Commuter loses High Court battle against ban on trains
By Terence Shaw, Legal Correspondent
A COMMUTER who lost a High Court appeal yesterday against a £10 fine for smoking on a train is facing a bill for legal costs totalling more than £15,000.
But, despite increasing charges, Peter Boddington, who smokes 60 cigarettes a day, said he would continue to fight for the lifting of a total smoking ban on Network South Central trains.
He now intends to seek leave to appeal to the House of Lords against the High Court ruling.
In appealing to the High Court, Mr Boddington, 42, had claimed that his conviction by a magistrate in July last year for smoking on a train between Falmer in East Sussex and Brighton should be quashed because the total smoking ban had been unlawfully imposed under British Rail by-laws.
He argued that powers given to the British Rail Board by the 1962 Transport Act allowed it only to regulate smoking on trains and not to impose a total ban, which was unreasonable.
But, in dismissing his appeal, Lord Justice Auld and Mrs Justice Ebsworth ruled that the validity of the by-laws ban could be challenged only by judicial review and not by challenging their validity in the magistrates courts or on appeal to the High Court.
Lord Justice Auld said he and Mrs Justice Ebsworth, who was not present for the judgment yesterday, would consider an application made by Mr Boddington's counsel, David Pannick QC, that they should certify that the case raised issues of public importance and should give leave for a further appeal to the House of Lords.
Mr Boddington, of Brighton, who owns Tooting market in south London and runs a cut-price tobacconist's within it, said afterwards that he was prepared to fight on whatever the cost.
Seated next to Lord Harris of High Cross, the pipe-smoking chairman of Forest, the smokers' action group, at a press conference opposite the Law Courts in the Strand, Mr Boddington said he was receiving no financial support from the group and was paying all the legal cost himself.
"The fight goes on and I have not lost yet," said Mr Boddington. He also intended to continue smoking on Network South Central trains, despite the ban.
Earlier, in giving the court's 23-page reserved judgment, Lord Justice Auld said there had to be "some sensible balance" between the right of a defendant in a criminal case to defend himself against unlawful action and the practical need for certain and consistently applied law.
Permitting the criminal courts to embark on a wide-ranging examination as to the lawfulness or rationality of administrative decisions in by-laws, not invalid on their face, would be to "beckon chaos".
The prospect of magistrates' courts being invited to apply on a case-by-case basis the "tool" developed by the High Court for its review of government and other administrative decisions did not make sense.
In his defence to the criminal prosecution, Mr Boddington was not entitled to challenge the validity or rationality of the total smoking ban on trains.
Lord Justice Auld rejected an application by Mr Pannick that because of the importance of the legal issues decided in the appeal, the costs should be paid from central funds.
He went on to order that Mr Boddington should pay the costs incurred by British Transport Police.
Welcoming the judgment, Chris Randall, a spokesman for Network South Central, claimed it endorsed their "no smoking" policy, which had been introduced after 86 per cent of their customers, including smokers as well as non-smokers, had said they favoured a smoking ban on all services.
