QUEEN'S BENCH DIVISION
Birmingham Civil Justice Centre
33 Bull Street Birmingham B4 6DS
B e f o r e :
MR JUSTICE BEATSON
|DEPARTMENT OF WORK AND PENSIONS||Defendant|
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Miss Heeley (instructed by Treasury Solicitor) appeared on behalf of the Defendant
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"(1)Any person authorised by the Secretary of State in that behalf may conduct any proceedings under this Act before a magistrates' court although not a barrister or solicitor.
(2)Notwithstanding anything in any Act—
(a) proceedings for an offence under this Act other than an offence relating to housing benefit or community charge benefits may be begun at any time within the period of 3 months from the date on which evidence, sufficient in the opinion of the Secretary of State to justify a prosecution for the offence, comes to his knowledge or within a period of 12 months from the commission of the offence, whichever period last expires; and
(3)For the purposes of subsection (2) above—
(a) a certificate purporting to be signed by or on behalf of the Secretary of State as to the date on which such evidence as is mentioned in paragraph (a) of that subsection came to his knowledge shall be conclusive evidence of that date; and
(b) a certificate of the appropriate authority as to the date on which such evidence as is mentioned in paragraph (b) of that subsection came to the authority's knowledge shall be conclusive evidence of that date."
"I confirm that lawyers in Sol B2 Branch of the Solicitor's Office may, on behalf of the Secretary of State, exercise the powers under section 116(2) (a) and (3)(a) of the Social Security Administration Act 1992, to sign certificates attesting to the date on which sufficient evidence to justify a prosecution came to light."
The second certificate is headed "Secretary of State's Certificate (issued pursuant to section 116(2)(a) of the Social Security Act 1992)". It was signed by "a prosecutor authorised to issue this certificate" and certifies that "evidence sufficient in the opinion of the Secretary of State to justify a prosecution ... came to his knowledge on 9 March 2011." In the case of Ali Mohammed the certificate is dated 15 April 2011. In the case Mr Parkes it is dated 11 April 2011.
"1. The Secretary of State for Works and Pensions had properly delegated the signing of certificates on his behalf; s 116(3) of the Act clearly anticipated such delegation, notwithstanding that the Section is otherwise silent upon express delegation. Specific delegation is not granted to either benefits or fraud officers or to lawyers.
2. The Carltona principle applies and permits delegation by the Minister.
3. It was not a matter for me to consider whether or not the Secretary of State could or should have delegated to a non lawyer; I did not have jurisdiction or power to go behind the certificate signed by the Secretary of State and to examine his decision to delegate to the lawyers of the DWP prosecutions department. I had not need to do so as I found no evidence of fraud, misleading information, misconduct or inaccuracy on the face of the documents.
4. The Secretary of State had not delegated the decision as to sufficiency of evidence to a benefits officer or fraud officer; he delegated the signing of certificates attesting to the date upon which sufficient evidence came to light to the lawyers.
5. It was open to the Secretary of State to delegate to whomsoever he wished. There were no statutory restrictions placed upon him and no legal requirement that delegation should be to a benefits or fraud officer.
6. The certificates as to sufficiency of evidence are not fraudulent, inaccurate, wrong or misleading in any particular; the heading and wording of the certificates cannot be open to ambiguity; the face of the certificates shows plainly that they have been signed by a person having the authority of the Secretary of State for Work and Pensions to do so. The omission of the words 'signed on behalf of the Secretary of State' or other words to that effect does not nullify the efficacy of the certificates. The Appellant was unable to show any evidence of fraud or any other misconduct on the part of the DWP. The certificates were signed on behalf of the Secretary of State as his authorisation had been given.
7. Applying s 116(3) of the Act, I was satisfied that the certificates certifying the date when sufficient evidence to justify prosecution [19th March 2011] came to the knowledge of the Secretary of State were conclusive evidence of that date. The time limit of three months for the laying of an Information therefore ran from that date and that the proceedings were commenced in time.
8. There had been a substantial delay between the first interview with the Appellant, [In Ali Mohammed's case 8th April and 14th June 2010, and in David Parkes' case 5 May 2010] and the submission of the file to the prosecutions department [In Ali Mohammed's case 2nd February 2011, and in David Parkes' case 4 February 2011] during which time further enquiries were being made by the investigating officer. Witnesses were not called by either the Appellant or the Respondent in order to examine the reason for the delay. I did not find the delay to be prejudicial to the Appellant having a fair trial, especially taking account of admission made by him during interview.
9. Applying Azam v Epping Forest District Council (ante), I found no manipulation or misuse of the process that could amount to misconduct and that there had been no abuse of the process."
"A valid certificate is determinative of the matter unless the certificate is inaccurate on its face, or can be shown to be fraudulent."
The court at trial, in this case the District Judge, can therefore not investigate the appropriateness or suitability of the particular delegation. A challenge to that would not in fact be to the certificate but to the antecedent decision of the Secretary of State to delegate. That challenge could only be made by way of an application for judicial review brought against the Secretary of State.
"This is to certify that evidence sufficient in the opinion of the Secretary of State to justify a prosecution for an offence of failing to declare a change in circumstances, contrary to section 112(1)(a) of the Social Security Administration Act 1992 came to his knowledge on the 9th March 2011."
That certificate is defective on its face because it does not purport to state any conclusion by the local authority. This point was however not taken below and for that reason the Case Stated does not address it at all. On the face of it, it might well have been fatal to charge No 2 in Parkes' case, the charge relating to Housing Benefit and Council Tax Benefit. However, it might not have been. If the point had been taken below counsel for the prosecution might have been in a position to call evidence about when the local authority had formed the opinion that sufficient evidence existed. Whilst the normal means of proving that date is a certificate under section 116(3)(b), that is not the only means. Accordingly we are unable to quash the conviction on charge 2. In fact that conviction made little difference to Mr Parkes because no separate penalty was imposed in respect of it. However, we do draw attention to the fact that if time is, made to run from a date determined only by the prosecutor as it is here by the statute, it is essential that the prosecutor prove it adequately. Generally that would be done by a certificate in proper form. In this case, this particular certificate was patently not.