Commons — Byelaws — New Forest — Enforcement — Magistrates’ court — Court of Swainmote — Jurisdiction — Commoners failing to pay marking fees — Informations laid before magistrates — Whether magistrates having jurisdiction — Whether Court of Swainmote having sole jurisdiction — Whether Court of Swainmote compliant with Article 6 of European Convention on Human Rights
The appellant verderers were responsible for the New Forest. In 1999, under powers conferred by section 25 of the New Forest Act 1877, they introduced byelaws to control animal numbers and grazing by horses, sheep and cattle. These were confirmed under the New Forest (Confirmation of Byelaws of the Verderers of the New Forest) Order 1999. A breach of the byelaws constituted a summary offence. The verderers laid informations at Southampton Magistrates’ Court alleging that the respondents had allowed horses and/or cattle to be depastured in the New Forest without paying marking fees. At a preliminary hearing, the district judge, having considered the jurisdiction of the Court of Swainmote, concluded that neither she nor the magistrates had jurisdiction. She stated a case as to whether she was correct in so holding.
Held: The appeal was allowed. Section 25 of the 1877 Act, which deals with offences and fines to be recovered summarily, was to be construed by reference to the Interpretation Act 1978. Under Schedule 1 to the 1978 Act, a summary offence is one that is triable summarily; the Southampton magistrates had jurisdiction to try all summary offences committed within their commission area. The provisions of section 3(1) of the Human Rights Act 1998 strengthened the conclusion that the magistrates had concurrent jurisdiction with the Court of Swainmote. Obiter dictum: Given the composition of the Court of Swainmote, whereby the verderers made the byelaws, the chairman of the court would sign an information against defendants who were to appear before it, the verderers composed the court, and they would take any moneys paid by way of fines, the court might not be capable of withstanding criticism for its incompatibility with the fair trial provisions of Article 6 of the European Convention on Human Rights.
No cases are referred to in this report.
This was an appeal by the appellants, the verderers of the New Forest, by way of a case stated from a decision of District Judge Babington-Browne in Southampton Magistrates’ Court on a preliminary issue concerning informations laid against the respondents, Andrew John Young, Austin Walter Young, Colin John Barnes, Peter Robert Burgess, John Milford, Roland John Bessant, Malcolm Thornburgh, Thomas Penny and James Penny.
Philip Mott QC and Charles Parry (instructed by Moore & Blatch, of Southampton) appeared for the appellants; Malcolm Gibney (instructed by Jasper & Vincent) appeared for the respondents.
Giving the first judgment, Rose LJ said:
[1] This is a unique case redolent with history. It concerns the control of animal numbers and grazing by horses, sheep and cattle in the New Forest, by way of the imposition of marking fees. It raises the question of whether, in the 21st century, the magistrates of Southampton, as well as the Court of Swainmote, have jurisdiction in relation to breaches of 20th century byelaws made by the verderers under 19th century legislation.
[2] The question arises on an appeal by way of case stated by the verderers of the New Forest against a decision of District Judge Babington-Browne on 19 March 2003, reflected in the case stated on 26 June 2003. I start by referring to the relevant parts of the case stated.
[3] Informations were laid against a number of respondents (nine in all), alleging that they had allowed horses and/or cattle to be depastured in the New Forest without marking fees having been paid, contrary to byelaws made by the verderers in 1999, under powers conferred by the New Forest Act 1877. The case records that, although the clerk to the justices had permitted the informations to be preferred, having read a bundle of documents supplied by the appellants, including copies of the relevant Acts, an opinion by counsel in July 2002 and a research paper by Ms Sarah Neil of Southampton University, there appeared to the district judge to be a point on jurisdiction that ought to be considered as a preliminary issue. That was the consideration that she gave on 19 March, the question being whether she and other justices in Southampton had jurisdiction in relation to these informations, bearing in mind that the Court of Swainmote had been created, among other purposes, for determining such matters.
[4] The first six respondents had been represented before the district judge. The seventh respondent had not been represented and had not been required to attend the hearing. The eighth and ninth respondents had pleaded guilty by post at an earlier stage and had already been convicted and sentenced. It was contended by counsel on behalf of the appellant that section 25 of the 1877 Act (as amended) empowered the verderers to make byelaws that have to be, by virtue of the New Forest Act 1949, confirmed by what was, originally, the Ministry of Agriculture. Those byelaws, made in 1999 (SI 2134/99), are called the New Forest (Confirmation of the Byelaws of the Verderers of the New Forest) Order 1999.
[5] The learned district judge referred to the relevant paragraph of the byelaws and to sections 33 and 34 of the 1877 Act, upon which counsel for the appellants relied in support of his submission that the county of Hampshire justices as well as the Court of Swainmote had jurisdiction because of the use of the word “summary” in the New Forest Acts. It does not appear that the district judge’s attention was specifically drawn to section 2(1) of the Magistrates’ Courts Act 1980 or to the Interpretation Act 1978, to which, in due course, I shall come. |page:2|
[6] The contention by the solicitor appearing for the respondents was that it was common ground that the byelaws made under the 1877 Act were valid and that some of the respondents had not paid marking fees since 1995. The submission was made that the Hampshire justices did not have jurisdiction merely because of the word “summary” in the New Forest Acts. The district judge concluded that the magistrates’ court did not have jurisdiction. In consequence, she made no order on the informations in relation to the first seven of the respondents, and she set aside the convictions and sentences of the eighth and ninth respondents.
[7] The question posed by the case is this:
Whether I was correct to rule that the New Forest Acts 1877 to 1970 with the Byelaws made under them entitled The New Forest (Confirmation of the Byelaws of the Verderers of the New Forest) Order 1999 together with the powers conferred upon me by the Magistrates’ Court Act 1980 did not give me or the appropriate Magistrates’ Courts jurisdiction to try summary offences created by the legislation pertaining to the New Forest.
[8] I shall come a little later to the terms of the ruling given by the district judge on 19 March, but, first, it is convenient to rehearse the relevant provisions of the byelaws and the legislation.
[9] Paragraph 3 of the byelaws is in these terms:
Any person breaking any of the following Byelaws shall be liable on summary conviction to a fine not exceeding level one on the standard scale.
[10] Byelaw 6 relates to horses and byelaw 7 to cattle or sheep, and, in each case, prohibits the animal identified from being permitted by a commoner to roam at large or be depastured in the forest, save when the appropriate marking fees have been paid. The 1877 Act provides, in section 23:
The verderers as constituted under this Act shall have power, –
(3) To levy from the commoners in the Forest… [by means of a rate and payments… and to levy from all other persons owning cattle (including horses, donkeys and mules), sheep and pigs entitled to be in the Forest by means of such payments as aforesaid, such sums as the verderers may require for paying the expenses of and incidental to the carrying into effect of their duties as verderers];
(4) To inquire into all unlawful inclosures… and to impose on any person or persons offending for every such offence any fine…
(5) To punish all such offences, and perform all such acts, powers, authorities, matters and things, and exercise all such jurisdiction, as the verderers… in their court of attachments or swainmote, are by any law, statute, or custom directed, authorised, or empowered to punish, do, exercise, or perform.
[11] Section 24 provides:
The verderers as constituted under this Act shall hold courts of swainmote for the dispatch of the administrative and judicial business to be transacted by them…
…
(d) A court, where another number is not prescribed by this Act, shall be constituted by the presence of three verderers; and,
(e) The official verderer shall be chairman of the court…
[12] I interpose there that the official verderer is appointed by Her Majesty the Queen, five verderers are elected and four are appointed either by the minister for agriculture (now DEFRA) or some other public body or organisation.
[13] Section 25 provides:
The verderers… may from time to time at any court of swainmote… make… Byelaws with respect to…
(4) The regulation of the rights of common by the commoners. Fines (to be recovered summarily) may be imposed by any such Byelaws or persons breaking the same provided that no fine exceeds for any one offence the sum of [£10].
[14] Initially, the sum there stipulated was £2, but it was increased to £10 by the New Forest Act 1964. Section 29, to which, as will emerge in due course, the district judge referred in her ruling, provides, in relation to the election of verderers, that, on appeal to the High Court of Justice, it shall be the duty of that court:
to proceed forthwith, and in a summary way, to hear the affidavits, proofs, and allegations of the parties, or otherwise to inquire into the matter… and either to confirm the election… or to order a new election, or to make such order… as right and justice may appear to the court to require…
[15] Section 33 provides:
Each of the verderers… shall… have the same powers and jurisdiction as if he were a justice of the peace acting in and for the Forest… and a court of swainmote when transacting judicial business shall have the same power and jurisdiction as if it were a court consisting of two or more justices of the peace, sitting for the transaction of business within the purview of their commissions as justices…
[16] Section 34 provides:
Every sum of money which the verderers are empowered to collect or levy under this Act may be recovered as a fine, and all offences and fines capable of being prosecuted or recovered before a court of swainmote… shall be prosecuted and recovered in manner provided by the [Magistrates’ Courts Act 1952 in the presently amended form].
[17] Section 38 provides:
All fines and other moneys recovered in the court of the verderers, or received by the verderers under this Act, shall be carried by them to the account of a general fund, and shall be applied in payment of the salaries of the officers and servants employed by them, and in defraying their other expenses under this Act.
[18] In that context, I turn to the crucial parts of the district judge’s ruling. By reference to section 33, which I have set out, the district judge said:
This section seems to me to have the effect of setting up a specific court of summary jurisdiction to deal with summary offences which pertain solely to the administration of the New Forest, the administration of which is of no interest to the general public and for which there appears to have been no intention to involve expenditure by a body funded by the public purse – namely, the Magistrates’ Courts. The various acts give the Verderers all the power they need to administer and levy fees and fines without the involvement of the Magistrates’ Courts.
[19] The district judge went on, by reference to byelaw 3:
Those words are not used in the primary legislation. The 1877 Act simply uses the terminology to liken the procedure to be employed by the courts of Swainmote to that already in common usage at the Magistrates’ Courts. Furthermore, section 29 of the 1877 Act (which deals with procedures to rectify an alleged invalid election of a Verderer) uses the term “in a summary way” when referring to a procedure which is available only in the High Court of Justice.
It is clear that the word “summary” in the context of the New Forest Acts is used in the dictionary definition sense, ie things being done by a short method without unnecessary formality or delay. The courts of Swainmote are able and designed to provide that.
[20] The district judge went on:
It is true that the constitution of the courts of Swainmote make them very Human Rights unfriendly, but it cannot be the function of the Magistrates’ Court to remedy the difficulty by providing an alternative venue for dealing with summary matters when the primary legislation clearly provides the courts of Swainmote with that power and does not mention an alternative jurisdiction. The right of appeal to the Crown Court may be sufficient to deal with any Human Rights objections.
[21] Mr Philip Mott QC, who did not appear before the district judge, advances submissions on behalf of the appellants. He points out that section 29 of the 1877 Act had not been raised in argument before the district judge, and, whether for that or some other reason, her attention had not been drawn to the provisions of the Interpretation Act 1978, upon which he relies.
[22] Section 5 of that Act is in these terms:
In any Act, unless the contrary intention appears, words and expressions listed in Schedule 1 to this Act are to be construed according to that Schedule. |page:3|
[23] Section 11, which deals with construction of subordinate legislation, provides:
Where an Act confers power to make subordinate legislation, expressions used in that legislation have, unless the contrary intention appears, the meaning which they bear in the Act.
[24] Schedule 1 of the Interpretation Act provides:
In relation to England and Wales –
…
(b) “summary offence” means an offence which, if committed by an adult, is triable only summarily.
…
There is, Mr Mott submits, no difference to be divined between a summary offence and an offence triable summarily.
[25] Paragraph 4(1)(b) of Schedule 2 to the 1978 Act provides, by reference to Schedule 1:
paragraphs of that Schedule at the end of which no year or date is specified or described apply, so far as applicable, to Acts passed at any time.
[26] The effect of that, submits Mr Mott, and Mr Malcolm Gibney, on behalf of the respondents, does not contend to the contrary, is that the Interpretation Act applies to the 1877 Act. In so applying, Mr Mott submits, the terms of section 25(4), dealing as they do with offences and fines to be recovered summarily, that is to say, criminal matters, are to be construed by reference to the Interpretation Act. Section 29, on the other hand, deals not with summary offences or fines, but with civil procedures to remedy allegedly invalid elections: it is therefore not susceptible to the same construction imposed by the Interpretation Act. Therefore, submits Mr Mott, the learned district judge fell into error in relying upon the terms of section 29 as throwing any light upon the meaning of section 25(4).
[27] Mr Mott further submits that, as is not a matter of dispute, the New Forest falls within the commission area of the Southampton Magistrates’ Court. Therefore, by virtue of section 2(1) of the Magistrates’ Courts Act 1980, the Southampton magistrates have jurisdiction over summary offences in the New Forest because that subsection provides:
A Magistrates’ Court for a commission area shall have jurisdiction to try all summary offences committed within the commission area.
[28] Mr Mott submits that the jurisdiction to be found in that section is, as a matter of statutory interpretation, concurrent with the jurisdiction conferred by the New Forest Acts on the Court of Swainmote. The Magistrates’ Courts Act jurisdiction is nowhere excluded in any of the statutory provisions relating to the matters with which we are presently concerned.
[29] Mr Mott also points out that the Forestry Act 1967 gives the Forestry Commission power to make byelaws in relation to the New Forest, breach of which is triable in a magistrates’ court. He further submits that, contrary to the district judge’s suggestion that the public at large have no interest in what goes on in the New Forest, the control of numbers of animals and amount of grazing is of interest to the general public because it bears upon the amenity that they enjoy in exercising their rights of access to the New Forest.
[30] In the course of argument, the question was raised, by the court with Mr Mott, as to whether the terms of section 3 of the Human Rights Act 1998 might bear upon this court’s approach when construing the legislation to which I have referred. Section 3(1) provides:
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
[31] Mr Mott very properly reserved the verderers’ position as to whether the Court of Swainmote is properly to be regarded as compliant with the Article 6 requirements of the European Convention on Human Rights. But he accepted that the factual position is that the verderers make the byelaws, the chairman of the court signs an information against defendants who are to appear before it, the verderers compose the court and the verderers take the money.
[32] On behalf of the respondents, Mr Gibney sought to question the legality of the byelaw, a matter that, as I have indicated, had not been canvassed before the district judge. Indeed, it had been expressly conceded before the district judge that the byelaws were lawfully made. As was made clear to Mr Gibney in the course of argument, that not having been a matter that was raised before the district judge and a matter in relation to which this court’s views are sought by way of response to a question in the case stated, it would not be appropriate for this court to embark upon a consideration of it.
[33] Mr Gibney’s central submission was that the 1877 statute provides a complete framework within which the verderers can provide for their own expenses and running costs, in such a way as to limit their need for external funding. In that regard, he drew particular attention to section 38, which I have rehearsed. He submits that this primary purpose would be defeated if the magistrates’ courts have jurisdiction because fines imposed by magistrates would not inure to the benefit of the verderers.
[34] In my judgment, control of the number of animals and the amount of grazing in the New Forest is a matter of interest not just to the verderers and those who pasture their animals there, but also to the general public. The New Forest provides amenities to the public that are necessarily affected by the way in which it is maintained. Therefore, I differ from the learned district judge in the view that she expressed in that regard.
[35] I also accept Mr Mott’s submission that the learned district judge had been wrong to construe section 25(4) of the 1877 Act by reference to section 29, for the reasons that I have already set out in rehearsing Mr Mott’s submission. The summary recovery of fines must, as it seems to me, be construed by reference to the Interpretation Act, in particular, the schedule, which I have earlier rehearsed. The learned district judge did not have the advantage of being referred to the provisions of the Interpretation Act. Had she been so referred, it may be that she would not have fallen into that error.
[36] Furthermore, as it seems to me, the significance of section 2(1) of the Magistrates’ Courts Act 1980 had not been sufficiently reflected in the arguments that were addressed to the district judge. Second, it is a provision that is not specifically referred to either in the case stated or in the ruling. It is a provision that, as it seems to me, is of high significance when determining whether the Southampton justices have jurisdiction in the New Forest.
[37] Further, and finally, it does seem to me that although the district judge had been correct in asserting that the human rights compatibility, or otherwise, of the Court of Swainmote was not of itself capable of being determinative of the jurisdictional question that she had to answer, the provisions of section 3(1) of the Human Rights Act strengthen the conclusion that I have reached, that the magistrates of Southampton do have concurrent jurisdiction with the Court of Swainmote in relation to these matters. Having regard to the composition of the Court of Swainmote, to which I have earlier referred, it seems that it is a body that may not be capable of withstanding criticism for its incompatibility with the fair trial provisions of Article 6 of the European Convention. If the legislation with which we are concerned is to be construed, as Mr Gibney submits that it should be, to confining jurisdiction to the Court of Swainmote, that is an end that, as it seems to me, would be at variance with the requirements of section 3(1).
[38] For these reasons, I conclude that the learned district judge fell into error on the jurisdictional aspect. I would answer the question posed at the end of the case stated, which I set out earlier in this judgment, in the negative. The effect of that, if my lord agrees, would be that the informations in relation to the first seven respondents should be heard by a different district judge, and that the orders made by Ms Babington-Browne in relation to the eighth and |page:4| ninth respondents, setting aside their convictions and sentences, should be quashed.
Agreeing, Jackson J said:
[39] I agree that this court should make the order that my lord proposes, and I agree with the reasons that he has just given for making that order.
Appeal allowed.
