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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Forsey, R (on the application of) v The Northern Derbyshire Magistrates' Court  EWHC 1152 (QB) (19 May 2017)
Cite as:  WLR(D) 344,  ICR 1161,  EWHC 1152 (QB)
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Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE FOSKETT
| The Queen on the Application of David Michael Forsey
|- and -
|The Northern Derbyshire Magistrates' Court
Mr Paul Ozin QC (instructed by The Secretary of State for Business, Innovation and Skills) for the Second Interested Party
Hearing date: 30 March 2017
Crown Copyright ©
LORD JUSTICE TREACY:
194 Offence of failure to notify.
(1) An employer who fails to give notice to the Secretary of State in accordance with section 193 commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(2) Proceedings in England or Wales for such an offence shall be instituted only by or with the consent of the Secretary of State or by an officer authorised for that purpose by special or general directions of the Secretary of State.
An officer so authorised may 
prosecute or conduct proceedings for such an offence before a magistrates' court.
(3) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
(4) Where the affairs of a body corporate are managed by its members, subsection (3) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
"Authority to prosecute: I confirm that I neither received the consent of, nor authorisation from the Secretary of State to commence these proceedings. This is because by virtue of the Carltona principle, derived from Carltona Ltd v Commissioner of Works  2 All ER 560, I am the Secretary of State for these purposes."
In the light of that response the claimant challenged the lawfulness of the proceedings by way of an application to the Magistrates' Court. The matter was heard by the district judge as a preliminary issue, over two days in March 2016. He handed down his ruling on 27 April 2016.
Secretary of State's Submissions
Discussion and Conclusions
4.- Exercise of powers and performance of duties
(1) Any act or thing required or authorised by or under any enactment to be done by the Commissioners or any of them may be done (a) by any one or more of the Commissioners; or (b) if the Commissioners authorise, by a secretary or assistant secretary to the Commissioners; or (c) by any other person authorised generally in that behalf in writing by the Commissioners.
(1) Proceedings for an offence under this Act shall not be instituted except by or with the consent of the Minister or by an Inspector or other officer authorised in that behalf by special or general directions of the Minister.
"It is also possible that the performance of statutory ministerial functions by officials, or by particular officials, may be inconsistent with the intention of Parliament as evinced by the relevant provisions. In such circumstances, the operation of the Carltona principle will be impliedly excluded or limited."
The words which I have italicised in the passage quoted demonstrate the over statement. Clearly Lord Reed was saying no more than that the wording of a statutory provision may operate to exclude or limit the Carltona principle. This is not authority for the proposition that devolution and delegation cannot co-exist within the same provision.
MR JUSTICE FOSKETT:
Case No: CO/3400/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE RIGHT HONOURABLE LORD JUSTICE TREACY AND THE HONOURABLE MR JUSTICE FOSKETT
FRIDAY 19 MAY 2017
|The Queen on the Application of David Michael Forsey||Claimant|
|- and -|
|The Northern Derbyshire Magistrates' Court||Defendant|
|Robert Stephen Palmer||First Interested Party|
| The Secretary of State for Business,
Innovation and Skills
|Second Interested Party|
UPON THE CLAIMANT'S APPLICATION for Judicial Review made by a Claim Form dated 29 June 2016
AND UPON HEARING leading counsel for the Claimant and leading counsel for the Second Interested Party on 30 March 2017.
IT IS ORDERED AS FOLLOWS:-
1. The Claimant's claim be dismissed.
2. Any application for a costs order to be made within 14 days. If not agreed, parties to provide brief submissions.
3. Any application for leave or certification to be made within 14 days.
Dated: 19th May 2017
BY THE COURT