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The council appeals against the decision that it is liable to pay compensation under section 106 of the Building Act 1984, for loss to a business on Hastings Pier arising from its closure during 2006 under the councils emergency powers.
The respondent (Manolete) pursued the claim as assignee of Stylus Sports Ltd (Stylus), which owned and operated the business at the relevant time, but went into liquidation in late 2011.
The only issue in the appeal is whether Stylus was itself in default within the meaning of that section, so precluding it from making a claim.
The statutory provisions
As explained more fully by Jackson LJ in the Court of Appeal ([2014] 1 WLR 4030, [2014] EWCA Civ 562, 46 paras 46ff), the 1984 Act is one of a sequence of public health statutes, going back to the 19th century, which among other matters have dealt with the regulation of new buildings and the control of dangerous structures.
The 1984 Act draws together a number of such provisions, including building regulations (Part I), supervision of construction work other than by local authorities (Part II), and Other provisions about buildings (Part III).
Within Part III, and relevant to this case, are section 77 (Dangerous building) and 78 (Dangerous building emergency measures).
Section 77 enables the council to apply to the magistrates court in relation to a building or structure which is in such a condition, or is used to carry such loads, as to be dangerous.
Under subsection (1), the court may either (a) where danger arises from the condition of the building or structure, order the owner to execute work necessary to obviate the danger or to demolish it, or (b) where danger arises from overloading of the building or structure, make an order restricting its use until a magistrates court, being satisfied that any necessary works have been executed, withdraws or modifies the restriction.
By section 77(2)(b) if the person against whom an order is made under subsection (1)(a) above fails to comply with the order within the time specified, the local authority may execute the order and (b) recover the expenses reasonably incurred by them in doing so from the person in default.
Under section 78 (directly relevant to this case), where it appears to the authority that a building or structure or part of it is in such a state, or is used to carry such loads, as to be dangerous, and that immediate action should be taken to remove the danger, they may take such steps as may be necessary for that purpose, having given notice if reasonably practicable to the owner and occupiers.
Compensation is governed by section 106 (in Part IV of the Act): (1) A local authority shall make full compensation to a person who has sustained damage by reason of the exercise by the authority, in relation to a matter as to which he has not himself been in default, of any of their powers under this Act. (emphasis added) By section 106(2) any dispute arising as to the fact of damage, or as to the amount of compensation is to be determined by arbitration.
section 106 must be read with section 78(7): In the context of a claim resulting from emergency action under section 78, (7) Where in consequence of the exercise of the powers conferred by this section the owner or occupier of any premises sustains damage, but section 106(1) below does not apply because the owner or occupier has been in default (a) the owner or occupier may apply to a magistrates court to determine whether the local authority were justified in exercising their powers under this section so as to occasion the damage sustained, and (b) if the court determines that the local authority were not so justified, the owner or occupier is entitled to compensation, and section 106(2) and (3) below applies in relation to any dispute as regards compensation arising under this subsection.
The default on which the council relies includes alleged breaches (actual or prospective) of the duties imposed by the Occupiers Liability Act 1957 and the Health and Safety at Work etc Act 1974.
In short the former (by section 2) imposes on occupiers of premises the common duty of care; that is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.
The latter, by section 2, imposes on an employer the duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees, and in particular to maintain any place of work (including means of access and egress) in a condition that is safe and without risks to their health.
The facts
The history of the pier structure is described in the report by engineers for the council (the Gifford report) in June 2006, which led directly to their decision to close the pier: The original Hastings Pier was opened in 1872.
It was built to a length of 277m with its timber deck bearing on wrought iron lattice trusses, all supported on three rows of cast iron screw piles via cast iron columns; the columns were braced with wrought iron ties secured with cast iron clamps.
The width varied from 13.6m at the Central Section to 60m at Head and 39.6m at the landward end.
Repairs utilising steel trusses and steel columns have been undertaken at various times since following a fire in 1917 to the Pier Head, partial demolition (sectioning) and actual bomb damage during the 1939 45 war, and widening to both sides of the Pier They commented on the general state of the pier: Experience has shown the typical life of Victorian piers to be approximately 100 years; during this time continual maintenance would have been required, including the replacement [of] some critical elements.
After this time, major reconstruction works would be required if continued use of the pier were to be viable.
The general condition of Hastings Pier fits this pattern.
In recent years the freehold of the pier was owned by Ravenclaw Investments Incorporated (Ravenclaw), a company registered in Panama, and managed on their behalf by Boss Management UK Ltd (Boss).
Stylus occupied two units, C2 and C15, close to the entrance to the pier at the northern (town) end.
They operated a bingo hall in unit C2 and an amusement arcade in unit C15.
The units were held respectively under leases from Ravenclaw dated 14 August 2001 and 10 October 2001.
The premises as so leased were confined generally to the internal non structural walls, and internal surfaces, and specifically excluded any main structural parts of the premises or of the building (Schedule 1).
Ravenclaw as landlord was responsible for repair and when necessary renewal of the structure including the support structure of the pier.
In 2004 Stylus became concerned about the structural integrity of the pier.
They commissioned a full structural engineering survey of the pier by Hamill Davies Limited.
The report (the HDL report), produced in September 2004, was provided both to Ravenclaw and in January 2005 to the council.
It advised that urgent work was required to repair piles at the far end of the pier (some distance beyond the Stylus units).
This should be done ideally within the next two months to avoid the worst of the winter weather; and the deck area supported by these piles should be closed to the public until this work is completed.
They also advised that future work should be carried out to the structure of the pier in the area of the Stylus units.
Of this they said: With regard to the remaining work it is understood that this cannot be undertaken immediately.
However this work should be completed within one year, with regular monitoring of the defective areas until this can be achieved.
Unless this is carried out we judge there to be an unacceptable risk to the public.
There is no evidence of action by Ravenclaw or the council to remedy the structural defects in response to this report, other than some limited work by Ravenclaw in the winter of 2005 2006.
Meanwhile the public continued to use the pier, and the pier facilities (including the bingo hall and the amusement arcade) remained open for business.
In early April 2006 a council officer inspected the underside of the pier, when a section of tension cord fell from the pier.
The council commissioned Gifford to report on the structural stability of the pier.
Their brief included appraisal of its structural integrity and any potential risks to the public.
The areas chosen were those that would be subjected to the greatest crowd loading in the event of mass evacuation of the buildings, ie the designated escape routes (report para 1.3).
In May 2006 the council tried without success to compel Ravenclaw to commission a full structural assessment of the Pier.
On 15 June 2006 they asked Boss, as agents for Ravenclaw, to close off the pier beyond the front facade, but that request was not complied with.
The Gifford report, received by the council on 16 June 2006, identified serious structural defects, and recommended a full structural survey as a matter of urgency.
It recommended by way of immediate restrictions a) Access resulting in the potential for crowd loading on the Central Section and beyond should be prohibited until either, as a minimum, the presently identified defects in the area of the Central Section bounded by Columns 197 216 211 200 have been rectified or alternative safe access routes have been provided. b) Access by shop tenants or others for the purpose of maintenance need not be restricted. (para 6.1) The columns there identified were beneath the Stylus premises.
On 16 June the Council exercised its emergency powers under section 78 of the 1984 Act to close the pier to the public from the front facade onwards.
A barrier was erected across the frontage with a notice saying danger keep out.
A letter was delivered on the same day to tenants of units on the pier stating that the pier was being closed from the main entrance building onwards, including the Bingo Hall and Amusement arcade.
The letter indicated that the council had had concerns about the pier for some time and had served notice on the owners requiring them to carry out a survey of the structure.
It continued: In recent days the council has become aware that major events were still being booked for the Pier ballroom; two of these have been booked for July and one in August.
As a result of its concerns over the Pier structure the Council commissioned consulting engineers Gifford of Southampton to look at a specific area of concern under the main covered walkway around the main facade entrance.
This inspection was carried out yesterday.
It has been established that at least five trusses have failed in this area.
Our consultant is of the opinion that it is unsafe to allow large numbers of people onto the Pier.
This area provides the only method of access onto and off the Pier.
Any emergency affecting the rest of Pier, including the ballroom, requiring evacuation would mean crowds of people walking over the area where we have been specifically advised that crowds are unsafe.
As a result the council has had no option other than to use its emergency powers to close much of the Pier immediately.
The letter noted that, despite previous attempts to resolve the situation, the Pier management were continuing to plan for large events.
On the same day the council applied to Hastings Magistrates Court under section 77(1)(b) of the 1984 Act.
The initial hearing at the Magistrates Court took place on 21 June 2006.
A representative of Stylus attended and asked to be included in the proceedings.
After adjournments, at the substantive hearing on 12 September the court made an order under that section prohibiting public access to the pier until the necessary remedial works had been carried out.
Meanwhile, in July 2006 Stylus instructed HDL to undertake an inspection of the area beneath its units.
It also instituted proceedings against Ravenclaw to require them to carry out the works of repair under the lease, and obtained summary judgment, but that was not complied with by Ravenclaw.
In May 2007 Stylus began itself to carry out the necessary remedial works under its own premises.
Those having been completed, the magistrates court on 4 July 2007 varied its order so as to permit public access to its premises.
On 8 November 2006 Stylus had notified the council of its intention to claim compensation under section 106(1) of the 1984 Act, for losses allegedly suffered as a result of the closure of the pier between 16 June and 12 September 2006.
In late 2011 Stylus went into liquidation, and in January 2012 the liquidator of Stylus assigned Stylus claim against the Council to Manolete, the present respondents.
The present proceedings in the Technology and Construction Court (begun under CPR Part 8, on the basis that there would be no substantial dispute of fact) sought a declaration that the council were liable to pay compensation: [2013] EWHC 842 (TCC); [2013] 2 EGLR 17.
The proceedings below
Before Ramsey J the council raised a number of defences including the one now in issue, which he summarised: That the Council is not liable under section 106 of the 1984 Act because the claimant was in default for the purposes of that section because of the breach of section 2 of the Occupiers Liability Act 1957 and/or because it took a lease of the Pier past the end of its design life from a company registered outside the jurisdiction and was aware by the very latest in 2004 that there were serious problems with the structure of the Pier but took no adequate steps to ensure the Pier was repaired or the public excluded. (para 14) He noted that in submissions the council had relied also on the duties under the Health and Safety at Work etc Act 1974.
He rejected the defence, holding that the reference to default should be read as default in respect of obligations imposed by the 1984 Act itself.
In support he cited authorities under previous statutes using the same expression, in particular Neath Rural District Council v Williams [1951] 1 KB 115.
He added: If that is not so and if it were necessary to see whether a party was in breach of any provision of other statutes, as is submitted here, then the scope of enquiry would be large and would require investigation of further factual matters to determine whether there was a default in terms of those statutes. (para 46) He also rejected a separate defence that, absent section 78, Stylus would have had no action in tort in any event.
That is no longer in issue.
In the Court of Appeal [2014] 1 WLR 4030 Jackson LJ agreed that default was limited to default under the 1984 Act.
He reviewed at length the legislative history, dating from the Metropolitan Buildings Act 1844.
He noted that compensation provisions, substantially in the same form as section 106, had appeared in the Public Health Acts of 1875 and 1936.
He referred to Hobbs v Winchester Corpn [1910] 2 KB 471, which he read as treating the words in default as directed to default under the Act of 1875.
However, he accepted the submission of counsel for the authority that in both the 1875 and 1936 Act it should be read as extending also to related statutes: He points out that in many instances a building owner would be in breach of local Building Acts and Improvement Acts.
If the local authority intervened in order to protect public safety, it would be absurd if the building owner could recover compensation under section 308.
I accept that submission.
In my view the default proviso in the 1875 Act was referring to a default under the 1875 Act or related Acts. (para 52 emphasis added) However, the same extension was not required under the 1984 Act, because There are no local byelaws or parallel statutes directed to the same subject matter as the 1984 Act.
The 1984 Act and the Regulations made under it are comprehensive. (para 76) A narrow construction was supported also by looking at the statute as a whole: Where the same phrase occurs more than once it should generally be construed in the same way on each occasion The phrase in default occurs in three significant places in the 1984 Act, namely in section 77(2)(b), section 78(7) and section 106(1).
In both sections 77(2)(b) and sections 78(7) default has a narrow meaning.
It clearly refers to a failure to perform obligations under the 1984 Act.
This circumstance is a pointer towards construing default in section 106 narrowly, namely as meaning breach of an obligation under the 1984 Act. (paras 74 75) In agreement with the judge he concluded: The phrase in default in section 106 of the 1984 Act means in breach of an obligation arising under the 1984 Act.
The provision does not require the court or the arbitrator to conduct a wide ranging review of other legislation and the common law in order to see whether the claimant is in breach of any duties arising outside the 1984 Act. (para 79)
The court had some sympathy for the argument that the council should not be obliged to compensate Stylus for being prevented from admitting the public to dangerous premises.
But, given that the true culprit Ravenclaw was beyond the reach of enforcement procedures, the court was faced with the familiar problem of deciding which of the surviving parties should bear the loss, the answer to which depended on the statutory scheme.
He added: [Stylus] has acted responsibly at all stages.
It did its utmost to compel the landlord to carry out remedial works.
Ultimately it stepped into the breach and did the works itself.
If the local authority had wished to avoid liability to pay compensation under section 106, it could have brought proceedings under section 77 of the 1984 Act sooner and thereby avoided the need to take emergency action under section 78.
Finally, on this point, [the councils] general arguments will still be available at the quantum hearing before the arbitrator.
The local authority will be entitled to argue that even if it had not fenced off the pier, [Stylus] could have made little use of its two units. (paras 81 82)
Finally he considered and rejected a separate argument on behalf of the council that the claim was precluded by the ex turpi causa principle, on the basis that to admit the public would have been contrary to its statutory responsibilities: the motivation for the local authoritys closure of the pier to the public on 16 June 2006 was the likelihood of large crowds accessing the pier on and after 17 June for reasons unconnected with [Stylus] business.
As at 16 June 2006 [Stylus] had not incurred liability to any member of the public for breach of the Occupiers Liability Act 1957.
Nor can I see any basis for saying that [Stylus] had committed any breach of the statutory duties which it owed to its employees under the Health and Safety at Work etc Act 1974 . (paras 91 92) In his view, the default proviso was the control mechanism which eliminates claims that are unacceptable on grounds of public policy.
It left no room for the application of the ex turpi causa rule (para 94).
He added: 95.
Having said that, I do accept that the structural condition of the pier will be relevant to the quantum of the claim.
The local authority will be entitled to argue in the arbitration due to be held under section 106(2) that the loss of profit caused by the local authoritys conduct must be substantially reduced by reason of the structural condition of the pier.
Indeed the local authority would be entitled to argue that the quantum is reduced to nil, although on the evidence which I have seen that outcome seems unlikely.
The submissions in summary
In this court Mr Gasztowicz QC for the council submits that the courts were wrong to treat the word default as confined to default under the 1984 Act.
That is supported both by ordinary meaning of the word and by the legislative history.
The authorities referred to by the judge and the Court of Appeal do not lead to a different conclusion.
Stylus was in default in the relevant sense because it was in breach of its obligations under the 1957 Act and 1974 Acts in relation to the very matter in relation to which the statutory power was exercised, namely the admission of the public to premises which when they were admitted were dangerous (to them and employees) (printed case p 30)
He relies in particular on Stylus own evidence which showed that: i) It had received the September 2004 HDL report showing that urgent repairs were necessary to protect the public, including work in the Stylus area of the pier, which if not carried out within at most a year from September 2004 would mean there would be an unacceptable risk to the public; ii) No further report had been obtained giving a different assessment on the state of the Pier in this area two years on; iii) Notwithstanding the contents of the report the necessary work was not done prior to closure.
Although the primary responsibility for repair lay with the freeholders, Stylus had the ability to carry them out in default (Granada Theatres Ltd v Freehold Investment (Leytonstone) Ltd [1959] 1 Ch 592, 608), as indeed it did following the court order.
By continuing to invite the public to its premises it was causing loading by the public resulting in them and its employees being made subject (in the words of the HDL report) to unacceptable risk.
For Manolete, Mr Bowdery QC (who did not appear below) supports the view of the courts below on the interpretation of the word default, but submits also that the appeal fails on the facts.
As the Court of Appeal held, the council was unable to show that Stylus was in default of any legal obligation under either of the statutes relied on or otherwise.
Furthermore, there was nothing to show that the council had ever regarded Styluss use of its own premises as dangerous to the public or its employees, following its receipt of the HDL report in early 2005.
As the correspondence showed, and the Court of Appeal found, the motivation for the use of emergency powers was the prospect of large crowds at events unconnected with the use of the Stylus premises.
Discussion
With respect to the courts below, while recognising the somewhat different emphasis of the arguments in this court, there is a danger of over complication.
If one takes the words of section 106(1) at face value, they do not appear to pose any great difficulty either of interpretation or of application to the facts of this case.
The section gives a right to compensation to a person who has sustained damage by reason of the exercise of any of the authoritys powers under the Act in relation to a matter as to which he has not himself been in default.
This raises two questions: Is that a matter as to which the claimant has been in default? i) What was the matter in relation to which the authority has exercised its powers? ii)
It is important to keep in mind that the relevant power is the power to take emergency action under section 78.
The claim is for loss resulting from that emergency action, not from the order of the magistrates court, which itself carries no right to compensation.
That is why the claim is limited to the period from the date of closure until the order made on 12 September.
This point gains emphasis from section 78(7).
Even a claimant in default (in the relevant sense) is not precluded from seeking compensation, if the court determines that the authority were not justified in using their emergency power, rather than first seeking an order from the magistrates under section 77.
The right to compensation provides an important check on the unbridled use of that emergency power under section 78, in respect of which (unlike section 77) there is no right of objection or recourse to the court.
The councils decision to act under section 78 in this case is not itself in issue.
But it is necessary to identify the matter which led it to take such emergency action, rather than applying first to the magistrates court.
That is clearly identified by the evidence, in particular the letter sent to the tenants at the time.
It was not the general state of the pier, nor even the specific repairs identified in the HDL report on which Mr Gasztowicz relies.
The council had been aware of those matters at least since the receipt of that report in 2005, but had not thought it necessary to close the pier, nor to take any legal action against Stylus at that stage.
If they had wished to do so, there appears no reason why they could not have applied to the court for the appropriate order, giving Stylus the opportunity to make representations.
No issue of compensation would have then arisen.
As is clear from the councils letter to tenants, the matter which triggered the action in June 2006 was the state of the pier combined with fear of possible collapse from crowd loading during the events planned for that month, particularly the risk of overloading in an emergency evacuation.
Stylus was not legally responsible for the state of the pier, nor was it responsible for the events which triggered the councils action.
Whatever may have been its position as respects its clients and employees, it was not in default as to the matter which led to the councils use of section 78.
On this simple basis, in my view, the company is entitled to succeed.
That conclusion makes it strictly unnecessary to address the view of the courts below that default in section 106 referred only to default under the 1984 Act itself.
However, the council, no doubt supported by others with like responsibilities, is understandably concerned as to the potential implications of this limitation for future cases.
There seem to have been four main points leading to this conclusion: (i) the legislative history, (ii) other references to default in the 1984 Act, (iii) the wide scope of the factual inquiry implicit in the alternative approach, and (iv) various authorities under the predecessor statutes.
None of these considerations in my view supports the conclusion.
The first three points can be dealt with shortly.
The legislative history tends if anything to support the opposite view.
The use over more than 100 years of the same formula in statutes which, though covering the same general subject matter, included a varying range of powers, makes it unlikely that it was linked specifically to the particular provisions of each statute.
Jackson LJ was forced to accept that the similar formula in the Public Health Acts 1875 (section 308) and 1936 (section 278) must be read as extending to default under related Acts, such as local Building Acts and Improvement Acts (paras 52, 55).
I agree, but related is an imprecise term, not supported by anything in the wording of the section itself.
Once that extension is accepted, it is difficult to understand why it should not extend to other forms of legal default.
Secondly, the other references to default referred to by Jackson LJ do not assist.
In section 77(2)(b), the default in question is specified by the section itself, that is failure to comply with the magistrate courts order.
That throws no light on its meaning where it is not so limited.
Section 78(7) is related directly to section 106 and poses the same issue as is now before us.
Thirdly, the courts concern as to the wide ranging nature of the factual inquiry implied by the authoritys suggested approach is understandable, but it does not arise if the inquiry is limited in the way I have suggested above.
As to the authorities, the only one referred to by the Court of Appeal was Hobbs v Winchester Corpn [1910] 2 KB 471, which related to the equivalent compensation provision in the 1875 Act (section 308).
Meat had been seized under section 116 of the 1875 Act as unfit for human consumption.
Although the butcher was acquitted of any offence under section 117 of that Act, on the grounds that he was unaware that it was unfit for consumption, it was found that he was nonetheless in default for the purpose of section 308, so that his claim for compensation failed.
Since the only default relied on by the authority was default under the 1875 Act, that case throws no light on the nature of the default which might be relevant in other cases.
Mr Bowdery relies also on Place v Rawtenstall Corpn (1916) 86 LJKB 90, under a provision in a local Act giving the authority a defence from civil liability for damage caused in exercise of their statutory powers in default of the owner or other person required to do such work, and in the absence of negligence: section 257 of the Rawtenstall Corporation Act 1907 (emphasis added).
The authority had served notice under that Act requiring the claimant to convert a pail closet on his premises into a water closet and to connect it to a sewer.
He failed to comply, and the authority carried out the work themselves, but did so by carrying out a larger project serving some other houses.
In doing so, they used pipes larger than would have been needed by the claimant, thus causing subsidence to his property.
It was held that the authority could not rely on his default to defeat his claim for damages.
The judgment confirmed the essential principle that statutes interfering with common law rights should be strictly construed, and that it was for the authority to establish that the work which they have done is strictly work done in default of the owner.
The problem for the authority was that the work was not limited to the work the owner would have done to carry out the work for his own house, but comprised much more.
There was no finding that the damage was only caused by the work which Mr Place was required to do (pp 92 94 per Scrutton J).
That seems to me a decision turning on its own particular facts, which throws no light on the meaning of the word default in the present context.
I should also mention two authorities referred to in argument on the word default in the provisions relating to statutory nuisances under the 1875 and 1936 Acts.
Clayton v Sale Urban District Council [1926] 1 KB 415 concerned action by the authority in respect of an alleged statutory nuisance caused by flooding.
Under section 94 of the 1875 Act they could serve an abatement notice on the person by whose act default or sufferance the nuisance had arisen.
The authority argued that the nuisance had arisen by the default of the owner, in failing to repair the bank.
It was argued that there could not be default by the owner within the meaning of the section unless there had been a breach of an obligation arising independently of the section from an agreement or otherwise, and that he was not under any agreement or covenant or otherwise to construct or to repair the flood bank (pp 423 424).
This argument was rejected.
Lord Hewart CJ said: In my opinion the act, default, or sufferance referred to in section 94 of the Public Health Act 1875, is an act, default, or sufferance related to the nuisance which it is sought to abate, and default no less than sufferance within the meaning of that section can occur without the breach of an obligation arising from contractual agreement. (p 425) He referred to the common law duty of the owner of a vacant piece of land to prevent that land from being a public nuisance (citing Attorney General v Tod Heatley [1897] 1 Ch 560, 566).
Contrary to Mr Bowderys submissions, that is to my mind clear authority at that level that the word default in a comparable context was not confined to default under the statute itself.
Neath Rural District Council v Williams [1951] 1 KB 115 concerned the equivalent provision of the 1936 Act (section 93).
A watercourse on the defendants land had become silted by natural causes and caused flooding.
Section 259(1)(b), under which a watercourse in such a condition was a statutory nuisance, was subject to a proviso that no liability was imposed on any person other than the person by whose act or default the nuisance arises or continues.
It was held that, absent any relevant legal duty on him under statute or at common law to take positive action to remove the nuisance, the defendant was not in default.
In the words of the headnote: in the case of a natural stream a landowner had no duty at common law to keep the bed clear by removing obstructions which might arise from natural causes, and the proviso to (section 259(1)) was designed to prevent any additional duty from being cast on the landowner Lord Goddard CJ expressed some doubt about the actual decision in Clayton but felt able to distinguish it on the basis that it was concerned with the words act, default or sufferance whereas the proviso to section 259(1)(b) referred only to act or default (p 126).
However, he did not doubt the proposition that default could arise from breach of a duty outside the Act itself.
Ramsey J, at para 43, referred to a passage in the judgment of Lord Goddard CJ, who said: I do not think that in this case default could mean merely doing nothing, unless an obligation to do something were imposed by the Act.
There was no act of the defendants which caused the obstruction either to arise or to continue In the present case, on the facts found by the justices, there is nothing to show that the defendants did anything which caused this obstruction to arise or to continue; nor do I think that there is anything which can properly be called a default on their part (pp 126 127, emphasis added).
This passage cannot be taken as implying that only a duty under the 1936 Act itself was thought relevant.
It must be read in the context of the judgment as a whole, in which the possibility of a common law duty had previously been discussed and dismissed (pp 120, 123).
I conclude that there is nothing in the factors relied on in the courts below which requires the words in default to be limited to default under the 1984 Act.
They were right in my view to hold that the authority had no defence in principle to the claim for compensation, not because (as they held) there was no default under the 1984 Act, but because it was not default by Stylus which led to the emergency action under section 78.
It is important to emphasise that this conclusion does not limit in any way the issues which may be taken into account by the arbitrator in assessing compensation attributable to that action, including the statutory and common law responsibilities of Stylus to its clients and employees.
As Jackson LJ indicated (para 95), it will be open to the authority to argue that the consequent loss of profit to the business must be substantially reduced due to the structural condition of the pier and the implications it would have had for the continuation of its business quite apart from the effects of the emergency notice.
Mr Gasztowicz drew our attention to an earlier paragraph of Jackson LJ (para 79) which might suggest a more limited role for the arbitrator.
Having agreed with the judge that the phrase in default means in breach of an obligation under the 1984 Act, he added: The provision does not require the court or the arbitrator to conduct a wide ranging review of other legislation and the common law in order to see whether the claimant is in breach of any duties arising outside the 1984 Act. (emphasis added) I do not fully understand the inclusion in that passage of a reference to the arbitrator, as well as the court.
In so far as it implies a limitation on the scope of the arbitrators function it is inconsistent with the later paragraph to which I have referred, and which in my view expresses the correct position.
For these reasons, albeit differing in some respects from those of the courts below, I would dismiss the appeal.

Output:
In June 2006 the Appellant, Hastings Borough Council (the Council), exercised its emergency powers to restrict public access to Hastings Pier on account of its being in a dangerous condition as a result of serious structural defects.
The Respondent, Manolete Partners PLC (Manolete), pursued a claim for compensation against the Council for loss to business as a result of the Councils emergency closure of the pier.
Manolete brought the claim as an assignee of the business Stylus Sports Ltd (Stylus), which went into liquidation in late 2011.
Stylus had leased two units from the freeholder of the pier, Ravenclaw Investments Incorporated (Ravenclaw), and had operated a bingo hall and amusement arcade.
Two years before the closure of the pier, Stylus had commissioned a structural engineering survey of the pier, which advised that urgent and future work, within a year, was required to the structure of the pier to prevent an unacceptable risk to the public.
Ravenclaw, which was responsible as landlord for repair and renewal of the pier structure, did not take action to remedy the defects identified.
Nor did the Council, and the pier remained open to the public.
In April 2006, a section of tension cord fell from the pier.
This led the Council to attempt, unsuccessfully, to compel Ravenclaw to take action, and to commission its own structural integrity report, which in June 2006 recommended immediate restrictions on access to the pier.
The Council exercised its emergency powers under section 78 of the 1984 Act, and in September 2006 obtained a court order under section 77, prohibiting public access to the pier until the necessary remedial works had been carried out.
Section 106 of the Building Act 1984 (the 1984 Act), requires compensation to be paid for loss to a business resulting from emergency action, but only where the owner or occupier of the premises has not been in default.
The Council alleged that Stylus had breached the Occupiers Liability Act 1957, which imposes a duty of care towards visitors, and the Health and Safety at Work Act 1974, which imposes a duty on an employer to ensure the safety of his employees and the safety of the workplace.
The Council sought to rely on these alleged breaches to establish a default, thereby precluding Manolete from making a compensation claim under the 1984 Act.
This defence was rejected by the Technology and Construction Court and the Court of Appeal, on the basis that the reference to default was limited default in respect of obligations imposed by the 1984 Act itself.
The Supreme Court unanimously dismisses Hastings Borough Councils appeal.
Lord Carnwath gives the judgment, with which the other Justices agree.
Section 106 of the 1984 Act gives a right to compensation to a person who has sustained damage by reason of the exercise of the authoritys powers under the Act in relation to a matter as to which he has not himself been in default.
This requires firstly, identification of the matter in relation to which authority has exercised its powers, and secondly, consideration of whether that is a matter as to which the claimant has been in default [25].
The relevant power is the power to take emergency action under section 78 of the 1984 Act, and the claim for compensation is limited to the period from the date of the Councils emergency closure of the pier until the court order in September 2006 [26].
The matter which led the Council to take such emergency action was identified in the letter sent by the Council to the tenants at the time, which was the state of the pier combined with fear of possible collapse from crowd loading during the events planned for that month, in particular the risk of overloading in an emergency evacuation.
The trigger was not the general state of the pier or the specific repairs identified in the report commissioned by Stylus.
Whatever Stylus position towards its clients and employees, it was not in default as to the matter which led to the Councils exercise of its section 78 powers, and on this basis, Manolete is entitled to succeed in its claim for compensation [27 8].
Although not strictly necessary to determine the present appeal, Lord Carnwath addresses the issue of whether default in section 106 is limited to default under the 1984 Act itself, as this may impact on future cases.
Lord Carnwath finds that the legislative history and the authorities under the predecessor statutes support the conclusion that the default is not limited to the particular provisions of each statute, but extends to other forms of legal default.
Concerns as to the wide scope of the factual inquiry do not arise if the inquiry is limited to the two stage assessment set out above [30 5].
The Court of Appeals conclusion that the Council had no defence in principle to the claim for compensation was correct, not because, as they so held, there was no default under the 1984 Act, but because it was not Stylus default which led to the Councils emergency action [36].
Lord Carnwath emphasises that this does not limit the issues which can be taken into account by the arbitrator in assessing the level of compensation payable.
The arbitrator may take account of Stylus statutory and common law responsibilities to its clients and employees, the structural condition of the pier and the implications it would have had for the continuation of business quite apart from the effects of the emergency action [37].


Input:
The issue in this appeal is: what are the statutory consequences if the fingerprints of a defendant have been taken in a police station in Northern Ireland by an electronic device for which the legislation required approval from the Secretary of State, when such approval has never been given? In particular, is any evidence which makes use of the control fingerprints thus taken inadmissible in any subsequent court proceedings?
Article 61 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (the Northern Ireland Order) sets out the powers of the police to take fingerprints without consent.
Similar (but not in every respect identical) provision is made for England and Wales by section 61 of the Police and Criminal Evidence Act 1984.
These powers are exhaustively defined; otherwise prints may only be taken with consent see article 61(1) and, in England and Wales, section 61(1).
The cases where prints may be taken without consent have been varied a little from time to time and do not need to be set out seriatim here.
One of the principal cases, however, was and is where a person is in police detention having either been arrested for a reportable offence, or charged with, or informed that he will be reported for, such.
Another is where he has been convicted of such an offence.
Generally, fingerprints may be taken once only in the course of any single investigation, although there are now provisions permitting replacement prints to be required if the first ones were of insufficient quality to allow satisfactory analysis, comparison or matching.
Between 1 March 2007 and 12 January 2010 article 61(8B) of the Northern Ireland Order provided: Where a persons fingerprints are taken electronically, they must be taken only in such manner, and using such devices, as the Secretary of State has approved for the purposes of electronic fingerprinting.
That provision matched an intended section 61(8A) of the Police and Criminal Evidence Act 1984, which latter provision was inserted into the 1984 Act by the Criminal Justice and Police Act 2001 but was never brought into force.
Both article 61(8B) and section 61(8A) were later repealed as redundant by section 112 and schedule 8 of the Policing and Crime Act 2009, with effect from 12 January 2010, and with that repeal there disappeared from England and Wales and from Northern Ireland all requirement for statutory approval of fingerprinting devices.
However, although the requirement for approval existed in Northern Ireland (but not in England and Wales) from 1 March 2007, such approval was, by oversight, not given to any device until it was belatedly provided on 29 March 2009 after the omission had been noticed.
It follows that for the two years from March 2007 to March 2009 article 61(8B) was in force but no device had been approved as contemplated by it.
The two appellants were defendants charged with theft in Northern Ireland.
The offence was alleged to have taken place on 6 October 2007, during the two year period mentioned.
A stack of building materials had been found removed from the owners depot and placed apparently ready for collection by the thieves.
The appellants were found nearby in a van but said that they were there innocently and had not been near the stolen materials.
Their fingerprints were taken when they were detained in the police station after their arrest.
A fingerprint matching Elliotts left thumb was found on the packaging of the stolen materials.
The match of fingerprints was relied upon by the Crown and proved in the magistrates court.
The defendants were convicted.
The device used in the police station to collect the control sample of the fingerprints of each appellant was a combination of camera, scanner and computer, known as Livescan.
No one noticed that no type approval had been given for its use as required by article 61(8B).
When this was appreciated, the appellants appealed to the County Court, where the appeal proceeded by way of fresh hearing ab initio.
The preliminary point was taken that the evidence of comparison was inadmissible because of the absence of approval.
That argument succeeded before the County Court judge but on further appeal by the Crown, by way of case stated, the Court of Appeal ruled against it.
The Livescan process was and is generally used by the police throughout Northern Ireland, as well as throughout England and Wales and Scotland and, indeed, worldwide.
It has very largely superseded the traditional process of ink pad and paper.
It is possible to have mobile devices as well as those located in police stations.
Both are linked directly to computerised storage and searching equipment located centrally.
Amongst the advantages is the ease of electronic transmission, storage and sorting of the prints taken.
One aspect of that is that a set of fingerprints given at a scene or in the street can now often almost instantaneously verify or refute the identity of the person tested.
Another is that international exchange of data is made much easier.
Livescan devices were in general use in Northern Ireland from 2006 and throughout the two year period 2007 2009 when type approval was required by article 61(8B).
For the appellants, the first and principal submission of Mr McMahon QC is
that the language of article 61(8B) unequivocally renders a nullity any fingerprints taken by a device which has not been approved.
Therefore, no legal use can be made of them.
For this reason, there is, he submits, no occasion to investigate what consequences Parliament must have intended should follow from a failure to use an approved device.
That would be necessary only if there were an ambiguity in the wording.
There is none, and it necessarily follows that the product of an unapproved fingerprinting process is inadmissible.
Any other conclusion would, he submits, leave article 61(8B) a dead letter.
The difficulty with this attractively simple submission is that the statute says nothing at all about the consequences of failure to use an approved device.
There is ample precedent for such a statutory provision to be accompanied by an express provision that evidence shall only be admissible if obtained in accordance with it.
An example is afforded by the statutory rules relating to evidence of speed provided by speed guns.
Section 20 of the Road Traffic Offenders Act 1988 provides, for England and Wales: (1) Evidenceof a fact relevant to proceedings for an offence to which this section applies may be given by the production of a record produced by a prescribed device, and (a) (b) (4) A record produced or measurement made by a prescribed device shall not be admissible as evidence of a fact relevant to proceedings for an offence to which this section applies unless the device is of a type approved by the Secretary (a) of State, and (b) any conditions subject to which the approval was given are satisfied.
Identical provisions are contained in the equivalent Northern Ireland legislation: article 23(1) and (4) of the Road Traffic Offenders (Northern Ireland) Order 1996.
There are provisions to similar effect in section 6 of the Noise Act 1996, and in section 45 of the Antisocial Behaviour etc (Scotland) Act 2004, in respect of noise meters.
The absence of this kind of explicit statutory provision from article 61(8B) thus raises the question of what consequence was intended to follow from non approval.
This legislation was enacted against the background of the well understood
general common law rule that evidence which has been unlawfully obtained does not automatically thereby become inadmissible.
That has been clear since at least the decision of the Judicial Committee of the Privy Council in Kuruma v The Queen [1955] AC 197, where the defendant was charged with unlawful possession of ammunition which had been found on him as a result of an unlawful search, carried out by a policeman of insufficient seniority to make it.
Lord Goddard CJ said this at p 203: In their Lordships opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue.
If it is, it is admissible and the court is not concerned with how the evidence was obtained.
This proposition was endorsed by the House of Lords in R v Sang [1980] AC 402, which dealt more specifically with the judges discretion to exclude evidence which will have the effect of rendering the trial unfair (see now section 78 of the Police and Criminal Evidence Act 1984 and its equivalent, article 76 of the Northern Ireland Order).
Likewise in R v Khan [1997] AC 558 evidence obtained by unauthorised surveillance and the secret recording of private conversations was admissible despite the unlawful methods by which it had been obtained.
The position was summarised by Lord Fraser, with whom all other members of the House of Lords agreed, in Fox v Chief Constable of Gwent [1986] AC 281, 292A as follows: It is a well established rule of English law, which was recognised in R v Sang, that (apart from confessions as to which special considerations apply) any evidence which is relevant is admissible even if it has been obtained illegally.
It is clear that this inclusive rule of relevant evidence extends equally to evidence created by an unlawful process as it does to existing material uncovered by unlawful process; the recording in Khan is an example of the former.
This common law background to the legislation, of which Parliament must be taken to have been well aware, shows that inadmissibility of the fingerprints here under consideration cannot possibly simply follow from the existence of the requirement for device approval.
Rather, it is necessary to examine the Parliamentary intention as to consequence.
With great respect to Mr McMahons principal argument, it is not correct that article 61(8B) would have no purpose, or would be a dead letter, unless its consequence were that any fingerprints obtained from an unapproved device were inadmissible.
Whether or not inadmissibility is the consequence, the article still meant that a requirement by a policeman of a suspect in custody that he provide his fingerprints on an unapproved device would be one which the suspect was entitled to refuse.
It might not be very likely that a suspect would be acquainted with the presence or absence of approval, but his solicitor might well be.
Such a suspect could therefore refuse to provide his fingerprints on a Livescan device and he would not thereby commit the offence of obstructing a police officer that no doubt he otherwise would.
Similarly, if it became known that the police were regularly using an unapproved device, there would be no defence to an application for judicial review in which the unlawfulness of their actions would be declared and, if persisted in, no doubt prohibited.
Thus the clear statutory purpose of preventing the use of a device unless it is approved by the Secretary of State would be achieved.
There is no need for the additional consequence of inadmissibility of evidence in order to give content to the statute.
It follows that the wording of article 61(8B) does not itself provide the solution to the issue in this appeal.
It is necessary to examine the question what Parliament must have intended to be the consequence of non approval of Livescan.
The correct approach to this enquiry was explained by Lord Steyn in R v Soneji [2005] UKHL 49; [2006] 1 AC 340.
It had previously been thought that statutory provisions could be classified as either mandatory (carrying the consequence of total invalidity for breach) or directory (carrying lesser consequence).
The over rigidity of that a priori approach had given rise to difficulty.
At para 23 Lord Steyn said this: Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court [in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355] that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness.
Instead, as held in Attorney Generals Reference (No 3 of 1999) [2001] 2 AC 91, the emphasis ought to be on the consequences of non compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity.
That is how I would approach what is ultimately a question of statutory construction.
That more flexible approach does not necessarily mean that failure to comply with statutory provisions may not have far reaching consequences.
It may sometimes yield the conclusion that the inevitable consequence is total invalidity.
That was the outcome in R v Clarke and McDaid [2008] UKHL 8; [2008] 1 WLR 338, where the question was whether the failure to sign an indictment nullified the ensuing trial.
The statutory provisions there in question were sections 1(1) and 2(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933 which provided for a bill of indictment (which had of itself no legal standing save as a proposal of charges) to become an indictment when signed.
It was common ground that a valid indictment was a pre condition to a valid Crown Court trial.
It can be seen from Lord Binghams speech at para 18 that he faithfully posed the Soneji question, namely what Parliament had intended, when passing the 1933 Act, should be the consequence of lack of signature.
Since at the time of the 1933 Act the signature was taking the place of the previously existing endorsement of the bill by a Grand Jury, the answer was inescapable, if inconvenient: the signature validated the indictment in the same way as the Grand Jurys decision previously had done.
Accordingly the absence of signature did indeed invalidate the subsequent trial, notwithstanding the fact that modern changes in the routes by which criminal cases arrive in the court of trial had in the meantime reduced the signature, in practice, to mere formality.
The position had to be put right by amending legislation, in the form of the Coroners and Justice Act 2009.
Should a similar parliamentary intention be deduced from article 61(8B)? Mr McMahon relies upon the well established rule that the product of a breathaliser test is inadmissible unless the testing device is an approved one.
The cases begin with Scott v Baker [1969] 1 QB 659, decided in the infancy of the Road Safety Act 1967, which had introduced for the first time the offence of driving with blood alcohol beyond a prescribed statutory limit.
The power to require a suspect to provide a laboratory blood or urine sample, by which blood alcohol could be tested, was made dependent upon a complex step by step procedure.
The first step in that procedure was the taking of a preliminary (usually roadside) breath test.
By section 7 a breath test was defined as one carried out using a device approved by the Secretary of State.
The court held that such approval was essential to the statutory steps leading to a validly required laboratory sample, and that approval must be proved.
The details of the blood alcohol driving legislation have been changed from time to time since then, and breath tests of a different kind are nowadays used not simply as a screening test but to determine the blood alcohol level.
However, it remains the statutory rule, under section 7(1) of the Road Traffic Act 1988 and, in Northern Ireland, under article 18(1) of the Road Traffic (Northern Ireland) Order 1995, that a specimen of breath may be required in the course of an investigation into the offences of driving with excess alcohol, or of driving when unfit through drink or drugs, or of causing death by careless or dangerous driving when over the limit or under the influence, and that what may be thus required is limited to: specimens of breath for analysis by means of a device of a type approved by [the appropriate person.] Mr McMahon is therefore right to say that a breath specimen may be adduced in evidence against a defendant not only when the result constitutes the very offence of driving with excess alcohol but also where it is simply some part of the evidence relied on to prove an offence with different components, such as driving when unfit through drink.
No one doubts the rule, however, that the product of a breath test will not be admissible unless the device used is an approved one.
The statutory requirement for approval of an electronic fingerprint reader is not, however, analogous to the approval requirements in the cases of breath test or speed gun devices.
Both the latter are methods of measuring something which cannot subsequently be re measured.
They capture a snapshot of a suspects activity.
The snapshot is often itself the offence.
It is the speed, as measured by the device, which constitutes the offence of exceeding the speed limit.
It is the blood alcohol content, as measured by the device, which constitutes the offence of driving with excess alcohol.
In other cases, the snapshot is simply part of the evidence, for example if the offence charged is careless driving, or driving whilst unfit through drink.
But in both kinds of situation, the activity measured by the device cannot be reproduced to be re measured.
It is therefore entirely comprehensible that there should be a statutory requirement that the device should be approved, and that the measurements which can be relied upon in evidence should be limited to the products of such devices.
That is no doubt why there are the specific statutory provisions in relation to speed guns described at para 8 above, and it is clearly why the courts have held that the requirements for approval in the case of breath tests have the like effect.
The control fingerprints taken from the appellants in the police station were not snapshots.
The impressions which their fingers provided could be reproduced at any time afterwards, and would be the same.
The accuracy of the Livescan readings, if disputed, could readily be checked independently by the appellants providing more samples, whether by ink and paper or by any other means, for examination by an independent expert.
The ease with which this can at any time be done demonstrates that there was no need at all for Parliament to stipulate, or to intend, that the product of unapproved electronic fingerprint readers should be inadmissible.
It is the fact that in the present case there was no challenge whatever to the accuracy of the control fingerprints taken from Elliott by the Livescan device; the fingerprint found at the scene matched his control prints in no less than 45 particulars and there was no sign of any reliance on expert opinion either in the magistrates court or, after the absence of approval was appreciated, in the County Court.
But if there had been a dispute, as in other cases it is at least possible that there might be, it would have been the simplest possible matter for new control prints to be provided so that independent expert opinion could be obtained.
There appeared at first to be some limited support for the appellants contentions in an explanatory note which accompanied the proposed insertion into the Police and Criminal Evidence Act 1984 of section 61(8A) requiring type approval of electronic fingerprint readers.
That amendment of the 1984 Act would have been achieved through section 78(7) of the Criminal Justice and Police Act 2001, had that subsection ever been brought into force.
The explanatory note to that subsection (number 234) read as follows: Subsection (7) provides that where fingerprints are taken electronically, the device used must have type approval from the Secretary of State.
This is to ensure that the device will produce images of the appropriate quality and integrity to be used for evidential purposes.
However, the other background material shown to this court demonstrates that the purpose of the proposal for type approval was not principally the protection of the individual against risk of conviction on inaccurate evidence.
The concern was much more closely related to the needs for the technology to work properly so that investigations could proceed confidently, for compatibility between police forces, both domestic and foreign, and for uniform machinery for search and comparison.
The then Minister of State referred to the aim of facilitating a proper evidential trail.
The House of Lords Select Committee on Science and Technology had emphasised the need for the technology to be robust.
It is also clear that there was thought at one time that type approval would curtail any potential for unnecessary dispute in court about the legitimacy of electronically taken control fingerprints.
The initial recommendation of the Police Scientific Development Branch had been against any stipulation for type approval.
The reasons for that stance included the difficulty of formulating a test standard and the frequency of developments to many of the component parts of the system.
The successful operation of Livescan in England and Wales over a decade without any type approval, as well as the experience in Northern Ireland, clearly contributed to the subsequent decision in 2009 not to commence the amendment to the English statute, and to repeal both article 61(8B) and the uncommenced section 61(8A).
Overall the legislative history does not suggest any basis for concluding that Parliament intended that the consequence of use of unapproved apparatus should be the exclusion of the evidence.
Such a consequence would, it is clear, be unnecessary and inappropriate.
It is unnecessary because a reading of control fingerprints can always be checked subsequently.
It is inappropriate because to exclude such evidence would deprive courts of reliable and relevant material.
Since the product can be checked, and the evidence it provides is relevant, it ought to be admissible.
If it were not, it would not be open to the police to take further control fingerprints without the consent of the subject, because he would no longer be in detention following arrest on suspicion of the offence, nor would he have been convicted of it.
If the control fingerprints were to be inadmissible, not only would there be a windfall benefit to those who have committed crimes, perhaps of great gravity, but also defendants would be unable to rely on the evidence of the fingerprints of others when it was necessary for them to do so in order to defend themselves.
A defendant who wished to show that a fingerprint found in an incriminating place belonged to another person, whom he contends committed the offence rather than himself, would be unable to adduce the evidence to do so.
Some years after the provisions which we have here to construe, the Protection of Freedoms Act was enacted in 2012.
Part 1, Chapter 1 contains, by way of proposed amendments to the Police and Criminal Evidence Act 1984, prospective provisions relating to fingerprints and other biometric data.
Equivalent provision for the amendment of the Northern Ireland Order is made by section 9 of and Schedule 2 to the Criminal Justice (Northern Ireland) Act 2013.
Neither set of provisions is yet in force but there is a proposed timetable for commencement.
If and when these provisions are commenced they will provide for the destruction of fingerprints and other data in certain defined circumstances and/or after prescribed periods.
There is express provision in proposed new section 63T(2) of the Police and Criminal Evidence Act 1984 (and in proposed new article 63Q(2) of the Northern Ireland Order) making inadmissible (at least against the person to whom the material relates) fingerprints or other data which the police have come under a duty to destroy.
This proposed statutory scheme is consistent with the construction of the provisions we are considering in the present case.
Where the intention is to make material inadmissible, express provision is made saying so, in the same way as it was in the statutes considered at para 8 above.
Moreover, the proposed new scheme for destruction of biometric data is clearly founded on a view of individual rights which was considered to justify the consequence of inadmissibility if there is a duty to destroy the material.
Such considerations do not apply to type approval for the machinery of taking fingerprints which there is no requirement to destroy.
For these reasons it is clear that the correct conclusion is that Parliament did not intend, by enacting article 61(8B), that the consequence of an absence of approval should be to render inadmissible any fingerprints produced electronically.
The decision of the Court of Appeal that the evidence of Elliots control fingerprints was admissible was correct.
It follows that this appeal must be dismissed.

Output:
The issue in the appeal is: what are the statutory consequences if the fingerprints of a defendant have been taken in a police station in Northern Ireland by an electronic device for which the legislation required approval from the Secretary of State, when such approval has never been given? In particular, is any evidence which makes use of the fingerprints taken on such a device inadmissible at the defendants trial? The appellants were charged with theft in Northern Ireland.
The offence was alleged to have taken place on 6 October 2007.
A stack of building materials had been found removed from the owners depot apparently ready for collection by thieves.
The appellants were found nearby in a van but said they were waiting there innocently.
They were arrested and their fingerprints were taken at the police station using an electronic fingerprint scanner called Livescan.
This machine has been commonly used by police in the UK, including in Northern Ireland, for a number of years.
A fingerprint matching Elliotts left thumb was found on packaging of the building materials.
Article 61 of the Police and Criminal Evidence (Northern Ireland) Order sets out the powers of the police to take fingerprints without consent.
Between 1 March 2007 and 12 January 2010 article 61(8B) provided that where a persons fingerprints are taken electronically, they may only be taken using such devices, as the Secretary of State has approved for the purpose of electronic fingerprinting.
Due to an oversight no approval was ever given to any device (including Livescan) until it was belatedly provided on 29 March 2009.
Article 61(8B) was later repealed by the Policing and Crime Act 2009.
Therefore at the time the fingerprints were taken from the appellants there was no approval for the Livescan machine in breach of article 61 (8B).
The appellants were convicted at trial and no issue over the fingerprints was taken.
After the lack of approval for the Livescan device was noticed the appellants appealed to the County Court which, after a full re hearing, declared the fingerprint evidence inadmissible and acquitted the appellants.
The Public Prosecution Service appealed to the Court of Appeal who allowed the appeal and reinstated the appellants convictions.
The appellants primary argument before the Supreme Court and the courts below was that the lack of approval for the Livescan device meant that the fingerprints obtained with it were automatically inadmissible at the appellants trial.
The Supreme Court dismisses the appeal.
Lord Hughes gives the judgment of the court.
The difficulty with the appellants argument is that the statute says nothing about the potential consequences of failure to use an approved device.
This is despite the fact that there are numerous examples of other statutes where such consequences are expressly spelled out, such as in relation to obtaining specimens of breath for road traffic offences [8].
There is a well understood common law rule that evidence which has been obtained unlawfully does not automatically become inadmissible.
It is clear that this rule extends equally to evidence created by an unlawful process as it does to existing material uncovered by unlawful process.
The common law background to the legislation (article 61 (8B)) shows that inadmissibility of the fingerprints here under consideration cannot possibly simply follow from the existence of the requirement for device approval [9].
It is not correct to say that article 61 (8B) would have no purpose unless fingerprints obtained from unapproved devices were inadmissible at trial.
A defendant who was asked to give a fingerprint on an unapproved device could lawfully refuse to do so.
While, if such devices were found to be routinely in use by police, there would be no defence to an application for judicial review in which their unlawfulness could be declared and further use prohibited [10].
The appellants relied on the rule that the product of a breathalyser test was inadmissible unless the testing device was an approved one.
However, the requirement for approval of fingerprint devices is not analogous to that in cases of breath tests or speed guns.
The latter are methods of measuring something that cannot be re measured, they capture a snapshot of the suspects activity and are often the offence itself i.e. being found to be over the prescribed limit of alcohol at the time of driving.
The fingerprints on the other hand could be reproduced at any time afterwards, and would be the same.
If the Livescan readings were disputed they could readily be independently checked for accuracy and further fingerprints taken by a different method.
The ease of which this could be done shows there was no need for Parliament to stipulate that the product of unapproved fingerprint readers should be inadmissible.
Further, no challenge was ever made by the appellants to the accuracy of the fingerprints taken by the Livescan device [15].
The background material to the legislation shown to the Court further shows that the purpose of the requirement for device approval was not principally the protection of the individual against the risk of conviction on inaccurate evidence [16].
Relevant parts of the Protection for Freedoms Act 2012 and Criminal Justice (Northern Ireland) Act 2013 regarding fingerprints that have yet to come into force further support the construction of the legislation chosen by the Supreme Court in this case as, where required, express provision is made for evidence to be inadmissible [18].