Lamont-Perkins v Royal Society for the Prevention of Cruelty to Animals [2012] EWHC 1002 (Admin)

Case No CO/6711/2011

[2012] EWHC 1002 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 24/04/2012

Before

SIR JOHN THOMAS PQBD

MR JUSTICE WYN WILLIAMS

Between

MARGARET LAMONT-PERKINSAppellant

ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALSRespondent

(Transcript of the Handed Down Judgment of

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Sara-Lise Howe (instructed by Nigel Weller & Co) for Appellant

Rowan Jenkins (instructed by Willans LLP) for Respondent

Hearing Hearing dates: 22 November 2011and 21 February 2012

Judgment

Introduction

[1]This is an appeal by way of Case Stated against two rulings made by HH Judge Ambrose sitting at the Crown Court at Gloucester. Each ruling was made in the context of an appeal to the Crown Court brought by the Appellant against her convictions by the Justices sitting at Coleford for offences of causing unnecessary suffering to a number of dogs contrary to section 4 Animal Welfare Act 2006 (hereinafter referred to as “the Act” or “the 2006 Act”). The judge was sitting alone when he made his rulings; he did not sit with justices because the parties agreed that a judge alone should consider and determine certain legal and procedural issues which arose in the appeal.

[2]The learned judge handed down his rulings on 8 June 2010. He concluded first that the information which had been laid by the Respondent against the Appellant had been brought within the time limit specified in section 31(1) of the 2006 Act. His second conclusion was that if the Appellant wished to challenge a certificate which the Respondent had issued under section 31(2) of the Act she was obliged to do so by pursuing an application to the effect that the issue of the certificate and/or the prosecution amounted to an abuse of process. It is these rulings which this court is asked to consider in the context of the questions posed in the case stated.

[3]This appeal was originally listed to be heard on 22 November 2011. During the course of the hearing and, in particular, during the submissions of Mr Jenkins on behalf of the Respondent, it became clear that the issues raised needed fuller consideration than had been anticipated. Accordingly, we granted an adjournment to permit the Appellant and the Respondent to formulate further written submissions. In advance of the hearing on 21 February 2012 we received further, extensive written material from the parties accompanied by a number of cases not previously cited. The material supplied by the Appellant included an affidavit by Mr Timothy Burrows sworn the 15 February 2012. Mr Burrows was the first solicitor to act for the Appellant following the involvement of the Respondent. He exhibited an email which he sent to the Appellant on 8 January 2008. The Appellant also produced a letter dated 18 March 2008 sent by Mr Wilson, one of the Respondent’s case managers, to Mr. Burrows. The Appellant did not seek the permission of the court to produce this evidence. Further, the evidence was not adduced before HH Judge Ambrose.

The facts

[4]The facts which are relevant to the points taken upon this appeal can be stated quite shortly. On or about 13 August 2007 the Respondent received a complaint about the welfare of a number of dogs which were owned by the Appellant. On 22 August 2007 one of the Respondent’s inspectors attended Stroud Police Station and asked the police to obtain a search warrant in respect of the Appellant’s premises. The next day a warrant was obtained and executed. Police officers, at least one of the Respondent’s inspectors and a vet attended at the Appellant’s premises. Following a search a number of dogs were seized and taken into the Respondent’s care. From the outset the Appellant accepted that she was the owner of the dogs seized and responsible for their care.

[5]On 4 September 2007 the Appellant was interviewed under caution by one of the Respondent’s Inspectors. At the conclusion of the interview the Inspector informed the Appellant that she would be reported to the Respondent’s headquarters with a view to a possible prosecution.

[6]A number of months went by without any obvious sign of progress towards a prosecution. However, the recent affidavit of Mr Burrows asserts that on 8 January 2008 a conversation took place between Mr Burrows and Mr Terry Stroud, one of the Respondent’s prosecution case managers. In his affidavit Mr Burrows says that Mr Stroud informed him that the Respondent considered that there was sufficient evidence available to prosecute the Appellant but that it would be prepared to administer a caution if the Appellant consented.

[7]That same day Mr Burrows emailed the Appellant to convey to her the substance of the conversation with Mr Stroud. The email informed the Appellant that the Respondent would be prepared to administer a caution provided she was prepared to give up the dogs which the Respondent had seized. The Appellant has not disclosed what, if anything, she said in reply.

[8]On 18 March 2008 Mr Wilson wrote to Mr Burrows to find out whether the Appellant was minded to accept a caution. We do not know whether Mr Burrows responded.

[9]By letter dated 17 April 2008 Mr Stroud wrote to the Clerk to the Gloucester Justices as follows:- “Re: RSPCA v Margaret Lamont-Perkins Cedar Lodge, Avening, Tetbury, Gloucestershire. For the purposes of section 31(2) of the Animal Welfare Act 2006 I hereby certify the date on which evidence came to the Prosecutor’s knowledge, such that the Prosecutor thinks it is sufficient to justify criminal proceedings against the above-named, was 18 March 2008.” The letter was received at the Magistrates’ Court on 24 April 2008. On or about the same date the Respondent sought to initiate proceedings against the Appellant; an information was laid and a summons was issued against the Appellant.

[10]On 11 February 2009 the Justices sitting at Colefield convicted the Appellant of five offences contrary to section 4 of the 2006 Act. The justices concluded that the Appellant had caused unnecessary suffering to a number of dogs during the period between 6 April 2007 and 23 August 2007.

The issue relating to the time for bringing proceedings and the decision of the Judge

[11]As I have said, the Appellant appealed against her convictions to the Crown Court. The Appellant did not appeal upon what might be termed the merits. Implicitly, if not expressly, she acknowledged that the Justices had been entitled to conclude that she had committed offences contrary to section 4 of the Act. However, the Appellant argued that the proceedings against her had not been brought within time and, accordingly, she ought not to have been convicted of any offences. Her case was that the Respondent should have brought proceedings against her within 6 months of 23 August 2007 (the last date upon which she was alleged to have committed any offence contrary to section 4 of the 2006 Act) and that it failed to do. The Appellant maintained that the time for bringing proceedings against her was governed by section 127 Magistrates’ Court Act 1980. That section provides:- “(1) Except as otherwise expressly provided by any enactment and subject to sub-section (2) below, a Magistrates' Court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose.”

[12]Ms Howe, who appeared for the Appellant before HH Judge Ambrose and who represents her in this court, continues to maintain that section 127 of the 1980 Act is the governing time limit in this case. I will explain why shortly. If, however, she is correct in her contention that section 127 is the governing section she is also correct that the proceedings brought against the Appellant were brought outside the six month time limit contained in the section. If section 127 applied the proceedings should have been commenced by midnight on 22 February 2008.

[13]The Respondent does not agree that the governing time limit is contained within section 127 of the 1980 Act. The Respondent’s case is and always has been that the governing time limit for bringing a prosecution under section 4 of the 2006 Act is contained within section 31(1) of that Act. Section 31 provides:- “(1) Notwithstanding anything in section 127(1) of the Magistrates' Court Act 1980 a Magistrates' Court may try an information relating to an offence under this Act if the information is laid – a) before the end of the period of three years beginning with the date of the commission of the offence, and b) before the end of the period of six months beginning with the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to his knowledge. (2) For the purposes of sub-section 1(b) – a) a certificate signed by or on behalf of the prosecutor and stating the date on which such evidence came to his knowledge shall be conclusive evidence of that fact, and b) a certificate stating that matter and purporting to be so signed shall be treated as so signed unless the contrary is proved.” a) before the end of the period of three years beginning with the date of the commission of the offence, and b) before the end of the period of six months beginning with the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to his knowledge. a) a certificate signed by or on behalf of the prosecutor and stating the date on which such evidence came to his knowledge shall be conclusive evidence of that fact, and b) a certificate stating that matter and purporting to be so signed shall be treated as so signed unless the contrary is proved.”

[14]The Respondent maintains that the proceedings against the Appellant were commenced in time. On any view, the prosecution was brought within 3 years of the commission of the offences; the Respondent maintains that it was also brought before the end of the period of six months beginning with the date on which evidence which the Respondent thought was sufficient to justify the prosecution came to its knowledge.

[15]Further, the Respondent argues that the certificate which it issued under section 31(2)(b) (contained within the letter of 17 April 2008) complied with the provisions of the sub-section; accordingly, the certificate was “conclusive evidence” of the fact that the Respondent thought that it acquired knowledge of sufficient evidence to justify prosecuting the Appellant on 18 March 2008. The Respondent acknowledges that the Appellant can seek to challenge the certificate but it maintains that such a challenge can be made in strictly defined circumstances which do not exist in this case.

[16]As I have said, Ms Howe submits section 31 of the 2006 Act has no application in this case. Her submission is that the Respondent is not and can never be “the prosecutor” within section 31(1) or section 31(2). Ms Howe submits that the phrase the “prosecutor” in those sub-sections must be interpreted to mean a body which is authorised by some statute to initiate prosecutions; the phrase is not apt to include a private person or organisation which initiates a private prosecution. It is common ground that the Respondent is a private organisation and that it has instituted a private prosecution against the Appellant; accordingly if Ms Howe’s submission about the interpretation of section 31 of the 2006 Act is correct the Respondent cannot rely upon section 31(1) and (2) of the Act and the governing time limit is that contained within section 127 Magistrates’ Court Act 1980.

[17]HH Judge Ambrose rejected Ms Howe’s submission upon the interpretation of section 31 of the 2006 Act in his ruling of 10 June 2010. He concluded that the phrase “the prosecutor” within section 31 of the 2006 Act was apt to include any person or body initiating a prosecution; it mattered not whether the prosecutor was a body authorised to prosecute by statute or whether the prosecutor was an individual who or a body which had initiated what is known as a private prosecution. Was he correct to do so?

[18]Ms Howe advances a number of arguments in support of her submission that the judge was wrong and that the words “the prosecutor” should be limited to mean a prosecutor exercising a power to prosecute conferred by statute. She submits that the fact that section 31 of the 2006 Act speaks of “the prosecutor” and not “a prosecutor” indicates that Parliament had in mind a restricted class of prosecutor. Second, she relies upon the phraseology of section 30 of the 2006 Act. This section, expressly, empowers a local authority to prosecute for any offence under the Act. Ms Howe submits that this section provides support for her contention that the prosecutor referred to in section 31 is a prosecutor who prosecutes under statutory authority. Third, Ms Howe points to the fact that section 31(2) confers a considerable power upon the prosecutor i.e. the power to issue a certificate which has the status of “conclusive evidence”. Ms Howe submits that Parliament cannot be taken to have conferred such a power upon an individual or an organisation who decides to initiate a private prosecution. Fourth, Ms Howe submits that a person who is the subject of a private prosecution cannot challenge the initiation of the prosecution itself or the issue of a certificate under section 31(2) by way of judicial review. She submits that proceedings by way of judicial review can be brought only against bodies or organisations acting in a “governmental role or function”. Assuming that to be correct, she argues that Parliament cannot have intended that challenges against decisions made under section 31of the 2006 Act and/or certificates issued under that section can be made by way of judicial review if the decisions are made or certificates issued by a prosecutor authorised to prosecute by statute but not if decisions are made or certificates issued by an organisation which has initiated a private prosecution. In her oral submissions to this court and in her supplementary written submissions Ms Howe laid particular emphasis upon this last submission for obvious reasons.

[19]Mr Jenkins submits that the decision in the Crown Court was plainly correct. He submits that there is no proper basis to conclude that the phrase “the prosecutor” should be limited to a prosecutor who is exercising the function to prosecute pursuant to some statutory provision. Mr Jenkins submits that the judge’s conclusion upon the interpretation of section 31 of the 2006 Act was correct essentially for the reasons given by the judge in his careful reserved judgment.

[20]In his ruling HH Judge Ambrose dealt with each of Ms Howe’s principal arguments as summarised above. Essentially, however, he concluded that the plain and obvious meaning of the phrase “the prosecutor” was that it embraced all persons initiating a prosecution whether or not they had been authorised to do so by statute.

The meaning of “prosecutor” in s.31

[21]I agree with the conclusion of the learned judge. First it is important to stress that section 31 of the 2006 Act must be interpreted in the context of the Act as a whole. In my judgment there is nothing in the Act, read as a whole, which leads to the conclusion that the phrase “the prosecutor” should be interpreted narrowly as Ms Howe contends.

[22]In reaching that conclusion I reject the argument that section 30 of the Act provides support for the interpretation of section 31 for which the Appellant contends. I accept that section 30 confers an express power upon local authorities to prosecute under the Act and, of course, a local authority is a creature of statute. It seems to me, however, that this express provision is included so as to avoid any suggestion that a local authority has power to prosecute under the 2006 Act only if the requirements of section 222 of the Local Government Act 1972 are satisfied. Section 222 of the 1972 Act empowers a local authority to prosecute only if it considers it expedient for the promotion or protection of the interests of inhabitants in its area. If section 30 of the 2006 Act did not exist there might be scope for considerable argument about whether a local authority could satisfy section 222 of the 1972 Act if it decided to prosecute in an animal welfare case. Section 30 removes the scope for such argument and in my judgment is included within the 2006 Act deliberately so as to remove the scope for such an argument.

[23]I appreciate that the power to issue a certificate under section 31(2) is a considerable one; it is not a power lightly to be conferred upon any prosecuting authority. I am not persuaded, however, that the power to issue a certificate under section 31(2) is a conclusive indicator that the power is intended to be available only to a prosecutor which derives its authority to prosecute from statute.

[24]To repeat, I am satisfied that looked at against the context of the Act as a whole there is no basis for concluding that section 31 should be interpreted so as to restrict the meaning of the phrase “the prosecutor” as Ms Howe would argue.

[25]Both the Appellant and the Respondent urge this court to conclude that decisions taken by the Respondent about when it considered it was in possession of sufficient evidence to justify a prosecution or about the appropriate date to be included upon a certificate under section 31(2) of the Act are not susceptible to judicial review. For the purposes of the judgment I am prepared to assume that the parties are correct about this issue. However, I am not persuaded that the absence of a remedy by way of judicial review against a private prosecutor (if that be the case) is a basis for concluding that section 31 should be interpreted so as to exclude private prosecutors from its ambit. After all, as will become apparent the magistrates' court in which a prosecution is brought can investigate whether or not the proceedings have been brought within the time limit specified in section 31 of the Act and it can also investigate whether any certificate issued under section 31(2) should be treated as conclusive of the facts stated therein. Once it is acknowledged that an appropriate procedure exists for contending that the prosecutor has not brought proceedings within time or that the certificate issued under section 31(2) should not be treated as conclusive evidence of the facts stated therein the absence of a remedy by way of judicial review loses much of its significance.

[26]I have reached the clear conclusion that HH Judge Ambrose was correct to conclude that the phrase “the prosecutor” contained within section 31 of the Animal Welfare Act 2006 applied to the Respondent when it instituted these proceedings. In the Case Stated the first series of questions posed for the opinion of this court are:- “What is the proper construction of the words “the prosecutor” in section 31 of the Animal Welfare Act 2006? Do these words refer to the legal person who has laid the information that is before the court and therefore include private prosecutors such as the RSPCA? Or are they limited to prosecutors who prosecute pursuant to a power conferred by statute?” I would answer these questions by saying that the phrase “the prosecutor” in section 31 of the 2006 Act is not limited to prosecutors who prosecute pursuant to a power conferred by some statutory provision but applies to anyone who initiates a prosecution under the Act.

Can a challenge be made to the certificate under s.31?

[27]I turn to the second point in this appeal. Before the Crown Court Ms Howe sought to challenge the certificate which the Respondent had issued pursuant to section 31(2). She wished to argue that the certificate issued in this case was wrong when it asserted that the date on which evidence came to the prosecutor’s knowledge such that the prosecutor thought it sufficient to justify criminal proceedings against the Appellant was 18 March 2008. Ms Howe submits (and submitted before the Crown Court) that the latest date upon which the prosecutor could have thought the evidence sufficient to justify criminal proceedings was 4 September 2007 after the Appellant had been interviewed under caution and informed that she would be reported to the Respondent’s head office with a view to prosecution. Accordingly, Ms Howe submits that any certificate should have certified a date no later than 4 September 2007 and any prosecution should have been initiated before midnight on 3 March 2008.

[28]When this issue was raised at the Crown Court HH Judge Ambrose ruled that the certificate could be challenged only by alleging that its issue or the proceedings consequent upon it constituted an abuse of process. He held further that the challenge should be heard by way of “the procedural regime applicable to abuse of process arguments”. He rejected the contention of Ms Howe that the proper way to deal with the issue was within the trial itself.

[29]In the Case Stated the questions posed for the opinion of this court are as follows:- “Where there is a challenge to the certificate issued pursuant to section 31 of the Animal Welfare Act 2006, on the ground that the certificate is (innocently) inaccurate on its face/plainly wrong, what is the proper method of bringing such a challenge? Is it an abuse of process argument that falls to be decided outside the trial process? Or is it a challenge that can and should be mounted as part and parcel of the trial process, with a challenge being ruled upon at close of the prosecution case?”

[30]Before seeking to answer these questions it is as well to identify the circumstances in which a certificate, such as a certificate pursuant to section 31(2) of the 2006 Act, is susceptible to challenge.

[31]The starting point is the decision of this court in R (The Haringey Magistrates' Court) ex parte Margaret Amvrosiou

[1996] EWHC (Admin) 14

. This case was concerned with section 6 of the Road Traffic Offenders Act 1998. That section, so far as material, provides:- “(1) ….summary proceedings for an offence to which this section applies may be brought within a period of 6 months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to his knowledge. (2) No such proceedings shall be brought by virtue of this section more than 3 years after the commission of the offence. (3) For the purposes of this section, a certificate signed by or on behalf of a prosecutor and stating the date on which evidence sufficient in his opinion to warrant the proceedings came to his knowledge should be conclusive evidence of that fact.” When Mrs Amvrosiou appeared at the Magistrates' Court to answer a charge of driving whilst uninsured, a preliminary point was taken on her behalf that the prosecution had not been commenced within 6 months of the date on which evidence sufficient in the opinion of the prosecutor to warrant proceedings had become available. In response the prosecutor relied upon a certificate issue under section 6(3). The Magistrates, having heard argument, formed the view that the certificate issued by the prosecution as to its date of knowledge was conclusive and that they could not go behind it. They held further that the proceedings were not an abuse of process. Those decisions were the subject of proceedings by way of judicial review. In the course of his judgment, with which Ebsworth J agreed, Auld LJ had this to say about the circumstances in which the certificate was susceptible to challenge. “17. Ms Gumbel, who appeared on behalf of the Applicant, submitted that the Magistrates were wrong to rule that they could not hear evidence going behind the certificate as to the date on which there was evidence sufficient for the prosecutor to mount these proceedings. She frankly conceded that there are no reported authorities giving guidance on the interpretation of section 6(3). However, she drew our attention to decisions in other contexts on the meaning of “conclusive evidence”. She referred us to a number of cases of contract and of public record where the courts have had to consider how conclusive the evidence is whenever a dispute arises as to underlying matters. They show in the main a resolve by the court to give the predictable effect of those words. A good indication of the general approach is to be found in the judgment of Simonds J in Kerr v Mottram Ltd

[1940] Ch 657

where the term “conclusive evidence” was considered in the context of articles of association of a company. Simonds J said at page 660:

“I have no doubt that the words ‘conclusive evidence’ mean what they say; that they are to be a bar to any evidence being tendered to show that the statements and the minutes are not correct.” 18. Ms Gumbel sought to distinguish that and the other authorities, to which she helpfully referred us, by reference to the fact that in the contract cases the conclusiveness of evidence was clearly the mutual intention of the parties, and in the cases of public record there was a public interest or an interest of a third party to be considered for whom certainty in such matters is important. She submitted that in the context of a prosecution of an individual there are different considerations. She maintained that the original 6-month period for issuing proceedings should be given certainty, and that an extension of that time limit however achieved, in this instance by certification, on a basis that is not justified on the facts should be open to investigation by Magistrates. 19. Mr McGuinness, adopting the words of Simonds J in Kerr v Mottram, submitted that the sub-section means what it says, that the certificate is conclusive evidence and that if a court, whether a Magistrates' court or this court, were to look at evidence put forward as capable of unseating the certificate the word “conclusive” would have no meaning. He submitted that there were only two possible exceptions: (i) where it is plain that there has been fraud, and (ii) where the certificate is wrong or arguably wrong on its face. 20. He referred to a helpful summary of the law which is set out in volume 17 of the current edition of Halsbury’s Laws, at paragraph 28, which has a side heading: “Prime facie, sufficient and conclusive evidence”

. As to “conclusive evidence” it reads:” “Conclusive evidence means that no contrary evidence will be effective to displace it, unless the so called conclusive evidence is inaccurate on its face, or fraud can be shown.” 21. It is not suggested here that the certificate can be said to be inaccurate on its face, and no fraud is alleged. 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 a 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.” “I have no doubt that the words ‘conclusive evidence’ mean what they say; that they are to be a bar to any evidence being tendered to show that the statements and the minutes are not correct.” (i) where it is plain that there has been fraud, and (ii) where the certificate is wrong or arguably wrong on its face. “Prime facie, sufficient and conclusive evidence”. “Conclusive evidence means that no contrary evidence will be effective to displace it, unless the so called conclusive evidence is inaccurate on its face, or fraud can be shown.”

[32]The approach of the court in Amvrosiou has been followed in a number of subsequent cases dealing with statutory provisions more or less identical to those considered in Amvrosiou. In particular, the approach has been followed in Burwell v DPP

[2009] EWHC 1069 (Admin)

, Azam v Epping Forest District Council

[2009] EWHC 3177 (Admin)

and RSPCA v Johnson

[2009] EWHC 2702 (Admin)

[33]In Burwell Keene LJ, with whom Roderick Evans J agreed, had this to say about the approach adopted in Amvrosiou:- “20. I would emphasise, however, that that does not mean the 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.”

[34]In Azam the leading judgment, with which Scott Baker LJ agreed, was delivered by Cranston J. After reviewing a number of authorities the learned judge formulated the following general principles relating to cases where the statutory provisions are identical, for all practical purposes, to those in the instant case. “25. In my judgment, the principles to be derived from these authorities are as follows:(1) If no certificate is issued, or if the certificate is defective, the court must decide whether the prosecution is in fact brought within the period specified.

(2) To decide that issue, the court must address the issue of when sufficient evidence in the opinion of the prosecutor to justify a prosecution came to his knowledge. To be taken into account is that a margin of judgment is conferred on prosecutors to form an opinion about the sufficiency of the evidence to justify a prosecution. Any additional time taken to decide whether notwithstanding the evidence a prosecution is in the public interest must be ignored. Moreover, prosecutors cannot prevent time running by not applying their mind to the case; they cannot avoid forming an opinion and any such period is to be discounted.

(3) To be effective the certificate must comply exactly with the statutory requirements. For example, it must state the date. Deficiencies cannot be remedied by reference to extrinsic evidence.

(4) A valid certificate is determinative of the matter unless the certificate is inaccurate on its face, or can be shown to be fraudulent.

(5) The exception for a certificate inaccurate on its face applies only when the certificate is plainly, even if honestly, wrong. It must be patently misleading.

(6) Prosecutors are entitled to a degree of judgment and their decisions are only amenable to review before this court by way of judicial review on ordinary public law principles, or before the magistrates as an abuse of process.

(7) Abuse of process in this context includes where the prosecutor has manipulated or misused the process so that a person is deprived of the time bar. It involves some form of misconduct.”

[35]On the basis of the decisions in Amvrosiou, Burwell and Azam it seems to me to be clear that a certificate issued under section 31(2) of the 2006 Act and which conforms to the criteria specified in section 31(2) can be challenged on two bases alone. First, it can be challenged on the basis that it constitutes a fraud; second, it can be challenged on the basis that it is plainly wrong. The phrase “patently misleading” is not, in my judgment, an additional basis upon which a certificate can be challenged; it is simply a phrase used in the judgments of Keene LJ and Cranston J in Burwell and Azam respectively to reinforce the notion that the certificate must be plainly wrong before it can be challenged.

[36]In this case, the court is asked to consider, definitively, the procedure to be adopted when an accused person wishes to assert that a certificate issued under section 31(2) of the 2006 Act is plainly wrong. It is to this issue which I now turn.

[37]A convenient starting point, again, is the decision in Amvrosiou. The case reached the Divisional Court on an application for judicial review of the decision of the Justices. It is apparent from the judgment of Auld LJ that the Justices were asked to consider two alternatives. They were asked, first, to consider a preliminary point to the effect that the prosecution had not been commenced within 6 months of the date on which evidence sufficient in the opinion of the prosecutor to warrant proceedings had become available. The Justices answer was that the certificate issued under section 6(3) of the Road Traffic Offenders Act 1988 was conclusive on this point. However, the Magistrates were also asked to consider whether in the circumstances and notwithstanding the conclusiveness of the certificate, it was an abuse of process for the prosecution to proceed. They rejected that submission too. In the Divisional Court there was no discussion of the procedure which had been adopted before the magistrates. Rather the court focused upon whether or not the magistrates had been correct in their rulings.

[38]In Burwell it seems that a preliminary point was taken at the commencement of the proceedings in the Magistrates’ Court to the effect that the proceedings were out of time notwithstanding that a certificate had been issued by the prosecutor. In Azam the precise procedure adopted before the magistrates is unclear although it is obvious from the judgment of Cranston J that the District Judge was prepared to entertain the possibility that a challenge to the certificate could be mounted by way of an argument that an abuse of process had occurred. In RSPCA v Johnson the District Judge had refused to hear an information laid by the Society on the basis that it was out of time notwithstanding that the Society had issued a certificate under section 31(2) of the 2006 Act. There seems to have been an acceptance in this case that the challenge to the certificate was on the basis that its issue and/or the consequent proceedings constituted an abuse of process and that the District Judge had refused to hear the case against the accused because he considered abuse of process established (a finding with which this court did not agree).

[39]In RSPCA v King & King

[2010] EWHC 637

, the RSPCA were unable to rely upon a certificate which complied with the statutory criteria laid down in section 31 of the 2006 Act. Nonetheless, the Society sought to rely upon the time limit contained within section 31(1). At an early stage after the issue of proceedings the accused gave notice to the Society that they intended to argue that the proceedings had been brought out of time. In King the point was not argued as a preliminary point. The prosecution presented its evidence in support of the charges laid against the accused and at the close of the prosecution case a submission was made that there was no case to answer because the information had been laid more than 6 months after the dates of the alleged offences. That submission was upheld. The appeal by way of Case Stated did not concern itself with the procedure which had been adopted in the Magistrates’ Court but nothing contained within the judgment of Toulson LJ, with which Owen J agreed, suggested that the procedure adopted in that case was in any way erroneous.

[40]In Atkinson v DPP

[2004] EWHC 1457

this court was concerned with an appeal by way of Case Stated against a ruling of a District Judge to the effect that a prosecution launched against Mr Atkinson for the summary offence of carrying an insecure load should proceed. Mr Atkinson had applied for a stay of the proceedings on the grounds that the prosecution could not prove that it had brought the proceedings within the 6-month time limit provided by section 127 of the Magistrates’ Court Act 1980. During the course of his judgment, Auld LJ said:- “2….in R v Manchester Stipendiary Magistrates, ex parte Hill

[1983] AC 329

, HL, Lord Roskill, with whom the other Law Lords agreed, held that written information is laid for the purpose of section 127 when it is received at the office of the clerk to the Justices for the relevant area. If it is received out of time, a recipient of the summons issued as a result of it may invite the magistrates not to proceed with the matter for want of jurisdiction. That is how the matter should be considered, as it was in ex parte Hill, not as an issue of an abuse of process as the District Judge appears to have done in this case. The threshold notion of jurisdiction is usually, as in the case of section 127, capable of ready identification and application. Only if there is jurisdiction, may the more classic notion of abuse of process arise for consideration.” Later in his judgment Auld LJ referred to the decision in Lloyd v Young & Others [1963] Crim LR 703. He summarised the purport of that decision as follows:- “17. In Lloyd v Young & Others there was doubt on the face of the summonses as to the date of the laying of the information. The court dismissed the prosecutor’s appeal against the magistrates’ dismissal of the information for want of jurisdiction. They held that the summonses were on their faces bad, and that, although that defect was not if itself fatal to the prosecution, the question was whether there was sufficient evidence for the Justices to say that they were satisfied that the information was laid within 6 months. They concluded that, on the evidence, the Justices were entitled to dismiss the information because of their doubt as to its date.” “17. In Lloyd v Young & Others there was doubt on the face of the summonses as to the date of the laying of the information. The court dismissed the prosecutor’s appeal against the magistrates’ dismissal of the information for want of jurisdiction. They held that the summonses were on their faces bad, and that, although that defect was not if itself fatal to the prosecution, the question was whether there was sufficient evidence for the Justices to say that they were satisfied that the information was laid within 6 months. They concluded that, on the evidence, the Justices were entitled to dismiss the information because of their doubt as to its date.”

[41]Paragraphs 20 to 22 of the judgment of Auld LJ are also worth citing in full:- “20. The District Judge, whose attention seemingly was not drawn to Lloyd v Young & Others, does not, in his reasoning in paragraph 8 of the case, appear to have grappled with the issue of jurisdiction. As I have said, he dealt with it as one of abuse of process. He focused on, and rejected, unfairness as a possible category of such abuse. Rehearsing his construction, he rejected “a complete lack of evidence of impropriety” as being capable of “[raising] the possibility that there may have been” such a category.21. He came nearer to identifying the proper question in the question he posed for this court, namely, whether the proceedings should be stopped because of the uncertainty as to whether the information was laid outside the time limit. For the reasons I have given, he was wrong, given such uncertainty, not to apply to it the ordinary criminal burden of standard of proof. If it has to be looked as a matter of unfairness, that burden and standard embodies the long-standing principle of fairness in criminal cases. And failure to meet it does not need any separate treatment, whether under Article 6 or otherwise. Here, unless the prosecution could prove the date of the information, there was uncertainty for want of evidence, and that was unfair to Mr Atkinson in that it denied him the opportunity to challenge, if appropriate, the prosecution’s assertion that the information had been laid in time.

22. Accordingly, in my view, it is not necessary for the court to consider Miss Moss’s alternative submissions. The first of them is a mix of her main argument as to want of jurisdiction and as to abuse of process; the second, in its focus on

Article 6 of the European Convention

of Human Rights and “legitimacy of process” does not add anything of substance to either of the foregoing submissions. Therefore, for the reasons I have given, I would answer no to the District Judge’s question. I would allow this appeal, direct that the conviction should be quashed and that the matter should be remitted to the District Judge with the direction that, given the acknowledged uncertainty whether the information was laid in time, he should decline jurisdiction.” It is to be noted, of course, that Atkinson was not a case where a certificate had been issued. At first blush it does not purport to determine the procedure to be adopted when an accused person wishes to challenge the jurisdiction of the court when a certificate is issued under a statutory provision like section 31(2).

[42]The decision in Azam appears to be authority for the proposition that a challenge to a certificate may be made only by way of judicial review or by application for a stay on the grounds of abuse of process – see paragraph 25(6) of the judgment as set out in paragraph 32 above. Further, it appears to decide that abuse of process can be made out only where the prosecutor has manipulated or misused the process so that a person is deprived of the time bar. Some form of misconduct is involved – see paragraph 25(7).

[43]I find it difficult to see how a certificate issued under section 31(2) is susceptible to challenge on the grounds that it is plainly wrong (albeit that the mistake can be innocent) with the suggestion that if it is challenged in the magistrates’ court it must be challenged on the basis that an abuse of process has occurred in which some form of misconduct is involved. No real difficulty arises if it is challenged by way of judicial review. In such a challenge it would be possible to argue unreasonableness or irrationality, which, in context, would be likely to be very similar to if not identical with the notion that the certificate was plainly wrong. However, to repeat, if the approach in Azam is followed a challenge before the magistrates court would appear to require proof of some kind of misconduct.

[44]The divergence in approach depending upon whether the challenge is brought by way of judicial review or by way of an allegation of abuse of process may, at first sight, appear interesting but unlikely to have much practical consequence. That is not the case, however, if the Appellant and Respondent are correct that the Respondent (or any other private prosecutor) is not susceptible to a challenge by way of judicial review and that the only mechanism for challenging a certificate issued by a private prosecutor is before the magistrates’ court.

[45]The difficulty identified in the preceding paragraph arises only if a challenge before the magistrates is permitted only on the grounds that an abuse of process has occurred. As is clear, however, in cases such as Atkinson, in particular, the challenge before the court has been a challenge to its jurisdiction.

[46]In my judgment a magistrates’ court has no jurisdiction to hear a summons alleging offences under the 2006 Act if the information upon which the summons is based was laid outside the time limit permitted by section 31(1). If no certificate under section 31(2) is issued by the prosecutor there can be no possible objection to an accused person challenging the jurisdiction of the court by asserting that the prosecutor has not laid an information within the time specified in section 31(1).

[47]I can discern no principled basis for concluding that such a procedure is not open to an accused person if the prosecutor has issued a certificate under section 31(2) of the Act. A certificate under section 31(2) is conclusive evidence of the facts stated therein unless it is demonstrated that the certificate is plainly wrong. If the certificate is plainly wrong it has no effect and the magistrates must disregard it. They will then be left to determine whether or not the prosecutor has initiated proceedings within the time limit permitted by section 31(1) and if he has not the magistrates will have no jurisdiction to hear the summons in question.

[48]I acknowledge that this approach is not the one which was suggested as appropriate in Burwell and Azam and endorsed in RSPCA v Johnson. However, the procedural issues raised in this case were not raised in any of those cases. Further, so far as I am aware, Atkinson was not cited in any of those cases. For my part, I consider the reasoning in the judgment of Auld LJ in Atkinson to be compelling.

[49]There are considerable practical advantages if a challenge to the jurisdiction of the magistrates can be made before the magistrates notwithstanding the issue of a certificate under section 31(2) of the Act. Such a challenge can be made whether the prosecution has been launched by a body authorised to prosecute by statute or by a private prosecutor. Satellite litigation by way of judicial review becomes unnecessary. The process of determining whether or not the court has jurisdiction would be essentially fact sensitive. The magistrates are very well equipped to undertake such an inquiry.

[50]In most cases a challenge to the jurisdiction of the magistrates would, no doubt, be taken as a preliminary point. I do not anticipate that would cause difficulty for an accused person in the large majority of cases. If necessary evidence could be adduced which was relevant to determining the issue of jurisdiction within the preliminary hearing.

[51]However, I do not think it necessary that this court should be unduly prescriptive about the procedure to be followed if an accused person decides to challenge the jurisdiction of the magistrates. It seems to me that the tribunal asked to determine the issue of jurisdiction is best placed to rule definitively upon the procedure to be adopted in order to determine the jurisdictional point.

[52]In the light of the views expressed in this judgment I would answer the first question posed for the opinion of this court as set out at paragraph 29 above by saying that the challenge should be brought as a challenge to the jurisdiction of the court. The remaining questions, strictly, do not arise since they concern abuse of process but, in my judgment, a challenge to jurisdiction should normally be taken as a preliminary point but, ultimately, it is for the magistrates to determine in any particular case what procedure should be adopted in order to determine whether or not the court has jurisdiction to hear the summons in question.

Application to the facts of the present case

[53]How does this analysis impact upon this case? It is first necessary to consider what happened in the Crown Court. Following the ruling of HH Judge Ambrose on 8 June 2010 he made directions for a further hearing to determine whether or not there had been an abuse of process. That hearing took place before the learned judge and two magistrates on 26 November 2010. The Appellant relied upon two bundles of documentary evidence. Neither party called oral evidence. The Case Stated records:- “On the evidence, the court did not find the certificate to be plainly wrong on its face, nor did it find there to have been an abuse of process of the court. That being so, and in view of the contents of the notice of appeal, the appeal was dismissed.”

[54]As things stood at the hearing on 22 November 2011 there was no obvious reason to conclude that HH Judge Ambrose and the magistrates had erred in law in concluding that the certificate had not been plainly wrong on its face. However, as I have said, there is now evidence available to this court which strongly suggests that the Respondent considered that it had sufficient evidence to justify a prosecution by no later than 8 January 2008. Certainly, there is credible evidence to that effect.

[55]I am prepared to accept that there is at least a strong possibility that should this case be remitted to the Crown Court the court would conclude that the certificate issued by the Respondent was plainly wrong. However, that is not the end of the story. If the certificate is plainly wrong the court will disregard it. Nonetheless, it will investigate whether or not the proceedings were brought within the time limit prescribed in section 31(1) of the Act.

[56]Upon the basis of the information available to this court the most likely finding of the court below is that the prosecutor considered it had sufficient evidence to justify a prosecution on 8 January 2008. On that basis these proceedings were brought within the relevant time period specified in section 31(1) of the Act.

[57]I am not persuaded that the evidence of Mr Burrows would demonstrate that the proceedings brought by the Respondent against the Appellant were issued out of time. Further, I am satisfied that if the Crown Court was called upon to determine whether the proceedings were brought within the time limit specified in section 31(1) of the Act it would conclude that the proceedings were brought within time. HH Judge Ambrose must have concluded that the prosecutor was not fixed with the requisite knowledge on or about 4 September 2007. In my judgment, he was entitled to reach that conclusion. A prosecutor must be afforded a reasonable period of time after obtaining the relevant evidence in order to form an opinion about whether the evidence obtained justifies a prosecution. There is no evidence available which begins to suggest that the Respondent considered it had sufficient evidence to justify a prosecution upon some date between 4 September 2007 and 25 October 2007. These proceedings were commenced within 6 months of 25 October 2007. In my judgment, in these circumstances, no purpose would be served by remitting this case to the Crown Court for further consideration.

[58]I acknowledge that the Appellant has persuaded this court that the procedure for determining the validity of a certificate under section 31(2) of the Animal Welfare Act 2006 is not that which was adopted in the Crown Court. However, there is no material available to this court which persuades me that there is a possibility that the proceedings brought by the Respondent against the Appellant were issued outside the time limit prescribed in section 31(1) of the Animal Welfare Act 2006. In those circumstances, it is appropriate that the convictions recorded against the Appellant should be upheld.

[59]This case has highlighted the need for all prosecutors to take great care when certifying a date under statutory provisions which have the effect of extending the time limit for bringing criminal proceedings. A prosecutor is exercising a crucial function when certifying such a date and it is incumbent upon the prosecutor to ensure the accuracy of the date.

[60]I agree.