England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		3rd May 2006

1. LORD JUSTICE KEENE: These two appeals by way of case stated raise a number of points about prosecutions for benefit offences under the Social Security Administration Act 1992 (the 1992 Act), and the approach of Magistrates' Courts towards applications for a stay of such proceedings on grounds of abuse of process, or breach of Article 6(1) of the European Convention on Human Rights. In both cases informations were laid by the appellant, the Department of Work and Pensions, alleging offences under section 111A of the 1992 Act. In both cases the East Cornwall Magistrates' Court stayed the proceedings, although on different occasions as between the two cases.
2. Section 111A provides, by subsection (1), as follows:

"If a person dishonestly-

(a) makes a false statement or representation;

(b) produces or furnishes, or causes or allows to be produced or furnished, any document or information which is false in a material particular;

(c) fails to notify a change of circumstances which regulations under this Act require him to notify; or

(d) causes or allows another person to fail to notify a change of circumstances which such regulations require the other person to notify;

with the view to obtaining any benefit or other payment or advantage under the [relevant] social security legislation (whether for himself or for some other person), he shall be guilty of an offence."

By subsection (3) an offence under that section is triable either on indictment or by summary proceedings. There is also in the same Act a summary only offence created by section 112. That section states by subsection (1):

"112.--(1) If a person for the purpose of obtaining any benefit or other payment under [relevant social security legislation] whether for himself or some other person, or for any other purpose connected with that legislation--

(a makes a statement or representation which he knows to be false; or

(b produces or furnishes, or knowingly causes or knowingly allows to be produced or furnished, any document or information which he knows to be false in a material particular

he shall be guilty of an offence."

3. It will be seen that there are considerable similarities between the ingredients of section 111A and section 112 offences, the principal difference being that for the former the prosecution has to prove that the false statement or other act, or failure to act, was made or done "dishonestly". That is to be taken to have the normal meaning of "dishonesty" in criminal offences, namely that the defendant must have realised that what he or she was doing was, by the ordinary standards of reasonable and honest people, dishonest and that that was what it was (see Ghosh [1982] QB 1053 at 1064). The maximum penalties are also greater under section 111A than under section 112.
4. I turn to the facts in the appeal concerning the respondent, Deborah Courts. In her case the information was laid on 15 February 2005. It alleged five offences under section 111A said to have taken place between 14 April 2003 and 2 February 2004. In each instance the alleged offence stemmed from the fact that the respondent had been working at the time. In four cases she had made a representation that she was not working when claiming jobseeker's allowance and in the fifth case she had failed to notify that she was working but had still obtained Housing Benefit and Council Tax Benefit. In total she obtained nearly £6,700 as a result.
5. The case stated by the magistrates records that they did not receive formal evidence but, by agreement of the parties, received a chronology of agreed facts. Those included the fact that this respondent was interviewed under caution by an officer of the appellant on 21 April 2004, during which interview Miss Courts had admitted working and receiving benefit at the relevant times. The case stated then goes on to say, at paragraph 2(b) to (d):

"(b) At no time during the interview was it put to the defendant that she had been dishonest, although she stated she recognised it was wrong to make a claim whilst working.

(c) Following the interview the defendant was served on 21st April 2004 with a Form QB1C reporting her for consideration of prosecution for the following offence: "Made false declaration to obtain benefit."

(d) The Department of Work and Pensions had knowledge immediately following that interview of sufficient evidence to justify a prosecution for an offence under Section 112 of the Social Security Administration Act 1992."

6. The case records that the departmental file was reviewed by a lawyer on 25 October 2004, and the information laid, as I have said, on 15 February 2005.
7. The respondent in those proceedings sought a stay on the ground of abuse of process and the magistrates, after hearing argument, acceded to that application. They took the view that there had been substantial delay between the interview on 21 April 2004, and the laying of the information on 15 February 2005, and that such delay was "inexcusable". It meant, they said, that summary proceedings could not be brought under section 112 of the 1992 Act. The delay would have caused prejudice to the respondent. The magistrates went on to say that the prosecution's procedures had removed from the court's jurisdiction the opportunity to hear summary informations and the respondent was prejudiced by that.
8. I quote from the case stated:

"We consider that the prosecuting authority have chosen to lay the Informations before us to circumvent the consequences of exceeding the time limits imposed for summary offences. In reaching this decision we are influenced by the contents of the interview and the warning given at its conclusion that the defendant would be facing an allegation of 'making false declarations to obtain benefit.' In no part of the interview was it put to the defendant that she had acted dishonestly although she did concede that she was wrong to pursue the claim whilst in employment.

We consider that the defendant has not contributed to the delay referred to above.

We have been referred to the decision in R v Scunthorpe Justices ex-parte MacPhee and Gallagher.

We consider that the interests of justice are served by the court inviting the prosecution to amend the informations to contain allegations under S112 of the Act. We consider this to be an appropriate level of intervention as the defendant has indicated in the interview her guilt in those matters.

We consider that there has been a manipulation of the court process in the decision to prosecute under Section 111A. It would appear that the passage of time had prevented the commencement of Summary proceedings and therefore to initiate any proceedings, a prosecution under Section 111A was chosen."

The magistrates noted that there were statutory time limits on prosecutions under section 112, and then said this:

"We acknowledge that there are no statutory time limits for the institution of indictable and either way offences. However, in this case we consider that summary proceedings have been held out to the defendant due to the conduct of the prosecution in the interview. In any event the proceedings were delayed to the extent that we did not consider that a fair trial was possible. Accordingly our decision was to invite the prosecution to amend the informations, to bring the offences under section 112 of the Social Security Administration Act 1992. We allowed an adjournment requested by the prosecution advocate to consider the options available. At the adjourned hearing the prosecution declined to amend the informations and for the above reasons the proceedings were stayed on the grounds there had been an abuse of process."

9. The facts in the Department of Work and Pensions v Costello are that the information was laid by the appellant on 4 April 2005. It alleged five offences under section 111A said to have taken place between 11 February 2003 and 8 April 2003. These consisted of her claiming benefit and failing to report that she had been working at the time. She was interviewed by an officer of the appellant on 4 February 2004 under caution, during which she made full admissions. According to the case stated Miss Costello was served with a form QB1C which indicated that she would be reported for:

"consideration of prosecution for the following offences for the purposes of obtaining benefit you knowingly made false representation, ie you failed to declare earnings from Angloflora."

10. A letter from the appellant, dated 15 June 2004, assessed the overpayment of benefit as amounting to £1,524.68. The relevant file was sent by the investigation team to the appellant's solicitor's office on 24 January 2005. On 8 February 2005, an information was laid but in the wrong Petty Sessional Area. It was subsequently relaid on 4 April of that year.
11. At the first hearing on 9 May 2005, both parties sought summary trial, the court accepted jurisdiction and the respondent consented. A pre-trial review was fixed for 7 June 2005 at which the respondent's legal representative indicated that there would be an abuse of process argument. That was duly heard on 5 August 2005 and the magistrates ruled on 18 August that there had been an abuse of process. The case stated records at paragraph 11 as follows:

"The Court then invited the appellant to lay information under section 112 Social Security Act 1992 (applying the ratio of the R v Scunthorpe Justices ex parte McPhee and Gallagher). The appellant declined to lay information under S112 and the Justices 'stayed the proceedings'."

12. They did so on the basis that there had been an unjustified and unreasonable delay in the laying of the information which restricted the appellant to prosecuting solely under section 111A. The magistrates said that they did not stay under the common law relating to delay, but under the Human Rights Act, by which they seem to have meant Article 6(1) of the European Convention on Human Rights. That requires criminal proceedings to be determined "within a reasonable time" and it had been a provision canvassed before them in argument. The magistrates decided that, as they put it, the clock started at the interview because the respondent had made full admissions at that stage. The respondent was prejudiced by the delay because it affected the type of offences before the court, any proceedings under section 112 having been barred by the passage of time. Further she had not been asked at interview about "dishonesty", and the form QB1C said that the offence was "for the purpose of obtaining benefit you knowingly made false representations."
13. The case stated then continues:

"The Court then considered whether there can be remedy to address the prejudice which is reasonable and proportionate. The Court considered the case of R v Scunthorpe Magistrates' Court ex parte McPhee and Gallagher and invited the appellants to consider amending the information to allow the respondent and the court to consider offences under S112. The appellants declined and we stayed the proceedings."

14. Some preliminary observations are appropriate before I turn to the main issues arising from these two appeals. First, it is clear that in neither case did the magistrates consider that the passage of time had meant that a fair trial was no longer possible because of the failing of memories, the death of witnesses, or the various other problems which can sometimes arise from lengthy delays in instituting prosecutions. Clearly those problems did not exist here. Not only had the respondent in both cases made admissions as to having claimed the various benefits without having disclosed that she was working, but the magistrates themselves, in both cases, were prepared to see the criminal proceedings continue so long as the appellant, the Department of Work and Pensions, was prepared to amend the information so as to charge offences under section 112. Patently, therefore, they took the view that a fair trial of such offences was still possible. The suggestion to the contrary in the case stated in Courts does not appear in the attached note of judgment given at the time and is wholly incompatible with the invitation to the appellant to proceed under section 112.
15. Secondly, the exercise of the court's power to stay criminal proceedings is one to be exercised with very great caution. It is, as was said in the Attorney General's Reference (No 1 of 1990), [1992] 95 Cr App R 296, "a power to be exercised only in exceptional cases". That is particularly true of Magistrates' Courts. It is not a power to be used to punish the prosecution merely because a court takes the view that there has been avoidable delay by the prosecution. Cases where a stay is justified, even though a fair trial is still possible, will be very rare (see the Attorney General's Reference (No 2 of 2001), [2004] UKHL 68, [2004] AC 72.) Thirdly, because it is an exceptional step to take, a heavy burden rests upon any applicant seeking to make out a case for a stay of such proceedings.
16. With those preliminary remarks I turn to the issues raised in these appeals. It is convenient to deal with them as identified issues before seeking to answer the detailed questions posed at the end of each case stated. I propose to consider those arising under the common law first, before turning to the Article 6(1) issues.
17. It is, of course, well-established that there can be an abuse of process even if a fair trial is still possible. It was made clear in R v Horseferry road Magistrates' Court, ex-parte Bennett (1994) 1 AC 42, that if there has been a serious abuse of power by the police or others in authority so as to offend the court's sense of justice and propriety, that can give rise to an abuse of process even if a fair trial is still possible. The kidnapping of the accused by the authorities so as to bring him before a court is an example of such a flagrant abuse.
18. In ex-parte Dean 98 Cr App R 76 the police had told the defendant that he was to be a prosecution witness and in reliance on that he told the police how the victim's car had been destroyed. It was then sought to prosecute him for his involvement in the destruction of the car. It was held that there had been an undertaking, or representation, that he would not be prosecuted, and that to seek to do so was an abuse of process.
19. It is acknowledged on behalf of the appellant that the deliberate manipulation of the court process can itself amount to an abuse of process. However, Mr Forsdick, who appears on behalf of the appellant, contends that neither of the present cases comes into the category of abuse of power that was being referred to in the Horseferry Magistrates' Court case. He contends that the choice of the appropriate charges is first and foremost a matter for the prosecuting authorities. They have a discretion in the matter, to be exercised according to normal principles. Unless they can be shown to have taken into account some improper and irrelevant consideration and so manipulated the court process, their decision cannot be impugned and cannot amount to an abuse of process. He acknowledges that in both cases, though especially in the case of Courts, the magistrates appear to have taken the view that the section 111A offences were charged because of the passage of time making prosecution under section 112 impossible. It was that which led the Bench in Courts to speak of "manipulation of the court process."
20. Mr Forsdick points out that the magistrates heard no evidence as such and proceeded merely on a chronology of agreed facts and that in the appellant's submissions to them it had been said, as the case stated records, that when the file was reviewed by a lawyer on 25 October 2004, either way proceedings were considered appropriate from the outset. Consequently, it is said, if the magistrates were minded to proceed on a different factual basis, they should have heard evidence and invited the prosecution to call such evidence. It is also submitted on behalf of the appellant that section 111A charges were self-evidently appropriate here. Miss Courts is recorded as admitting in interview that "It was wrong to make a claim whilst working", while Miss Costello is said to have made "full admissions". An offence involving dishonesty as an ingredient was plainly appropriate in both cases. There was no representation made to the respondent in either case that she would not be prosecuted for such an offence.
21. Nor, it is submitted, was there any evidence that either respondent was prejudiced in any way by the prosecution being brought under section 111A. It is further argued for the appellant that the justices were wrong to require, in effect, the appellant to substitute a lesser charge. That seems to me to be something which can be most conveniently dealt with when we turn to consider the Article 6(1) issues.
22. For the respondent in both cases Mr Gregson submits that a prosecutor does not have an unfettered discretion in the selection of charges. He must act reasonably in the choice which he makes and go for the most appropriate charge. Here there was no reference to "dishonesty" in either interview, nor did the Form QB1C indicate that a section 111A charge would be brought. Indeed, Mr Gregson goes so far as to argue that it was at no time open to the department to bring section 111A proceedings, once they had served the QB1C notice. The prosecution were thenceforward debarred from prosecuting under section 111A because of that representation.
23. The section 112 charge was a realistic option, given the amounts involved. Mr Gregson argues that the justices were entitled to find in Miss Courts' case that the section 111A information had been laid to circumvent the time limits on section 112 proceedings. They did not need to hear evidence in order to reach such conclusion. It is also said that the justices in Costello implicitly took the same view. Mr Gregson accepts that in both cases the justices must have taken the view that but for the passage of time, the prosecution would have been brought under section 112. He says that there was sufficient evidence for a finding in each case that that was indeed the position.
24. As for the possible substitution of a lesser charge, it is argued on behalf of the respondents that the justices did not require the prosecution to adopt such a course but merely invited them to do so as a way of avoiding the prejudice which had been identified.
25. I shall deal with these issues before turning to the arguments raised under Article 6(1). It is not in doubt that the stay in the case of the respondent, Miss Courts, was based not on the impossibility of a fair trial, but on the view that it would not be fair to try her because of the conduct of the prosecution. Fundamental to that view was the finding that the prosecution was only brought under section 111A because time had expired for a section 112 prosecution. Hence the justices' view that the prosecution had manipulated the court process.
26. That is a very serious finding and one is bound to ask where the evidential basis for it is to be found. It seems that the magistrates inferred such a fact from the fact that at interview the respondent, Miss Courts, did not have it put to her expressly that she had acted dishonestly and that the warning which she received, by way of a notice, was a prosecution for "making false declarations to obtain benefit." Those two points really come to much the same thing since the making of a false statement to obtain benefit can found a prosecution under either section. What it comes down to is that it was not put to this respondent in interview, or in the notice, that she had acted dishonestly. For my part, I cannot see that that omission at interview can properly give rise to an inference that the decision had been made at that stage to prosecute under section 112 and not under section 111A. It simply is too flimsy a foundation for such a finding. The form served after the interview indicates that the decision whether to prosecute at all had not been made at that stage, nor would one expect the interviewing officer to be the person to make such a decision.
27. The form in each case begins with the sentence:

"You have been informed that you may be prosecuted for the offence(s) shown below". (My emphasis)

In those circumstances the form does not bind the Department of Work and Pensions only to prosecute for a particular offence. Certainly if the magistrates were minded to find that it had been decided initially not to prosecute under section 111A and that that section was only employed subsequently because of the passage of time, they should, at the very least, have invited the prosecution to call evidence on the point. That is particularly so in the face of the assertion made by the advocate for the appellant, to which I have already referred.

28. The finding of a deliberate manipulation of the court process by a prosecutor is a very serious accusation and ought not to be based on inferences drawn from the conduct of an interview and the passage of time. It was additionally an unjustified inference on the facts of the case in Courts where the respondent had herself conceded in interview that she recognised that it was wrong to claim benefit while working. That, in itself, would justify the bringing of a prosecution for dishonesty under section 111A.
29. Indeed, nothing on the facts of either case indicates that section 111A was an inappropriate provision for the appellant to use for a prosecution. As Mr Forsdick has submitted, the admissions made by each defendant in interview were such that a prosecution for acting "dishonestly" could well have been anticipated. There is no suggestion in either case that the respondent did not know that what she was doing was wrong or dishonest by normal standards. In so far as the justices in Costello also took the view that the charges would have been brought under section 112 but for the passage of time, again I, for my part, can see no evidence to sustain such a finding.
30. Once the finding of manipulation of the court process is seen to be unsustainable, the choice by the appellant of a section 111A charge cannot give rise to any abuse of process. The decision as to the offence for which a person is to be prosecuted is a matter for the prosecuting authority, which has a wide discretion in the matter (see Metropolitan Police Commissioner ex-parte Blackburn [1968] 2 QB 118 at 136). Nor is it in itself an abuse of process to prosecute for one offence when one could have prosecuted for a different one at an earlier time, as is evident from the House of Lords' decision in R v J [2004] UKHL 42. There the House of Lords held that the Crown could not prosecute for indecent assault where the conduct amounted to unlawful sexual intercourse but the time limit for charging the latter offence had expired. However, it is important to note that that conclusion was reached, not on the footing that there had been an abuse of process by such a procedure, but solely as a matter of interpretation of the relevant statutory provisions. Nothing in the statutory provisions here in the 1992 Act indicates that section 111A should not be used where the time limits for a section 112 prosecution have been reached; indeed quite the reverse. Parliament has deliberately chosen not to impose a time limit on prosecutions where dishonesty is involved. I also have some doubt as to whether the respondent in either case suffered any real prejudice from being prosecuted under section 111A rather than section 112, but it is unnecessary to determine that.
31. I conclude on these issues, therefore, that the magistrates in the case of Courts were wrong to stay the proceedings as an abuse of process. The respondent in that case failed to discharge the heavy burden of proof required to establish such an abuse of process. Subject to the point about Article 6(1) of the European Convention, the same is true of the respondent in the case of Costello.
32. I turn, therefore, to the issues relating to Article 6(1) of the European Convention. That bestows a right on an individual to have proceedings determined within a reasonable time. There was, in the case of Costello, an interval of over 12 months between the interview and the laying of the information against her. This led the magistrates to find, so far as one can see, a breach of her Article 6(1) rights. As I have indicated earlier, the magistrates took the view that time began to run for Article 6(1) purposes from the date of the interview.
33. The appellant now challenges those conclusions and also seeks guidance on the issue of when time runs from in prosecutions under the 1992 Act. Mr Forsdick refers to the House of Lords' decision on that latter topic in the Attorney General's reference (No 2 of 2001) where Lord Bingham of Cornhill stated at paragraph 27:

"As a general rule, the relevant period will begin at the earliest time at which a person is officially alerted to the likelihood of criminal proceedings against him."

34. Such period would ordinarily begin when a defendant is formally charged or served with a summons. Mere interview under caution would not ordinarily mark the beginning. Lord Bingham went on to state:

"An official indication that a person will be reported with a view to prosecution may, depending on all the circumstances, do so."

35. Mr Forsdick points out that the service of form QB1C on a person is not to be taken as an indication of an intent to prosecute because at that stage the amount of overpayment, if any, has not normally been determined. Moreover, he says, the notice only states that the recipient "may" be prosecuted, therefore the form does not have a status of a "charge", which is what Article 6(1) refers to. Consequently the appellant's suggestion is that it is the laying of the information and the issuing of a summons which start the clock ticking for Article 6(1) purposes in cases of this kind. As to the finding that Miss Costello's Article 6(1) rights had been breached, Mr Forsdick submits that that cannot be right. Not only has the period which had elapsed in this case been a short one when compared to the delays involved in cases where the Strasbourg court has found such a breach, but the magistrates were prepared to allow proceedings to continue so long as they involved section 112 offences. Moreover, if there were any breach of Miss Costello's Article 6 rights, the substitution of section 112 charges would not be an appropriate remedy, nor would the imposition of a stay on proceedings.
36. On behalf of Miss Costello, Mr Gregson argues that the period of time with which Article 6(1) is concerned begins with the issue of Form QB1C in cases such as this. She was thereby told officially that she had committed a criminal offence and might be prosecuted. The appellant already had enough evidence before the interview from her employer to form a view of the amount of benefit overpayment involved. Consequently the clock started ticking at that stage.
37. Furthermore, it is argued on behalf of that respondent that the period of time thereafter, up to the laying of the information, was such that the magistrates could properly find that it was unreasonable and prejudicial to her interests.
38. It is, in my judgment, important to bear in mind what Article 6(1) is actually dealing with in this part of its provisions. It is concerned with the period between "charge" and the "determination" of the proceedings. Obviously any delay between the date of the charge and the next stage of the proceedings will be relevant to that and will contribute to the passage of time and may, in some circumstances, indicate that there simply cannot be a determination of the charge within a reasonable period of time. But Article 6(1) is not to be seen principally as a time limit on the institution of proceedings. It is not comparable, for example, to section 116 of the 1992 Act which imposes time limits on the beginning of proceedings for certain offences under that Act, including those under section 112.
39. In the present case, indeed in both of these appeals, the proceedings never got to the point of determination but were stayed at an earlier stage. What therefore might be implicit in the justices' decision is that, because of the passage of time that had already occurred, a determination of the charges could not be obtained within a reasonable time. That required an assessment to be made as to when the charges were likely to be determined.
40. However, nothing in the case stated, in either instance, suggests that the justices ever turned their minds to that issue. They treated Article 6(1) as if it were concerned with the time limit on the start of proceedings by the laying of an information. At no point do they seem to have considered how much further time would be taken before the charges against Miss Costello, or indeed Miss Courts, would be determined one way or the other.
41. Furthermore, whatever view is taken of when the relevant period begins, the justices' decision cannot be reconciled with their invitation to the prosecution to amend the information and proceed under section 112. It is, I would have thought, obvious that Article 6(1), and its "reasonable time" requirement, applies as much to proceedings under section 112 as it does to those taken under section 111A. In concluding, as they did, that Miss Costello could still properly be prosecuted under section 112 and presumably that there could be a determination of such charges within a reasonable time, the justices were, in effect, saying that such a determination of the section 111A charges could be obtained within a reasonable time. I can see no distinction between the two. The period in question was no greater in the case of section 111A charges than in the case of section 112 charges.
42. Such a concession by the magistrates would not be surprising. Just over 12 months had elapsed since interview in the case of Costello. With a pre-trial review in June 2005 the matter could have come to trial in the Magistrates' Court in a period of time which would have been much shorter than any of the cases where the Strasburg jurisprudence has found a breach of this part of Article 6(1). That is confirmed by the decision in the case of Dyer v Watson [2002] UKPC D1; [2004] 1 AC 379, at paragraph 56, where Lord Bingham said this:

"I am aware of no case in which the court has found so short a period to violate the reasonable time requirement, save in Mansur v Turkey 20 EHRR 535, where special considerations were present."

His Lordship was there referring to a period of 20 months between charge and trial which Lord Bingham indicated was not such as to cause him any real concern, given that the accused were not in custody.

43. One bears in mind that the Strasbourg jurisprudence indicates the adoption of a less stringent approach when an accused is not held in detention, than when he or she is detained. Moreover, a stay of proceedings would not normally be an appropriate remedy for a breach of the reasonable time part of Article 6(1), unless the delay rendered a fair trial impossible, or it has become unfair, as a result, to try the defendant (see the House of Lords decision in the Attorney General's (No 2 of 2001). In other words, when considering whether a stay is appropriate, that part of Article 6(1) dealing with reasonable time really adds little, if anything, to the classic common-law tests for a stay.
44. I can, for these reasons, see no justification for a stay of proceedings on Article 6(1) grounds in the case of Costello or, for that matter, in the case of Courts, had Article 6(1) been raised in the latter case.
45. As for the issue of when time starts to run for Article 6 purposes, that is strictly unnecessary for this court to determine if, as I understand, my Lord agrees with the conclusion which I have already reached. However, I note that the passage cited earlier from Lord Bingham of Cornhill in the Attorney General's Reference (N o 2 of 2001) case suggests that an official indication that a person will be reported with a view to prosecution may mark the start of the relevant period, but that it depends on the circumstances.
46. If one goes back to one of the leading cases in Strasbourg on this topic, Eckle v Federal Republic of Germany [1982] 5 EHRR 1, one finds the court there stating that:

"'Charge' for the purposes of article 6(1) may be defined as 'the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence', a definition that also corresponds to the test whether 'the situation of the [suspect] has been substantially affected.'"

47. Form QB1C records, in the present cases, that the interviewee has been informed "that you may be prosecuted for the offence (s) shown below". That seems to me to be an official indication that the person in question has committed one or more criminal offences and may be prosecuted. That means that the person is then under the stress of waiting to hear whether he or she is in fact going to be prosecuted. For that reason I am led to conclude that, when the issue of a reasonable time under Article 6(1) arises, the period to which one should have regard probably does begin with the service of form QB1C.
48. That conclusion, however, is of little relevance to the present appeals and is, as I have indicated, unnecessary for my decision. I, for my part, am quite satisfied that the justices were wrong to have found a breach of Article 6(1) in Costello and wrong to have stayed the proceedings. I also cannot see that, if there had been a breach of Article 6(1), the substition of proceedings under section 112 would have cured it. A Magistrates' Court can, of course, invite the prosecution to seek to amend an information and the court can, in appropriate circumstances, grant such an application as the McPhee and Gallagher case shows. The court cannot require such an application to be made, but that is not what happened here. In any event, such amendment was not appropriate in either of the present cases.
49. I deal finally then with the individual questions posed in the cases stated. In Courts the questions are as follows:

"1. Whether it is lawful for the court to propose a substitution of a lesser charge to reflect prejudice caused by delay.

2. Whether the court were entitled to stay the case having reference to the guidance in the Attorney General's Reference No 2 of 2001 [2004] 1 Cr App R 317.

3. Whether the court was entitled to stay the case because of alleged delay before it heard formal evidence."

50. I would answer those questions as follows: (1) It is difficult to envisage circumstances where such a course of action would be appropriate; (2) No; (3) Not on the facts of this case.
51. The questions in Costello are:

"1. Whether it is lawful for the magistrates to propose a substitution of a lesser charge to reflect the alleged prejudice caused by delay.

2. Whether the magistrates were entitled to stay the case given the guidance in Attorney General's Reference No 2 of 2001 (2004) 1 Cr App R 25.

3. Whether the magistrates were entitled to stay the case because of alleged delay without hearing any evidence as per the guidance given in Burke v The Queen (2005) EWCA Crim 29.

4. Did the magistrates err in deciding that the 'clock started ticking' upon service of the QB1C and if it did start did the Magistrates err in deciding that any subsequent delay was so excessive as to breach the defendant's human rights and to conclude that the remedies available under S8(1) Human Rights Act 1998 should be applied.

5. Were the magistrates correct in determining that the delay which they found prevented the respondent from a fair trial in respect of the offence which she was charged?"

52. I would answer those questions as follows: for questions 1, 2 and 3 see the answers already given to the three questions in court. The same answers apply. For question 4: no, as to the first part of the question, that is the start of the ticking of the clock. Yes, as to the finding of a breach of Article 6(1). For question 5: no, they were not correct.
53. For all the reasons which I have indicated, I for my part would remit these two cases to the Magistrates' Court with directions that the stays be lifted and that the proceedings under section 111A continue and be determined without delay.
54. MR JUSTICE JACK: I agree.
55. MR FORSDICK: I am grateful. There is no application for costs.
56. LORD JUSTICE KEENE: Does anybody need any certificate for public funding?
57. MR GREGSON: I do not believe I need a certificate from this court. In the event I do, can I ask that it be granted?
58. LORD JUSTICE KEENE: In so far as you need any determination under what used to be the legal aid provisions you may have it, Mr Gregson. Thank you both very much, indeed, for your helpful submissions.