutory instrument therefore [my emphasis] ultra vires?" If the word "therefore" remains and has force, that question has to be answered "No". Miss Whitaker argues that this court should have regard to the importance that should be given to those who may have legitimate arguments in their defence on criminal charges and draws attention to the circumstances here. I have summarised her argument in the passages above, I hope not unfairly. But it seems that, this being a carefully drafted case, the question as it stands has to be answered "No".
  58. Question (c) was "Is it therefore illegal or legal to possess eggs taken between 1954 and 1981?". The only basis for the statutory instrument being ultra vires according to the case being related to a failure of consultation, the answer to that has to be and can only be "No", but I should note for future reference that that is not this court accepting that that is necessarily the final word. The arguments that Miss Whitaker has put forward have simply not been considered on their merits in this court and I imagine that the Secretary of State would have something to say about them.
  59. I then turn to (d), the fourth question:
  60. "Was I right in law to accept a guilty plea to the offence of possession of 78 birds' eggs by the appellant on 10 October 2006 at the hearing on 14 September 2009?"

    As to the answer to that, Miss Whitaker submits in effect that this calls into question the acceptability of a guilty plea on a much broader footing than consultation.

  61. This appeal is resisted by Mr Styles. He submits that the magistrate had a plea which was entered to him in court after some discussion between the appellant and the prosecution as to the acceptability of pleas of guilty when the appellant faced a number of charges. He argues, therefore, that there was nothing on the face of what happened in the proceedings to suggest that there was any doubt about the plea. The appellant had reaped an advantage, potentially, by tendering a plea on a limited basis, on the footing of which other charges had been dismissed by agreement.
  62. Secondly, he argues that to accept jurisdiction in this case would be to accept jurisdiction, or to hear the case, on a footing that the magistrate first had some obligation to ensure that the statutory instrument itself was valid if the case relied upon it and second that he was in a position properly to reconsider the question of the guilty plea at the later stages in November and February, when invited to do so first by the appellant personally and then inter partes.
  63. As to that latter, it appears, on the basis of the Criminal Procedure Rules, to have been outwith the rules had he done so. It does not seem to me generally arguable that a magistrate is wrong in accepting a guilty plea if there is before him no challenge to the legislation, and he is not necessarily wrong in failing to exercise any powers he may have under s.142 of the Magistrates' Court Act at a later stage if invited to do so. However, the question is not posed as to whether he was wrong but whether he was right to accept the plea, which may arguably involve a consideration of the wider issues. If for instance, as was pointed out in the case of Boddington v British Transport Police [1999] 2 AC 143 at 173D to H per Lord Steyn, in respect of a defendant facing a charge in respect of a byelaw which arguably was invalid. when rejecting the submission that the challenge was not proper to be heard in the magistrates court or for that matter the Crown Court, Lord Steyn said this:
  64. "The defendant may, however, be out of time before he becomes aware of the existence of the byelaw. He may lack the resources to defend his interests in two courts. He may not be able to obtain legal aid for an application for leave to apply for judicial review. Leave to apply for judicial review may be refused. At a substantive hearing his scope for demanding examination of witnesses in the Divisional Court may be restricted. He may be denied a remedy on a discretionary basis. The possibility of judicial review will, therefore, in no way compensate him for the loss of the right to defend himself by a defensive challenge to the byelaw in cases where the invalidity of the byelaw might afford him with a defence to the charge. My Lords, with the utmost deference to eminent judges sitting in the Divisional Court I have to say the consequences of Bugg's case are too austere and indeed too authoritarian to be compatible with the traditions of the common law. In Eshugbayi Eleko v Officer Administering the Government of Nigeria [1931] AC 662 at 670, a habeas corpus case, Lord Atkin observed that 'no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice'. There is no reason why a defendant in a criminal trial should be in a worse position. And that seems to me to reflect the true spirit of the common law."
  65. What is the position where a defendant becomes aware, after he has genuinely thought he was guilty and pleaded so, that he has pleaded guilty to an offence to which he had such a defence? In such a case, it would appear to the magistrate that the plea is unequivocal in the sense in which I have described it and that this will apply whether the defendant be represented or not.
  66. Thus Miss Whitaker in her skeleton submitted that the court had a residual jurisdiction to allow the withdrawal of the guilty plea where not to do so would work an injustice, on the basis that the appellant was misinformed about the legality of the charge he faced and therefore of the availability of a defence, citing Mantell LJ in the case of R v Sheikh [2004] EWCA Crim 492, paragraphs 16 and 18, and the cases of R v Sorhaindo and R v Dawood Hadi respectively at [2006] EWCA Crim 1429 paragraph 21 and [2001] EWCA Crim 2534.
  67. She argues that to accept the plea was, although unknowingly, in breach of the Human Rights Act for the reasons which I have set out, and that procedurally the magistrate had indicated that the matter was one for the Crown Court and then later for the High Court. The Crown Court, proceeding to sentence, had indicated that the challenge was a matter for the High Court and therefore it would be unfair for this court now to take the objections which are made by Mr Styles as effectively determining the matter upon the question of whether this court should proceed on the basis that the magistrate was entitled to accept the plea of guilty or not.
  68. In determining that final issue, I return to the case which, unless it is amended, is the case which ultimately falls for consideration by this court. The case does not set out any facts which would in any event enable the court to determine the arguments as to consultation that it raises. That may be because those arguments were not fully developed before the magistrate, at any rate prior to 18 February 2010 if indeed they were then so developed.
  69. Given the way in which the questions are posed and the circumstances in which the case came to be put before this court, I do not regard it as an adequate springboard from which to make the challenges that the appellant would wish to make. It does not deal with the facts which would have to be decided by this court as relevant to the issues which Miss Whitaker wishes to argue.
  70. The body of the case gives no detail of the rival points of view as to consultation, nor does it by the nature of the questions posed enable this court to have a focus upon the issues truly in dispute about the way in which the legislation came to be made.
  71. The procedural history is one to which I am highly reluctant to add further hesitation and confusion, when it may be that the courts below did not take the grip on the case that they might have done to the advantage of all at the time, That may be no adverse comment upon the courts: it may simply be a reflection of what one party or the other was inviting the court to do, in confusing circumstances.
  72. I have therefore come to the conclusion that it would be appropriate, as indeed it seems to me to be linguistically the case, to regard 19(d) as being a question which follows from and is linked to (a) (b) and (c), all of which related to an argument which is no longer pursued, and the answer to that must therefore be, yes, the magistrate was right.
  73. If it be asked whether that then leaves the appellant in an unfortunate position, the answer is that it is plainly not the position he would have wished to occupy - but in determining the questions as I have, I have not determined any issue about the legality of the legislation upon the other grounds which Miss Whitaker has advanced. I do consider that if they are to be fully argued out, if it is thought that they are valid or have any real validity, that should take place in proceedings where the issues can be properly focussed upon by both parties. It seems to me that the obvious party (apart from the appellant or those who share his interest and have a locus to bring proceedings) would be the Department of State, so that the minister would be the appropriate defendant. If that court in such proceedings should come to a conclusion that the law was invalid and void, then no doubt consideration would have to be given to what effect if any that would have upon the appellant's position. I do not at this stage wish nor do I attempt to indicate what that might be, merely to say that that is it is not for this court to determine.
  74. Accordingly, on the face of the case as it stands, there could be no answer other than those I have given and, accordingly, it is unnecessary in my view to consider those interesting further arguments which might have been addressed. I have determined what has been called jurisdiction but which in reality is a question of whether or not the questions relating to the acceptance of the plea should be answered as the appellant wished or as the court has declared. For those reasons, this appeal by way of case stated is dismissed.
  75. MISS WHITAKER: My Lord, could I just raise one matter arising from your judgment?

    MR JUSTICE LANGSTAFF: Yes, of course.

    MISS WHITAKER: That was my note that I wrote in September. I did not advance the case that consultation was required under the Act. I very specifically made it a breach of a duty to consult under natural justice, not the argument that was earlier advanced.

    MR JUSTICE LANGSTAFF: Thank you. That will be on the tape. When I receive the case back to revise it I will make sure that the appropriate alteration is made. Thank you for reminding me.

    MISS WHITAKER: I do not know whether my Lord has given any further consideration to whether he would be prepared to reserve the case for himself in the light of the…

    MR JUSTICE LANGSTAFF: -- Well there is no case at the moment as a result of my decision.

    MISS WHITAKER: …or to indicate that this would be a matter that appropriately --

    MR JUSTICE LANGSTAFF: I think you have to deal with the vagaries of this, Miss Whitaker. Plainly I have thought about the case. I have read the papers. I have some idea what the issues are. So by all means mention that or have your solicitor mention that to any listing officer should it be relevant, but that may be some way down the road, I do not know, and it may be that the availability of court and judges would be the determinative matter, so I am not going to make a formal order to that effect. There are not in any event any proceedings which I can list at the moment.

    MISS WHITAKER: No, my Lord. I do not know if it is appropriate at this stage to ask what the Crown's position will be with regard to the application for leave.

    MR JUSTICE LANGSTAFF: I think you will have to ask the Crown, and if the application for leave is made, as I have indicated it would be proper in my view that the Department of State be the defendant.

    MISS WHITAKER: Certainly, my Lord. I would need to give some consideration to whether there is a mechanism for also quashing the appellant's conviction within those proceedings and whether a further party would need to be joined for that.

    MR JUSTICE LANGSTAFF: That is something you will have to formally review. I do not think it is appropriate for the court to say one way or the other.

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