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
		14 May 2010

1. LORD JUSTICE ELIAS: This is an appeal by way of case stated from the decision of the justices from Conwy County, acting for the Local Justice Area of North Wales, sitting in Llandudno. On 12 May 2009 they acquitted Mr Dan Forrest on a charge of failure to comply with a request for information under Section 14A (3) of the Child Support Act 1991. They acquitted him on the basis that he had a reasonable excuse for not providing that information.
2. Before going into the case stated I shall briefly deal with a procedural point which was raised by Mr Southey QC, quite properly, on behalf of Mr Forrest. It was this. Under paragraph 18.4 of the Practice Direction to Part 52 of the Civil Procedure Rules ("CPR") the application to the court had to be lodged within ten days of the applicant receiving the stated case. It is common ground that that was not done in this case. The application was in fact lodged ten days late. The reason given for the delay was that the individual who was responsible for dealing with this matter had not received the document within the ten days, and dealt with the matter expeditiously thereafter. There were certain explanations given, partially at least to explain why she did not receive the documents as she ought to have done. Apparently the Agency moved premises at around that period which caused certain difficulties for the administration; and it was August and was therefore holiday time.
3. Under paragraph 5.2 of the Practice Direction to CPR 52, the appellant's notice needs to state the reason for the delay and the steps taken prior to the application being made. The reasons are not altogether satisfactory and no steps were taken prior to the application being made other than those which I have indicated.
4. Mr Southey contends that in the circumstances we should not extend time. He points out that the rules are quite strict in relation to applying for a case to be stated. He refers to Michael Galvin [1977] 1 WLR 296, which was concerned with the predecessor section. He submits that although the ten-day time limit is now provided for by a practice direction, nonetheless that case gives an indication of the need to approach matters of this kind quite strictly. He also submits that in a case where the prosecution is seeking to appeal by way of case stated, that is a factor that should weigh with the court and point against an extension of time more readily than it might in a case where the individual defendant is seeking to appeal. A defendant has some expectation that there will be no appeal once the time limits have passed. Mr Southey also refers to Brumarescu v Romania [2001] 33 EHRR 35, an authority of the European Court of Human Rights, where the court indicated that if there were an indefinite right to challenge a decision by way of appeal that would involve infringement of Article 6 because there would be a lack of certainty about when proceedings were completed.
5. I have considered this matter and I have concluded that notwithstanding the attractive submissions from Mr Southey, we should extend time in the circumstances of this case. First, the length of delay is relatively short; it is only a ten-day period. Second, it has not been contended that there was any prejudice so far as this defendant was concerned. It does not appear that he even knew that there was a ten-day time limit and therefore he was not aware that the case had not been lodged in time. But even if he had known of the time limit, I am satisfied that that would not be sufficient prejudice to entitle the court to refuse to grant an extension in this case. Third, the explanation - although unsatisfactory in certain respects - nevertheless does not demonstrate that there has been any contumelious disregard of the rules of the court. There is some explanation as to the difficulties that were facing the administration at that time. Finally, I also bear in mind that the point being raised is one of some significance and it is desirable that the court deal with it.
6. I have some sympathy for Mr Southey's contention that because it is the prosecutor appealing the court may be required to take a stricter approach than it would where an individual defendant appeals. But whether that is correct or not, I am satisfied that even adopting the stricter approach, nonetheless in this case, for the reasons I have given, the time should be extended.
7. I now go on to consider the substance of the case. The justices set out certain facts which are material. They found the Child Support Agency had made a request for the respondent to provide the information as required by Section 14 (1) of the Child Support Act. They set out the evidence which they heard which, perhaps surprisingly, did not include evidence from the respondent himself. Then they set out the competing submissions of the parties which they had to consider as follows:

"3 It was contended by the applicant that the respondent did not have a reasonable excuse for failing to provide the information requested.

4 It was contended by the respondent that he did have a reasonable excuse for failing to provide the information. He contended that to do so may have led to consequences for his children and for the mother of his children in relation to the benefits being claimed, the children not being with her which may have resulted in her facing a criminal prosecution."

8. They then referred in terms to the statutory defence under Section 14A (4), which provides the reasonable excuse defence in the following terms:

"It is a defence for a person charged with an offence under sub-section (3)…… to prove that he had reasonable excuse for failing to comply."

9. They say:

"We are of the opinion that the respondent has established a reasonable excuse for not providing the information"

and accordingly found him not guilty and dismissed the information.

10. They posed the question for the court in the following way:

"Were the magistrates correct in law that the respondent's claim to be protecting his wife from the risk of prosecution amounted to a reasonable excuse for not providing the requested information?"

I note that looking at that question strictly and literally,the answer must be negative. It could never be the case that the mere claim by the respondent could constitute the reasonable excuse; they must have in mind the claim once it is shown that it is a real possibility. It seems to me that in essence what this question is asking is whether the defence of self-incrimination or protecting another from the possibility of facing criminal charges could, in principle, be capable of constituting a reasonable excuse within the meaning of section 14A(4).

11. It appears that the defendant had in fact been contending before the court that he would be able to rely upon Section 15 (7) of the Act. Section 15 empowers the Commission to appoint inspectors who may at any reasonable time enter any premises defined in the section but which excludes such premises as are used wholly as a dwellinghouse. The inspectors may obtain information and evidence. Sub-section (7) is in the following terms:

"No person shall be required under this section to answer any question or to give any evidence tending to incriminate himself or, in the case of a person who is married, [or has a civil partner], his or her spouse [or civil partner]."

12. It will be noted that sub-section (7) is limited to a case where persons have been required to answer a question or give evidence tending to incriminate themselves or another under this section (I emphasise those words). The request in this case was not under that section. It was under Section 14. Accordingly, as Mr Southey properly accepts, Section 15 (7) is not directly applicable in this case. It may be for that reason that the justices do not in terms refer to Section 15 (7) in the case stated at all. They have simply focussed on the terms of Section 14A(4) itself.

It is Section 14A (3) which makes it an offence to fail to comply with a request for information.

13. The finding of the justices is therefore that the concept of reasonable excuse under Section 14A is capable of embracing - to put it loosely - the principle of protecting oneself from incrimination or a third party.
14. I do not think that is a sustainable conclusion, essentially for three reasons. First, as a matter of ordinary statutory construction it seems to me that where Parliament has in terms provided that defence in part of the statute, as it has here in Section 15 (7), and has not provided the same defence in another section, (here where the information is required under Section 14) then the natural inference is that Parliament does not intend that that defence should be available. It would have been very simple to have put the defence in Section 15 (7) to apply to any request made under the Act rather than under that particular section or, alternatively, to reflect in Section 14A the same defence as is found in section 15 (7). That has not been done.
15. Secondly, even independently of that, in my judgment the construction adopted by the justices is unsustainable as a matter of authority. I refer in particular to the decision of the House of Lords in R v Hertfordshire County Council ex p Green Environmental Industries [2000] 2 AC 412. That case was concerned with the exercise of power under Section 71 (2) of the Environmental Protection Act 1990 which was in the following terms:

"(2) For the purpose of the discharge of their respective functions under this Part —

.....

(b) a waste regulation authority,

may, by notice in writing served on him, require any person to furnish such information specified in the notice as the ..... authority ..... reasonably considers ..... it needs, in such form and within such period following service of the notice as is so specified."

As here, sub-section (3) makes it a criminal offence, punishable summarily by a fine or on indictment by imprisonment, to fail without reasonable excuse to comply with that requirement. So it is extremely analogous to this case.

16. Lord Hoffmann, with whose speech Lords Slynn of Hadley, Lord Steyn, Lord Cooke of Thorndon and Lord Hobhouse of Woodborough agreed, considered whether as a matter of domestic law it would be open to the defendant to assert that he had a reasonable excuse, namely that in providing information he might incriminate himself. He concluded that that defence was not available. He set out in some detail his reasons for reaching that conclusion, notwithstanding that the point had been conceded. He said this(pages 419 F - 420 F):

"The question of whether a statute which confers a power to ask questions or obtain documents or information excludes the privilege against self-incrimination in one or other of its forms is therefore one of construction. Some statutes expressly exclude the right to refuse to answer on the ground that the answer may tend to incriminate, usually in company with a provision which prevents the answers from being used in evidence: see, for example, section 31 of the Theft Act 1968 and section 72 of the Supreme Court Act 1981. Even without express words, the statute may impliedly exclude the privilege on the ground that it would otherwise be largely ineffective. So in In Re London United Investments Plc [1992] Ch 578 the Court of Appeal decided that the privilege was impliedly excluded by the terms of a statute which conferred power on company inspectors appointed by the Secretary of State to require documents and answers to questions from any person whom they consider may have relevant information. In Bishopsgate Investment Management Ltd v Maxwell [1993] Ch 1 20 Dillon LJ said of the In Re London United Investments Plc case and a similar decision on investigatory powers conferred on the Bank of England by the Banking Act 1987 (Bank of England v Riley [1992] Ch 475):

'The essence of both decisions is that if Parliament, in the public interest, sets up by statute special investigatory procedures to find out if the affairs of a company have been conducted fraudulently, with the possibility of special remedies in the light of an inspector's report, or to find out if there have been infringements of certain sections of the Banking Act 1987 which have been enacted for the protection of members of the public who make deposits, Parliament cannot have intended that anyone questioned under those procedures should be entitled to rely on the privilege against self-incrimination, since that would stultify the procedures and prevent them achieving their obvious purpose.'

Mutatis mutandis, it seems to me that this reasoning is applicable to the powers of investigation conferred by section 71(2). Those powers have been conferred not merely for the purpose of enabling the authorities to obtain evidence against offenders but for the broad public purpose of protecting the public health and the environment. Such information is often required urgently and the policy of the statute would be frustrated if the persons who knew most about the extent of the health or environmental hazard were entitled to refuse to provide any information on the ground that their answers might tend to incriminate them. Parliament is more likely to have intended that the question of whether the obligation to provide potentially incriminating answers has caused prejudice to the defence in a subsequent criminal trial should be left to the judge at the trial, exercising his discretion under the Act of 1984. For these reasons, I would regard the case for implied exclusion of the privilege as even stronger than it was in the cases under the Banking and Companies Acts."

17. What that analysis makes plain - and indeed this is entirely in accord with Article 6 as construed by the European Court in such cases as Sanders v United Kingdom [1996] 23 EHRR 313 - is that if answers are potentially incriminating then that may justify the information not being adduced in evidence at any subsequent criminal trial, but it does not justify the information not being provided to the relevant authorities.
18. Lord Hoffmann's speech, in my view, also demonstrates the third reason why this argument must fail, namely the policy considerations. There is plainly a powerful public interest here in ensuring that fathers pay the appropriate maintenance to their spouse or partner and their children. That is the purpose behind the requirement of this information, to enable the Child Support Agency to ensure that the appropriate sums are provided in accordance with the legislation.
19. Mr Southey contended that the situation in this case could be distinguished from Green Industries on the grounds that we are concerned here with essentially private matters as between the father and the mother and children. I simply do not accept that. There is a very important public benefit which is derived from ensuring that fathers meet their obligations in this way. He also submits that there may be circumstances where children would be adversely affected if the consequence of the father giving information was to lead to the prosecution of the mother with all the detrimental effects that that could have on the children. I think the short answer to that is that would arise, if at all, only in a very exceptional case where the information provided was sought to be adduced in evidence at any subsequent criminal trial. It would be a matter for the court to determine in the course of those criminal proceedings whether it should be adduced. In most cases it is greatly to the benefit of children that the information is provided. The potential difficulties that might exceptionally be created do not justify diluting the requirement.
20. Accordingly, in my judgment, both as a matter of ordinary statutory construction and authority, and bearing in mind the considerations of policy, the approach of the justices in this case was wrong. I would answer the question they posed by saying that they were incorrect to find that the claim, once substantiated, of protecting the wife from the risk of prosecution, amounted to a reasonable excuse for not providing the requested information. It follows that I allow the appeal.
21. We will send the matter back to the original justices. We do not at this stage direct them to convict. The reason is this. It may be that the defendant was submitting that it was a reasonable excuse for his not providing the information that he had requested information from the Agency and that it had not been provided. Whatever the merits of that argument, it is possible that it was raised as a defence before them and, if so, it does not appear to have been determined by them. In those circumstances we think they should consider whether it was properly raised before them and, if so, they will have to reach a conclusion about it.
22. MR JUSTICE KEITH: I agree.
23. We have not heard your submissions as to what follows from that. We have to direct that there is an effective conviction now have we not?

(Addendum to judgment at paragraph 38)

24. MR SOUTHEY: I am not sure one does have to direct that in the sense that he raised a number of matters, on the face of the case stated, as being potential reasonable excuses. On the face of it, the other matters were not ruled upon. One of them appears to have been the fact that he was saying effectively, "I had these requests for information, I was seeking what I think is described as a statutory ruling or something along those lines." If the fact of the matter is that somebody has had a request and they put in a reasonable request saying can you verify this or that aspect of the request, that in my submission must be at least capable of providing a reasonable excuse and was not - - - - -
25. LORD JUSTICE ELIAS: That is not an issue before us. He did not advance that below did he?
26. MR SOUTHEY: That is not my understanding. It is the last point in paragraph 4:

"Finally the respondent contended that following the request for information, ongoing dialogue between the Agency and the respondent was terminated by the Agency despite the request from the respondent concerning relevant statutes applicable to the case."

My understanding of what that is a reference to effectively is - - - - -

27. MR JUSTICE KEITH: Is your point that he was contending that he had a reasonable excuse for not providing the information because - prior to and subsequent to the request for information - he had been discussing his case with the Child Support Agency about whether it really should require him to provide anything?
28. MR SOUTHEY: That is my understanding. He had been in an ongoing dialogue and they terminated the dialogue effectively.
29. MR JUSTICE KEITH: And he was acquitted. We do not know all the reasons for his acquittal because the magistrates were asked to state a case in respect of one of his grounds for a reasonable excuse. All we know is that they found the background was a reasonable excuse. Are you saying therefore that there may have been other grounds for reasonable excuse which they did not consider and which they have not considered and which they still have to in the light of - - - - -
30. MR SOUTHEY: Exactly. That is why in my submission directing a conviction effectively would not be appropriate. In my submission either there is a discretion not to remit and, given the passage of time, that discretion should be exercised or, at the very least, the matter should be remitted so that effectively there is a further trial in light of the guidance that has now been given.
31. MR JUSTICE KEITH: Do you say that there should be a new trial before a different bench of magistrates or that the matter should go back to these magistrates for them to decide whether, in the light of such evidence they heard, there is any other reasonable excuse which could warrant an acquittal?
32. MR SOUTHEY: The concern I would have about going back to the same bench - I do not think it is a matter of principle, this is not a case because of pre-judging issues they would be prohibited from hearing it - is that because of the passage of time they will inevitably be needing to remind themselves of the evidence they heard, the credibility of that, and that might be a difficult task effectively what will be well over a year after they heard evidence. That is the concern I would have. It is to what extent it is realistic, effectively, for them to re-open proceedings that they heard a year ago.
33. LORD JUSTICE ELIAS: What do you say about that?
34. MR HUNT: Looking at the stated case and looking at the defence case stated, the way in which the matter was put forward, it seems that the defendant, as he was then, put forward the case on the basis that effectively he was entitled to acquittal under Section 15 (7) and that perhaps could be reasonable excuse. But there is nothing I have read from the papers that suggests that he was raising an alternative defence.
35. LORD JUSTICE ELIAS: It is a question of whether one can read that paragraph - "Finally the respondent contended ..... " - etc as to whether that was part of his reasonable excuse.
36. MR HUNT: Yes. I draw the court's attention to the document behind divider 5 of the appellant's bundle in which Miss Hill, the inspector, does effectively write to Mr Forrest explaining the circumstances behind the legal position and his obligations behind the request for information enclosing a relevant exhibit.
37. LORD JUSTICE ELIAS: We are all in some doubt about this. You were not at the hearing below. It is just possible there was this point raised as an argument and that the justices have not dealt with it. I think in those circumstances we should send it back to the same justices to consider whether there is any other defence arising from the case which they have not considered and which, if so, they now ought to consider.
38. MR JUSTICE KEITH: It may be that they will say there was no other ground or reasonable excuse advanced to us, therefore we now convict because the only ground that was advanced has been said not to be a ground by the Divisional Court. Therefore they can proceed to convict. But that would only be because they had decided that there was not another ground or reasonable excuse put forward. If there was another ground or reasonable excuse put forward then they would consider that in the usual way.
39. MR HUNT: Yes. I think that is sensible.
40. LORD JUSTICE ELIAS: I will add a paragraph to the end of the judgment.
41. [The judge then dictated what is now the final paragraph of his judgment.]
42. MR SOUTHEY: I have no instructions on seeking a certificate for public interest because the respondent is not present. My understanding of the statute is that he has 28 days to raise that. I want to make it clear that I have no instructions in relation to that and he has his own rights - if he should wish to exercise them - to raise that. I would not wish to be seen to be wading into his rights to do that.
43. LORD JUSTICE ELIAS: I understand.
44. MR HUNT: Is it - - - - -
45. LORD JUSTICE ELIAS: They have a right to raise a question which we can certify - - - - -
46. MR HUNT: I see.
47. LORD JUSTICE ELIAS: - - - - - as a matter of public importance. I am not terribly optimistic to think that one could be established here.
48. MR SOUTHEY: I just want to make clear that - - - - -
49. LORD JUSTICE ELIAS: You are protecting your position.
50. MR SOUTHEY: Yes. Given that the respondent is not present, it is - - - - -
51. MR JUSTICE KEITH: Who is the correct appellant? Is it the Department of Work and Pensions, as some of your documents say, or is it the Child Support Agency, as others say?
52. MR HUNT: It is the Department of Work and Pensions; that is the district office.
53. MR JUSTICE KEITH: The last Child Support Agency case I did the respondent was the Child Support Agency and not the Department of Work and Pensions. I appreciate the CSA is part of the work of the Department. In my experience it is not the Child Support Agency who is the appellant or the respondent. Unless what the appellant's notice says - - - - -
54. MR HUNT: I think that may be entirely correct.
55. LORD JUSTICE ELIAS: Can you confirm at some point in the next 48 hours or so precisely who the parties are, confirm it to us.
56. MR HUNT: It is relevant for the transcript. I will make sure that is done.
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