Bennett v Secretary of State for Work and Pensions [2012] EWHC 371 (Admin)

Case No CO/12699/2010[2012] EWHC 371 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 27 January 2012
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE RICHARDS
MR JUSTICE CRANSTON
Between
BENNETTClaimantv
Between
SECRETARY OF STATE FOR WORK AND PENSIONSDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr A Morris (instructed by Hine Solicitors) appeared for ClaimantMiss H Gilest (instructed by Department of Work and Pensions) appeared for Defendant
J U D G M E N T

Introduction

[1]This is an appeal by way of case stated from the decision of the North Surrey Justices, sitting at Staines Magistrates' Court, when on 20 September 2010 they convicted the appellant of three offences of failing to notify the Secretary of State for Work and Pensions promptly of a change in circumstances affecting her entitlement to state benefits. The issue before us is whether the prosecution of the appellant for this offending was instituted in a timely manner. Facts[2]From 1995 the appellant was in receipt of income support, housing benefit and council tax benefit on the basis that she was a single parent and not working. On 27 November 2007 her husband died and she was awarded a widowed parent's allowance for some six months and, following that, bereavement benefit for another six months. Meanwhile, on 9 June 2008 she gained employment as a branch manager at Johnson Service Group plc and continued there until 24 May 2009.[3]On 16 June 2009, the appellant was interviewed under caution at the Staines Job Centre. She was asked about her failure to inform them about her job when she was on benefit. Her response was that she thought that from May 2008 she had a widow's pension and was no longer on income support. She explained that she asked her disability advisor and a "Helen Parker" at the job centre whether she could work and was told that, since her renumeration was small, she could. She also told those interviewing her that on several occasions in May 2008 she had attended the job centre to inform them that her son had turned 18 and that she believed that she was no longer entitled to the same benefits. There was evidence that she had contacted the centre in June 2008, but there was no record of the conversation to which she referred. She had received information on a number of occasions about the need to notify the authorities if she obtained employment. There was a computer record as part of an "action plan" dated 3 June 2009 which read, inter alia, "Gwenda is not looking for work at present".[4]The Secretary of State authorised the appellant's prosecution on 12 May 2010. A requisition (formerly a summons) was sent that day requiring the appellant to appear before the Magistrates' Court on 17 June 2010. The appellant was charged under section 112(1A) of the Social Security Administration Act 1992 ("the 1992 Act") in that she failed promptly to notify the Secretary for State of Work and Pensions of a change in her circumstances which she knew would affect her entitlement to(i) Income support,(ii) Housing benefit, and(iii) Council tax benefit, respectively. In each case the allegation was that she had failed to declare that she was working. The three offences were said to have been committed between (i) 9 June 2008 and 14 May 2009, (ii) 16 June 2008 and 24 May 2009, and (iii) 16 June 2008 and 24 May 2009, respectively. The offences were claimed to have resulted in an overpayment of benefit in the sum of some £5,883.[5]The appellant's trial took place on 6 September 2011. On her behalf the proceedings were characterised as an abuse of process based on what was said to be an unreasonable, inordinate and unconscionable delay by the Secretary of State in bringing the prosecution. The delay had caused unfair prejudice to her and also deprived her of witnesses which meant she would not receive a fair trial. The Magistrates rejected the abuse submission. They held that the prosecution was within the statutory period. Having regard to the chronology there had been consistent progress in the case. If the case had been heard six months earlier, the information that which would have been before the court would probably have been the same. The Magistrates then went on to convict the appellant and sentenced her to a community order requiring her to perform unpaid work for 220 hours. She was also ordered to pay costs of £500. The case stated[6]On 26 November 2011, the Magistrates stated a case for the opinion of this court. In the case stated they asked four questions. Were they correct in law in taking the view that:(a) The charges were authorised within the permitted statutory period. The three-month period referred to within section 116(2)(a) and (b) of the Social Security and Administration Act 1992 was not relevant to the facts of the case in view of the words "whichever period last expires"?(b) The delay in preparing the case for prosecution was justified in the circumstances of the case although the charges were authorised within two days of the 12-month period referred to in section 116 of the aforementioned Act?(c) Before commencing a prosecution the Secretary of State was not under an obligation to keep detailed records of enquiries made by the appellant together with identity and contact information of job centre staff?(d) The appellant would not be unfairly prejudiced by the passage of time in this case. She would be able to give evidence herself in relation to any discussions she had had with any member of staff at the job centre? Legal framework[7]Section 116(2) of the 1992 Act provides an exception to the general rule of section 127(1) of the Magistrates' Courts Act 1980 that the summary proceedings must be initiated within six months of the commission of an alleged offence. Section 116(2) reads as follows:
"(2) Notwithstanding anything in any Act - (a) proceedings for an offence under this Act other than an offence relating to housing benefit or council tax benefit...may be begun at any time within the period of 3 months from the date on which evidence, sufficient in the opinion of the Secretary of State to justify a prosecution for the offence, comes to his knowledge or within a period of 12 months from the commission of the offence, whichever period last expires; and (b) proceedings for an offence under this Act relating to housing benefit or council tax benefit may be begun at any time within the period of 3 months from the date on which evidence, sufficient in the opinion of the appropriate authority to justify a prosecution for the offence, comes to the authority's knowledge or within a period of 12 months from the commission of the offence, whichever period last expires."
[8]The operation of this provision has been before the courts on a number of occasions. Brief reference is sufficient to two authorities mentioned by counsel in their written submissions is sufficient. One issue in Eyeson v Milton Keynes Council [2005] EWHC 1160 (Admin); (2005) HLR 38, was the delay in instituting proceedings where there had been a failure by the appellant promptly to notify the Council of an increase in entitlement to working families tax credit when she was in receipt of housing benefit. The offences related back to April 10 2002, and October 1 2002. The Council did not lay informations for her prosecution until November 20, 2003. Thus the 12-month period in section 116(2) had been exceeded. The issue was thus the three-month alternative. All the documentary evidence sufficient to justify a prosecution had been available to the Council by 10 February 2003. However, in March 2003, the appellant had been invited for interview, which she refused. Further interviews were arranged over the following months; she failed to attend any of these. In the Magistrates' Court it was held that the delay had been satisfactorily explained by waiting for her to attend for interview. This court allowed the appellant's appeal. Moses J (with whom Maurice Kay LJ agreed) held that the statutory test in section 116(2) focused on the date on which sufficient evidence was available to justify a prosecution, not on justifications for delaying any prosecution. The prosecution authorities had thus exceeded the three-month period.[9]In Smith v North Somerset Council [2007] EWHC 1767 (Admin); (2007) 171 JP 509, the appellant had been convicted of failing promptly to notify the local authority of a relevant change in her circumstances - her receipt of a student loan and grant - affecting her entitlement to housing benefit and council tax benefit and of making a false representation, contrary to section 112 of the 1992 Act. Before the district judge she contended that the information was laid outside the 12-month time limit specified in section 116(2)(b). The offence had occurred within one month of her failing promptly to notify the local authority of her first student loan payment, which was more than twelve months previously. The district judge held that there was a case to answer since the offence was a continuing one, a decision upheld in this court. David Clarke J (with whom Hallet LJ agreed) held that the question of promptness became irrelevant since she had given no notification at all. The prosecution was clearly within the 12-month period provided in section 116(2). The appellant's case[10]For the appellant, Mr Morris submits, firstly, that if a prosecution authority is able to comply with the three-month time limit for a prosecution set out in section 116(2), they should do so. The construction of this provision must take account of the fact that many of the prosecutions under it are historic. Unless prosecutions are timely, Mr Morris submitted, matters would be dragged out by contrast with the swift prosecution of ordinary summary offences by the Crown Prosecution Service. In this case, he submitted, it was clear that the Secretary of State would have had sufficient information to prosecute this appellant after the interview on 16 June 2009, and should have done so within the three-month period specified in the subsection. Instead, the proceedings were begun just within the 12-month period. Thus, he concluded, the Secretary of State fell foul of the section.[11]In my view, these submissions are baseless. The language of section 116(2) is unequivocal. A prosecution can be begun at any time within the period of three months from when the Secretary of State knows of evidence to justify a prosecution, or within 12 months from the offence itself, "whichever period last expires". There is no warrant for ignoring that final clause. Parliament chose that language deliberately given the reality that sometimes the nature of offending in this area means that it is only well after the offending occurs that it is discovered. Thus, if a benefit offence only comes to light 12 months after it is committed, the Secretary of State has another three months in which to launch proceedings. That short period establishes buffers to any further lapse of time after the commission of the offence in which a prosecution can be begun. Conversely, if shortly after an offence is committed, the Secretary of State could prosecute, he has six months longer than with the more run-of-the-mill summary offence to proceed.[12]There is nothing in Eyeson v Milton Keynes Council to the contrary, since that was a case where the prosecution was begun 12 months after the offending took place, and reliance had to be placed on the alternative 3-month period. Consistently with Smith v North Somerset Council, the offences in this case were continuing offences up to and including 14 May 2009, in the case of the first charge, and up to and including 24 May 2009 in relation to the second and third charges. The requisition was issued and sent within 12 months of these dates, namely on 12 May 2010, and the statutory conditions satisfied.[13]Next, Mr Morris submitted, Magistrates should not have rejected the abuse of process argument. In his submission there was a clear breach of fair trial standards because of the delay. There must have been sufficient evidence to proceed within the three-month time period. The appellant was required to attend court for the first time 11 months after being interviewed at the job centre. The length of time from the first of the offences to the first appearance at court was some two years. There was no explanation or justification for such delay, which stemmed from inefficiency. The chronology clearly demonstrated that the statements were taken and the telephone calls made in relation to the investigation in a leisurely fashion, it would appear at two monthly intervals. Further statements were served after the summons had been issued. By the time the case came to court, submitted Mr Morris, the offending was a distant memory. More importantly, the appellant was robbed of witnesses to support her account.[14]In this respect, Mr Morris coupled his abuse argument with what he said were breaches of the Code of Practice under the Criminal Procedure and Investigations Act 1996, in that the Secretary of State failed in his duty to investigate and to retain information. The Secretary of State had not traced the witnesses which the appellant had mentioned at interview, where she had appeared unrepresented. In this case, submitted Mr Morris, the appellant's defence turned importantly on what she had been told by members of staff at the job centre who could well have moved on. The prosecution authorities had resources to trace those persons but had not taken the steps to do so when the appellant had first mentioned their names.[15]In my view, the justices were correct in their conclusion that the appellant had not been unfairly prejudiced by the passage of time. The fact is that, as Mr Morris himself conceded, the threshold for a delay argument is high. Albeit that the investigation appears to have proceeded at a somewhat leisurely pace, a stay of proceedings for delay is rarely exercised and there must be serious failings on behalf of the prosecution for it to be successful: for example, R v Sadler [2002] EWCA Crim 1722; (2002) 166 JP 481.[16]For my part it is difficult to see how the appellant was unfairly prejudiced by the passage of time. As the Magistrates remarked, she could always have given evidence about the conversations she claimed she had had at the job centre. More importantly, from her viewpoint, there was no objective evidence supporting her account. Indeed, the computer record, part of the action plan, dated 3 June 2009, was contrary to her case, "Gwenda is not looking for work", whereas she began her job a week later. That statement was recorded at a time when the appellant said she had been told she could work without affecting her benefits. In my view, the justices seem to have hit the nail on the head in their conclusion that a prosecution six months earlier would not have improved the appellant's case.[17]I would propose to answer the Magistrates' questions (a) and (b) "Yes". I do not consider it necessary to answer the other two questions. I would dismiss the appeal.

LORD JUSTICE RICHARDS: I agree.

[19]MISS GILEST: My Lords, in the circumstances, £400 in costs are sought.

LORD JUSTICE RICHARDS: What was the sum?

[21]MR MORRIS: £400.

LORD JUSTICE RICHARDS: You are seeking an order that the appellant pays £400 in costs?

[23]MR MORRIS: Your Lordship, the appellant is legally aided in this matter. I don't believe she has those kind of funds. She is not here today, she was excused at today's hearing.

LORD JUSTICE RICHARDS: Any order that we make in respect of a legally-aided appellant would have to be that there's an order of principle, but it then goes to the cost judge to determine whether any amount should actually be paid. I can't remember what the actual term of words is, I never remember this. I think it probably differs between the Court of Appeal and this court. But you can't resist an order in principle.

[25]MR MORRIS: My Lord, the appellant's not here. I don't believe there was an order made in the Magistrates' Court for costs because of her means, so I will resist it, yes. She has clearly passed the threshold for legal aid in this matter in this event.

LORD JUSTICE RICHARDS:

[26]The normal order is that the appellant would pay the respondent's costs subject to detailed assessment and subject to a determination of liability to pay such costs, pursuant to s.11 of the Access to Justice Act 1999. That certainly will have operated in a civil context in respect of a legally-aided litigant. This one was used in a criminal context, though why in that case it was a claimant and a defendant, I do not know. I will just check. Maybe the simplest answer is to go back, as my Lord suggested, to the old-fashioned approach. We will order the appellant to pay the respondent's costs, but such costs not to be enforced without the leave of the court.[27]MISS GILEST: I am grateful, my Lord.

LORD JUSTICE RICHARDS: Thank you both.