Relying on an unlawful act to found a prosecution

Can a public authority rely on its own unlawful act to found a criminal prosecution? David Merson reports on a recent High Court ruling.

The interesting question, which has not been the subject of direct authority, as to whether a public authority can rely on its own unlawful act to found a criminal prosecution arose in the case of White and another v South Derbyshire District Council [2012] EWHC 3495 (Admin).

In essence, the High Court (Lord Justice Gross and Mr Justice Singh) sitting as a Divisional Court of the Queen’s Bench Division was asked to decide in an appeal by way of case stated from the Magistrates’ Court whether a public authority, which had (in 2001) acted ultra vires in granting a licence for a caravan site on land that did not have an express grant of planning permission under the Town and Country Planning Act 1990, could rely on the unlawfulness of its own act in order to found a subsequent criminal prosecution.

The appellants, to whom the licence transferred in 2007, were convicted in the Magistrates' Court of permitting land to be used for the purposes of a caravan site without being the holder of a site licence in breach of s. 1 of the Caravan Sites and Control of Development Act 1960.

They appealed their conviction to the High Court and on appeal, the district council submitted that when it purported to grant a licence to the appellants' predecessor it had no power to do so and therefore the licence was invalid on its face. However, the district council was unable to show the court any authority in which the prosecution has been entitled to rely on the unlawfulness of its own act to found a criminal prosecution.

The High Court accepted the appellants' primary submission that the prosecution could not succeed since the district council was seeking to rely on the unlawfulness of its own actions in granting the licence as the basis for the prosecution.

In doing so Singh J. said that it was clear that, once a court of competent jurisdiction had decided that an act was ultra vires, it would normally be treated as having no legal effect. He went on to quote from Administrative Law: Wade and Forsyth (10th Edition), at page 253 saying “However the court would invalidate an order only if the right remedy was sought by the right person in the right proceedings and circumstances. The order might be 'a nullity' and 'void' but those terms had no absolute sense: their meaning was relative, depending upon the court’s willingness to grant relief in any particular situation.”

He recognised that in some cases, a void act might have some legal effect for some purposes, and the law would strive to protect innocent third parties who had relied upon the apparent validity of that act. Indeed, he thought that there would be circumstances in which the courts would allow a person to raise an ultra vires argument even in a case which was not brought by way of judicial review. On the facts of the instant case however, the invalidity of the site licence was not apparent on its face. It would have required the reasonable person to go considerably behind the face of the document in order to understand the reason for its invalidity.

The High Court also rejected the district council's argument that a prosecution was the only way in which it could enforce the law and regularise the legal position on the basis that it was possible for the Mayor or an individual member to have issued an application for judicial review to quash the licence and that, notwithstanding that such an application would have been outside the three-month time limit, the court has a discretion to extend the time limit. Indeed Lord Justice Gross was clear that “the criminal law should not be invoked merely because of the prosecutor’s frustration at the perceived absence of public or civil law alternatives”.

Accordingly the High Court allowed the appeal and quashed the appellants' convictions.

David Merson is Head of Planning & Environment at Steeles Law LLP. He can be contacted on 020 7421 1720 or by This email address is being protected from spambots. You need JavaScript enabled to view it. You can also find David's blog at Planning Law and much more.