Commissioner of Police v. Cavanaugh (Montserrat) [2005] UKPC 28 (06 July 2005) 

ADVANCE COPY

	Privy Council Appeal No. 46 of 2004

The Commissioner of Police	Appellant
	v.
Brian Cavanaugh 	Respondent

	FROM

THE COURT OF APPEAL OF MONTSERRAT
	---------------

	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 6th July 2005
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	Present at the hearing:-
			Lord Steyn
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Carswell
Lord Brown of Eaton-under-Heywood
		       [Delivered by Lord Rodger of Earlsferry]
	------------------

1.	For the first time in recorded history, on 18 July 1995 the Soufriere Hills volcano on Montserrat became active.  To begin with, the activity was of a fairly minor nature but by April 1996 it had increased to such an extent as to make it likely that a full-scale eruption was imminent.  Accordingly, on 3 April 1996, by virtue of his powers under section 3 of the Leeward Islands (Emergency Powers) Order in Council 1959 (SRO 2206 of 1959), the Governor took two steps.  He declared by proclamation that a state of public emergency existed and he made the Emergency Powers Regulations 1996 (No 3) (SRO 26 of 1996) (“the Principal Regulations”).  Regulation 5(1) of these Regulations empowered the Governor, by order, to declare an area of the island to be an unsafe area and, in that order, to direct that all unsafe areas be evacuated by a specified time and in accordance with specified procedures.  Regulation 5(2) provided that no person was to enter an evacuated area except at such times and in accordance with such directions as might be issued by the Governor.  Under regulation 5(3) a person found in an evacuated area, contrary to directions issued under regulation 5, committed an offence and was liable on summary conviction to a fine or imprisonment.

2.	Unfortunately, in the years since 1996 the volcano has remained active and the emergency has continued.  This has had two results which are of significance for present purposes.

3.	Firstly, in the light of experience, the Principal Regulations have been amended on a number of occasions.  In particular, regulation 2 of the Emergency Powers Amendment Regulations 1997 (SRO 14 of 1997) amended regulation 5 of the Principal Regulations.  At all relevant times in 2002, therefore, paras (1)–(4) of regulation 5 of the Principal Regulations were in this (amended) form:
“(1)	The Governor may by Order declare an area to be an unsafe area and may, in that Order, direct that all unsafe areas be evacuated by a specified time and in accordance with specified procedures.

(2)		Any person who without proper authorisation –
(a)	enters an unsafe area; or
			(b)	is found in an unsafe area; or
(c)	being in an unsafe area fails or refuses to leave that area,
commits an offence and is liable on summary conviction to a fine of $2,000 but which shall not be less than $200 or to a term of imprisonment of six months.

(3)		For the purpose of paragraph (1) ‘proper authorisation’ means authorisation issued by or on behalf of the Governor or the Police Commissioner.

(4)		A police officer may, in an unsafe area, arrest any person reasonably suspected of committing an offence under paragraph (2).”

In regulation 2(1) an “unsafe area” is defined as meaning “an area declared by the Governor under regulation 5 to be an area in which a person is likely to suffer damage or injury from seismic activity”.

4.	Secondly, over the years, further eruptions from the volcano meant that further parts of the island became unsafe.  It was therefore necessary for the Governor, from time to time, to make further orders under section 3 of the Order in Council redefining and – with one exception - extending the areas declared to be unsafe.

5.	At the end of September and the beginning of October 2002 the volcano was in a highly active phase.  As a result, on 7 October 2002 the Governor met the residents of the area affected by this activity, which included Old Towne, and directed them to evacuate the area, beginning on 8 October.  Over the two days, 8 and 9 October, nearly all the residents of the area were moved out and were accommodated in shelters in a safe area.  As their Lordships will explain in a moment, however, the respondent, Brian Cavanaugh, refused to leave.

6.	On 9 October the Governor went on ZJB Radio Montserrat to announce that he had signed an order, which was to take effect from 6 pm the same day.  The order in question was the Emergency Powers (Unsafe Areas) Order 2002 (SRO 49 of 2002) (“the 2002 Order”) which the Governor purported to make by virtue of his power, under regulation 5(1) of the Principal Regulations, to declare an area to be an unsafe area.  Regulation 2 of the 2002 Order defined what were henceforth to be the unsafe areas.  It is unnecessary to describe those areas in detail since it is now common ground that Old Towne lies inside one of those areas.

7.	As their Lordships have mentioned, while other residents left on 8 and 9 October 2002, the respondent, who lived in Old Towne, did not.  He was still in his house on 11 October when the Police Commissioner, a Superintendent and a Sergeant all went to see him and asked him to leave.  He refused to do so.  By 15 October, however, the respondent had apparently changed his mind and had left the island.  On 19 December he returned to the island and promptly re-occupied his house in Old Towne.  On 23 and 24 December the police again approached him and asked him to leave, but he refused to do so.  On 24 December he was accordingly arrested.  The charge against him was that on 24 December 2002 at Old Towne in the Colony of Montserrat without proper authorisation he was found in an unsafe area, to wit, Old Towne, contrary to regulation 5(2)(b) of the Principal Regulations as amended.

8.	The respondent went to trial in the magistrates court in January 2003.  He accepted that he had been in Old Towne on 24 December 2002 but Mr Brandt, who appeared for him, advanced a number of legal arguments on his behalf.  In particular, he argued that the 2002 Order did not comply with the requirements of regulation 5 of the Principal Regulations since it did not include any direction to evacuate the areas which it declared to be unsafe areas.  The 2002 Order was accordingly ultra vires and invalid.  The Senior Magistrate rejected all the arguments advanced by Mr Brandt and convicted the respondent of the charge.  He was fined $1,000 to be paid in 14 days and he was sentenced, in default, to thirty days in prison.

9.	The respondent appealed and on 22 January 2004 the Court of Appeal of the Eastern Caribbean Supreme Court (Montserrat) (Redhead and Alleyne JJA, Gordon Ag JA) allowed his appeal and quashed his conviction.  On the advice of the Board Her Majesty granted the Commissioner of Police special leave to appeal from the decision of the Court of Appeal.

10.	Before turning to the Commissioner’s appeal, their Lordships must refer to an argument presented by Mr Brandt, which really amounted to a cross appeal against one aspect of the decision of the Court of Appeal.  He sought to argue that the 2002 Order had not been admitted into evidence in accordance with section 3(2) of the Statutory Instruments Act 1946 and that the courts below should not, accordingly, have taken any notice of its provisions.  As Alleyne JA observed in dismissing this argument, the respondent did not take the point at the trial before the magistrate:  indeed, he himself relied on the provisions of the order when making his no case submission at the close of the Crown case.

11.	In any event, the argument is misconceived.  The relevant provision is section 23(4)(a) of the Interpretation Act.  It provides that judicial notice shall be taken of a copy of any instrument of subsidiary legislation bearing on its face a certificate of a public officer that the instrument has been published by exhibition in accordance with section 23.  Section 23(2) provides that subsidiary legislation is to be published in the first instance by exhibition, on one or more public notice boards designated for that purpose by the Governor in Council, by a public officer and in a manner approved by the Governor in Council.  Subsection (3) provides that subsidiary legislation which has been published by exhibition is to be notified in the next possible Gazette by printing and publishing it in full or by publication of a notice which must fulfil certain requirements.  So far as the 2002 Order is concerned, the copy before the courts in these proceedings includes a certificate that it was “published by exhibition at the Clerk of Council’s Office, Farara Plaza, Brades, this 9th day of October 2002.”  Ostensibly, the certificate is by “the Clerk of Councils”.  Furthermore, the Gazette dated 30 October 2002 includes a summary report of the proceedings of the Legislative Council on 17 October 2002 when the 2002 Order was laid on the Table.  The Gazette dated 24 September 2003 contains a notice relating to the 2002 Order which satisfies all the requirements of section 23(3) of the Interpretation Act.  In these circumstances the Board are satisfied that the requirements of section 23(4) are met and they therefore have no hesitation in rejecting the unmeritorious technical argument advanced by Mr Brandt.

12.	What appears to be the core of the Court of Appeal’s reasoning for allowing the respondent’s appeal is to be found in paras 13 and 14 of the judgment of Alleyne JA, with which the other members of the court agreed.  He held that, since the 2002 Order does not by its terms “direct that all unsafe areas be evacuated by a specified time and in accordance with specified procedures”, as permitted by regulation 5(1) of the Principal Regulations, neither the Governor nor the Commissioner of Police had lawfully assumed the power to enforce evacuation of householders in the unsafe area.  In those circumstances the appellant would not have required special authorisation to enter or be in his home at the relevant time, could not be subjected to a mandatory requirement to leave the area, and therefore could not be properly convicted of the offence with which he was charged.  Alleyne JA concluded:
“I do not agree with the Attorney General that it is an offence to be in an unsafe area, and that it is not necessary that an evacuation order be made under section 5(1) of the Emergency Powers Regulations in order for section 5(2) to come into play.  To hold otherwise would be to deprive of all meaning the specific statutory provision in section 5(1) empowering, but not requiring, the Governor to direct that all unsafe areas be vacated by a specified time and in accordance with specified procedures.”

13.	The issue in the case turns, accordingly, on the construction of regulation 5(1) of the Principal Regulations.  Alleyne J really proceeds on the basis that under regulation 5(1) the Governor cannot declare an area to be an unsafe area for the purposes of regulation 5(2) without also directing that it should be evacuated by a specified time and in accordance with specified procedures.

14.	Their Lordships are unable to agree with that interpretation of the provision.  In their view, regulation 5(1) contains two distinct powers which the Governor may exercise by order.  The first is to declare an area to be an unsafe area and the second, which he may exercise in the order declaring the area to be unsafe, is to direct that all unsafe areas be evacuated by a specified time and in accordance with specified procedures.  Clearly, the Governor has no power to direct the evacuation of an area unless he has first declared that it is an unsafe area.  But in their Lordships’ view there is nothing in the wording of the regulation to suggest that the converse is also true and that he cannot declare an area to be an unsafe area unless he also directs its evacuation.  On the contrary, on a straightforward interpretation of the language of the provision, the Governor has power to declare an area to be an unsafe area, whether or not he follows this up by directing that the area should be evacuated.  Similarly, an area declared to be an unsafe area under regulation 5(1) is an “unsafe area” for the purposes of regulation 5(2), whether or not the Governor has directed that it should be evacuated.

15.	Practical considerations favour this interpretation.  So far as regulation 5(1) is concerned, the Governor may be in a position to declare an area to be unsafe before he is in a position to specify the time by which any evacuation should be completed or the procedures which should be adopted in executing the evacuation.  In that situation it may well make sense for him to make the order declaring the relevant area to be unsafe but to postpone making any evacuation order until these more detailed matters of timing and procedure are sorted out.  Moreover, especially where events move quickly, as they did in this case, the residents will often have been prudent enough to leave the area threatened by the volcano before the Governor and his advisers have time to complete the formalities which would be necessary for issuing an evacuation order under regulation 5(1).  In those circumstances a simple order declaring the area to be an unsafe area will be all that is required to secure the position.  Also, as Mr Brandt indeed acknowledged in his written argument before the Board, an evacuation order would be superfluous, and a simple order declaring an area to be unsafe would be sufficient, for any uninhabited area of the island.

16.	Plainly, it is a big step for the Governor to issue a declaration which has the effect of making it a criminal offence for someone like the respondent to stay in or return to his home.  But the power applies only if the area in question is one where a person is likely to suffer damage or injury by seismic activity.  Given this likelihood, such an order can be justified not only by reference to the need to protect the lives and property of those in the area threatened by the volcano, but also because of the need to safeguard the lives and property of the police and other services whose members might be called on to rescue anyone in that area.  There is, of course, no suggestion that the circumstances did not justify the Governor making the declaration in this case.

17.	Regulation 5(2)(b) of the Principal Regulations in its current version makes it an offence for a person to be found in an “unsafe area”.  There is therefore nothing in the language of regulation 5(2) to suggest that it should be interpreted in such a way as to confine the reach of the offences to situations where the Governor has directed that the unsafe area should be evacuated.  Indeed, for what it is worth, the legislative history of regulation 5 points in precisely the opposite direction.  In the original version enacted in April 1996, the only offence created by regulation 5 was that of being found in an “evacuated area” contrary to regulation 5(3).  An “evacuated area” was defined in regulation 2(1) of that version as one which had been declared unsafe by the Governor and which had been evacuated in accordance with his directions.  On 6 December 1996, however, the Governor made the Emergency Powers (Amendment) Regulations 1996 (SRO 79 of 1996) which removed any reference to an “evacuated area” from regulation 5 and made it an offence to enter an “unsafe area”.  The alteration in the wording was clearly designed to make the offence apply to all unsafe areas, even where they had not been evacuated in accordance with instructions from the Governor.  The present version of regulation 5(2) widens the scope of the offences but otherwise adopts this new language – even though a redundant definition of an “evacuated area” lives on in regulation 2(1).  Making the offences apply to unsafe areas generally in this way is consistent with the policy objective of protecting life and property which their Lordships have identified.

18.	In the present case Old Towne was within one of the areas declared to be unsafe areas in the order which the Governor made on 9 October 2002.  Therefore on 24 December 2002 the respondent was found in an unsafe area contrary to regulation 5(2)(b) of the Principal Regulations.  It follows that he committed an offence and that the Senior Magistrate was right to convict him of a contravention of that regulation.

19.	Since the Commissioner’s principal argument must succeed, it is unnecessary for their Lordships to deal in any detail with his subsidiary argument.  This was to the effect that, even if it were essential to the validity of an order under regulation 5(1) for the Governor to direct that the area be evacuated by a specified time and in accordance with specified procedures, this requirement had been met by the Governor’s oral evacuation direction to the residents on 7 October, two days before he made the order declaring the area in question to be an unsafe area.  Suffice it to say that their Lordships have difficulty in seeing how any direction, given at a time when the area had not been declared to be an unsafe area in terms of regulation 5(1), could amount to a direction under that provision to evacuate the area in question.

20.	For these reasons their Lordships will humbly advise Her Majesty that the appeal should be allowed and that the respondent’s conviction and the sentence passed on him should be restored.