It has long been recognized in English law that it is no defence to a breach of an order of the court to assert that the order itself was invalid [1]. The public policy grounds for this are obvious; justifying conduct breaching a court order on the basis that the defendant took the view, rightly or wrongly, that the order was invalid would undermine the central principle of legal certainty. Therefore, the correct time to mount such a challenge was before any conduct had taken place that breached the order. This has, of course, the effect of holding individuals liable for breaches of orders that should never have existed in the first place.
In R v Kirby [2019] EWCA Crim 321 the appellant had been made the subject of a High Court non-molestation order in March 2014. He was subsequently brought before the Crown Court on three occasions for breaching the terms of the order, pleading guilty on the first two occasions and receiving respectively 12 weeks’ and 5 months’ immediate custody. On the third occasion an issue was raised as to whether the order had been validly made and, after considering the position, the Crown offered no evidence. This resulted in the appellant challenging his convictions for the earlier breaches, on the basis that the order should never have been made and, as such, should be regarded as invalid ab initio, rendering all breaches nullities.
It was common ground before the Court of Appeal Criminal Division that the non-molestation order should not have been made by the High Court in March 2014. The order had been made at an ex parte hearing, on the application of the relevant local authority, Tower Hamlets. However, the local authority did not fall into the category of “associated persons” required by the Family Law Act 1996 and, as such, had no locus to make such an application. In dismissing the appeal, the Court of Appeal reiterated the long-standing principle that there is an obligation to obey an apparently valid order of a court unless and until that order is set aside, describing it as “a crucial feature of a civilized society which has respect for the rule of law”.
The Court did identify a source of tension in the caselaw. In R v Beck [2003] EWCA Crim 2198 the Court of Appeal quashed the appellant’s conviction for breaching a restraining order and in the course of its judgment considered the status of an order made by Kingston Crown Court apparently in excess of its statutory powers. Contrasting the position with an order made by a court of unlimited jurisdiction, such as the High Court, the order was described as ‘amount[ing] to nothing’. The language is not dissimilar from the description of the Prime Minister’s prorogation decision by the Supreme Court in Miller No.2 [2019] UKSC 41 as being ‘unlawful, null and of no effect’,
The Court of Appeal in Kirby noted that there have been a number of cases where the rule that an order must be obeyed until it is set aside has been applied to courts of limited jurisdiction [2]. The Court drew attention to its inherent power to depart from an earlier decision of the same court and signalled that it would welcome a future challenge to the analysis in Beck.
In these circumstances, practitioners would be unwise to rely upon Beck as a basis for advising a client that the validity of an order made by the Crown Court, or any other court of limited jurisdiction, can be raised as a defence to breaching that order.
This is a separate issue from whether a defendant can challenge the validity of an administrative order, in criminal proceedings for breach of that order. The general principles were considered in the famous railway by-law case of Boddington v British Transport Police [1999] 2 AC 143. But the tide is flowing against permitting collateral challenges to administrative orders, as demonstrated by the recent decision of the Divisional Court in Stannard v CPS [2019] EWHC 84 (Admin), at least where the order is directed specifically to the defendant who then goes on to breach it.
[1] See Chick v Cremer (1846) Coop T Cott 338, Hadkinson v Hadkinson [1952] P 285 and Isaacs v Robertson [1985] AC 97
[2] See Johnson v Walton [1990] 1 FLR 350 and DPP v T [2006] EWHC 78 (Admin), [2007] 1 WLR 209, R (TN) v SoS for the Home Department [2018] EWCA Civ 2838, [2019] 1 WLR 2647 and Stannard v CPS [2019] EWHC 84 (Admin).
