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, WC2A 2LL
		25 July 2008

Lord Justice Maurice Kay :

1. The Private Security Industry Act 2001 (the Act) is described in its long title as "an Act to make provision for the regulation of the private security industry". Section 1 established the Security Industry Authority (SIA) as a body corporate and defined its functions, which include licensing, monitoring and inspection. It is also empowered by section 1(3) to do

"anything that it considers is calculated to facilitate or is incidental or conducive to, the carrying out of its functions."

2. The Act creates a number of criminal offences including engaging in licensable conduct except under and in accordance with a licence (section 2(1)). Other offences include using unlicensed security operatives (section 5), using unlicensed wheel-clampers (section 6) and offences aimed at supporting the SIA in the discharge of its functions (section 19(6) and 22(1)). The offence under section 5 was brought into force with effect from 20 March 2006, although those who would require licences were able to apply for them from 10 January 2005. On 23 and 24 March the SIA carried out inspection visits at various sites where the corporate claimants provided security services to well-known companies. It is alleged that they there found numerous security staff who had been deployed by the claimants but who were "unlicensed security operatives". In due course, the SIA procured summonses to be issued against the corporate and individual claimants, the individuals being directors or managers of the companies in respect of whom criminal liability is provided for by section 23. The alleged offences are triable either in the Magistrates Court or on indictment in the Crown Court. Here, the cases have proceeded to the Crown Court.
3. In Southwark Crown Court, but not earlier, the claimants contended that the SIA has no power or authority under the Act to institute or continue a prosecution. On 18 March 2008, His Honour Judge Rivlin QC rejected that contention. On 23 April 2008, the claimants lodged this application for permission to apply for judicial review. They seek to challenge not the ruling of the judge in the Crown Court but the prior decisions of the SIA to prosecute. By order of Ouseley J, the application has been listed before us on a "rolled-up" basis. We indicated at the commencement of the hearing that we were content to receive full submissions on all issues and would decide later whether to grant permission and, if so, whether to grant substantive relief.
4. The case for the claimants is that the SIA has no statutory power or authority to prosecute because its capacity as a statutory corporation is limited by the enabling statute and that is silent on the question of prosecution. The case for the SIA is that it is acting within its statutory powers. However, it takes two preliminary points, namely (1) that this Court has no jurisdiction to entertain the claimants' application because it concerns a matter "relating to trial on indictment" pursuant to section 29(3) of the Supreme Court Act 1981 or, alternatively, we should refuse to entertain the application as a matter of discretion, given its subject matter; or (2) that we should reject the application because it was not made promptly or, in any event, within three months of the decision to prosecute in accordance with CPR 54.5 and there is no good reason to extend time.
5. Logically, these preliminary points should be considered first. However, both parties have urged us to express a view on the merits, even if we are persuaded by one or other of the preliminary points raised by the SIA and, in these circumstances, we shall deal with the merits ahead of the preliminary points. Before that, however, it is necessary to set out more of the statutory provisions.

The statutory provisions

6. Section 1(2) of the Act provides:

"The functions of the Authority shall be –

(a) to carry out the functions relating to licensing and approvals that are conferred on it by this Act;

(b) to keep under review generally the provision of security industry services and other services involving the activities of security operatives;

(c) for the purpose of protecting the public, to monitor the activities and effectiveness of persons carrying on businesses providing any such services as are mentioned in paragraph (b);

(d) to ensure the carrying on of such inspections as it considers necessary of the activities and businesses of –

(i) persons, engaged in licensable conduct; and

(ii) persons registered under section 14 as approved providers of security industry services;

(e) to set or approve standards of conduct, training and levels of supervision for adoption by –

(i) those who carry on businesses providing security industry services or other services involving the activities of security operatives; and

(ii) those who are employed for the purposes of such businesses;

(f) to make recommendations and proposals for the maintenance and improvement of standards in the provision of the security industry services and other services involving the activities of security operation;

(g) to keep under review the operation of this Act."

7. Section 1(3) then provides:

"The Authority may do anything that it considers is calculated to facilitate or is incidental or conducive to, the carrying out of its functions."

8. Section 1(4) provides that, without prejudice to section 1(3) the SIA may, for any purpose connected with the carrying out of any of its functions, (a) make proposals to the Secretary of State for the modification of any provision in the Act and (b) undertake, arrange for or support (whether financially or otherwise) the carrying out of relevant research.
9. The system for licensing and approvals is provided for by sections 3 – 18. Powers of entry and inspection are the subject of sections 19 and 20. I shall have to make more detailed reference to some of these provisions later.

Does the SIA have power to prosecute?

10. It is, of course, correct that a statutory corporation only has competence to act to the extent that it is empowered by statute. It is also obvious that the functions of the SIA, as prescribed by section 1(2) of the Act, do not include any express reference to "prosecution". Nevertheless, on behalf of the SIA, Mr David Perry QC submits that the SIA is competent to prosecute because to do so is "calculated to facilitate or is incidental or conducive to, the carrying out of its functions", pursuant to section 1(3). This is essentially a matter of construction upon which we have received rival submissions as to the intention of Parliament. In evaluating them, it is appropriate to keep in mind the words of Lord Nicholls of Birkenhead in R v Secretary of State for the Environment, ex parte Spath Holme Ltd [2001] 2 AC 349, at pp 396F-397A:

"Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that 'the intention of Parliament' is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman or of individual members or even of a majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and words used may be impressively complete or woefully inadequate. Thus, when courts say that such-and-such a meaning 'cannot be what Parliament intended', they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning. As Lord Reid said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613: 'We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used'."

11. Lord Nicholls also went on (at p.397F-398E) to articulate "an important caveat" regarding the use of external aids to construction, reminding us that:

"… the constitutional implications point to a need for courts to be slow to permit external aids to displace meanings which are otherwise clear and unambiguous and not productive of uncertainty."

12. In the present case, we have been referred by counsel on both sides, but particularly by Mr Andrew Mitchell QC on behalf of the claimants, to numerous external aids, including the White Paper which preceded the legislation (Cmnd 4254, March 1999), ministerial statements in the course of the legislative process, later ministerial comment and, by way of comparison, other regulatory statutes covering unrelated industries. The exercise was not uninteresting but, in my judgment, nor was it illuminating as to the construction of s.1 of the Act and the powers afforded to the SIA. I have come to the firm conclusion that, construing section 1(2) and (3) in the context of the Act as a whole and having regard to the purpose of the Act – "the regulation of the private security" – the prosecution for alleged offences under the Act is calculated to facilitate, or is incidental or conducive to, the carrying out of the SIA's functions. The first function referred to in section 1(2) is "to carry out the functions relating to licensing". In my judgment, that function is plainly facilitated by the enforcement of the sanctions prescribed by the Act. To the extent that it is an offence to engage in licensable conduct except under and in accordance with a licence (section 3(1)) or to use an unlicensed operative (section 5(1)), the "functions relating to licensing" are facilitated by resort to the threat and the reality of prosecution. In the same way, prosecution is conducive to the carrying out of the licensing function because fear of prosecution will deter unlicensed activity.
13. Similarly, it seems to me that the power to prosecute is also calculated to facilitate and is conducive to the carrying out of the function prescribed by section 1(2)(d), namely the function "to ensure the carrying out of inspections". The purpose of the offences under sections 19 and 21 is to underwrite the powers of entry and inspection and the obtaining of information. It would be very odd if the regulator were powerless to prosecute such offences. In argument Mr Mitchell went so far as to accept that a person authorised by the SIA to exercise powers of search and entry could prosecute in the event of obstruction but such a prosecution could not be brought by the regulatory authority who authorised the search in the first place.
14. I am wholly unpersuaded by a submission that the Act, whilst prescribing regulatory offences, by implication requires the SIA, as the body with knowledge of non-compliance, to outsource the prosecution function to an overstretched police force and Crown Prosecution Service. The SIA is in "a peculiarly advantageous position to prosecute", to borrow the words of Lord Woolf CJ in R(Hunt) v Criminal Cases Review Commission [2001] QB 1108, 1116, where he was considering the position of the Inland Revenue Commissioners, albeit outside the ambit of a statute and, admittedly, not a corporate body.
15. It is true that there are numerous examples of regulatory statutes – both earlier and later than 2001 – in which an express power to prosecute has been conferred on the regulator. These include the Health and Safety at Work Act 1974 and the Food Safety Act 1990. Mr. Mitchell also sought to place particular reliance on the Gangmasters Licensing Act 2004. However, following the approach and the caveat of Lord Nicholls in ex parte Spath Holme, I do not find such comparisons to be appropriate or fruitful. As Lord Woolf MR said in Broadmoor Special Health Authority v Robinson [2000] QB 775, at paragraph 25:

"If a public body is given responsibility for performing public functions in a particular area of activity, then usually it will be implicit that it is entitled to bring proceedings seeking the assistance of the courts in protecting its special interests in the performance of those functions."

16. Although that case was concerned more with standing than with construction of a statutory power, the approach has some relevance to the present case. On the other hand, cases in which a statutory body has engaged in activities wholly outside its conventional role, such as Hazell v Hammersmith and Fulham Borough Council [1992] 2 AC 1, do not seem to me to be instructive here, notwithstanding the fact that the Local Government Act 1972 is in similar terms to s.1(3) of the present Act and that local authorities in addition have express powers to bring criminal proceedings.
17. I should mention one further submission advanced by Mr Mitchell, to the effect that, since section 1(4) goes to the extent of making specific provision for such things as the carrying out of research or activities "for any purpose connected with the carrying out of [the SIA's] functions", it is unthinkable that the power to prosecute can arise under section 1(3) and without any such express provision. I do not accept this submission. Section 1(4) is expressly stated to be "without prejudice to subsection (3)". It would be quite wrong to use it as a limitation upon subsection (3).
18. In the course of submissions, various references were made to the continued phenomenon of private prosecutions. Mr Mitchell seeks to say that it demonstrates the lack of a power to prosecute on the part of the SIA because, unlike a natural person, it is limited in its powers by its governing statute. Mr Perry submits that the fact that a private individual, including an employee of the SIA, could bring a private prosecution in relation to these offences demonstrates the absurdity of construing section 1 in such a way as to deny the competence of the SIA to prosecute. Whilst I see the rhetorical force of this point, in the end I prefer to express my conclusion on this first issue by reference to what I find to be the clear meaning of section 1, considered in its context and by reference to the purpose of the Act.

Section 29(3)

19. Having stated my conclusion on the substantive issue raised by this application, I now move to the logically prior questions. Section 29(3) of the Supreme Court Act 1981 provides:

"In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court."

20. Thus there is a jurisdictional exclusion as regards "matters relating to trial on indictment". The question is whether the present application falls within that exclusion. As was observed by Mitchell J in Regina v Maidstone Crown Court ex parte Harrow London Borough Council [2000] QB 719, 734B, the rationale for the exclusion is the avoidance of delay in criminal proceedings. The leading authority remains Regina v Manchester Crown Court ex parte Director of Public Prosecutions [1993] 1 WLR 1524. Lord Browne-Wilkinson (at page 1528H) referred to the earlier House of Lords decision in Re Ashton [1993] 1 WLR 846 in which it was held that an order for a stay was plainly an integral part of the trial, affected the conduct of the trial and fell within the ordinary meaning of the words of section 29(3). Later in his speech, Lord Browne-Wilkinson said (at page 1530E):

"It may therefore be a helpful further pointer to the true construction of the section to ask the question 'Is the decision sought to be reviewed one arising in the issue between the Crown and the defendant formulated by the indictment (including the costs of such issue)?' If the answer is 'Yes,' then to permit the decision to be challenged by judicial review may lead to delay in the trial: the matter is therefore probably excluded from review by the section. If the answer is 'No,' the decision of the Crown Court is truly collateral to the indictment of the defendant and judicial review of that decision will not delay his trial: therefore it may well not be excluded by the section."

The submission on behalf of the SIA is that the present application falls within the statutory exclusion as there explained.

21. Mr Mitchell submits that the present application does not relate to the trial on indictment which is due to take place in Southwark Crown Court. In both form and substance it is a challenge to the statutory powers of the SIA.
22. Challenges by way of judicial review to a decision not to prosecute have become familiar: see, for example, R v Director of Public Prosecutions, ex parte Manning [2001] QB 330. Challenges to the decision to prosecute are rarer but not unknown: see R v Inland Revenue Commissioners, ex parte Mead [1993] 1 All ER 772. The complicating feature of the present case is that it is a challenge to the decision to prosecute, but by reference to vires rather than discretion. Moreover, it is sought to be made at a relatively late stage only after the Crown Court has become seised of the matter and, indeed, has made a ruling on this very issue. I am prepared to assume that a challenge to the decision to prosecute, in the form of a challenge to the vires of the prosecutor, if made at a much earlier stage, may not be caught by the exclusionary provision of section 29(3). However, when (as here) the case has proceeded to the Crown Court and has been the subject of a ruling by a judge in the Crown Court, it seems to me that the exclusionary provision bites. If a defendant is then prosecuted to conviction in the Crown Court, he can take the point in the Court of Appeal Criminal Division (CACD) in an appeal against conviction. Indeed, in some cases he will not have to wait so long. In a case of sufficient complexity, seriousness or prospective length, if the ruling was made within the context of a preparatory hearing pursuant to section 29 of the Criminal Procedure and Investigations Act 1996, an interlocutory appeal to the CACD might arise, particularly since the ambit of such appeals has been widened by the recent decision of the House of Lords in H [2007] 2 AC 270, [2007] UKHL 7. As it happens, the ruling in Southwark Crown Court in the present case was not made within a preparatory hearing, a point to which I shall make further reference later. In my judgment, applying the wording of section 29(3) in the light of the authorities and at the stage of proceedings which have been reached in the present case, the present application to this court is defeated by the exclusionary provision. On that basis, we have no jurisdiction to consider it.

Discretion

23. Quite apart from the question of delay (to which I shall return), Mr Perry submits that, as a matter of discretion, we should decline to hear this application. This is in the form of an alternative to his submission on section 29(3). In Regina v Director of Public Prosecutions, ex parte Kebilene [1999] 3 WLR 972, counsel for the applicant accepted that there is a common law principle independent of section 29(3) which provides a strong presumption against the Divisional Court entertaining a judicial review application where the complaint can be raised within the criminal trial and the appeal process. Lord Steyn said (at page 985E):

"My Lords, I would rule that absent dishonesty or mala fides or an exceptional circumstance, the decision of the Director to consent to the prosecution of the applicants is not amenable to judicial review."

24. It is apparent from the speeches of the majority that they identified the policy underlying section 29(3) to be the avoidance of delay by collateral challenges and that this gives rise to a general rule, quite apart from section 29(3), to the effect that the courts, in the absence of exceptional circumstances, should resist satellite litigation in criminal cases where the trial and appellate processes would be unjustifiably delayed.
25. Once again, I conclude that, given the stage which has been reached in the proceedings before the Crown Court, it would be quite wrong for us to entertain this application for judicial review. If further support for this conclusion were required, it is emphatically furnished by the decision of the Privy Council in Sharma v Brown-Antoine [2007] 1 WLR 780 [2006] UK PC 57.

Delay

26. The decision to prosecute Securiplan and Mr Ullmann was taken on or about 19 December 2007 and the summonses against them were issued on 7 January 2008. The decision to prosecute Sabrewatch and Mr Lucas came much earlier, the summonses in their cases having been issued on 3 May 2007, with further summonses against Mr Lucas following on 10 September 2007. The applications for permission to apply for judicial review in respect of all four claimants were lodged on 23 April 2008, some five weeks after the ruling in Southwark Crown Court. In no case can it be said that the application for permission to challenge the power and decision to prosecute was made either promptly or within three months. As Mr Perry wryly observes, if the application had been made at the earliest opportunity, it might have caused the SIA, from an abundance of caution, to procure prosecutions by some other person or agency with an unquestioned power to prosecute. Be that as it may, the claimants chose to fight their corner in the Crown Court. Having done so, it seems to me that it would be a massive indulgence to extend time to enable them to take the same point in this court. The reasons for this are essentially the same as those to which I have referred when considering jurisdiction and discretion. Indeed, in any exceptional case where an application for judicial review is made in relation to pending criminal proceedings, be they in the Magistrates Court or the Crown Court, it is incumbent upon the claimant to proceed expeditiously. Whether or not it would have been appropriate to grant permission to apply for judicial review in the present case if the application had been made promptly following the decisions to prosecute or the issue of the summonses, it is not appropriate to extend the time at this stage when the point in issue is already the subject of a ruling in the Crown Court and contingently susceptible to an application for leave to appeal to the CACD.

Conclusion

27. Although I have concluded that the SIA does have the power to prosecute, I do consider that the contrary proposition was arguable. If this Court had been asked to grant permission to challenge the vires of the SIA promptly, I would have been content to grant permission to apply for judicial review but to have rejected the application substantively. However, now that events have taken the course that they have, I would refuse permission by reference to section 29(3), discretion and delay. Having said that, we have heard very full submissions on both sides and I would authorise reporting of and reliance upon this judgment, even though permission is being refused.
28. I add this footnote. After Mr Perry had made submissions by reference to H on the wider availability of preparatory hearings and the possibility of interlocutory appeal to the CACD, Mr Mitchell made the ingenious suggestion that His Honour Judge Rivlin QC should redeliver his Ruling within a preparatory hearing and that we should reconstitute ourselves as the CACD so as to hear an appeal against the reissued Ruling. Notwithstanding its ingenuity, I found that suggestion to be wholly unattractive. It may be that now Mr Mitchell knows our conclusion on the substantive issue, his enthusiasm for it has waned as well.

Mr Justice Blake:

29. I agree  with my Lord  that this application should be dismissed on the merits, by reason of s.29(3) Supreme Court Act 1981  and on account of delay and the exercise of discretion  for the reasons he has given. Out of deference to the detailed arguments deployed before us I would add four observations of my own.
30. First, if there had been a prompt challenge taken by way of judicial review to the decision of the SIA to institute proceedings on the grounds that it had no power to do so, I am of the opinion that the procedural objections that presently arise would not have done so. Mr. Perry QC  himself accepts that he could not deploy s.29 (3) as an answer to such a challenge to whether proceedings could be begun by this regulator and I consider that he was correct to do so.  I further would conclude that broader discretionary grounds  such as those that arose in Kebilene [1999] 3 WLR 972   would be no answer to such a challenge. In my judgment there is a material difference to judicial review of a decision by a prosecutor as to how to exercise discretion and a decision that seeks declaratory relief that the prosecuting authority has no powers available to exercise.
31. Second, the true picture of the dealings between the claimants (or some of them) and the Defendant indicates that there were two opportunities missed to take the point now taken before the trial began. The point could first have been taken in the proceedings that were brought to challenge the ex parte restraint order obtained in October 2006. Those proceedings went to the Court of  Appeal and were decided in favour of the claimant on the 21^st June 2007 [2007] EWCA Crim 1705  but as the present point was not argued  Mr Perry makes no reliance on the obiter observation of Longmore LJ at [1]. Judicial review could also have been brought on notification of  the decision of the present respondent to seek a summons in December 2007.  In my judgment the failure to use those opportunities to take the point combined with the decision that was taken to ventilate it by way of preliminary application before the trial judge, preclude this court  now granting permission  to bring these proceedings.  It is not merely delay that has occurred with the risk of prejudice to the trial timetable, but duplication of the same point before two distinct jurisdictions, and increased costs caused as the present respondents appeared by counsel instructed by the Treasury Solicitors which is not the case in the criminal proceedings.
32. Third, although I readily accept that the legislative history of a measure from first intimation in a White Paper through to notes on clauses in a bill and even headings to a section in a statute are all admissible aids  to construction  (R v Montilla [2004] UKHL 50, [2004]  1 WLR 3141  at [33] to [36]),   the terms of other statutes will not generally be relevant and therefore admissible.  If there had been a consistent legislative practice to grant overt and unambiguous powers of prosecution to a regulator whenever this was intended, it may be that evidence of such a practice could be received in order to establish whether Parliament intended a different consequence in the words used in the particular statute under consideration. Such a practice has not been established. In particular the Gangmasters (Licensing) Act 2004, apart from being enacted three years after the Act we are concerned with, proved in my judgement not to support Mr. Mitchell's submissions but to undermine them. The Act makes criminal provisions in respect of conduct that is conducted without a licence or in breach of  one, but does not give the authority overt powers to prosecute, although the power of the Secretary of State to appoint enforcement officers given under s.15(1) certainly envisaged  that bringing of prosecutions is one activity these officers will undertake.
33. Fourth, I accept Mr Mitchell's submissions that s.1(3)  of the Private Security Industry Act 2001 only affords powers that are "incidental or conducive to  the carrying out of any its  functions"  and cannot be read as a discrete source of functions not accorded elsewhere,  but a power of prosecution is, in my judgment, incidental to the functions identified by my Lord at [12] and [13] above. I doubt whether it could be said to be incidental to the function of "monitoring" or "making recommendations"  ( see s.1(2)( c) and s.1(2)(f) ). It is hardly remarkable that Parliament should not have given the regulator overt powers of prosecution when a prosecution can be brought by the ordinary citizen in the public as well as the private interest (see R (Ewing)  v Davis [2007]  EWHC 1730 Admin). In my judgement, the powers available to the private citizen also undermine the contention that in the modern era only the CPS or regulators that are independent of the investigative processes can institute proceedings. There are protections for the person against whom proceedings are wrongly brought both under the Prosecution of Offences Act 1985 s.3(2)(a) and s.6, as well as the inherent jurisdiction of the court to prevent an abuse of process.