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
		18th March 2008

1. LORD JUSTICE DYSON: This is an appeal by case stated against the decision of Deputy District Judge Redhouse sitting at Camberwell Green Magistrates' Court, dated 20th November 2007. The single ground of appeal is that the District Judge erred in ruling that there was no case to answer at the close of the prosecution case:

"On the 10th Day of March 2007, informations were preferred by the appellant [authority] against the respondent that:

"(i) Between 8th April and 30th April 2006 being a person carrying on an employment agency she did directly or indirectly receive a fee of £170 from Marlene Chang (on behalf of her children Annabelle, Abigail and Alexandria and her nieces Gemma, Jessica and Rebecca) for providing services for the purpose of finding or seeking employment, contrary to section 6(1) of the Employment Agencies Act 1973, ["the 1973 Act"] and

"(ii) Between 27th May and 6th June 2006... she... directly or indirectly [received] a fee of £55 from Enid O'Donnell (on behalf of her son Alex) for providing services for the purpose of finding or seeking employment, contrary to section 6(1) of the [1973 Act]."

2. Section 6 of the 1973 Act, so far as material, provides:

"(1) Except in such cases or classes of case as the Secretary of State may prescribe --

"(a) a person carrying on an employment agency shall not request or directly or indirectly receive a fee from any person for providing services (whether by provision of information or otherwise) for the purposes of finding him employment or seeking to find him employment)."

3. The Secretary of State has made regulations prescribing cases or classes of case which are excepted from the prohibition stated in section 6(1)(a) of the 1973 Act. These are to be found in Regulation 26 of the Conduct of Employment Agencies and Employment Business Regulations 2003 ("the Regulations") which, so far as material, provides as follows:

"26(1) Subject to paragraphs (3) and (4), the restriction on charging fees to work-seekers contained in section 6(1)(a) of the Act shall not apply in respect of a fee charged by an agency for the service provided by it of finding or seeking to find a work-seeker employment in any of the occupations listed in Schedule 3.

"(2) Where paragraph (1) applies, subject to paragraph (5), any fee charged by the agency may consist only of a charge or commission payable out of the work-seeker's earnings in any such employment which the agency has found for him...

"(5) Paragraph (2) shall not apply to any fee charged to a work-seeker by an agency in respect of the inclusion of information about the work-seeker in a publication provided that --

"(a) the publication is wholly for one or both of the following purposes, namely the purpose of finding work-seekers employment in, or providing hirers with information about work-seekers in relation to, any of the occupations listed in Schedule 3; and

"(b) either --

"(i) the only work-finding service provided by the agency or any person connected with it to the work-seeker is the service described in this paragraph; or

"(ii) the fee charged to the work-seeker amounts to no more than a reasonable estimate of the cost of production and circulation of the publication attributable to the inclusion of information about that work-seeker in the publication; and

"(c) in addition to the requirements in regulations 13, 14 and 16, insofar as they are applicable, the agency has, before it entered into the contract with the work-seeker by reference to which the fee is to be charged, made available to him a copy of a current edition of the publication (or, where the publication exists only in electronic form, given him access to a current edition of the publication) in which it is offering to include information about him."

4. It was common ground that the occupations dealt with by the respondent were listed in Schedule 3 of the Regulations. Paragraphs 3-12 of the Case Stated set out the evidence that was led before the judge. This included the following:

"3. Marlene Chang said that in 2006 she looked on the internet to find an agency that might be willing to seek modelling work for her three daughters and three nieces who were then all aged under 16. She found the website of the Juliet Adams Agency and completed the required form which she returned with payment of £170. She was then telephoned by an agency representative and a date for her to attend with the children was arranged.

"4. Mrs Chang stated that her expectation of that meeting was that the children would be photographed professionally and be assessed as to their suitability to go on to 'the books' of the agency. If assessed as suitable she further expected the agency to arrange modelling work for them via posting on the agency website. Mrs Chang had not kept a hard copy of the information as it was viewed by her but recalled seeing children of different ages and in different categories on the website. Her assumption was that the agency website was available for use to gain work in the industry, that those seeking models had access to it and that it promoted children to potential hirers.

"5. Enid O'Donnell said that in May 2006 she registered her son with the Juliet Adams Agency and returned a form supplied via the website along with the requisite payment of £55. She too received a phone call from an agency representative during which an arrangement was made that she and her son would attend a photographic shoot. It was agreed that a further fee of £20 would be payable at that time.

"6. Mrs O'Donnell had not printed a hard copy of the information she had viewed on the website in 2006 but agreed that she had probably seen examples of children on 'the books' of the agency and that she wanted that service for her child. She had paid £55 for professional photographs to be taken to be put on the website and her intention was that her son would be included on the site run by the agency, to which the relevant people for finding work in the modelling industry would have access and that he would be found such work.

"7. No photographs were taken of the children. It was accepted by the appellant that neither the agency's failure to refund the monies paid by the witnesses nor their dissatisfaction with the photographic shoot arrangements were relevant to the courts' considerations in this case as they formed no part of the informations laid."

5. The respondent was not represented at the hearing but, at the close of the prosecution case, the judge decided of her own volition to consider the question of whether there was a case to answer. Having set out the relevant law, she gave her reasons for her decision, which included the following:

"23. The occupations dealt with by the agency were, it was conceded by the appellants, listed in Schedule 3 of the 2003 Regulations. The evidence given was that the agency was operating in a manner usual or commonplace within this industry. The website, at the time of the informations being laid, contained information which would be regarded as a 'publication' wholly for the purpose of finding work-seekers employment in, or providing hirers with information about work-seekers in the model industry as stipulated by Regulation 26, paragraph (5)(a).

"24. The Juliet Adams Agency was engaged in seeking work by way of information on its website. There was evidence that the parents of the work-seekers had access to the website on which other models' details could be viewed as required by Regulation 26, paragraph (5)(c). Given the amounts of money involved (£170 for six children and £55 for one child) there was no evidence that this amounted to more than a reasonable estimate of the costs of production and circulation of 'the books' (or website) of the agency as required by Regulation 26, paragraph (5)(b)(ii).

"25. For there to be a case to answer, some evidence that the agency operated other than in accordance with Regulation 26 of the 2003 Regulations was needed. The court was of the opinion that the prosecution did not adduce evidence that the conduct of Ms Adams fell outside the Regulations and accordingly the court found that there was no case to answer and the informations were dismissed."

6. Paragraph 26 of the Case Stated identifies the question for the opinion of the High Court as being whether the decision of the court that there was no case to answer on the evidence was one which no reasonable tribunal could have made.
7. The submissions made by Mr Ashley-Norman can be summarised in the following way: The judge found as a fact that no photographs were taken of any of the children concerned. None of the children, therefore, was included on the respondent's website. Regulation 26(5) contemplates the inclusion of the model in the publication having actually occurred. Regulation 26(5)(ii) requires comparison not with the costs of production and circulations of the books or website simpliciter; rather it requires comparison with such costs as are attributable to the inclusion of the information about that work-seeker in the publication.
8. In this case, the children in respect of whom fees were paid were not included in the website run by the respondent. Accordingly, he submits, there were no costs of publication which could be said to be attributable to the inclusion of information about those children. It followed that payments sought and obtained from the complainants could not be brought within the terms of Regulation 26(5). In the result, the agency operated by the respondent was caught by the general provision contained in Regulation 26(2) to the effect that fees charged should be limited to commissions or charges paid out of earnings from employment found by the agency. Requesting and receiving the fees in this case therefore placed the respondent in breach of section 6(1) of the 1973 Act.
9. It was not necessary for the Crown to adduce evidence as to the costs of production and circulation of the books or website since none of these costs were attributable to the inclusion of the children in respect of whom the complaint was made; none of the children featured in them. This summary of Mr Ashley-Norman's submissions is derived from his careful skeleton argument, and was, albeit briefly, repeated orally this morning.
10. I cannot accept these submissions. The premise on which they are based is that the information about the work-seeker must already have been included in the publication as a condition of Regulation 26(2) being disapplied. Whether that is correct depends on the true construction of Regulation 26(5). I accept that the language of the opening words of Regulation 26(5) "shall not apply to any fee... in respect of the inclusion of information about the work-seeker in a publication" is apt to include a case where information has already been included in the publication. In my judgment, however, there is nothing in the language which excludes the case where information is to be included in the future. It is not a misuse of language to say of a fee which is charged in advance in respect of information about a work-seeker to be included in the publication that the fee is charged "in respect of the inclusion of information about the work-seeker in a publication".
11. The same point may be made in relation to Regulation 26(5)(b)(2). The reference to an estimate more naturally suggests that the subject matter of paragraph (b)(2) is something that is to be done in the future rather than something that has already been done in the past. Estimates are more usually made of the cost of things that are to be done. I accept, however, that estimates may also be made of the cost of something that has been done, especially where the ascertainment of the precise cost may be difficult. It may be that the ascertainment of the cost of production and circulation of a publication which is attributable to the inclusion of information about that work-seeker in the publication is a matter of some difficulty. The important point is that there is nothing in the language of paragraph (b)(2) which necessarily indicates that the work-seeker must be included in the publication as a condition of the application of Regulation 26(5) and the disapplication of Regulation 26(2).
12. Further support for the conclusion that the language of 26(5) contemplates the future inclusion of information in a publication is to be found in subparagraph (c), and in particular the reference to "in which it is offering to include information about him". The language of "offer" there, to my mind, points to the future. For these reasons, I reject the primary submissions made by Mr Ashley-Norman as to the proper interpretation of Regulation 26(5).
13. In the course of his oral argument, counsel advanced an alternative or additional submission that the offences were committed because the photographs of the children were never taken and they should have been taken within a reasonable time. As I understand the submission, it is that the failure to take the photographs and include the information about the children in the publication within a reasonable time of itself meant that the demand for the fees became unlawful. That is not the way in which the case was argued before the Deputy District Judge, nor do I think that it can be a correct approach to this regulation.
14. The unlawfulness of the demand for fees must be judged as at the time the demand is made. It cannot be the case that a demand for fees is lawful at the time it is made but somehow becomes unlawful after the passage of a reasonable time if, by that time, the information about the work-seeker has not been included in the publication. In my judgment, that suggested route to founding an offence contrary to section 6(1) of the 1973 Act, when read in conjunction with Regulation 26(5), is misconceived.
15. The District Judge held that there was no evidence that the amounts charged by the respondent were more than reasonable estimates of the costs as required by 26(5)(b)(2). There is nothing in the Case Stated to suggest that the judge was not entitled so to hold. In these circumstances, in my judgment, she was entitled to rule that there was no case to answer. I would answer the question raised by the Case Stated by saying that the decision that there was no case to answer was not one which no reasonable tribunal could have made and I would dismiss this appeal.
16. MR JUSTICE LLOYD JONES: I agree.
17. MR ASHLEY-NORMAN: My Lord, just for the stenographer's assistance, the District Judge is in fact a lady District Judge.
18. LORD JUSTICE DYSON: I did wonder about that but there was no clue that I could find in the papers. I probably should have said, "he or she", but that would have been rather ridiculous. Thank you for telling us.