Burwell v Director Of Public Prosecutions [2009] EWHC 1069 (Admin)

[2009] EWHC 1069 (Admin)Case No CO/11366/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday 1 May 2009
Between
DAVID BURWELLAppellant
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE KEENE
and
MR JUSTICE RODERICK EVANS
_______________
B E T W E E N:
- v -
Between
DIRECTOR OF PUBLIC PROSECUTIONSRespondent_______________Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)165 Fleet Street, London EC4Telephone No: 020 7404 1400; Fax No: 020 6404 1424(Official Shorthand Writers to the Court)_______________Mr H Southey (instructed by Hodge Jones Allen, London NW1 2NB)appeared for AppellantMr R Hallowes (instructed by Guildford CPS)appeared for Respondent_______________J U D G M E N T
[1]This is an appeal by way of case stated from a decision of the Redhill Magistrates' Court dated 20 August 2008. It concerns the significance of a prosecutor's certificate under section 11 of the Computer Misuse Act 1990 (a certificate which affects the time limit for bringing a prosecution under section 1 of that Act).[2]The appellant was charged with five offences under section 1. The offences were alleged to have occurred on five specified dates between 8 May 2006 and 30 April 2007. Section 1 makes it an offence to obtain unauthorised access to a computer programme or computer data. The proceedings against the appellant were commenced on 24 June 2008. At the magistrates' court a preliminary point was taken on his behalf that the proceedings were out of time.[3]At this point it is convenient to set out the relevant parts of section 11 of the Computer Misuse Act 1990. I note that it has since been repealed by the Police and Justice Act 2008. Section 11, as relevant for present purposes, provides:
"(2) Subject to subsection (3) below, proceedings for an offence under section 1 above may be brought within a period of six months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to his knowledge. (3) No such proceedings shall be brought by virtue of this section more than three years after the commission of the offence. (4) For the purposes of this section, a certificate signed by or on behalf of the prosecutor and stating the date on which evidence sufficient in his opinion to warrant the proceedings came to his knowledge shall be conclusive evidence of that fact. (5) A certificate stating that matter and purporting to be so signed shall be deemed to be so signed unless the contrary is proved."
[4]A certificate signed by a principal Crown prosecutor, and dated 20 June 2008, was put before the court. The operative part of it certified as follows:
".... that the proceedings have been brought within a period of six months from the date on which evidence sufficient in the opinion of the prosecutor to warrant proceedings came to his knowledge."
[5]The appellant sought to argue that the police had in fact acquired sufficient evidence to bring proceedings against him over six months earlier between 5 July and 30 August 2007. On a proper interpretation of section 11 of the 1990 Act the limitation period, it was said, had therefore expired. However, the magistrates held that the terms of section 11(4) meant that they could not go behind the prosecutor's certificate and that the defence were precluded from arguing that the prosecution was out of time. The magistrates' reasoning is clearly set out in the case stated. They say that they applied the literal interpretation of section 11(4) and have added that any other interpretation would require a prosecutor to attend court on each occasion to give evidence as to the facts which he or she had certified.[6]In the light of that ruling the appellant pleaded guilty to all five charges. The question in the case stated for this court is (if I may re-formulate it slightly) whether the magistrates were wrong to find that the prosecutor's certificate was determinative. There is, as I shall indicate in due course, a further issue which it is agreed arises in this case about the particular certificate put before the magistrates.[7]On behalf of the appellant Mr Southey submits that the magistrates were wrong. He argues that their approach allows the prosecution to determine the scope of the magistrates' court's jurisdiction which would effectively exclude not only the magistrates' court but also this court from determining whether the magistrates had jurisdiction. It is said, first of all, that that would be contrary to principle and to the rule of law if that were to be allowed. Section 11 should therefore be interpreted in a manner which enables the courts to determine whether a prosecution has been brought in time.[8]Reliance is placed on the decision of this court in Morgans v DPP [1999] 1 WLR 968. That concerned a number of issues arising under the 1990 Act and other statutes. One of the issues concerned the time limit under section 11 of the 1990 Act. The defendant argued that once the prosecutor had all the material on which the prosecution was eventually brought, then for the purposes of section 11(2) time began to run. In giving the lead judgment (with which Sullivan J agreed), Kennedy LJ set out the terms of section 11(2) and (3) (although, strangely, not section 11(4) to which no reference appears in the judgment). He continued at page 983D:
"[The defendant] contends that the words 'sufficient in the opinion of the prosecutor to warrant the proceedings' are merely descriptive of the evidence, and that the prosecutor would not have to form his opinion before time begins to run. I accept that submission because otherwise the prosecutor, in full possession of all relevant information, can prevent time from running simply by not applying his mind to the case. Section 11(2) is an exception to the normal rule that summary offences should be prosecuted within six months. As an exception in favour of the prosecution it should be strictly construed. The draftsman could have provided that proceedings for an offence under subsection (1) 'may be brought within a period of six months from the date on which the prosecution forms the opinion that there is sufficient evidence to warrant proceedings' but he did not do so."
[9]Mr Southey contends that that ruling on section 11(2) would be meaningless in most cases where a certificate had been issued if section 11(4) then prevented the court from examining when there was first a sufficiency of evidence. In any event, he argues that to treat the certificate of the prosecutor as literally conclusive would conflict with the right to a fair trial under article 6 of the European Convention on Human Rights. It would prevent the court from examining all questions of fact and law relevant to the case which it was hearing and that that would be contrary to the Strasbourg jurisprudence.[10]Reliance is placed in particular on Terra Woningen v Netherlands (1997) 24 EHRR 456, and Capital Bank AD v Bulgaria (2007) 44 EHRR 48. In the first of those cases a court had considered itself bound by a decision of the Provincial Executive within the Netherlands adverse to the applicant company. That was held by the Strasbourg Court to be in breach of article 6(1). There was not access to a tribunal with sufficient jurisdiction to decide the case before it.[11]In the Capital Bank case the Bulgarian Courts had decided on a winding-up petition that the issue of whether the company was insolvent was determined by a decision of the Central Bank of Bulgaria to revoke the company's banking licence because it was insolvent. It had been held by the Bulgarian Supreme Court that the Central Bank's decision to that effect was not one which could be reviewed by the courts. The Strasbourg Court found that to be a breach of article 6(1) because it amounted to a surrender of jurisdiction by the courts which was not justified. Mr Southey submits that the same defect exists under the 1990 Act if the courts were not to be prepared to go behind a certificate by a prosecutor. Nor, he contends, is such a restriction on the court's powers justified. Consequently, section 11(4) should be interpreted in such a way as to avoid any breach of article 6. Alternatively, he argues that section 11(4) should be seen as making a certificate conclusive unless contrary evidence is adduced. That again would accord with the obligations imposed by article 6 of the European Convention.[12]I turn to the other issue to which I referred earlier. It is submitted on behalf of the appellant that the certificate in this particular case fails to engage section 11(4) because it did not state the date when the prosecutor had sufficient evidence; it merely stated that there had been compliance with section 11(2). It is said that it is difficult to see how such a statement could have been made on the day when it was signed because the prosecution had not, in fact, commenced on that date. Of greater significance, if section 11 is to be interpreted narrowly, as was said in Morgans, a certificate that does not comply with the precise wording of section 11(4) cannot possibly be seen as determinative of jurisdiction.[13]For the respondent, Mr Hallowes draws attention to the absolute time limit of three years imposed by section 11(3), and submits that that shows that Parliament intended the wording indicated by section 11(4). It is said that a defendant has the safeguard of section 11(3) in what are highly complex and lengthy investigations.[14]He emphasises that the provisions of section 11 duplicate the earlier ones to be found in section 6 of the Road Traffic Offenders Act 1988. The provision there which corresponds to section 11(4) is section 6(3). That latter provision has been the subject of consideration by this court in R v Haringey Magistrates' Court, ex parte Amvrosiou [1996] EWHC Admin 14, where it was held that the court could not go behind the prosecutor's certificate, save in two exceptions. Those cases were where the certificate was inaccurate on its face or fraud could be shown. In so concluding, Auld LJ (with whom Ebsworth J agreed) relied on the meaning of "conclusive evidence" as stated in Halsbury's Laws, namely evidence which "no contrary evidence will be effective to displace", save in those two exceptional cases to which his Lordship referred.[15]Mr Hallowes emphasises that the decision in Amvrosiou does not appear to have been drawn to the court's attention in the later case of Morgans, where in any event no consideration was given to section 11(4) of the 1990 Act.[16]As for the arguments based upon article 6 of the European Convention on Human Rights, the respondent argues that no breach arises on the approach adopted in Amvrosiou. That approach does not deprive the courts of control over the issue to which the certificate relates. In a case where the certificate was plainly wrong, the magistrates would be entitled, under Auld LJ's first exception, to intervene; or the certificate could be challenged by judicial review.[17]In respect of the wording of the certificate in the present case, the respondent accepts that this court can properly deal with that issue. It is also accepted that the certificate does not clearly set out the date on which the evidence sufficient in the opinion of the prosecutor to warrant proceedings came to his attention. It is said by Mr Hallowes that the magistrates had a chronology before them which clarified any ambiguities in the certificate itself.[18]I propose to deal first with the legal position under section 11 generally before coming to the wording of the certificate in the present case. It is clear that in enacting section 11 of the 1990 Act Parliament was adopting the identical wording already to be found in section 6 of the Road Traffic Offenders Act 1988. That makes the decision in Amvrosiou relevant for present purposes, as indeed it should have been in Morgans. In Amvrosiou the essence of Auld LJ's reasoning can be found in paragraphs 22 and 23 where he said:
"22. The clear purpose of section 6(3) is to achieve certainty, both for the prosecutor and for the defendant, and to prevent what would otherwise be an exercise in discovery of the prosecuting process as to when a particular information came to hand and as to when decisions as to its sufficiency could or should have been made. Clearly any such possibility in the context of this sort of provision would be an intolerable burden to the prosecution and a cog on the wheels of justice at summary level. 23. It has to be remembered, too, that the test in section 6(1) is whether the date on which evidence 'sufficient in the opinion of the prosecutor to warrant the proceedings has come to his knowledge'. As in many other matters concerning the prosecution of offences there is a margin of judgment given to the prosecutor. In my view, there is no way of going behind section 6(3) as suggested by Ms Gumbel so as to negate its clear provision that a certificate for this purpose is conclusive, save possibly in the two exceptional cases to which I have referred."
[19]That reasoning seems to me to be even more powerful when applied to the often complicated investigations necessary when dealing with possible offences concerning unauthorised access to computer data. On the face of it, it creates a degree of conflict with the later case of Morgans since I accept Mr Southey's point that the decision there about section 11(2) of the 1990 Act does not make a great deal of sense unless one can go behind the certificate and consider its basis. However, while I recognise the court's anxiety in Morgans not to allow a prosecutor to prevent time from running when in fact he had all the necessary information, I believe that that danger can be guarded against without disregarding, as the court there seems to have done, section 11(4). I prefer the reasoning in Amvrosiou, which regards the wording of section 6(3) of the 1988 Act (the equivalent of section 11(4) of the 1990 Act) as meaning what it says. Amvrosiou was not cited to the court so far as I can see in Morgans. The latter case is also weakened by the fact that no explanation is given for not regarding section 11(4) as making the certificate determinative. As Auld LJ indicated, there are good practical reasons for treating such a certificate under either statute as conclusive.[20]I would emphasise, however, that that does not mean that a prosecutor can simply stall the start of proceedings, or use a certificate to present a date which is patently misleading. The first exception referred to by Auld LJ would seem to encompass the situation where the certificate is plainly (even if honestly) inaccurate, so that the decision of the prosecutor to certify would itself be amenable to challenge by way of judicial review on the usual grounds, or challengeable before the magistrates' court as an abuse of their process. But the certificate would have to be plainly wrong. The prosecutor is entitled to a degree of judgment as to when there is sufficient evidence available to warrant a prosecution. That, after all, is the purpose on the face of it of section 11(2).[21]Given those limits which I have just described, none of the arguments advanced by Mr Southey about article 6 seem to me to have any real force in the present situation. The jurisdiction of the courts on the issue of time limits is not excluded. The fact that the prosecutor is in effect given a degree of judgment to exercise is a long way from the sort of situations dealt with in the Terra Woningen and in the Capital Bank cases. Moreover, it flows from the wording of section 11(2) which imposes the time limit on the prosecution, but based upon a start date involving the prosecutor's opinion. That is where the reasoning of Auld LJ in paragraph 22 (set out above) becomes particularly relevant. It is sensible, practical and proportionate to seek to avoid some lengthy exercise of discovery of the prosecuting process.[22]I conclude, therefore, that the justices were right to regard section 11(4) as normally making a certificate complying with that provision as being determinative. I put it like that because I turn now to the other issue concerning the actual certificate in this case. Section 11(4) gives a prosecutor considerable power in what are criminal proceedings. Certainly section 11(4) is there benefiting the prosecution. It is, as Kennedy LJ said in Morgans, an exception to the usual six month time limit for summary offences. It should, therefore, be strictly construed. It requires the prosecutor to state in such a certificate the date on which he had sufficient evidence in his opinion to warrant the start of proceedings. The certificate in this case does not do that. It states no date. It is not open to the respondent to rely upon extrinsic evidence such as the chronology referred to by Mr Hallowes to make good that deficiency. Once one goes outside the scope of the certificate, one is into the area of evidence about events and dates. That is what a valid section 11(4) certificate is intended to avoid in the normal case.[23]In my judgment a prosecutor can only avail himself of the benefits of such a certificate if the certificate complies fully with the requirements of subsection (4). There is good reason for that. A defendant is entitled to have that date stated, rather than merely have the more general statement, which appears in the certificate in this case, about the fact that the proceedings have been started within a period of six months from the date on which the prosecutor acquired sufficient evidence.[24]As I have indicated, the certificate in this case failed to comply with subsection (4) of section 11. It therefore did not amount to a valid section 11(4) certificate. For that reason and that reason alone I would allow this appeal and remit this case to the magistrates for them to consider on the merits. The issue they will have to decide is to whether the proceedings were in fact brought within the period specified in section 11(2). In so deciding, the case of Morgans may well still be relevant because its reasoning can be applied where there is no valid certificate in being.[25]MR JUSTICE RODERICK EVANS: I agree with my Lord's reasoning and with the order he proposes. LORD JUSTICE KEENE: Are there any applications? MR SOUTHEY: My Lord, two applications from the appellant's side. Firstly, I would wish, if possible, which I think is consistent with statute, to have fourteen days to consider whether or not we wish to apply to certify a question. I recognise that in doing that the White Book does not justify certifying a question if -- LORD JUSTICE KEENE: That is the problem. It is very difficult to see that it is any longer of general public importance. MR SOUTHEY: But of course, as your Lordship has indicated, there must be consistent approach -- LORD JUSTICE KEENE: Yes, and it still persists, I take it, does it -- MR SOUTHEY: As far as I am aware, yes. LORD JUSTICE KEENE: -- in the Road Traffic Offenders Act? MR SOUTHEY: Yes. I am not saying I do genuinely wish to take instructions on it, but I would ask for fourteen days to submit in writing an application to certify -- LORD JUSTICE KEENE: Particularly since you have won. MR SOUTHEY: Yes, exactly. I do not know what my instructions will be, but all I am asking at this stage is fourteen days to consider whether to certify a question. LORD JUSTICE KEENE: Shall we see what Mr Hallowes has to say on that before we go on to your other application? MR SOUTHEY: Yes. MR HALLOWES: I do accept, of course, that the provisions of the Road Traffic Offenders Act are still extant and to that extent there might be a valid argument that this is a question of public importance. LORD JUSTICE KEENE: Yes, you may have your fourteen days. MR SOUTHEY: Thank you, my Lord. The second point is that although the appellant has been in receipt of public funding in this court, in the magistrates' court he was not in receipt of public funding. What I would seek is a defence costs order for the proceedings in the magistrates' court from central funds. LORD JUSTICE KEENE: Do you want to say anything on that, Mr Hallowes? MR HALLOWES: No, thank you. LORD JUSTICE KEENE: Yes, you may have an order in those terms, Mr Southey. MR SOUTHEY: Thank you, my Lord. LORD JUSTICE KEENE: Nothing from you, Mr Hallowes? 26. _________________________________

Cited in 6 later judgments