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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 1008 (Admin)
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QUEEN'S BENCH DIVISION
1 Oxford Row, Leeds LS1 3BG
B e f o r e :
MR JUSTICE KERR
|- and -
(1) ROBERT WOODWARD
(2) WILLIAM WOODWARD
(3) KABEER HUSSEIN
(4) KAZAM HUSSEIN
(5) ARTUR LEWANDOWSKI
Peter Glenser (instructed by Clive Rees & Associates) for the First and Second Respondents
Peter Glenser (instructed by Yasmin & Shahid) for the Third Respondent
The Fourth Respondent neither appeared nor was represented
Peter Glenser (instructed by Clark Willis Lawfirm LLP) for the Fifth Respondent
Hearing date: 27 April 2017
Crown Copyright ©
Lord Justice Hickinbottom :
The Statutory Background
"(1) Notwithstanding anything in section 127(1) of the Magistrates' Courts Act 1980, a magistrates' court may try an information relating to an offence under this Act if the information is laid
(a) before the end of the period of three years beginning with the date of the commission of the offence, and
(b) before the end of the period of six months beginning with the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to his knowledge.
(2) For the purposes of subsection (1)(b)
(a) a certificate signed by or on behalf of the prosecutor and stating the date on which such evidence came to his knowledge shall be conclusive evidence of that fact, and
(b) a certificate stating that matter and purporting to be so signed shall be treated as so signed unless the contrary is proved."
In this judgment, references to simply "section 31" are to this section, which lies at the heart of this appeal.
The Factual Background
"To my knowledge on 15 September 2015 there was sufficient evidence in my opinion to warrant proceedings against:
William Woodward, Robert Woodward, Kabeer Hussain, Kazam Hussain, Artur Lewandowski
For offences contrary to:
- Sections 4(1) and 4(2) of the Animal Welfare Act 2006."
It was dated, and signed by Mr Reid as "Specialist Prosecutor, Specialist Fraud Division". I shall refer to that certificate as "the March 2016 certificate".
"On 3rd March 2016 evidence came to my knowledge, which I thought was sufficient to justify proceedings against [name of individual Respondent] for an offence of failing to take reasonable steps to prevent unnecessary suffering to sheep, contrary to section 4(2) of the Animal Welfare Act 2006."
The certificates in respect of the remaining Respondents read as follows:
"On 3rd March 2016 evidence came to my knowledge, which I thought was sufficient to justify proceedings against [name of individual Respondent] for offences of causing unnecessary suffering to sheep, contrary to section 4(1) of the Animal Welfare Act 2006."
I shall refer to those five certificates as "the July 2016 certificates".
"54. I concluded that given the role in leading the investigation and providing papers to the [CPS], they were on a footing with the police in terms of a more commonly encountered criminal prosecution, to the RSPCA inspectors in terms of other Animal Welfare prosecutions, so that they formed part of the prosecution team as per [Morgans v Director of Public Prosecutions  1 WLR 968 and Burwell v Director of Public Prosecutions  EWHC 1953 (Admin)].
55. On that basis, I was satisfied that sufficient evidence came to the knowledge of the prosecutor to justify proceedings by 25 August 2015, so that the six month time limit provided for by section 31(1) of the  Act would have expired by 24 February 2016 and therefore that proceedings would have been out of time.
56. In my judgment, the [July 2016] certificates could not cure the defects on the first. In the first certificate, Mr Reid stated that there was sufficient evidence to warrant proceedings to his knowledge on 15 September 2015. There was no admissible explanation as to how the date of 3 March 2016, as set out in the second certificates, was arrived at . [T]he court could not hear extrinsic evidence and no admissible evidence was offered by the Appellant.
57. The difficulty with the [Crown's] submission was that it contended, without explanation, for the argument that it can issue as many certificates as it wishes pursuant to section 31 of the Act until the certificates comply exactly with the wording of the Statute. Mr Reid may well have only formed a view on 3 March 2016 that there was sufficient evidence to justify proceedings against the Respondents in respect of alleged offences pursuant to the Act, but this begged the question of why he had stipulated that there was, to his knowledge, sufficient evidence in his opinion to warrant proceedings against the Respondents on 15 September 2015, as he did in his first certificate. There was no reason why I should have accepted the date in the second certificate (11 days after the expiry of 6 months from when the CPS had received the papers).
58. The authorities are clear that the exceptions to a strict 6 month time limit beyond which a prosecution for summary offences cannot be brought must be strictly construed. Appreciating that the court cannot take into account extrinsic evidence beyond the face of the certificate (which causes difficulties as to how the court is to resolve the issue), I concluded that I could not be satisfied that the second certificates were valid and that the prosecution could not seek to rectify a defect in proceedings by the issue of any additional certificate without any admissible explanation as to its factual basis, given the case law as to how strictly the 6 month time limit should be construed."
He thus held that the time limit in section 31(1)(b) expired on 24 February 2016, and the prosecution against each Respondent which commenced on 8 March 2016 was therefore out of time, and a nullity.
"Question 1: Was I correct to decide that the first certificate [i.e. the March 2016 certificate] was defective?
Question 2: If I was correct in that regard, was I correct in determining that I could not be satisfied that the proceedings (ignoring the second certificates [i.e. the July 2016 certificates]) were brought within the time limit stipulated by section [31(1)] of the  Act, so that proceedings were a nullity?
Question 3: Was I correct not to consider any extrinsic evidence (whether properly admissible in statement form or otherwise) that the [Crown] wished to rely upon in establishing when evidence, in fact, came to Mr Reid's knowledge so as to justify proceedings in his opinion?
Question 4: Was I correct that the second certificates could not cure the defects of the first?
Question 5: If I was correct in that regard, was I correct in determining that I could not be satisfied that the proceedings were brought within the time limit stipulated by section [31(1)] of the Act, so that proceedings were a nullity?
Question 6: Was I correct to view the investigators and/or lawyers within the [FSA] as part of the 'Prosecutor' for the purposes of section 31 of the Act?
Question 7: Is it permissible, the statute being silent on the point, for the Prosecution to be able to issue further certificates, pursuant to section 31(2) of the Act, to correct any admitted or perceived defect in any original certification, at least until the court tries any information brought pursuant to sections in the Act to which those certificates relate, is functus officio?"
Ground 1: The District Judge was wrong in law to conclude that FSA investigators and lawyers were "part of the prosecution" for the purposes of section 31, "the prosecutor" being, in this case, the CPS.
Ground 2: Having found the March 2016 certificate to be defective, the District Judge was wrong in law to conclude that the Crown could not rely on the July 2016 certificates.
Ground 3: Having found that the Crown could not rely on the July 2016 certificate, the District Judge was wrong in law to decline to consider evidence, in the form of the written chronology, computer system screenprint and covering letter from Mr Reid, to determine when evidence sufficient to justify proceedings came to Mr Reid's knowledge.
Ground 4: In the circumstances, the District Judge was wrong to conclude that the prosecutor had knowledge of evidence sufficient to justify proceedings against the Respondents on 25 August 2015, and that the proceedings had therefore been commenced out of time.
The Section 31 Time Limits: Discussion
i) The time limit for a prosecution under section 4 of the 2006 Act is fixed by section 31(1). The information must be laid within six months of, not commission of the offence, but "the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to his knowledge" (i.e. section 31(1)(b)); with a longstop date of three years from the commission of the offence (i.e. section 31(1)(a)). The longstop date is not relevant in this appeal, and I need say nothing further about it.
ii) Section 31(1)(b) was considered in Letherbarrow. At , Bean LJ said that this required the prosecution to make a "careful decision". He then turned to consider the nature of that decision, as follows:
" The decision which the prosecutor has to make under this subsection is not whether there is a prima facie case but whether the evidence is sufficient to justify a prosecution. That will involve a consideration of what is in the interests of justice. It will usually involve (and certainly in the present case was rightly regarded as involving) the opportunity for the defendant to make a statement either at interview or, as Mr Letherbarrow did, in writing by way of mitigation. Such further material may show that the defendant's animal husbandry practices are now improving; or, conversely, that matters are so bad that the authority ought to press on with an application for a ban to prevent him keeping livestock altogether."
See also , to similar effect.
iii) For the purposes of this appeal, an understanding of the nature of the decision which the prosecutor is required to make under section 31(1)(b), as set out by Bean LJ in that passage, is crucial: the relevant date is the date upon which the prosecutor considers that, upon the available evidence, it is in the public interest to prosecute the particular individual or individuals. That decision needs to be made with especial care; and it cannot be avoided or delayed by to use the phrase of Pill LJ in Johnson at ) the mere "shuffling of papers", or by information being sat on so as to extend the time limit. So far as substance is concerned, it demands, not merely consideration of whether there is a prima facie case, but whether it is in the public interest for such a prosecution to be brought. That requires consideration of, and often investigation into, factors which bear upon that issue, for which a prosecutor is entitled to reasonable time, even after the primary evidence has been gathered in, and even after the prosecutor has decided that there is or may be a prima facie criminal case against someone or even identified individuals. That remains good law, the relevant passages from both Johnson and Letherbarrow being recently endorsed by Gross LJ (with whom Andrews J agreed) in Riley at .
iv) In Lamont-Perkins at , it was said by Wyn Williams J (with whom Sir John Thomas PQBD, as he then was, agreed) that the phrase "the prosecutor" "applies to anyone who initiates a prosecution under the  Act, and not merely those who prosecute under some statutory power to prosecute". However, in Letherbarrow at , Bean LJ considered more particularly who is, for these purposes, "the prosecutor". His conclusion on that issue was, of course, informed by what he had said in  about the nature of the decision that "the prosecutor" is required to make under section 31(1)(b); and he drew the well-established distinction between investigators and prosecutors in criminal proceedings. He said this:
" [T]he prosecutor is the Council, but the Council does not decide collectively whether evidence is sufficient to justify proceedings. Section 31(1)(b) involves the exercise of a judgment by an individual, namely the individual who is given responsibility for making the important decision whether to prosecute. Prosecutors are entitled to have a system which lays down at what level of seniority this decision is made ".
This was endorsed by Gross LJ in Riley, at , where, in a case indistinguishable from the one before us, he held that those working for the FSA were investigators, the prosecutor being the CPS. Mr Glenser conceded that Riley was binding upon this court; and he conceded that the District Judge erred in proceeding on the basis that, for the purposes of section 31, he should consider the date when the evidence was in the hands of the FSA. That concession was well made.
v) In cases where there is a time issue, it is for the prosecutor to show, to the relevant standard of proof, that there has been compliance with section 31(1)(b). If there has been non-compliance, the prosecution is invalid.
vi) As Letherbarrow emphasises, at :
" [T]he prosecution may surmount the time bar hurdle by either of two means. The first is the issue of a certificate [under section 31(2)]. The second is the adducing of evidence of fact showing who made the decision that a prosecution was justified and when."
Thus, as Bean LJ said (again, at ), "a certificate is not essential".
vii) Where reliance is placed upon a certificate, then:
a) The certificate must strictly comply with the statutory requirements; and it must comply on its face, in the sense that deficiencies cannot be remedied by reference to extrinsic evidence (see, e.g., Azam at [25(3)]; and King & King at ).
b) A valid certificate is determinative of the matter unless the certificate is inaccurate on its face (i.e. plainly wrong on its face and patently misleading), or can be shown to be fraudulent (see Amvrosiou at page 5 of the transcript with which we were supplied, per Auld LJ (with whom Ebsworth J agreed); and Azam at [25(4) and (5)]).
viii) By the certification process, the 2006 Act provides a prosecutor with an evidential short-cut. A certificate does not have to be issued before proceedings are commenced (see Letherbarrow at , and the cases there referred to). It can be issued at any time, at least until the close of the prosecution case. Where a certificate is defective, it is a nullity; and, although the cases do not appear to deal with point specifically, as a matter of principle, I see no reason why, a certificate having been found to be deficient, the prosecutor cannot issue a new certificate and, if that complies with the requirements of section 31(2), such a certificate will be evidentially conclusive of its contents subject, of course, to the limitations on all certificates that they cannot be relied upon if inaccurate on its face or fraudulent.
ix) Mr Glenser submitted that for a prosecutor to issue a second certificate after a first certificate has been found to be defective would always (or, at least, generally) be an abuse of process. I do not agree. I accept that, conceptually, the repeated issue of certificates might amount to an abuse of process; but it seems to me that, in practice, it is unlikely to do so, absent fraud. Where, after a first certificate valid on its face, a second certificate is issued with a different date of knowledge, then that may well require some form of explanation from the prosecutor; but where it is clear why the first certificate is bad for example, it is clear from the face of the certificate that the prosecutor focused on the wrong question then I see no reason why, in principle and in practice, a new certificate addressing the right question cannot be issued.
x) Where there is no certificate to be relied upon because either none was issued, or any certificate issued was defective then the court must still go on to consider and determine whether the prosecution was brought within the time required by section 31(1)(b) (Azam at [25(1)]). It must do so by considering all the available evidence, including documents such as reports even if not supported by a statement (Letherbarrow at -), although the weight to be given to that evidence, without being the subject of any supporting statement or cross-examination, is of course a matter for the court.
The Grounds of Appeal
The Specific Questions posed by the Case Stated
Question 1: Yes. The District Judge was correct to decide that the March 2016 certificate was defective.
Question 2: No. Ignoring the July 2016 certificates, the District Judge was not correct in determining that he could not be satisfied that the proceedings were brought within the time stipulated by section 32(1) so that the proceedings were a nullity.
Question 3: No. Again ignoring the July 2016 certificates, the District Judge was not correct in his refusal to consider "extraneous" evidence that the Crown wished to rely upon in establishing when evidence in fact came to Mr Reid's knowledge so as to justify proceedings in his opinion.
Question 4: No. Whilst the July 2016 certificates did not, and could not, "cure" deficiencies in the March certificate, the District Judge was not correct in considering that, having found that the March certificate was deficient, he could not go on to consider whether the July certificates were valid.
Question 5: In the light of the response to Question 4, Question 5 does not arise.
Question 6: No. The District Judge was not correct to view the FSA investigators and lawyers as part of "the prosecutor" for the purposes of section 31.
Question 7: Yes. Where a section 31(2) certificate has been found to be defective, the prosecution may issue a new certificate upon which it can rely, subject to that new certificate complying with the statutory requirements and not being patently incorrect or fraudulent or, possibly, an abuse of court.
Mr Justice Kerr :