Chesterfield Poultry Ltd v Sheffield Magistrates Court [2019] EWHC 2953 (Admin), [2020] 1 WLR 499

Transcript

Chesterfield Poultry Ltd v Sheffield Magistrates Court [2019] EWHC 2953 (Admin), [2020] 1 WLR 499 concerned a challenge by way of judicial review to the commencement of criminal proceedings in the Sheffield Magistrates’ Court, the claimant contending that the proceedings were out of time or alternatively should be stayed as an abuse of process. The claim was dismissed by the Divisional Court (Males LJ and Mrs Justice Jefford).

Chesterfield Poultry Ltd operated a slaughterhouse in Doncaster approved by the Food Standards Agency. On 13 September 2016, 5,644 chickens were found dead in the lairage as a result of alleged failure to provide adequate ventilation. The Crown Prosecution Service commenced proceedings by requisition on 5 January 2018 for four offences contrary to Regulations 30(1)(c) and 30(1)(g) of the Welfare of Animals at the Time of Killing (England) Regulations 2015. The case was referred to the CPS by the FSA on 13 March 2017. A lawyer, Ms Sanghera, was allocated on 23 March 2017 and conducted her first substantive review on 24 July 2017, some four months and 11 days after receipt. A period of that delay was attributable to annual leave and training. Following further exchanges with the FSA and a review on 5 January 2018, Ms Sanghera was satisfied that proceedings could be authorised.

The issue was whether proceedings were commenced within the time allowed by section 41 of the Regulations. Section 41 provides an exception to the general six-month rule in section 127(1) of the Magistrates’ Courts Act 1980. Under section 41(1)(a), proceedings may be brought within three years of the offence, but also (by section 41(1)(b)) within six months beginning with the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to the prosecutor’s knowledge. Section 41(2) provides that a certificate signed by or on behalf of the prosecutor stating the date on which such evidence came to the prosecutor’s knowledge is conclusive evidence of that fact, and that a certificate stating that matter and purporting to be so signed is treated as so signed unless the contrary is proved. These provisions were materially identical to various other time-limit provisions and had generated considerable litigation.

The CPS relied on a prosecutor’s certificate signed by Ms Sanghera on 8 November 2017, stating that on that date evidence came to her knowledge which she thought was sufficient to justify proceedings. That date was less than six months before commencement. The claimant contended that there was already sufficient evidence in the material initially provided to the CPS on 13 March 2017 and applied to the magistrates for a ruling that the court had no jurisdiction. District Judge Redhouse held that the certificate complied with the requirements of section 41 and was neither defective on its face nor fraudulent, and was therefore conclusive evidence of the relevant date. She went on to consider the chronology and whether a fair trial could take place, finding that despite the disappointing delay between receipt of the file on 13 March 2017 and the first review on 24 July 2017, a fair trial remained possible. She therefore concluded that the court had jurisdiction and that the proceedings should not be stayed.

The claimant advanced four grounds of challenge: first, that the District Judge was wrong to deal with the matter as if it were an application to stay for abuse of process; second, that the District Judge was wrong to rule that the six-month period should run from 8 November 2017; third, that the District Judge should have held that time began to run from the date when the file was received by the CPS; and fourth, that the proceedings should have been stayed as an abuse of process. Mr Stephen Hockman QC and Mr Stuart Jessop appeared for the claimant, Mr Richard Wright QC and Mr Howard Shaw for the CPS. The claimant’s submissions rested on the propositions that the conclusive evidence provisions should be narrowly construed, that the relevant date was the date on which the evidence was received by the CPS, that the “fact” certified was only the date when a piece of evidence came to the prosecutor’s knowledge and not whether or when it was sufficient, that a certificate was open to challenge on the ground that it was plainly wrong as an objective question, and that the certificate was plainly wrong because there was already sufficient evidence in March 2017. Mr Wright submitted that the purpose of a certificate was to record the date on which the prosecutor reached a decision to prosecute, that this was established by the authorities, and that holding otherwise would lead to satellite litigation about prosecutorial decision-making.

Males LJ reviewed policy considerations, the language of section 41, and the authorities. He recognised that section 41 was an exception to the general rule in section 127(1) and must be strictly construed, but considered that this in itself required only that the provisions be given their natural meaning. A certificate which failed to comply strictly with the statutory requirements was a nullity, but there were powerful policy considerations in favour of upholding the conclusive nature of a certificate which was valid on its face. To do so promoted certainty, avoided the court having to second-guess prosecutorial judgments, and avoided satellite litigation about whether proceedings had been commenced in time.

As to language, Males LJ held that the date from which the six-month period began was that stated in paragraph (1)(b), namely the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to the prosecutor’s knowledge. This called for an exercise of judgment on the part of the prosecutor which was at least primarily subjective. The background was that whether proceedings were justified always depended on whether the evidence amounted to a prima facie case and whether proceedings were in the public interest. The prosecutor was entitled to certify the date on which such evidence came to his or her knowledge, which would usually but not necessarily be the same as the date on which the prosecutor formed the opinion that proceedings were justified.

Males LJ then reviewed the authorities in detail. He began with R v Haringey Magistrates’ Court, ex parte Amvrosiou, which held that a certificate was conclusive evidence and could not be challenged by extraneous evidence save where it was inaccurate on its face or fraudulent. The clear purpose of the conclusive evidence provision was to achieve certainty for both prosecutor and defendant and to prevent what would otherwise be an exercise in discovery of the prosecuting process. Auld LJ in that case referred to a margin of judgment given to the prosecutor. Males LJ considered Morgans v DPP [1999] 1 WLR 968, which held that the prosecutor need not have formed his or her opinion before time began to run, but noted that Amvrosiou had not been cited and the case said nothing about the grounds on which a certificate could be challenged. In Burwell v DPP [2009] EWHC 1069 (Admin), Keene LJ approved Amvrosiou and preferred its reasoning to that in Morgans. He added that a certificate which was plainly wrong could be challenged by judicial review on the usual grounds or as an abuse of process, but Males LJ read this as referring to a certificate wrong on its face, not one shown to be wrong by extraneous evidence.

Males LJ considered RSPCA v Johnson [2009] EWHC 2702 (Admin), Azam v Epping Forest District Council [2009] EWHC 3177 (Admin), RSPCA v King [2010] EWHC 637 (Admin), Lamont-Perkins v RSPCA [2012] EWHC 1002 (Admin), Letherbarrow v Warwickshire County Council [2014] EWHC 4820 (Admin), Riley v DPP [2016] EWHC 2531 (Admin), and R v Woodward [2017] EWHC 1008 (Admin). These cases established that the decision the prosecutor had to make was not merely whether the evidence amounted to a prima facie case but also whether it was in the interests of justice to bring proceedings. The prosecutor was entitled to a reasonable time to make that decision. There was a well-established distinction between an investigator and a prosecutor, and what mattered was the knowledge of the individual prosecutor to whom the case was allocated. A certificate must comply strictly with the statutory requirements and must do so on its face, so that deficiencies could not be remedied by extrinsic evidence. A valid certificate was determinative unless it was inaccurate on its face or could be shown to be fraudulent. A defective certificate was a nullity, but the prosecutor could issue a further certificate which would be conclusive if it complied with the requirements. Where there was no valid certificate, the court must determine on all the evidence whether the prosecution was brought in time. Males LJ rejected any suggestion that Lamont-Perkins or Riley cast doubt on these principles. Woodward was a clear decision confirming that, in the absence of fraud, extraneous evidence was not admissible to challenge a certificate which was valid on its face.

Males LJ drew the following conclusions. First, although the prosecutor was the CPS, the relevant individual was Ms Sanghera and it was her knowledge which counted. The submission that time began to run from the date when the file was received by the CPS was untenable. Second, the decision whether the evidence was sufficient required an exercise of judgment, both as to whether the evidence amounted to a prima facie case and whether proceedings were in the public interest. The relevant date was when evidence satisfying those criteria came to the prosecutor’s knowledge, not when she formed the opinion that proceedings were justified. The date when evidence came to the prosecutor’s knowledge was not to be equated with the date when it was placed on her desk, but the date on or by which it had been considered so that knowledge of the content had been imparted. In most cases, and there was no reason to suppose this case was different, the imparting of knowledge and the forming of opinion would happen together. To a limited extent, Males LJ respectfully disagreed with Hickinbottom LJ’s statement in Woodward that the relevant date was the date on which the prosecutor decided that it was in the public interest to prosecute. Third, a prosecutor’s certificate was not merely conclusive evidence of the date when particular pieces of evidence came to the prosecutor’s knowledge, but was conclusive evidence of the relevant date from which the six-month period began to run. Fourth, in the absence of fraud, a certificate in proper form which contained no error on its face was conclusive evidence of that date and was not open to challenge by reference to extraneous evidence showing that it was wrong or even plainly wrong. To hold otherwise would depart from a clear and consistent line of authority and would lead to endless arguments. The delay of four months and 11 days between receipt of the case and first review paled into insignificance when compared with the time taken to resolve the time bar issue. Accordingly, the certificate was conclusive that the relevant date was 8 November 2017 and the proceedings were in time. Evidence to the contrary suggesting that the relevant knowledge was acquired in March 2017 was inadmissible.

As to ground 1, Males LJ held that the District Judge had not dealt with the matter as if it were an abuse application. She had begun by noting that the prosecution relied on a certificate and that there was no issue as to its validity. She referred to the claimant’s argument and the case law, observed that the certificate was not defective on its face or fraudulent, and concluded that it was conclusive evidence of the matters stated in it in accordance with section 41(2). This reasoning was directed to the issue of time bar. She then went on to consider the chronology and whether a fair trial could take place, which was a distinct issue. As to ground 4, the District Judge concluded that despite the disappointing and regrettable delay a fair trial remained possible. That was a conclusion which she was entitled to reach. There was no reason to suppose that there had been deliberate manipulation of the time limit or that it was unfair for the case to proceed. Males LJ rejected the submission that if on the evidence it was clear that the certificate mis-stated the date when sufficient evidence came to the prosecutor’s knowledge, that would mean it was plainly wrong and an abuse of process to continue. Whether a certificate was plainly wrong had to be determined, in the absence of fraud, by reference to the face of the certificate and without regard to extraneous evidence. If it were possible to circumvent this principle by dressing up a challenge as an abuse argument, the purpose of the time bar provisions would be frustrated. Abuse of process might have a role in an appropriate case, for example if a prosecutor’s failure to apply his or her mind led to delay which impacted on fairness, but abuse of process was and should remain a separate question concerned with the fairness of the procedure and of the trial.

In short, the certificate was valid on its face, was conclusive evidence of the relevant date, and was not open to challenge by reference to extraneous evidence, and the proceedings were not an abuse of process. The claim was dismissed and the claimant was ordered to pay the interested party’s costs of £12,202.