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URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/898.html
Cite as: [2013] EWHC 898 (Admin)

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Neutral Citation Number: [2013] EWHC 898 (Admin)
Case No: CO/5035/2012

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
18/04/2013

B e f o r e :

PRESIDENT OF THE QUEEN'S BENCH DIVISION
and
MR JUSTICE SIMON

____________________

Between:
R (on the application of Barons Pub Company Limited)
Claimant
- and -

Staines Magistrates' Court
Defendant
- and -

Runnymede Borough Council
Interested Party
- and -

Director of Public Prosecutions
Intervener

____________________

Mr David Lamming (instructed by Horsey Lightly Fynn) for the Claimant
Mr Ethu Crorie (instructed by Solicitor, Runnymede Council) for the Interested Party
Mr Tom Little (instructed by CPS) for the Intervener

Hearing date: 14 March 2013

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    President of the Queen's Bench Division :

    This is the judgment of the court.

  1. In these appeal proceedings by way of Judicial Review the claimant (the Owners) challenged the decision of District Judge Workman given on 19 April 2012 refusing to stay as an abuse of process the prosecution of the Owners for breach of regulations under the Food Hygiene (England) Regulations 2006 (the Regulations) made to implement EU Regulations, in particular regulation EC 852/2004.
  2. The background facts

  3. The Owners operate a food business at four pubs; one of those pubs is the Rose and Crown Public House, Green Road, Thorpe in Surrey. The regulation of the hygiene of its food business under the Regulations is the responsibility of the Runnymede Borough Council (the Council) and in particular its Environmental Protection Division.
  4. On 28 March 2011, one of the Senior Environmental Health Technicians, Mr Ashton, who had been employed by the Council in this capacity since April 1992, visited the Rose and Crown to carry out a routine food hygiene inspection. It was apparent to him that the Owners had not registered as a Food Business Operator since taking over the pub in June 2007. That was confirmed by the staff at the premises.
  5. Mr Ashton then carried out an inspection of the pub. In his report he set out six matters that were Hazards, including the potential for the growth and survival of pathogenic micro-organisms due to the lack of cleaning of food equipment and food contact surfaces, the potential for physical contamination of food due to the lack of cleaning of structural surfaces and food equipment, the potential for physical contamination due to food being stored uncovered in the refrigerators and freezers, the potential for cross-contamination due to the use of dirty cloths in the food preparation area, a potential for contamination of food due to lack of training of food handlers and a potential for cross-contamination due to hand contact surfaces being in a dirty condition. The report then went on to set out how much of the kitchen area, floors and walls were dirty, greasy or contained a significant amount of food debris and how equipment was dirty and heavily grease-stained. His statement with accompanying photographs sets out the detail of what he contended were the dirty conditions of the kitchen.
  6. Mr Ashton then said he told the Chef Manager of the contraventions of the Regulations that had been found and stated that the kitchen required deep cleaning. He explained that the Owners had the option to close the kitchen voluntarily.
  7. He then said he spoke to Mr Price, the Managing Director of the Owners. Mr Ashton said he told him that if the Owners continued to serve food and any complaints were received, then the Owners could face further statutory action; he suggested voluntary closure. Mr Price disputes he was told of voluntary closure. We cannot resolve that issue, but must proceed on the assumption that the prosecution case can be proved.
  8. Mr Ashton noted that customers came in and food was prepared for them without any cleaning taking place, even though he had clearly explained the Hazards involved. He said he informed the Chef Manager and the head chef that he would return the following day, by which time all cleaning issues should have been addressed, unless voluntary closure was considered. Later in the day he was told by Mr Price that they would voluntarily clean the kitchen overnight.
  9. The following day, 29 March 2011, Mr Ashton re-inspected the kitchen. He said he was disappointed that very little effort had been made to clean the kitchen. The conditions were so unacceptable that he took another series of photographs. He noted that in the storeroom the floors, walls, shelves and ceiling surfaces were still dirty; in the kitchen the food equipment was still dirty and the floor still contained food debris. The ceiling had not been cleaned. He then used paper towelling to run over the floor and wall surfaces and some equipment; the dirt came off with ease. He said he told the Chef Manager that no effort had been made to clean the kitchen effectively. According to Mr Ashton the Chef Manager stated they had cleaned that night but later thought it was not good enough. Mr Ashton said he told them that voluntary closure would have allowed them more time to clean and there were still hazards present. Mr Ashton said he informed them that he considered the training to be inadequate, if they thought they had cleaned the kitchen to any reasonable standard.
  10. He then compiled his report and sent a copy to the Owners under cover of a letter dated 29 March 2011. In that letter he stated:
  11. "As I noted a significant amount of contraventions of the above legislation I must caution you:
    "You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.""

    After summarising in the letter the matters we have set out above, he told the Owners that little or no attempt had been made to clean parts of the pub; this highlighted the importance of closing the premises to clean it thoroughly advice that had been ignored. He asked the Owners to inform him in writing by Friday, 8 April 2011 why the kitchen and equipment was in such a dirty condition and why there were no permanent procedures in place at the time of his inspection. He also wanted to know why the kitchen was not adequately cleaned prior to his re-visit. The letter concluded with the sentence:

    "I have therefore passed this report to my manager with a recommendation for further statutory action."
  12. On 6 April 2011 Mr Price on behalf of the Owners wrote to Mr Ashton. The letter explained the efforts that had been made to clean and what else had been done.
  13. The decision to prosecute

  14. On 18 April 2011 Mr Ashton sent a "Prosecution Report" recommending prosecution. It summarised the matters we have set out, the offences which, on that evidence, he considered had been committed and a comment that a defence of due diligence under Regulation 11 would not be successful due to the dirty kitchen structure and dirty food equipment, the lack of effective training and the lack of any up-to-date documented procedures. He recommended prosecution for offences on 28 and 29 March 2011. Mr Ashton's recommendation was approved by Mr D Speight, the Head of Environmental Protection. The report then continued:
  15. "Under the scheme of delegation, authority to issue proceedings rests with the Corporate Head of Governance and Assets in consultation with the Director of Technical Services. (Council Constitution, Scheme of Delegation April 2011).
    I, PETER SIMS, director of Technical Services, Runnymede Borough Council, and an officer authorised by the said Council in this behalf:
    Having considered the current Environmental Services enforcement policy and the breach of Regulation 17 of the Food Hygiene (England) Regulations 2006 by The Barons Pub Company Ltd at the Rose and Crown, Green Road, Thorpe, Surrey, TW20 8QL, the extent of the breach, and in particular the witness statement of Stephen Charles Ashton together with the supporting evidence in respect of 28 March and 29 March 2011 and being satisfied that the offence has been committed, recommend prosecution.
    Signed P Sims Dated 18.4.11
    Peter Sims
    Director of Technical Services Runnymede Borough Council
    Authorisation to proceed with this prosecution is hereby given:-
    Signed Mario Leo Dated 21/04/11
    Corporate Head of Governance and Assets Runnymede Borough Council"
  16. On 5 May 2011, a summons was issued requiring the Owners to answer eight alleged contraventions (only on 28 March) of Regulation 17 of the Regulations and various provisions of the EU Regulations.
  17. It appears that in the meantime the Owners set about taking further steps to improve the hygiene at the pub. In a statement made by Mr Price on behalf of the Owners for the hearing in the Magistrates' Court he sets out what he described as his attempts to follow, "the informal appeal procedure", to make complaints about the way the case was being handled and the progress they were making.
  18. The attempts by the Owners to stop the prosecution

  19. The summons issued on 5 May was returnable on 10 June 2011. Prior to and at that hearing, the solicitors acting for the Owners appeared to have attempted to persuade the Council either to abandon the prosecution or to come to some sort of "plea bargain". That hearing was adjourned.
  20. On 17 June 2011 the Owners' solicitors wrote a six page letter to the Council seeking a review of the decision to prosecute; it was suggested that the public interest test and the policies relating to prosecution had not been followed. There might therefore be an abuse of process. That letter was followed on 27 June 2011 by another letter to the Council pointing out a report of a prosecution of another restaurant which it was said gave rise to inconsistency.
  21. It appears there was a further hearing before the Magistrates' Court on 7 July 2011. The same day the assistant solicitor to the Council replied to the letters of 17 and 27 June making it clear that the prosecution was to continue and setting out the reasons for that. The response of the Owners' solicitors was to write to the Chief Executive of the Council asking him to look into the decision to prosecute. That elicited on 21 July 2011 a response from Mr Mario Leo, the Corporate Head of Governance, explaining in some detail why the decision to prosecute had been taken and explaining why it complied with the Council's policy. The response to that letter was a further letter to the Chief Executive of the Council from the Owners' solicitors challenging the decision to prosecute and asking for a dialogue to discuss the charges and whether the Council would be willing to consider discontinuance.
  22. The Council resolved to continue. There were then case management hearings on 21 and 28 September 2011; at the latter of those the Owners said they would seek to stay the proceedings as an abuse of process.
  23. At some stage, which is not clear from the papers or information supplied to the court, the Council made available the prosecution report to which we have referred at paragraph 11 above.
  24. The Council's enforcement policy

  25. S.40 of the Food Safety Act 1990 and paragraph 24 of the Regulations provides that the Secretary of State may issue Codes of Recommended Practice as regards the enforcement of the Regulations. Under that power, the Secretary of State issued in 2008 a Code of Practice which set out at Chapter 3 general provisions in relation to enforcement policies. It required the authorities to have policies that ensured that enforcement action was reasonable, proportionate, risk-based and consistent with good practice; it provided:
  26. "Authorised officers should take account of the full range of enforcement options. This includes educating food business operators, giving advice, informal action, sampling, detaining and seizing food, serving Hygiene Improvement Notices/Improvement Notices, Hygiene Prohibition Procedures/Prohibition Procedures and prosecution procedures.
    Except where circumstances indicate a significant risk, officers should operate a graduated and educative approach (the hierarchy of enforcement) starting at the bottom of the pyramid i.e. advice/education and informal action and only move to more formal action where the informal action does not achieve the desired effect. This should lessen the likelihood of a legal challenge."

    It noted that departures from the policy should be exceptional and the reasons for any departure should be recorded.

  27. The Code of Practice went on to provide at paragraph 3.1.10 that a decision to prosecute should be taken at the earliest opportunity. In addition to referring to the two tests under the Code for Crown Prosecutors (Sufficient Evidence and Public Interest) it stated:
  28. "- Using the hierarchy of enforcement structure, whether a prosecution is more appropriate as opposed to the use of, say, informal action or an enforcement notice. (Officers should be aware, however, that if a Hygiene Improvement Notice or similar is used, it too is a matter which can go before the Court, and the Officer should be able to justify his actions. The criteria below will be of assistance):
    - That the Enforcement Policy has been adhered to.
    - Whether any other action, such as issuing a caution in accordance with Home Office Circular 30/2005 would be more appropriate."

    The Code then provided:

    "Officers should explain the reason for bringing a prosecution and record that reason which may be later referred to in open court."
  29. Chapter 3.2 set out the circumstances in which Hygiene Improvement Notices should be used. Two of those circumstances were where there was the need for formal action as a proportionate response to the risk to public health and where the authorised officer had reason to believe that an informal approach would not be successful. The chapter recorded that a Hygiene Improvement Notice would be inappropriate where the contravention might be continuing and where there was a breach of good hygiene practice but no failure to comply with an appropriate regulation.
  30. In accordance with the Code of Practice, the Council had prepared an Environmental Protection Enforcement Policy (the Enforcement Policy). It set out its objectives which included the protection of the public, the need to prevent practices prejudicial to the health of the public and:
  31. "To achieve compliance through informal action and through an enabling and supportive relationship with businesses and the public. Formal enforcement procedures, including prosecution, will only be used where there is a serious or imminent risk of injury to health or personal injury, or a blatant disregard for the law, deliberate intent or negligence."

    Paragraph 6 set out what was described as a range of enforcement actions. These were:

    "6.1 Informal Action
    Enforcement procedures such as verbal & written advice, providing information leaflets and warning letters."

    The paragraph then referred to a first form of formal enforcement action.

    "6.2 Formal Action
    6.2.1 Statutory notices, requiring compliance immediately or within a specified time and prosecutions will normally be confined to serious breaches of the law. For breaches posing a nuisance or considerable risk to the health of the public or specific individuals, the Council will serve either an improvement or abatement notice requiring compliance immediately or within a specified time."

    There was then a reference to other notices but the paragraph went on to specify that in addition to these notices the person responsible could be prosecuted in the Magistrates' Court.

  32. The second form of formal enforcement action was the issuing of a formal caution where the offence was admitted. The third was a fixed penalty notice and the fourth was prosecution. It was made clear that the decision to prosecute did not preclude the issue of legal notices as well. It was noted that prosecutions had a preventative role in drawing attention to the need for compliance and the maintenance of good standards. It was made clear that the Council would apply the statutory Code of Practice as well as Home Office guidance.
  33. Paragraph 6.4.1 of the Enforcement Policy set out the matters that would be considered in deciding whether to prosecute:
  34. "6.4.1.1 The gravity of the offence/s, for example whether:-
    6.4.1.2 The general record and approach of the offender, for example:-
  35. The Enforcement Policy then set out in paragraph 7 the standards to be applied by the Council which included consistency, openness, helpfulness, proportionality and publicity. Under the heading "Openness" it was made clear that the Council would provide an opportunity to discuss the circumstances of the case and, if possible, resolve points of difference before enforcement action was taken unless immediate action was required. It made clear under the heading of "Publicity" that the Council would publicise businesses it had successfully prosecuted.
  36. The decision of the District Judge

  37. The Owners' application to stay the proceedings on the basis that the prosecution was an abuse of process came on before District Judge Workman on 22 December 2011.
  38. The judge, after receiving written evidence of the matters we have summarised, concluded that the Statutory Code of Practice, to which we have referred at paragraph 19 and following, imposed an obligation on the local authority to have regard to its policy when deciding whether or not to prosecute. He concluded that it would be open to the local authority to decide to prosecute in circumstances which were outside the Enforcement Policy, but only if it specifically addressed the issue and was able to provide a reasoned decision for going outside the Enforcement Policy. It was the Council's case before the judge that the decision to prosecute was made in the belief there was evidence of a blatant disregard of the law, deliberate intent or negligence. As the judge concluded that that was not apparent from Mr Ashton's report, the judge invited the Council to call as a witness the person responsible for the decision.
  39. He adjourned the matter to enable Mr Mario Leo to attend, fixing the adjourned hearing some three months later. On the day of the resumed hearing, 23 March 2012, Mr Leo was in Hong Kong. Mr Leo provided a statement:
  40. "I having been consulted by the Director of Technical Services, Mr Peter Sims in April 2011 authorized the prosecution of Barons Pub Ltd [sic] for offences arising from Mr Ashton's visits to the Rose and Crown Green Road Thorpe Surrey on the 28 and 29 March 2011. I did so having reviewed the evidence contained in the prosecution file presented to me by officers from the Environmental Protection Division and with due regard to the Code for Crown Prosecutors having satisfied myself that both the evidential test and the public interest test had been met. I gave my authority to prosecute on the 21 April 2011 as per the attached prosecution form."
  41. The judge concluded the statement was insufficient and did not deal with the issues Mr Leo considered in deciding whether or not the Enforcement Policy was being followed. The judge held that it was more likely than not that Mr Leo had not considered the Enforcement Policy as he was required to do under the legislation.
  42. The judge then went on to hold that he also had to consider whether the bringing of the proceedings was oppressive. He came to the view that, if the kitchens on the day of the inspection were so lacking in cleanliness to infringe the Regulations, a conviction could not be regarded as oppressive, unless a defence on the facts could be raised. He considered that the points that had been made on behalf of the Owners could be made in mitigation. He concluded that there would be no oppression and refused a stay.
  43. The prosecution of the Owners has been stayed by this court pending the determination of this appeal by way of judicial review.
  44. The issues on the appeal by way of judicial review

  45. Three issues arose on the appeal by way of judicial review.
  46. i) Could the Owners challenge the decision to prosecute otherwise than through an abuse of process application?

    ii) Did the Council fail to have regard to its Enforcement Policy?

    iii) Was it necessary for the Owners to show there was oppression and, if so, was there oppression?

    Issue 1 : The challenge to the decision to prosecute

  47. It appeared from the way in which the Owners initially formulated their appeal by way of judicial review that they were contending that the decision to prosecute could be challenged in the Magistrates' Courts. It appears that at the renewal hearing when the Single Judge granted permission to the claimant, it was suggested that the Owners might want to argue that the Magistrates' Court should be able to review a prosecutorial decision as a "mini judicial review". Following that hearing the matter was drawn to the attention of the Crown Prosecution Service. In the result the Director of Public Prosecutions applied to intervene and was granted permission on 19 February 2013.
  48. In the helpful skeleton argument provided on the Director's behalf by Mr Tom Little, it was pointed out that the jurisdiction of the Magistrates' Court was limited to the statutory powers granted under the Magistrates' Court Act 1980, the Courts Act 2003 and the Criminal Procedure Rules; the Court had no power of review of a prosecutor's decision.
  49. The volume of business before the Magistrates' Courts is very substantial. In the 12 months ending September 2012 there were 1.47 million cases where defendants were proceeded against in the Magistrates' Court; 516,000 were for summary motoring offences, 578,200 for summary non-motoring offences and 377,000 for indictable only or either way offences. It was submitted on behalf of the Director that to permit Magistrates' Courts to review prosecutorial discretion in any way other than through the abuse of process procedure would have a severe effect upon the conduct of business in those courts.
  50. In our view the Magistrates' Courts have no power of review of a prosecutorial decision other than through an abuse of process application. As has been made clear in a number of decisions, including R v A(RJ) [2012] EWCA Crim 434, [2012] 2 Cr App R 80, and more recently in Moss & Son Ltd v CPS [2012] EWHC 3658 (Admin), if there is a challenge to the decision to prosecute, it must always be made in the criminal proceedings, unless there is some reason why it cannot be so made. The only way in which it can be made in Magistrates' Court proceedings is by an abuse of process application. That in itself is an exceptional remedy. It is only if that cannot be done, that there can be an application of this court: see R (Pepushi) v CPS [2004] EWHC 798 (Admin) at paragraphs 42-50, R v A(RJ) and Moss. The circumstances in which an application can be made to this court are likely to be very rare: an instance is R (E, S and R) v Director of Public Prosecutions [2011] EWHC 1465 (Admin).
  51. Issue 2 : The Council's application of its Enforcement Policy

  52. Mr Lamming on behalf of the Owners advanced, with clarity and economy, the submission, first that the judge was right to hold that the Council had not, on the evidence before him, applied its own Enforcement Policy. There was a clear hierarchy of measures. The Council had had no regard to that. It was, of course, possible for the Council to have prosecuted outside the terms of the policy, but it had not provided any evidence that (or why) it had done so.
  53. We accept Mr Lamming's submission that the policy of the Council, as envisaged by the Code of Practice, set out what the Code of Practice described as a "hierarchy" of enforcement measures.
  54. The first question, therefore, is whether the Council followed the hierarchy. The Council contended that it had and had fully complied with its Enforcement Policy. In our judgment it is clear that the Council did. Mr Ashton gave a warning on his visit on 28 March 2011 and an opportunity to clean the premises, if possible without closing them or by closing them voluntarily until they were cleaned. On the evidence that Mr Ashton provided in respect of his visit on the following day, there was strong evidence that the Owners had failed to clean the premises to an acceptable standard and had desisted from voluntarily closing the premises until they were clean. It was said on the Owners' behalf that Mr Ashton had not given them sufficient time; we cannot accept that submission. He had offered them the alternative of voluntary closure.
  55. In our view, given the grave risks to public health that can arise from a kitchen that was in the state that Mr Ashton said he found it on 28 and 29 March, Mr Ashton was entitled (if his evidence is accepted) to take the view that there had been a serious breach of the hygiene regulations which an informal warning had failed to remedy.
  56. It was next submitted by Mr Lamming that instead of prosecution, the Council should have considered utilising the process described in the Council's Enforcement Policy of serving a statutory notice and obtaining the order of the Magistrates' Court to close the premises. Part 2 of the Regulations provides for Hygiene Improvement Notices, Hygiene Prohibition Orders and Hygiene Emergency Prohibition Notices and Orders. It was suggested by Mr Lamming that the appropriate course would have been to serve a Hygiene Emergency Prohibition Notice and then to secure an order from the Magistrates' Court.
  57. However, the Council's Enforcement Policy makes clear that issuing such notices and prosecuting are alternative measures that can be used together. In our judgment, given the facts, it would have been open to the Council to have taken either course.
  58. What is material is what was considered by the Council. It is clear from the quotation from the decision to prosecute which we have set out at paragraph 11 above, that the authority to prosecute rested with Mr Leo as Corporate Head of Governance and Assets in consultation with Mr Peter Sims, Director of Technical Services. It is also clear from the certificate signed by Mr Sims that he took into account the Council's Enforcement Policy in reaching the decision to prosecute. It seems to us clear from the way the form has been set out that the council was correct in contending that when it was countersigned by Mr Mario Leo, his authorisation to proceed also proceeded on the basis of the Council's Enforcement Policy.
  59. If that was not clear from the form, it was certainly clear from the letter that Mr Leo wrote on 21 July 2011 to which we have referred at paragraph 16 above. In that letter he pointed out that the decision to prosecute had been made only in respect of the offences on 28 March and not, as Mr Ashton had recommended, for offences both on 28 and 29 March. He described the matters raised on behalf of the Owners as going to mitigation and stated that the contraventions discovered at the Owners' premises warranted prosecution. His letter dealt with the issue of proportionality and made it clear that it was his view that, given the nature of the offences, a financial penalty through prosecution was greater than could be achieved by a conditional caution; that a message needed to be sent to an offender that failure to adhere to legislation would affect them. He concluded by saying that he was satisfied that in reaching the decision to institute proceedings the Council had due regard to its own policies and relevant guidance. Mr Lamming forcefully criticised the letter on the basis that Mr Leo referred throughout to the Council and not to himself. Mr Lamming is correct in identifying the difference between the Council and officers with independent authority to prosecute. However, as the authority had been delegated to him in conjunction with Mr Sims, a fair reading of the letter is that when he referred to the Council he meant those entrusted with the delegation of the authority to prosecute by the Council, namely himself and Mr Sims.
  60. The only basis on which it could be contended that the Council had not considered its Enforcement Policy was the statement made by Mr Leo on 8 March 2012. That statement refers to having due regard to the Code for Crown Prosecutors, as we have set out at paragraph 28 above. However, in our view, that statement has to be looked at as part of the totality of the material before the District Judge. On the totality of the evidence we are satisfied that the Council followed its own Enforcement Policy. There can be no basis, in our judgment, for contending that the Enforcement Policy was applied by him in an arbitrary manner or in a way that was not justified by the evidence. There was, it is clear, strong evidence of a serious breach of the Regulations by the Owners which justified prosecution.
  61. Issue 3 : Does oppression have to be proved?

  62. As the Council, in our judgment, followed its own Enforcement Policy, it is not strictly necessary to consider this third issue. However, in the light of the elegant and well presented argument addressed to the court by Mr Lamming, we will deal with the matter briefly. Mr Lamming contended that oppression over and above that caused by any decision to prosecute did not have to be shown. If a Council should not have prosecuted, it was, in his submission, plainly oppressive to begin a prosecution. The defendant was placed in peril of a conviction and put to the expense and trouble of defending his position. That was self evidently oppressive.
  63. We cannot accept the broad terms of that submission. It is clear from the decisions in R v DPP ex parte Kebeline [2000] 2 AC 326, ex Parte Bennett [1994] 1 AC 42, R v A(AJ) and Moss, that proof of oppression in the sense described in Bennett and other cases is essential if an abuse of process application is to succeed. In a case where a policy has been considered but wrongly applied, we consider that oppression above and beyond the ordinary consequences of initiating a prosecution would have to be shown. As was pointed out by Mr Little, no case could be found where a decision to prosecute had been found to be in breach of the policy, but a prosecutor had been allowed to remake the decision. That is because in determining whether to grant a remedy, the court would consider whether, if it was told by the prosecutor that the prosecutor wished to continue with the case, it would allow the prosecutor to do so, unless that was oppressive. It would be apparent from the argument advanced by the prosecutor whether there were good reasons for bringing the prosecution and, if there were, the fact that the decision may have been made in breach of a policy would be no reason to prevent the prosecutor then continuing the prosecution, unless there were other circumstances that were shown to make such a course oppressive.
  64. However, there may be cases, of which the present is certainly not one, where the decision to prosecute has been made in circumstances that could be described as entirely arbitrary. The court could conclude in such a case that, having regard to all the circumstances, it would be oppressive to continue the prosecution. In argument an example was put forward of a prosecution being initiated by a prosecutor on the direction of a member of the Executive (such as a Minister or Chief Executive of a Council) without any consideration having been given by the person entrusted with the prosecutorial discretion to the merits of the case, but acting solely and in complete breach of his duty on the direction of the member of the Executive. It is difficult to conceive of such a case ever arising, but if it did, such arbitrary behaviour might possibly give rise on its own to conduct that would make it oppressive for the prosecution to continue.
  65. However, this is a case where even if we were wrong in our view that Mr Leo and Mr Sims had failed properly to apply the policy, they had attempted to apply their prosecutorial discretion, but had fallen into error by not having proper regard to what is described as the hierarchy of enforcement. In such a case where the prosecutor had tried to apply the policy and failed to explain why it had not been applied, the action would not be arbitrary, but an erroneous application of the policy. In such a case oppression over and above the decision to prosecute must be shown.
  66. Conclusion

  67. In the result, therefore, we dismiss this claim for judicial review. There is now no impediment to the prosecution which was begun nearly two years ago being resumed, and the court reaching a judgment on whether the Council has proved by Mr Ashton and others giving evidence the very serious breaches of the Regulations which it alleges.
  68. We would, however, add the following observations about the process that has been followed in this case:
  69. i) As was made clear by the court in R v A(RJ) save in an exceptional case, decisions to prosecute are for the prosecutor. The task of a criminal court is, save in an exceptional case, to determine whether the prosecution has proved its case on the merits.

    ii) As Mr Mario Leo pointed out as long ago as 21 July 2011, and as the judge set out in his judgment, such matters as the Owners might establish about the way in which they conducted their premises and the attempts they made to clean them are matters for mitigation.

    iii) It was far from helpful to the Owners that their solicitor, instead of defending the case on the merits and taking the points in mitigation, engaged in lengthy correspondence aimed at finding fault with the decision to prosecute. The response of Mr Leo on 21 July 2011 should have been an end to the matter.

    iv) A report recommending and recording the decision to prosecute is generally a confidential document. As we were reminded by Mr Little, it is very rare indeed for the Crown, for obvious reasons, to make such a document available to the defence. It is the Crown's own analysis of why a decision to prosecute has been made and will often contain information which it would be contrary to the public interest to disclose. Save in an exceptional case, there is no reason for a prosecutor to disclose such a document, as it would generally be contrary to the public interest for it to do so. If reasons for a decision to prosecute are exceptionally to be given, those reasons should ordinarily be set out in a separately drafted reply to the request for reasons.

    v) In the light of the issues that arose in Moss and the formulation of the Secretary of State's Code of Practice dealing with prosecution policy, it is highly desirable that such policies are reviewed by or on behalf of the Director so they are part of the same coherent and logical approach to prosecution by all prosecutors.

    vi) The alleged offences occurred nearly two years ago. The judgment dismissing the claim for a stay was over one year after the offences had been committed. Justice in the Magistrates' Court is meant to follow a fair summary procedure which should be swift. Diversions such as those achieved by the Owners' solicitors in the present case are strongly to be discouraged as inimical to the proper administration of justice. We very much hope that such challenges will be very rare indeed in the future.


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