In a previous blog post, Alex du Sautoy and Vincent Scully considered the Supreme Court’s decision in R (Black) v Secretary of State for Justice  UKSC 81 (‘No smoke without fire: revisiting the Crown exemption rule’, 17 January 2018). This second post explores the general principles to be applied when considering whether a criminal statute binds the Crown; it compares and contrasts the position in the Bribery Act 2010 and the Terrorism Act 2000, on the one hand, and the Offences Against the Person Act 1861 on the other.
The general rule is that a statute does not bind the Crown (ministers, Crown servants, or, to use the modern terminology, individuals in the public service of the Crown) unless there is express provision to that effect or it arises by necessary implication (Province of Bombay v Municipal Corporation of the City of Bombay  AC 58, 61). Lord Keith of Kinkel favoured the first of these two possibilities, observing that ‘it is most desirable that Acts of Parliament should always state explicitly whether or not the Crown is intended to be bound by any, and if so which, of their provisions’ (Lord Advocate v Dumbarton District Council  2 AC 580, 604). Increasingly, Acts of Parliament do exactly that. If a statute is silent on the point, it has become increasingly difficult to convince a court that it binds the Crown: as Lady Hale PSC has straightforwardly put it, ‘nothing would have been easier than to insert such a provision’ (Black, at ).
‘The appropriate rule, as I understand it, is that in an Act of Parliament general words shall not bind the Crown to its prejudice unless by express provision or necessary implication. That, however, is and has long been regarded as a rule of construction…’ (Lord Macdermott, Madras Electric Supply Corporation v Boarland  AC 667, 685)
Whether or not an Act of Parliament binds the Crown is not a question of immunity from liability but rather one of statutory construction (Madras Electric Supply Corporation Ltd v Boarland  AC 667, 685). The principal focus is on legislative purpose, something which is to be ascertained from the statutory language: the Crown will be bound if a statute’s purpose is otherwise frustrated (R (Revenue and Customs Commissioners) v Liverpool Coroner  EWHC 1586 (Admin),  QB 481, at ). Importantly, ‘it is not an objection to the Crown being bound that the Act imposes criminal liability’ (Black, at ).
As Diplock LJ explained in BBC v Johns  Ch 32, 78, the underlying rationale for the rule is that because ‘laws are made by rulers for subjects, a general expression in a statute such as “any person” … is not to be read as including the ruler himself’. Clearly, in our modern constitution, things are not quite that simple. Indeed, in Town Investments Ltd v Department for the Environment  AC 359, 380-381, Lord Diplock said that it would be better to talk about ‘the government’ than ‘the Crown’, given that the former was:
… a term appropriate to embrace both collectively and individually all of the ministers of the Crown and parliamentary secretaries under whose direction the administrative work of government is carried on by the civil servants employed in the various government departments … Executive acts of government that are done by any of them are acts done by ‘the Crown’ in the fictional sense in which that expression is now used in English public law.
Many statutes with offence-creating provisions deal directly with whether or not they (or part of them) bind the Crown. Section 183(1)(a) of the Road Traffic Act, for instance, makes it clear that an army officer who is on duty will still be guilty of an offence if he or she disobeys a traffic sign; the effect of s. 54(4) and (5)(b) of the Firearms Act 1968 is that cadets carrying guns in drill or target practice are deemed to be part of the Crown and (to this limited extent) do not commit an offence by being in possession of a firearm.
What about the Bribery Act 2010, the Terrorism Act 2000, and – in stark contrast – the Offences Against the Person Act 1861?
Bribery Act 2010
Section 16 of the Bribery Act 2010 (‘BA 2010’) provides:
16 Application to Crown This Act applies to individuals in the public service of the Crown as it applies to other individuals.
This straightforward provision, which applies to all of the offences set out in the BA 2010, confirms that a civil servant in the Cabinet Office accepting a bribe would, for instance, be personally liable for the s. 2 BA 2010 offence (although s. 13(1) of the BA 2010 sets out a defence for conduct that would constitute a bribery offence where the conduct was necessary for the proper exercise of any function of the intelligence services or the armed forces engaged on active service). Section 16 is:
(1) entirely consistent with one of the statute’s principal purposes, to criminalise within a clear legislative framework unethical practices amongst individuals in public office who abuse their position (see paragraph 16 of the Explanatory Note, which amplifies this point by referring to individuals committing offences ‘in the discharge of their duties’); and
(2) to be distinguished from use of the expression ‘This Act binds the Crown’, a much broader alternative (see the recently published Guidance for members of the Office of the Parliamentary Counsel on Crown application (February 2018), § 4.10, now available here).
The distinction identified in this second point is exemplified by s. 48(2) of the Health and Safety at Work etc. Act 1974, which provides that ‘[a]lthough they do not bind the Crown, sections 33 to 42 shall apply to persons in the public service of the Crown as they apply to other persons’ (emphasis added).
Terrorism Act 2000
Section 119(1) of the Terrorism Act 2000 (‘TA 2000’) provides:
119.— Crown servants, regulators, &c. (1) The Secretary of State may make regulations providing for any of sections 15 to 23A and 39 to apply to persons in the public service of the Crown.
The provisions to which s. 119(1) (located in Part VIII, entitled ‘GENERAL’) applies relate to (1) terrorist property, including funding-raising, tipping off, and money laundering (ss. 15 to 23A, in Part III, ‘TERRORIST PROPERTY’); and (2) disclosing information likely to prejudice an investigation (s. 39, in Part IV, ‘TERRORIST INVESTIGATIONS’).
The only statutory instrument made under s. 119(1) to date is the Terrorism Act 2000 (Crown Servants and Regulators) Regulations 2001: regulation 3 applies the offences in ss. 15 to 23 and 39 to the Director of Savings (responsible for National Savings and Investments) and anybody working for him or her when carrying out certain finance-related activities. The purpose behind this is not difficult to discern: for these purposes the Director of Savings is to be treated no differently from a private financial institution.
Except to this limited extent, then, the offences in the TA 2000 appear not to apply to ‘persons in the public service of the Crown’ (which, like the BA 2010, focuses on individuals).
Offences Against the Person Act 1861
The Offences Against the Person Act 1861 (‘OAPA 1861’) is conspicuously silent about whether any of its many offences bind the Crown. Why?
‘… it must be carefully borne in mind in what manner these Acts were framed. None of them was rewritten; on the contrary, each contains enactments taken from different Acts passed at different times and with different views, and frequently varying from each other in phraseology’ (Charles Sprengel Greaves, The Criminal Law Consolidation and Amendment Acts)
First, the OAPA 1861 is one of six consolidating Acts assembled by Charles Sprengel Greaves in the same year. Its provisions were simply lifted, without alteration, from a number of disparate statutory sources (including the Offences Against the Person Act 1828, known as Lord Lansdowne’s Act). In The Criminal Law Consolidation and Amendment Acts (2nd edn, 1862), Greaves himself warned (in a passage later approved by Lord Steyn in Ireland  AC 147) that the OAPA 1861, because of how it came into existence, was not ‘framed from beginning to end with one and the same view, and with the intention of making it thoroughly consistent throughout’, distinguishing it from the BA 2010 and the TA 2000. It is hardly to be expected, then, that the OAPA 1861 would make express provision dealing with whether or not it binds the Crown; its genesis also makes it difficult (at least without scrutinising its predecessors) to establish what may or may not arise by ‘necessary implication’.
‘It is perfectly obvious there must be many occasions when in the performance of military duties it would be absolutely necessary for locomotives to be driven at a greater speed than two miles an hour.’ (Lord Alverstone CJ, Cooper v Hawkins  2 KB 164, 172)
Second, in Cooper v Hawkins  2 KB 164, Lord Alverstone CJ and Wills J had to consider whether a War Department engine-driver was guilty of a criminal offence when his steam engine exceeded the (two-mile-an-hour) speed limit when it was passing through Aldershot. Wills J drew a crucial distinction, holding that ‘although it might perfectly well be that the Crown is not bound by [an Act], yet the circumstances might have been such that a man driving an engine which belongs to the Crown might be liable because the act of over-driving might be his own personal act’. There is real force in the suggestion in Craies on Legislation (11th edn, 2017) that whether or not an Act such as this binds the Crown is a question that only arises in relation to what a Crown servant does ‘as such’ (§ 11.5.18) rather than as ‘his own personal act’ (an approach consistent with the wording of s. 16 of the BA 2010 and s. 119 TA 2000, which both focus on individuals’ conduct, not ‘the Crown’ in its more metaphysical form). It is important to remember, on this point, that there is no general defence of ‘superior orders’ in English law (R v Clegg  1 AC 482, 498): a command from a senior official to commit an offence against the person would not, in itself, make a subordinate Crown servant’s act lawful.
‘At first sight it might appear to be difficult to imagine that Parliament could possibly intend a statutory offence of assault not to apply to the Crown’ (Craies on Legislation)
Third, Craies comments that ‘it might not be difficult to think of cases in which Crown servants of one kind or another might be wanted to perform actions which might technically amount to an assault if performed by ordinary citizens without consent’ (§ 11.5.17), and in this regard it is important to bear in mind the numerous statutory powers of arrest, for instance, given to police officers and immigration officials, which may require the use of reasonable force: it is crucial, for this reason, not to consider the OAPA 1861 divorced from its underlying purpose and context.
Any question about whether the OAPA 1861 (or part of it) binds the Crown would involve (1) acknowledging the difficulty of attempting to read the Act as a whole to establish if it binds the Crown ‘by necessary implication’ because of its disparate origins; (2) analysing whether the offence against the person in question was committed by a Crown servant acting ‘as such’; and (3) identifying whether statutory powers elsewhere make the question otiose.