Noon, River Manager, Conservators of the River Cam v Matthews & Ors [2014] EWHC 4330 (Admin)

Case No CO/2589/2014[2014] EWHC 4330 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 19 th December 2014
Before
LORD JUSTICE BEATSONMR JUSTICE HOLROYDE
Between
Dr Philippa Noon, River Manager, Conservators of the River CamAppellantSamuel Matthews and othersRespondents
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Christopher Knight (instructed by Hewitsons LLP) for AppellantSimon Butler (instructed on a Direct Access Basis) for RespondentsHearing Hearing date: 18 November 2014
JudgmentLord Justice Beatson :I. Introduction
[1]This is an appeal by way of case stated pursuant to section 28 of the Senior Courts Act 1981. The first issue is whether the Conservators of the River Cam (“the Conservators”) can lawfully delegate the power to institute and bring prosecutions for contraventions of Byelaws made by the Conservators pursuant to powers in the River Cam Conservancy Act 1922 and earlier legislation to their Control Officer and Clerk, now more generally known as the River Manager. The second issue is whether, if it is lawful to delegate part of the function of prosecution, on the agreed facts of this case, the Conservators did not exercise any oversight and review of their officer’s prosecutorial function.[2]The case concerns a decision to prosecute Messrs Arnold, Kovakevich, Matthews, Prevett, Sugden, Tyrell and Wright, who are all punt operators on the River Cam, for various breaches of the bye-laws. Summonses were laid before the Cambridge Magistrates’ Court on 4 November 2013 by Dr Philippa Noon, who, at that time and until 31 January 2014, was the River Manager, and issued by the court between 20 November and 20 December 2013. Dr Noon appeals against the decision of District Judge (Magistrates’ Court) Sheraton sitting at South Cambridgeshire Magistrates’ Court on 4 March 2014, that she did not have power to lay the summonses and that, on the agreed facts, the Conservators had not shown that they had exercised oversight and review of their prosecutorial function.[3]The District Judge has stated two questions for the opinion of this court:(1) Whether he was correct in finding that the Conservators were not entitled to delegate completely the function of bringing prosecutions to enforce Byelaws to an employee; and(2) Whether he was entitled, on the agreed facts, to find that the Conservators had not shown that they exercised oversight and review of their officer’s prosecutorial function.[4]For the reasons given in the remainder of this judgment, I have concluded that the answer to the first of these questions is “yes”, but a qualified “yes”, and the answer to the second question is “no”. Before giving those reasons, I will summarise the agreed facts as contained in the case stated, and the legislative and regulatory framework.

II The factual background

[5]Paragraphs 1 – 3 of the case stated summarise the nature and history of the proceedings. It is stated that the summonses were issued against “Samuel Matthews and others” alleging that they had contravened Byelaws made under section 25 of the 1922 Act. The District Judge stated that, for the purpose of stating the case, it was unnecessary to set out the detail of each allegation against each defendant. He stated (case, §1) that there were 34 offences alleged between them, and that following not guilty pleas to all allegations the case was listed for hearing. I add that the summonses against the punt operators cited various allegations that each had contravened the Byelaws and had committed various offences, in particular keeping an unregistered punt on the river, navigating an unregistered punt, and failing to operate from a recognised punt station.[6]Those against whom the summonses were issued applied to the court to stay the proceedings on the ground that the Conservators had no power to delegate their power to prosecute to Dr Noon. The District Judge heard their application on 3 March 2014 on the basis of an agreed five page abstract of the facts prepared by counsel for the defendants. The District Judge summarised the agreed facts as follows:
“5. The River Cam Navigation Act 1851 had made provision for the appointment of Conservators of the River Cam [the Conservators]; their constitution was amended by the River Cam Conservancy Act 1922 to consist of a total of 13 Conservators within a body corporate. 6. Neither statute gave express power to [the Conservators] to prosecute, but that such power was implied by the power to impose penalties for breach of byelaws. Neither statute gave express authority for [the Conservators] to delegate power to an officer to prosecute or defendant, or to institute criminal proceedings in their own name in the manner in which, e.g. local authorities have such power expressed by statute. There was a dispute which I had to determine as to whether such authority could be implied. 7. On 17th January 2013 [the Conservators] prepared a document headed ‘Delegation of Powers’, (page 336 of bundle). The copy of the note that is before this Court indicates it was in fact prepared by Dr Noon for a meeting of the Conservators on 17 January 2013 and is dated “January 2013”
. A note in similar terms (albeit using different wording in the light of legal advice) was prepared by her in January 2014 for a meeting of the Conservators on 23 January 2014. The Conservators were asked to agree to delegate their powers to her until 31 January 2014 when her resignation took effect, and thereafter to Mr John Adams until a new River Manager was appointed. It stated that (despite paragraph 7 above): Under the Acts, … the Conservators may delegate certain powers to the Chairman, Deputy Chairman and officers. It went on, inter alia that the River Manager and officers be authorised and directed … to enforce the Byelaws and statutes and to defend actions on behalf of the Conservators. The River Manager be appointed to appear before any court of competent jurisdiction for these purposes and the powers of the Conservators for this purpose be delegated formally to Dr P Noon and her Deputy…. 8. At a meeting of the Board of [the Conservators] on 26th September, 2013 Dr Noon was expressly instructed ‘to prepare more prosecution cases against unlawful punt operators, assisted by Mr Brown and the Chairman’. On 2nd October 2013 Anthony Clive Gordon Brown, current Deputy Chairman of [the Conservators], met with Dr Noon, Mr Adams, (the then Chairman) and the River Bailiff. Dr Noon was instructed to proceed with the prosecutions. She kept Mr Brown and Mr Adams generally informed of progress in the proceedings. The status of proceedings was reported to the Conservators at their meeting on 23rd January 2014.” This paragraph reflects an affidavit sworn by Mr Brown on 3 March 2014.

III The legislative and regulatory framework

[7]The Conservators are a body corporate. Their origins are an Act of Parliament in 1702. Their powers and duties are currently contained in the River Cam Navigation Act 1851 (“the 1851 Act”) and the River Cam Conservancy Act 1922 (“the 1922 Act”). Some of the provisions in the Commissioners Clauses Act 1847 (“the 1847 Act”) have been incorporated into the 1922 Act by section 2 of the 1922 Act, which provides that references in the incorporated provisions to “the Commissioners” mean “the Conservators”. The jurisdiction of the Conservators covers the River Cam and River Granta in an area between Newnham Mill, sluice gates near Sheep’s Green, and Kings Mill and Bottisham Locks: see section 13 of the 1922 Act and section 14(1) of the Cambridge City Council Act 1985.[8]Section 5(1) of the 1922 Act provides that there shall be thirteen Conservators, seven appointed by the City Council, three appointed by the Council of the Senate of the University of Cambridge, one appointed by Cambridgeshire County Council, and two appointed by the Environment Agency (as successor to the Ouse Drainage Board).[9]The provisions for meetings are contained in the 1851 Act. Section VI requires the Conservators to hold an “Annual Meeting” in (broadly speaking) the first half of June each year. Section VII provides that it is lawful for the Conservators “to hold Quarterly Meetings for the transaction of general business…”. In practice the Conservators meet quarterly, although section VIII provides that three or more of the Conservators “may require a Special Meeting to be held”, provided ten clear days’ notice is given. Section XII empowers the Conservators at any of these meetings to order payment of sums due by them. The 1847 Act contained provisions authorising and relating to the holding of monthly meetings by what are now the Conservators, but these provisions were not incorporated into the 1922 Act.[10]The Conservators are empowered by section 25(1) of the 1922 Act to make such Byelaws as they think fit for the area within their jurisdiction for a number of specified purposes. It suffices to refer to the three purposes relevant to the main offences charged in this case:- “(b) for the regulation of vessels, boats and other craft on the said rivers and waters”, “(g) for prohibiting or allowing upon and subject to such conditions as may be referred in the Byelaws the putting down or placing of mooring ropes…”, and “(h) for requiring the registration of pleasure-boats…prescribing the fees to be paid in respect of certificates of registration…”.[11]Section 26 of the 1922 Act provides:
“The Conservators may by any Byelaws made by them impose on offenders against the same such reasonable penalties as they think fit not exceeding [a fine at level 1] and in the case of a continuing offence a daily penalty not exceeding a like amount…”
. Section 52 of the 1922 Act provides that all offences under it or the 1851 Act, or the Byelaws made under them, “may be prosecuted and recovered in a summary manner”. The penalties in square brackets are those specified by Byelaw 18.[12]There are three provisions of the 1847 Act which have been incorporated into the 1922 Act which are of some importance in these proceedings. The first is section 65, which provides:
“The [Conservators] may from time to time appoint and employ a treasurer, clerk elector assessor, and all such other officers to assist in the execution of this and in the special Act as they shall think necessary and proper…”
. By section 33 of the 1851, the officers appointed under previous legislation were to continue in post until removed.[13]The two other provisions of the 1847 Act are sections 61 and 64. These provide: “61 Actions or suits to be brought in the name of any two [Conservators] or their clerk In all actions and suits in respect of any matter or thing relating to the execution of this or the special Act to be brought by or against the [Conservators], it shall be sufficient, where such [Conservators] are not a body corporate, to state the names of…[the Conservators], or the name of their clerk, as the party, plaintiff or defendant, representing the [Conservators]. In any action or suit, and no such action or suit shall abate or be discontinued…by reason of…the death, suspension or removal of such clerk. 64 How indictments to be preferred The [Conservators] may prefer a bill of indictment against any person who shall steal or wilfully injure any property or thing belonging to the [Conservators], or under their management, or institute any other proceeding which may appear to them necessary for the protection of such…”.[14]The Byelaws now in force were made in 1996. They deal with matters ranging from general control of river traffic, including regattas and races, locks, obstruction, littering, registration of boats and ferries. For the purposes of these proceedings it is relevant to note that the “Control Officer”, who is defined as “the officer so appointed by the Conservators to oversee the fulfilment of the Byelaws” is given specific powers to control traffic, Byelaw 3 in relation to mooring, Byelaws 6.2 and 6.5 regattas and races, Byelaw 7.2 locks, Byelaws 10.1, 10.2 and 10.5 and Byelaw 17 to require any person doing an act which is prohibited without the consent of the Conservators to produce evidence of such consent or to furnish his name and address.

IV The positions of the parties below and the decision of the District Judge

[15](i) The defendants’ case: The primary submission on behalf of the defendants was that the Conservators had no power to delegate their power to prosecute to Dr Noon, their employee and officer. It was argued on their behalf that there was nothing to suggest that Dr Noon presented the evidence in support of the prosecution to the Conservators for them to make a decision on any specific prosecution. She was simply instructed to prepare more prosecution cases. Because the decision to prosecute was neither controlled by the Conservators nor supervised by them, the delegation to Dr Noon was invalid. It was additionally submitted that, since at the time of the hearing before the District Judge Dr Noon no longer held the position of River Manager, there was no authority for the prosecution.[16](ii) The Conservators’ case: Before the District Judge, the Conservators accepted (see case, §13) that they would not be permitted to delegate as a whole their powers to prosecute, but disputed that this had been done in this case. It was clear from the delegation document (see case, §7) that Dr Noon worked “on behalf of” the Conservators, who were “still in the picture”, and that this should be regarded as a “devolution of responsibility” rather than delegation. They relied on the Carltona principle for the proposition that the Conservators were not obliged to bring their joint mind to bear on a single prosecution, but could act through an experienced and qualified officer.[17](iii) The decision staying the proceedings: The District Judge stated (case, §16) that he considered that the Conservators had a statutory function to fulfil which was a judicial or quasi-judicial function, and relied on the decision of the Northern Ireland High Court in Re Bell’s Application for Judicial Review [2000] NI 245, in which he stated Girvan J “pointed to an abundance of case law showing that where a person, body or body of persons is required to make a decision affecting a person’s rights or entitlements, the decision falls to be made by the designated person, body or body of persons”. He considered that that was in conflict with the Conservators view that they were not required to bring their joint mind to bear on a single prosecution. He contrasted (case, §17) the position under the 1851 and 1922 Acts with that under the Local Government Act 1972, which expressly permits local authorities to discharge any of their functions by a committee or an officer. He concluded (case, §17) that “in the absence of…statutory authority, the purported delegation was ultra vires”.[18]It was agreed (case, §18) that Dr Noon was “simply instructed to ‘prepare more prosecution cases’”, but the District Judge stated that there was nothing before him to suggest that the Conservators had considered evidence in the specific cases to bring their joint mind to bear on whether to prosecute. The document entitled “Delegation of Powers” expressly delegated the power to enforce the Byelaws and to appear before any court of competent jurisdiction for these purposes to Dr Noon and her deputy. The District Judge stated (case, §18) that, although the Conservators had been aware of the position taken by the defence, they had not served or called any evidence to suggest that it was their intention that they should retain control of prosecutions. Accordingly (case, §19) there was “a complete delegation of the function of prosecution, denuding [the Conservators] of any oversight and review, and was accordingly, again, ultra vires and void”.[19]The District Judge then considered the authorities on staying proceedings, and stated (case, §25) that, since the decision to prosecute was made by an officer without power to make that decision, and “it was clear that the decision to prosecute these cases” was not taken by the Conservators on a review of the evidence or at all, and the judge had no way of second-guessing whether, had Dr Noon simply submitted the evidence to the Conservators, they would have taken the decision to prosecute, the case was to be stayed.

V Discussion

[20]It was common ground that the Conservators had power to delegate some of their functions to a sufficiently senior and experienced person. See Respondents’ skeleton argument, §48 The question before us concerned the extent of the power in the context of instituting and conducting prosecutions. I have been assisted by the clear submissions by Mr Christopher Knight (who did not appear below) on behalf of the appellant, and by Mr Simon Butler on behalf of the respondents.[21]Save for three points, the arguments before this court were similar to those below. The first difference is that, whereas below the Conservators conceded (case, §13) they could not delegate completely, that concession was withdrawn. It was submitted that there is no general principle that a statutory body cannot delegate completely and that, in this particular context, the Conservators were able to do so in respect of the decision to prosecute. The second difference is that in this court the Conservators accepted that the principle in the Carltona case only applies to officials acting as the alter ego of a Minister of the Crown and that, outside that context, the question is whether the statute contains an implied power to delegate. The third difference is that it was no longer contended by the respondents that, if the prosecution was properly brought, the fact that, at the date of the hearing before the District Judge, Dr Noon was no longer the River Manager meant the proceedings were unauthorised.[22]It was submitted by Mr Butler that the power to delegate did not include the whole of the Conservators’ powers to prosecute. He distinguished “the task of preparing and processing a case for prosecution”, which did not have to be undertaken by the Conservators, and the “role of considering whether the Conservators approved of a proposed prosecution”, which he submitted could not be delegated. See Respondents’ skeleton argument, §51 Delegation of the latter task was not inevitable because the Conservators were in a position, with the assistance of legal advice, to make a decision on whether a person should be prosecuted. Mr Butler focussed on the nature of the power to prosecute. He submitted that, because a decision to prosecute is a serious matter affecting not only those to be charged but witnesses, on a fair reading of the Acts, the Conservators are required to make the decision to prosecute or not to prosecute.[23]Mr Butler’s submissions relied on the analogical application of the principles governing the prosecutorial process in the generality of criminal cases. See his skeleton argument, §§21 -22 and 24. He stated that prosecutors are required to be independent, objective and detached from the investigation process. They must consider whether there is sufficient evidence to provide a realistic prospect of conviction; and then consider whether a prosecution is required in the public interest. He submitted that in the light of those principles the 1847, 1851 and 1922 Acts should not be construed to impliedly permit the Conservators to delegate this important function to an employed officer. This was particularly so because there are no safeguards to prevent the employed officer from exercising arbitrary discretion. Mr Butler’s written submissions also referred to it being wrong and contrary to the rule of law for a prosecutorial discretion granted to the Conservators to be delegated to an employed officer without any indications and clarity as to the scope of any such discretion and the manner of its exercise. This was an allusion to the requirements of clarity and that there be a means of preventing arbitrary exercises of discretion in the European Convention on Human Rights, but that point was not pursued in his oral submissions.[24]Mr Knight submitted that the District Judge erred in law in concluding (case, §18) that, in the absence of statutory authority, the purported delegation to Dr Noon was ultra vires because he did not consider whether there was an implied power of delegation in the statute. Relying on the decision of this court in DPP v Haw [2007] EWHC 1931 (Admin), reported at [2008] 1 WLR 379 at [33] and [36], he submitted that the responsibility of the office of Conservators was such that delegation is inevitable and thus the 1922 Act must be construed as containing an implied power to delegate. There are two limbs to his submission. The first See his skeleton argument, §§26 - 32 is that the presumption of an implied power to delegate applies so that the Conservators are empowered to delegate functions to their senior officer, now known as the River Manager. The second is that the Conservators were entitled to completely delegate the function of deciding which cases should be prosecuted to the River Manager and there is no requirement that they must retain some decision-making function over that power. It is evident that the first limb of Mr Knight’s submission is not in fact in contention in view of the common ground to which I have referred. The question is as to the extent of the implied power.[25]There are no relevant decisions concerning the power of the Conservators to delegate their powers. Accordingly, guidance must be sought from the decisions of this and other courts in other contexts. The starting point is the principle that powers conferred by statute should be exercised by the person or authority on whom they are conferred, “even where [this] causes administrative inconvenience, except in cases where it may be reasonably inferred that the power was intended to be delegable”: Wade and Forsyth, Administrative Law, 11th ed., 259, and see also de Smith’s Judicial Review 7th ed, 5-148 ff.[26]One can only assess how strict this principle is by examining the approach of the courts to the question whether statutory provisions impliedly authorise delegation. As in many areas, this is likely to vary according to the context and the nature of the power. There is a strong presumption against interpreting a grant of legislative power as empowering delegation. There is also a tendency to adopt a more restrictive approach to implied authority to delegate in the cases of the proceedings of courts and cases involving other “judicial” and “disciplinary” powers. A strict approach is also likely if the power is conferred on the holder of a public office because of the personal qualifications and experience that those who hold the office can be expected to have. Re Bell’s Application for Judicial Review [2000] NI 245, the decision relied on by the District Judge, is an example of a strict or restrictive approach. But where the exercise of the power in question is not final or conclusive, where the power is given to the head of an organisation which is itself hierarchically structured, and where the responsibilities of the person or body named in the statute are such that the court considers delegation is inevitable, a less strict approach is taken and authority to delegate is likely to be implied.[27]The propositions in the general statements in the last paragraph that are relevant to this case can be illustrated by considering four of the very large number of decisions on the general question of delegation. It is convenient to do so chronologically, before explaining why I consider that the District Judge placed undue weight on Re Bell’s Application for Judicial Review.[28]Nelms v Roe [1970] 1 WLR 4 concerned section 232(2)(a) of the Road Traffic Act 1960 which empowered “a chief officer of police” to require the owner of a vehicle to give information as to the identity of a driver of the vehicle who is alleged to have committed a motoring offence. The justices dismissed an information against the owner of a vehicle for failing to provide the information because the notice in question was not signed by the relevant chief officer of police, the Commissioner of Police of the Metropolis, but by a police Inspector who dealt with the motoring offences in the area and who had signed it with the authority of his Superintendent. An appeal by way of case stated by the prosecution to this court was allowed. The Lord Chief Justice, Lord Parker, rejected the applicability of the alter ego principle stated in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 beyond the case of Ministers of the Crown. He stated (at 8-9) that the Superintendent had implied delegated authority from the Commissioner by reason of his position. He also stated that, notwithstanding the general rule prohibiting a delegate against sub-delegation, it was proper “to infer that the delegation which [he found] exists from the Commissioner to [the] Superintendent includes power for him to get a person in his unit in a responsible position, in this case [the Inspector] to deal with the matter”. He concluded “in other words … the proper inference to be drawn from the facts here is that a further delegation to [the Inspector] was one which was done with the implied authority of the Commissioner, the original delegator”.[29]The next case is Provident Mutual Life Assurance Association v Derby City Council [1981] 1 WLR 173. That case concerned completion notices issued pursuant to the General Rate Act 1967 in respect of unoccupied property. The power to serve such notices was conferred on the rating authority, the Council. The Council delegated the administration of this matter to its Treasurer, but the notices were signed by the Council’s principal rating assistant and had not been seen by the Treasurer before being sent out. It was held that(1) the General Rate Act plainly contemplated that the machinery for enforcement and collection of rates would be operated not by a senior official of the rating authority but by his staff; and(2) what the assistant has done was part of that proper administration. Lord Roskill stated (at 181):
“It is clear that the … treasurer never personally applied his mind to any of the matters covered by the notices. The crucial question is therefore whether the actions and opinion of [the principal rating assistant] complied with the requirements of [the statute]. It is important to note at the outset that what is required by these provisions is simply the formation of an opinion. That opinion so formed is not final and conclusive. There is a right of appeal … to the county court. It is the learned judge’s opinion which is finally decisive.”
Since statute has conferred a general power on local authorities to discharge their functions through committees or officers for many years (see section 101 and 102 of the Local Government Act 1972 as amended, and Birmingham DC v O [1983] 1 All ER 497, 499 per Lord Brightman) caution is needed in considering the applicability of what was stated in that case outside the local government context. The reference that in determining the extent of implied authority to delegate the fact that the opinion of the rating assistant was not conclusive and that there was an appeal against any notice is however, helpful.[30]R (Chief Constable of the West Midlands Police) v Birmingham Justices [2002] EWHC 1087 (Admin) concerned the power in section 1 of the Crime and Disorder Act 1998 to bring an application for an anti-social behaviour order (“ASBO”). The power is conferred on the “relevant authority”, defined as the local council or the Chief Constable for the area. It was recognised by this court (at [16]) that deciding whether to apply for an ASBO “is a problematic and sensitive task”. But it was held that the Chief Constable was entitled to delegate the decision through the hierarchy to a police sergeant. Sedley LJ (at [12]) considered that the Carltona principle was “sufficiently ample” to allow functions such as those under section 1 to be carried out by an officer through whom he or she is accountable, and (at [14]) could not see a good reason to differentiate “where Parliament has conferred powers on the holder of a named office, between those offices which are at the apex of an organisation itself composed of officers or otherwise hierarchically structured, and those offices designated by Parliament because of the personal qualifications of the individual holder”. Sedley LJ stated (at [16]) that it was for the Chief Constable to decide who is best suited to undertake “the problematic and sensitive task” on his behalf, and that “it is not for the court to second-guess him unless his choice is irrational or otherwise beyond his powers”[31]Nelms v Roe and the Birmingham Justices case were considered in DPP v Haw [2007] EWHC 1931 (Admin), reported at [2008] 1 WLR 379. In that case the issue of delegation arose in the context of the offence of carrying on a demonstration in the vicinity of Parliament without authorisation under section 134 of the Serious Organised Crime and Police Act 2005. Section 134 provided that the authorisation be by the Metropolitan Police Commissioner but the Commissioner had delegated his functions under the section to an officer of the rank of Superintendent or above. Mr Haw was granted authorisation to demonstrate by a Superintendent, but subject to conditions. When he was prosecuted for knowingly failing to comply with some of those conditions, the District Judge held that there was no case to answer because the Commissioner had no power to delegate his statutory duties under section 134 other than to a Deputy Commissioner or an Assistant Commissioner, and that, in any event the conditions lacked clarity and were unworkable. This Court (Lord Phillips LCJ and Griffiths Williams J) accepted the submissions by the prosecution that there was power to delegate, but declined to interfere with the District Judge’s conclusion that the conditions lacked clarity and were unworkable and dismissed the appeal. On delegation, the court stated:
“33. …Where a statutory power is conferred on an officer who is himself a creature of statute, whether that officer has the power to delegate must depend on the interpretation of the relevant statute or statutes. Where the responsibilities of the office created by statute are such that delegation is inevitable, there will be an implied power to delegate. In such circumstances there will be a presumption, where additional statutory powers and duties are conferred, that there is a power to delegate unless the statute conferring them, expressly or by implication, provides to the contrary. Such a situation is, in practice, indistinguishable from one in which the Carltona principle applies. … 34. …[H]aving regard to the statutory role of the Commissioner, one would expect Parliament, when conferring powers to be exercised by the Metropolitan Police, to confer them on the Commissioner and to leave him to delegate the exercise of those powers as appropriate. … 36. When the practicalities are considered, it is plain that Parliament cannot have intended that the Commissioner should determine the conditions himself. Evidence was given to the judge that, at the time of the hearing, there were 1,200 to 1,300 demonstration applications in the vicinity of Charing Cross Station alone. Determining the appropriate conditions is a technical matter, depending on the precise location and nature of the demonstration that is planned. The Commissioner cannot have been intended himself to determine, for instance, the number and size of banners or placards to be used at each demonstration.”
[32]I return to Re Bell’s Application for Judicial Review [2000] NI 245. In that case, after carefully reviewing the authorities, Girvan J reached the conclusion relied on by the District Judge. He stated (at 258) that “where a person, body or body of persons is required to determine a question affecting a person’s rights or entitlements the decision falls to be made by the designated person, body or body of persons”. I consider that only limited assistance can be derived from that case. First, its context was very different to that of the present case. The Northern Ireland Health and Social Service Board was obliged under the relevant legislation to authorise the relocation of a pharmacy business if it was satisfied that it was a “minor relocation”, and had no power to authorise it if it was not a “minor relocation”. The Board delegated the power to decide whether to authorise the relocation of a pharmacy business to its Director of Pharmaceutical Services, who determined that Ms Bell’s application for authorisation was not a “minor relocation”. The delegation was to decide a question of the extent of the Board’s jurisdiction (see [2000] NI 245 at 258) which had an effect on Ms Bell’s ability to operate her pharmacy business lawfully. It was for that reason that Girvan J considered the matter delegated could not be characterised as a mere administrative matter.[33]In the present case, the issue concerns a decision to bring a prosecution. While the decision to issue a summons is a judicial act, the decision to bring a prosecution is a matter for the prosecutor alone: see Magistrates Courts Act 1980, section 1 and Criminal Procedure Rules 2014 SI 2014 No 1610, Part 7. The decision has a practical effect but is subject to the control of the court, first, and generally fairly quickly, when it decides whether to issue a summons, and, if it does, in the conduct of the trial.[34]Secondly, I note that Girvan J did not consider Nelms v Roe. In that case, although the failure to provide the information was a criminal offence, a far less strict approach was taken to the question of implied authority to delegate.[35]Thirdly, and significantly, in the light of the decisions in Haw’s case and the Birmingham Justices case, Girvan J’s formulation appears too wide. Although those cases involved important common law freedoms, indeed fundamental rights, this court took a different and less restrictive approach than that taken by Girvan J. Haw’s case involved freedom of expression and of assembly, freedoms which are regarded as important by the common law and are also fundamental rights protected by the European Convention of Human Rights. The Birmingham Justices case involved a court order which, while a civil order, could have a significant effect on an individual’s freedom of movement.[36]With that summary of the authorities, I turn to the question of determining the extent of the implied power in the 1847, 1851 and 1922 Acts. My starting point is that the Conservators are statutory officers at the apex of a hierarchical organisation consisting of other office-holders, referred to in the governing statutes and Byelaws. They are either elected members of the relevant local government areas or senior members of the University of Cambridge. On examining the Acts, while some of the functions referred to are specifically required to be carried out by named office-holders, in respect of other functions there is no such limitation, or the reference is only to the Conservators. The examples of functions in the latter category include the powers under sections 38 and 43 of the 1851 Act and sections 14, 17 and 21 of the 1922 Act, to survey the river and remove impediments, erect toll houses, maintain and improve the river, erect piers, and establish and maintain ferries.[37]Mr Knight’s proposition that, in the case of provisions which refer only to the Conservators, unless the Conservators are able to delegate completely, the consequence would be that these functions would have to be performed by the Conservators personally, in my judgment overstates the position. The provisions to which he referred confer powers but do not impose duties. It does not follow that because it is inevitable that the physical labour needed to survey the river and remove impediments, or to erect toll houses and piers will inevitably be done by others that the Conservators are impliedly authorised to delegate entirely decisions as to when and where to survey or to place a pier or a toll house.[38]I reject Mr Butler’s submission that Haw’s case is distinguishable because the statutory power here was not conferred on an officer or employee but on the Conservators as a public body. I do not consider the distinction between an officer and a public body is determinative in this context. The Conservators have been given power to employ officers and staff by section 65 of the 1847 Act and section 33 of the 1851 Act. The structure established by the statutes involves an Annual and four Quarterly Meetings for the conduct of the Conservators’ business. It is possible to hold a Special Meeting but this possibility appears to cater for unusual circumstances rather than ordinary business, and I note that the provisions for monthly meetings in the 1847 Act were not incorporated into the 1922 Act. These factors mean that Parliament was unlikely to have intended them personally to carry out the entirety of the various functions allotted to “the Conservators” by the 1851 and 1922 Acts and the Byelaws. Where is the line to be drawn?[39]In my judgment, a distinction must be made between the determination of policy on such matters and the operational execution of such policy. Notwithstanding the difficulties at the margin of locating the boundaries of these categories, I consider that the Conservators are not impliedly authorised to delegate broad policy on such matters. They can, in my judgment, however, delegate the implementation of such policies to officers who will have some discretion as to how, operationally, to execute the policy in question.[40]Is there, however, a distinction between those powers and the power to prosecute because it is much easier to conclude that it is inevitable that works of construction and clearing were to be planned and undertaken by skilled workpeople rather than the Conservators, whereas the decision to prosecute is not something which it is inevitable that the Conservators must delegate, since they could make the decision themselves after taking legal advice? I do not consider that there is. The function of enforcing the many Byelaws issued by the Conservators and prosecuting those against whom there is evidence that they have breached them is undoubtedly an onerous and operational task. Decisions may need to be taken quickly. The Conservators meet quarterly (see section VII of the 1851 Act) and there are obvious practical difficulties of a body comprised of individuals which represent other bodies which only meets quarterly conducting criminal prosecutions on a day-to-day basis. Accordingly, although the decision to prosecute is a serious one, some delegation to the most senior officer is, in my judgment, inevitable in the sense that word was used in Haw’s case. Again, the question is where the line is to be drawn.[41]Mr Butler submitted the distinction is between the decision to prosecute or not to prosecute, and the process of gathering evidence and preparing the case. He submitted the former decision must be made by the Conservators, but the process of gathering evidence and preparing the case can be undertaken by an officer. His submission would require the Conservators to assess the evidence in every case. The force of this submission depends on Mr Butler’s analogy with the ordinary criminal process and the separation now in it between the police investigation and the Crown Prosecution Service’s decision to prosecute or not to prosecute. I do not consider that this analogy assists in justifying the submission that the line should be drawn in this way in the case of the Conservators. First, it involves construing a statutory scheme dating from the mid-19th century, the most recent part of which is 92 years old, in the light of the approach to criminal proceedings which has developed since the establishment of the Crown Prosecution Service in 1985. Secondly, it ignores the position of private prosecutions.[42]One explanation for the absence of an express provision for the delegation of the power to prosecute is that, at the time the 1851 Act was passed, all prosecutions were technically private prosecutions. There was thus no need to make explicit provision for the delegation of a power which could be exercised by any individual. Although, by 1922, the office of Director of Public Prosecutions had been established, the Director undertook few prosecutions prior to 1985. The history is summarised in R (Gurja) v Crown Prosecution Service [2012] UKSC 52, reported at [2013] 1 AC 484 at [10] – [16] and [88] – [90] per Lord Wilson and Lord Mance. Lord Mance stated (at [89]) that “quite apart from police prosecutions…a not inconsiderable number of bodies and some individuals have to this day continued to institute and pursue truly private prosecutions…”.[43]I have concluded that the presumption of an implied power to delegate, which it is accepted applies in relation to certain of the Conservators’ functions, also applies to the institution of prosecutions. I consider that it is for the Conservators to set the general policy regarding prosecutions, but that, as far as individual prosecutions within such general policy are concerned, there is power in their senior officer, the River Manager, to make the operational decisions. In reaching this conclusion, I have taken account of the fact that the decision to institute a prosecution is not determinative of the rights and entitlements of those affected. The court has control in the sense of deciding whether to issue the summons and then in hearing the case. I have also taken account of the fact that to require the Conservators to act as a body in the case of each individual against whom a prosecution is being considered would not be practical since they conduct their business at quarterly meetings.[44]My conclusion that the legislation empowers the Conservators to discharge their functions through their clerk and River Manager is also, to some extent, supported by section 61 of the 1847 Act, which was incorporated into the 1922 Act. It provides that it shall be sufficient for the name of the clerk to be stated as the party representing the Conservators in “actions or suits”. Moreover, although section 64 of the 1847 Act is not applicable to the present context because it is concerned with bills of indictment against those who “steal or wilfully injure” the Conservators’ property, the fact that there is no exception in section 61 for such bills of indictment is an indication that the power in section 61 authorises the clerk/River Manager to act when bringing or defending any legal proceedings.[45]The first question in the case stated asks whether the Conservators were entitled “to delegate completely” the function of bringing prosecutions. Other than the instruction to prepare more prosecution cases against unlawful punt operators, the case stated does not refer to anything which might be a general policy adopted by the Conservators, or indicate that what was done by the River Manager in this case contravened any such policy. But, on a strict interpretation of the first question, in view of the word “completely”, for the reasons I have given the answer must be “yes”. It is, however, apparent that I have concluded that, whilst broad policy about prosecutions is for the Conservators, they are entitled to delegate to the River Manager the investigation of whether there has been a breach of the Byelaws in a particular case, and whether there is sufficient evidence to proceed, and thus to decide whether or not to prosecute. Those are operational decisions.[46]I turn to the second question. Mr Butler submitted that all the Conservators had done was to instruct Dr Noon to prepare more prosecution cases, and the District Judge concluded that there was no evidence to suggest that the Conservators had considered the evidence in those cases. It followed, he maintained that the District Judge was entitled to conclude, on the evidence, that there was “a complete delegation of the function of prosecution, denuding [the Conservators] of any oversight and review…”. Mr Butler argued that Mr Brown’s affidavit did not provide evidence in support of such oversight or review by the Conservators against each proposed defendant on each charge, and that the Conservators thus improperly delegated and did not consider the possibility that individual cases might not meet the evidential or public interest test.[47]The evidence as set out in the case stated shows that Dr Noon received instructions from the Conservators on 26 September 2013 to prepare prosecutions against particular types of person, namely unlawful punt operators. She was specifically instructed to proceed with those prosecutions by the Conservators’ Chair and Deputy Chair on 2 October 2013, and following this the summonses were laid and issued on various dates from 4 November until 20 December 2013. She kept the Chair and the Deputy Chair informed of the progress of the prosecutions, and reported to the Conservators as a whole on 23 January 2014. The Conservators had decided on a policy of prosecuting unlawful punt operators. It appears from Mr Brown’s affidavit that there was a particular concern with punt operations at Garrett Hostel Bridge, which was not an officially recognised punt operating station. For the reasons I have given earlier in this judgment, I do not consider that the Conservators were obliged personally to consider whether each individual respondent should be prosecuted. They were impliedly entitled to delegate that decision to the clerk or River Manager.[48]Mr Butler also submitted that what happened was procedurally unfair because the decision of the Conservators simply to instruct Dr Noon to prepare more prosecution cases amounted to them fettering their discretion in the matter, and because the respondents were not afforded the opportunity of making representations before the summonses were served. It was, however, not suggested that the respondents were not cautioned and warned of the risk of prosecution if they continued the activity. This way of putting the matter does not, in my judgment amount to an allegation of procedural unfairness but is a different way of making the unauthorised delegation point.[49]For these reasons, I have concluded that the answer to the second question is “no”. The District Judge was not entitled, on the agreed facts, to find that the Conservators had not shown that they exercised oversight and review of their officer’s prosecutorial function. Accordingly, this appeal should be allowed, and the case sent back to the South Cambridgeshire Magistrates’ Court to continue the hearing. Mr Justice Holroyde:[50]I agree.

Cited in 2 later judgments