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
		2nd March 2010

1. LORD JUSTICE TOULSON: This is an appeal by case stated from a decision of District Judge (Magistrates' Court) Arnold given on 30th August 2009 at Portsmouth Magistrates' Court dismissing six summonses against the respondents alleging offences under the Animal Welfare Act 2006. The judge upheld a submission at the close of the prosecution case that there was no case to answer because the informations had been laid more than six months after the dates of the alleged offences and so outside the limitation period prescribed by section 127 of the Magistrates' Courts Act 1980. The prosecution sought to rely on section 31 of the Animal Welfare Act which provides:

"(1) Notwithstanding anything in section 127(1) of the Magistrates' Courts Act 198O a magistrates' court may try an information relating to an offence under this Act if the information is laid -

"(a) before the end of the period of three years beginning with the date of the commission of the offence, and

"(b) before the end of the period of six months beginning with the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to his knowledge.

"(2) For the purposes of subsection (1)(b) -

"(a) a certificate signed by or on behalf of the prosecutor and stating the date on which such evidence came to his knowledge shall be conclusive evidence of that fact, and

"(b) a certificate stating that matter and purporting to be so signed shall be treated as so signed unless the contrary is proved".

2. The case stated, which has been well prepared, records in paragraph 2:

"I heard the said information on the 11th, 12th and 13th days of August 2009 and found the following facts:

"a) The informations before me related to offences committed on 13th July 2007 and between 10th and 13th July 2007.

"b) The informations were laid and summonses issued on 12th February (and amended in court on 6th October 2008) outside the period of 6 months from the time when the offences were committed as provided for by section 127(1) of the Magistrates' Courts Act 1980.

"c) The informations were laid within the period of three years beginning with the date of the commission of the offence."

It goes on:

"f) The prosecution had been on notice since the first day of the trial on 11th August 2009 that the date on which evidence, which the prosecutor thought sufficient to justify the proceedings, came to his knowledge was a live issue in the case.

"g) The prosecution failed during the course of presenting its case before me on 11th, 12th and 13th August to produce a signed certificate as provided for in section 31(2)(b) of the Act.

"h) Further the prosecution failed during the course of presenting its case before me on 11th, 12th and 13th August to adduce any other admissible evidence of the existence of a certificate as provided for in section 31(2) of the Act."

In response to the respondent's submission of no case, the prosecution produced before the district judge a faxed copy of a statement made on the same day, 13th August 2009, by Mr Joseph Fletcher. This stated:

"I am Joseph Fletcher, Prosecution Case Manager. I have conduct of this case on behalf of the RSPCA. I did not attend Nutwood Farm on 13th July 2007 nor did I have any involvement in the subsequent investigation.

"On 29th January 2008 I signed a letter dated 29th January 2008 addressed to the Portsmouth Magistrates' Court. This letter certified that in accordance with section 31(2) of the Animal Welfare Act 2006 that evidence sufficient to justify these proceedings came to my knowledge on 27th December 2007.

"I have only kept a copy on my file which I exhibit JF-1. The signed certificate printed on headed paper was given to Inspector Jan Edwards for service on the court along with the summonses and relevant informations."

The annexed document, exhibit JF-1, was in the following form:

"29th January 2008.

Our ref: JF/sl/819O7-1171.

Her Majesty's Court Services.

To accompany informations/summons for Ian James King (d.o.b. 08.08.1980) and Kathleen Patricia King (d.o.b. 28/O5/1959.

Dear Sir/Madam.

I hereby certify in accordance with section 31(2) of the Animal Welfare Act 2006 that evidence sufficient to justify these proceedings came to my knowledge on 27th December 2007.

I trust that the above is satisfactory for your purposes with regard to the laying of informations at court. If you require any further information please do not hesitate in contacting me.

Yours faithfully.

J Fletcher.

Prosecution Case Manager.

PROSECUTIONS DEPARTMENT."

4. The copy attached to Mr Fletcher's statement was unsigned. The prosecution submitted to the judge that there was evidence in Mr Fletcher's statement of a certificate in terms which complied with section 31 and that, in any event, the statement was itself evidence that the proceedings had been commenced in time because, when read with the exhibited document, it contained a statement that evidence sufficient to justify the proceedings came to the knowledge of the prosecutor on 27th December 2007.
5. The respondents submitted to the judge that the prosecution were not entitled to rely on the statement of Mr Fletcher because he had not been called to give evidence, nor had the prosecution sought to introduce his statement before closing its case. The court did not have before it any signed certificate compliant with section 31(2). The respondents also made the point that this was no ambush because they had made clear that there was a real live issue as to the prosecution's date of knowledge, an issue which they had to some degree explored in cross-examination of Inspector Jan Edwards, who did give evidence and who was referred to in Mr Fletcher's statement.
6. The judge, having summarised the rival arguments, stated her conclusion as follows:

"I was of opinion that, the prosecution having failed in the course of presenting its case and before closing the same, and not having applied to re-open the same nor adduce further evidence, to produce a certificate as provided for by section 31(2) of the Act or other evidence to support the contention that the informations were laid before the end of the period of six months beginning with the date on which evidence came to the knowledge of the prosecutor which he thought sufficient to justify the proceedings, it was not, in the light of the facts that I found, open to me simply to infer that, when the informations had been laid and summonses issued under the rubber stamp signature of the Head of Legal Services, the requirements of section 31(1) of the Act were satisfied.

"And accordingly I upheld the defence submission of there being no case to answer on the basis that the prosecution having failed to adduce any evidence in support of section 31(1) of the Act it was not open to me to continue to try the informations they being in essence time barred."

7. The judge went on to pose six questions for the opinion of this court, of which the critical question is the first:

"In light of the signed facsimile copy statement of Mr Jason Fletcher, dated 13th August 2009, should I have accepted that evidence which he, as the 'prosecutor', thought sufficient to justify the proceedings came to his knowledge on 27th December 2007?"

8. Mr Jenkins, who has appeared for the appellant in this case but did not appear below, accepts, as he must, that exhibit JF-1 is not itself a certificate compliant with section 31(2) because it is unsigned. However, he has presented an argument which was not advanced before the judge. Observing that section 31(2) does not on its face require that a certificate under that subsection should have been signed before proceedings were commenced, he submits that Mr Fletcher's statement and the exhibit to it together constitute a signed certificate within the meaning of section 31(2). He argues that the court should look at the substantive matter and not the form. When the statement is read with the exhibit, it amounts to a certification that the date on which evidence which the prosecution thought sufficient to justify proceedings came to his knowledge was 27th December 2007.
9. I do not accept that argument. Given that a certificate in proper form is conclusive, subject to limited qualifications recognized in the case law, the court should not adopt a loose approach to the formal requirements of the subsection. Keene LJ gave a compelling reason for this approach in Burwell v Director of Public Prosecutions [2009] EWHC 1069 (Admin), a case which turned on a section in the Computer Misuse Act 1990, materially indistinguishable from section 31 of the Animal Welfare Act. He expressed the view that a prosecutor can only avail himself of the benefits of such a certificate if the certificate fully complies with the statutory requirements, and there is good reason for that. A statutory certificate when in proper form forecloses the issue, subject to some limited exceptions. Therefore, there is good reason to require that the certificate should be in proper form.
10. In this case, when Mr Fletcher signed his statement dated 13th August 2009, he was plainly not purporting to make a certificate under the Act. I regard that as a matter of substance and not merely of form. Good faith requires that somebody signing a certificate under section 31(2) should be applying his mind to what he is doing and should have at that time knowledge of the matters which he is certifying. In this case Mr Fletcher in his statement was recording a matter of historic fact, namely that several months earlier he had signed a certificate to the effect summarised in his statement. The two are not the same. Moreover, there is ground to doubt the accuracy of his memory about the signing of that certificate. On the first day of the trial the respondents' counsel had been given by the prosecution, when this point was raised, a copy of a purported certificate in the same form as that exhibited to Mr Fletcher's statement, except that it was dated 8th February and not 29th January 2008. It is evident that when Mr Fletcher's statement was drafted by the solicitor appearing for the prosecution in the magistrates' court, the original draft referred to a certificate dated 8th February 2008 and not 29th January 2008. We know that because Mr Fletcher's statement was sent to the prosecuting solicitor as an attachment to a fax in which he stated:

"Here is the statement and copy of the letter as requested. Please note the date I signed the letter and the date on the letter are the same, being 29/1/O8 and not 8/2/09 as in your draft statement. I am not sure where the date of 8/2 came from but you may wish to call me if there is confusion."

11. There was indeed confusion because the letter of 9th February 2009 had been referred to in a schedule of unused material served by the prosecution but there was no reference to a certificate dated 29th January 2008, nor had that ever been shown to the defence. If a letter or certificate dated 29th January 2008 had been signed by Mr Fletcher, it is puzzling why a later certificate in identical form, dated 8th February 2008, should have been prepared under his reference for his signature. All that this goes to show is that there was at least some ground to doubt the accuracy of his memory of events surrounding the signature of any certificate by him early in 2009 at the time when he made his statement in August 2009. Moreover, he had not himself been involved in the investigation, as he stated in his letter. These matters illustrate the point that a person who is signing a certificate intended to have effect under section 30(1) and (2) needs to have the relevant facts in mind at the time of making that certificate. They also illustrate the importance of requiring that a document should comply with the statutory requirements in form and in substance before being treated as a statutory certificate.
12. Mr Jenkins has not sought to pursue an alternative argument that, even if he is wrong in his contention that Mr Fletcher's statement and exhibit to it should themselves be treated as a statutory certificate, nevertheless his statement ought to have been admitted in evidence. In our judgment he is right not to pursue such an alternative argument. Given that the defence had raised the issue and explored in evidence the knowledge available to the prosecution, it would have been objectionable for Mr Fletcher's statement to be put in without any opportunity for his cross-examination and for this to happen, moreover, after the prosecution had closed its case. In any event, as the judge recorded, there was no application to re-open the prosecution case in order to introduce evidence from Mr Fletcher. Had such an application been made, no doubt there would have had to have been consideration given to the possibility of an adjournment. It may be that the prosecution would have regarded the prospects of the court being prepared to adjourn the matter after a three day hearing, when the issue had been raised at the outset as remote. No such application was made and no separate point is made in relation to that matter.
13. It follows that this appeal must be dismissed. It is also unnecessary for us therefore to reach a concluded view on a point about which we heard brief argument in relation to the requirements of section 31(2). As I have mentioned, Mr Jenkins observed that there is no requirement in terms of the statute that a certificate for the purposes of section 31(2) must come into existence prior to the commencement of legal proceedings. Miss Sara-lise Howe submitted as a matter of statutory construction that that should be read into the Act as Parliament's intention. She submitted that it would be objectionable if, for example, in a case where no such certificate had been issued and the defence had explored the question of date of knowledge in the evidence, and there was real reason to suppose that the prosecution would not be able to demonstrate that the proceedings were begun in time, for that inquiry to be cut off conclusively by the issue of a certificate. Were such a scenario to arise one can envisage issues about whether the making of such a certificate would be in good faith but in my judgment it is unnecessary to deal with any such arguments in this case. The matter would be better left to be dealt with on actual facts if such a such a situation were to arise. I would dismiss the appeal.
14. MR JUSTICE OWEN: I agree.
15. MR JENKINS: The secondary argument, the new argument my learned friend was proposing to come before the court, which is the question whether he has locus at all to issue a certificate, ordinarily that is not relevant to the matters that your Lordships have given judgment on. We would invite you to consider giving thought or assistance to the parties in relation to that matter. We are in your hands.
16. MISS HOWE: It is a proper argument that would need to be decided by the court. We are in several cases in which this point is a live issue. I am aware in appeals that I am involved in that it is being run in March. Myself and Mr Jenkins are before the court in May. It is a live issue in relation to that point. If it is not decided today it is going to come before the court again.
17. LORD JUSTICE TOULSON: That may be so but it is unusual for a court to deal obiter with questions which do not arise, and all the more so when the point was not considered below and arises only by way of a respondent's notice. It is not a matter with which we want to deal by way of a short postscript. If the point needs to be addressed it needs to be addressed properly. We do not think that it would be appropriate for us to embark on hearing argument.
18. MISS HOWE: With my experience as to how these matters come before the court, it is before the court as a discrete issue in the respondent's notice. I appreciate the timing and that the court is being asked to rule upon it. It may be that this court does not have time to rule upon it today. It is still an issue. It is not an obiter issue. The live issue is: are the appellants able to commence proceedings outside of time and take advantage of this statutory power?
19. LORD JUSTICE TOULSON: If you tell us the matter will arise for argument so be it. It not infrequently happens in appellate courts that the parties want the court to decide various points which do not arise but may arise in a different case. Any consequential orders sought?
20. MISS HOWE: Both the respondents in this case are legally represented. This is a private prosecution. My experience previously in relation to private prosecutions is that the court is entitled to consider costs against the unsuccessful party. I see no reason why the public purse ought to pay for this appeal.
21. MR JENKINS: We would say in the circumstances that the respondents in this case are legally aided. Notwithstanding that the client is a private appellant in this case, we ask because you do have power to grant from central funds. You can do so in this case. We would not say that this was a hopeless application before you. In the circumstances the appellants in this case, yes, it is a private body, but it is also a charity with limited funds. We ask you to make an order for costs to come out of central funds as opposed to against the appellant.
22. LORD JUSTICE TOULSON: We think that the respondent should have costs against the apppellants. It is a new point raised in this court. It did not have merit. We do not think that the taxpayer should have to pay the costs of the action.