Crown Prosecution Service v Woodward [2017] EWHC 1008 (Admin)

Crown Prosecution Service v Woodward [2017] EWHC 1008 (Admin) is an appeal by way of case stated heard by Lord Justice Hickinbottom and Mr Justice Kerr which allowed the Crown’s appeal, quashed the magistrates’ decision dismissing animal welfare prosecutions as out of time, and remitted the matter for continuation of proceedings.

The five respondents – Mr Robert Woodward and Mr William Woodward (directors of Bowood Farms Limited, which operated an abattoir), and Mr Kabeer Hussein, Mr Kazam Hussein and Mr Artur Lewandowski (licensed slaughtermen employed by the company) – faced charges under section 4 of the Animal Welfare Act 2006. The first and second respondents were charged under section 4(2) with permitting unnecessary suffering to sheep. The third, fourth and fifth respondents were charged under section 4(1) with knowingly causing such suffering. The charges arose from covert video recordings made at the abattoir on 30 November and 6 December 2014 by a freelance investigator commissioned by Animal Aid. The recordings were sent to the Food Standards Agency, which forwarded them in January 2015 to a veterinary surgeon who provided a statement on 9 July 2015 opining that offences had been committed. The matter was referred by the FSA to the Crown Prosecution Service on 15 September 2015 and allocated on 14 December 2015 to Mr Ben Reid, a reviewing lawyer. Between December 2015 and February 2016 Mr Reid undertook several reviews, seeking further evidence, taking advice on admissibility and making enquiries about the company (which had entered administration on 17 August 2015). Having concluded that the directors rather than the company should be prosecuted, Mr Reid decided on 3 March 2016 that proceedings should be brought against the five respondents. Charges were authorised on 7 March 2016, on which date Mr Reid also prepared a certificate under section 31(2) of the Act stating that to his knowledge there was sufficient evidence to warrant proceedings on 15 September 2015. Requisitions were served on 8 March 2016.

Section 31 of the 2006 Act extends the normal six-month time limit for summary proceedings. Under section 31(1) an information may be laid before the end of three years from commission and before the end of six months from the date on which evidence which the prosecutor thinks sufficient to justify proceedings comes to his knowledge. Section 31(2) provides that a certificate signed by or on behalf of the prosecutor stating that date is conclusive evidence of the fact, and a certificate purporting to be so signed shall be treated as so signed unless the contrary is proved.

Solicitors for the first and second respondents filed a skeleton argument on 11 June 2016 contending that the March 2016 certificate was defective both because it did not properly state the relevant date and because sufficient evidence had in any event been in the prosecutor’s hands by 15 July 2015. Mr Reid accepted that the certificate was defective and on 12 July 2016 prepared separate revised certificates for each respondent stating that on 3 March 2016 evidence came to his knowledge which he thought sufficient to justify proceedings. He also provided a chronology and case management system printout with a covering letter setting out the history of his reviews and his decision-making. These documents were not accompanied by a witness statement formally exhibiting or proving them.

District Judge Lower sitting at Wakefield Magistrates’ Court dismissed the prosecutions on 9 September 2016, concluding that they had been brought out of time. He found that the March 2016 certificate was defective. He considered that the FSA investigators formed part of the prosecution team (following Morgans v Director of Public Prosecutions [1999] 1 WLR 968 and Burwell v Director of Public Prosecutions [2010] EWHC 1953 (Admin)) and that sufficient evidence therefore came to the knowledge of the prosecutor by 25 August 2015 when the FSA was in possession of all relevant papers. The six-month time limit under section 31(1) therefore expired on 24 February 2016, rendering the proceedings commenced on 8 March 2016 out of time. The judge held that the July 2016 certificates could not cure the defect in the first certificate, particularly as there was no admissible explanation for the change in date from 15 September 2015 to 3 March 2016 and the court could not hear extrinsic evidence. He considered it would be impermissible for the prosecution to issue as many certificates as it wished until one complied with the statutory wording. He stated that the exceptions to the strict six-month time limit must be strictly construed.

The Crown appealed on four grounds: that the judge erred in treating FSA investigators as part of the prosecution; that he erred in concluding the July 2016 certificates could not be relied upon after the March certificate was found defective; that he erred in declining to consider the chronology and other documentary evidence to determine when evidence sufficient to justify proceedings came to Mr Reid’s knowledge; and that in consequence he wrongly concluded the prosecution was out of time.

Lord Justice Hickinbottom, with whom Mr Justice Kerr agreed, set out a series of propositions drawn from the authorities including R v Haringey Magistrates’ Court ex parte Amvrosiou (1996), Azam v Epping Forest District Council [2009] EWHC 3177 (Admin), RSPCA v Johnson [2009] EWHC 2702 (Admin), Letherbarrow v Warwickshire County Council [2015] EWHC 4820 (Admin), and Riley & Others v Crown Prosecution Service [2016] EWHC 2531 (Admin). His Lordship emphasised that the decision required under section 31(1)(b) is not whether there is a prima facie case but whether the evidence is sufficient to justify a prosecution, which involves consideration of what is in the interests of justice. That decision requires careful thought and may involve consideration of material from defendants, their practices and all relevant public interest factors. The relevant date is the date upon which the prosecutor considers that on the available evidence it is in the public interest to prosecute the particular individual or individuals. This decision cannot be avoided or delayed by the mere shuffling of papers but a prosecutor is entitled to reasonable time to investigate and consider factors bearing on the public interest even after primary evidence has been gathered and even after deciding there may be a prima facie case.

Lord Justice Hickinbottom held that the phrase “the prosecutor” refers to the individual given responsibility for making the important decision whether to prosecute. In Letherbarrow Bean LJ had drawn the well-established distinction between investigators and prosecutors, a position endorsed by Gross LJ in Riley in a case indistinguishable from the present where those working for the FSA were held to be investigators and the CPS the prosecutor. Mr Glenser for the respondents conceded that Riley was binding and that the District Judge erred in treating the FSA as part of the prosecutor. It is for the prosecutor to prove to the relevant standard that section 31(1)(b) has been complied with; if there has been non-compliance the prosecution is invalid. However, the prosecution may overcome the time bar either by issuing a valid certificate or by adducing evidence of fact showing who made the decision that prosecution was justified and when. A certificate is not essential.

A certificate must strictly comply with the statutory requirements on its face and deficiencies cannot be remedied by reference to extrinsic evidence. A valid certificate is determinative unless inaccurate on its face or shown to be fraudulent. By the certification process the Act provides a prosecutor with an evidential short-cut. A certificate can be issued at any time, at least until the close of the prosecution case. Where a certificate is defective it is a nullity but as a matter of principle a prosecutor may issue a new certificate and if it complies with the requirements of section 31(2) such a certificate will be evidentially conclusive subject to the limitations that it cannot be relied upon if inaccurate on its face or fraudulent. The repeated issue of certificates might conceptually amount to an abuse of process but this is unlikely absent fraud. Where a first certificate is clearly bad – for example because the prosecutor focused on the wrong question – there is no reason why a new certificate addressing the right question cannot be issued. Where there is no valid certificate the court must still consider all available evidence including documents even if not supported by a statement, although the weight to be given to such evidence is a matter for the court.

Lord Justice Hickinbottom held that the District Judge erred in several respects. First, he wrongly concluded that FSA investigators and lawyers were part of the prosecutor. Second, his exclusive focus on the date when material was available was in error; the test is whether the evidence is sufficient to justify a prosecution in the public interest, which may itself require investigation. In this case Mr Reid was entitled to time to investigate the company’s administration and consider whether to prosecute the company, its directors or its slaughtermen. There was no mere paper shuffling but regular reviews by Mr Reid who after receiving the case in December 2015 made appropriate enquiries before deciding on 3 March 2016 that the five respondents should be charged. The judge adopted the wrong test for section 31(1)(b). In the March 2016 certificate Mr Reid appears to have made the same error, focusing on the date by which the evidence upon which the eventual decision was made had been collected rather than the date by which he personally thought it in the public interest to prosecute the five respondents. That error, clear from the face of the certificate, was why the certificate was bad. The July 2016 certificates applied the correct test. Third, the judge erred in concluding that the July certificates could not cure the defects in the earlier certificate and in taking into account the content of the March certificate when considering the July certificates. He ought to have considered the July certificates on their face. There was no suggestion of fraud and nothing clearly wrong on their face. The change in date was explicable by the different and correct focus of the July certificates. The issue of a second certificate in these circumstances fell far short of abuse of process and the respondents were not prejudiced. Fourth, even if the prosecution could not rely upon the July certificates the judge would still have had to consider whether the test in section 31(1)(b) was satisfied by considering the evidence as to the date when evidence sufficient to justify proceedings came to Mr Reid’s knowledge. The bar on extrinsic evidence relates to evidence extraneous to a certificate when considering validity; it does not apply when determining compliance with the statutory time limit in the absence of a valid certificate. All evidence including documentary evidence must be considered even if not formally proved. The evidence of the case history was more than adequate to show that it was not until 3 March 2016 that Mr Reid decided in the public interest that the five respondents ought to be prosecuted.

Lord Justice Hickinbottom answered the questions posed in the case stated: Question 1 (whether the March 2016 certificate was defective) – yes; Question 2 (whether ignoring the July certificates the judge could be satisfied proceedings were in time) – no; Question 3 (whether the judge was correct to refuse to consider the chronology and other evidence) – no; Question 4 (whether the July certificates could not cure the deficiency) – no, while the July certificates could not cure deficiencies in the March certificate the judge should have gone on to consider their validity; Question 5 – did not arise; Question 6 (whether the FSA was part of the prosecutor) – no; Question 7 (whether a new certificate may be issued after a defective one) – yes, subject to statutory compliance and the certificate not being patently incorrect, fraudulent or an abuse.

In short, the Crown’s appeal was allowed, the determination of District Judge Lower was quashed, and the matter was remitted to the magistrates’ court with a direction that it refuse the application to dismiss the proceedings and allow the prosecutions to continue.

Morgans v DPP [1999] 1 WLR 968; (1999) 2 Cr App R 99
Burwell v Director of Public Prosecutions [2010] EWHC 1953
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 (David) v Warwickshire County Council [2015] EWHC 4820 (Admin)
Riley and Others v Crown Prosecution Service [2016] EWHC 2531 (Admin)
R v Haringey Magistrates’ Court ex parte Amvrosiou [1996] EWHC 14 (Admin)
The Royal Society for the Protection of Cruelty to Animals & Others v Johnson [2009] EWHC 2702 (Admin)

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