Bakers of Nailsea Part II - Argos
Public prosecutions begin after an authorised body applies to the magistrates’ court for a summons alleging an offence. The rules underpinning this process are in the Criminal Procedure Rules (CrimPR) Part 7 (and associated Practice Direction). One such rule, CrimPR 7.2(3)(b)(i), has recently been the subject of multiple judgments which have fundamentally determined whether the court can hear a case. The rule states that, in the summons, the proposed prosecutor must demonstrate that the application is made in time, if legislation imposes a time limit. It seems innocuous enough - so how has this rule proved so problematic?
Initial Bakers of Nailsea decision
Rule 7.2(3)(b)(i) first came under scrutiny when Bakers of Nailsea were prosecuted by the Food Standards Agency (FSA) for breaches of food hygiene regulations (Bakers of Nailsea). Under the regulations there is a time limit: the earlier of 3 years after the offence or a year after the discovery of the offence by the prosecutor. The alleged breaches occurred in early 2018 and the application for the summons (by the laying of an information) was made in early 2019 which meant that it was not a foregone conclusion that the offences were within time; depending on when the FSA knew about (“discovered”) the breaches the prosecutions could have been time barred.
However, contrary to rule 7.2(3)(b)(i) the FSA did not include with its application the information of when it came to know about the offences in the summons. The FSA conceded before the District Judge that the summons did not comply with rule 7.2(3)(b)(i), and as such it was ruled that the court had no jurisdiction to consider the case and the summons were found to be null. The judge in Bakers of Nailsea determined that to allow the proceedings would make the rule 7.2(3)(b)(i) obsolete.
This ruling caused surprise and concern as it could be seen as only a minor technical breach which had resulted in the case being thrown out. Many prosecutors traditionally had not (notwithstanding the clarity of the CrimPRs) included this information as the date the application for the issue of the summons was usually clear on the face of the documents, as would be the date of the offence and the crime alleged. In theory, enough for the court to consider any issue of time limits. Additionally, instances where a whole case is dismissed because of a procedural rule issue are relatively rare. The ruling, however, was clear that the word in the CrimPR “demonstrate” imposed a positive duty on a prosecutor to outline that a time limit applied, and the summons is within date.
Following this decision, a series of prosecutions were dismissed. Many prosecutors had started to adapt but the high expectations on them remained a burden. Many hoped the case would be overturned and the position has been somewhat reversed by London Borough of Barking and Dagenham v Argos (Argos).
The decision is at least partially overturned in Argos
In Argos, proceedings were brought for allegedly selling a knife to a person under the age of eighteen contrary to section 141A(1) Criminal Justice Act 1988. Under section 127 of the Magistrates’ Courts Act 1980 (MCA) the offence is “summary only” which means it has a simple six-month time limit (from the date of the offence)for bringing an action. According to Bakers of Nailsea this time limit must be stated on the summons. Again, the detail had been omitted.
Lord Justice Edis considered Argos in the High Court and ruled that the decision in Bakers of Nailsea, in so far as it related to the section 127 MCA 1980 time limit, was wrong. Because the time limit in the section 127 MCA is simple i.e. six months, it is very easy for the court to establish for itself if the proceedings are within time without looking for further information. In addition, the judge noted that all courts are aware of this section. By contrast, in Bakers of Nailsea the court needed to know to find regulation 18 of the Food Safety and Hygiene (England) Regulations 2013 to apply the time limits and consider whether the summons should be issued. It was, therefore, held in Argos that the application for summons was compliant with rule 7.2(3)(b)(i).
Lord Justice Edis also considered whether an application, which does not comply with 7.2(3)(b)(i), should be considered a nullity and on this count too held that the law had erred in Bakers of Nailsea. The opinion may not be binding but nonetheless Lord Justice Edis goes to great lengths to outline that it has been given full consideration and is intended to establish a binding rule. That rule being that a failure to comply with CrimPR 7.2(3)(b)(i) does not necessarily render the summons subsequently issued a nullity and It will never do so in a standard case of a summary only offence governed by section 127 of the MCA 1980. Lord Justice Edis considered that the rule is procedural and does not go to the jurisdiction of the case. Indeed, it does seem bizarre and against the overriding objective of justice if a rule intended to assist the court in understanding the summons would take the court’s jurisdiction away.
What conclusions can be drawn?
On the whole, prosecutors will be relieved by this decision as it reiterates that not all procedural errors will be fatal and the burden for complying with rule 7.2(3)(b)(i) has been lowered. Prosecutors will no longer need to spell out time limits which will be obvious to courts in simple summary only offences. Relaxation of the rule should not go too far though. Prosecutors should still make every effort to assist the courts and comply with the CrimPRs to ensure there is no reason for a court to stop prosecution proceedings. This is especially important considering that even after Argos it remains possible that failing to include a time limit could be fatal in certain cases.
There are limitations in the Argos ruling. The case is a summary only offence with a simple 6-month time limit. Argos may be distinguished from in a case where there is an either way offence, or an offence with a more complicated set of rules regarding the time limit for commencing a prosecution. There may yet be another decision as to how to apply the rule in CrimPR 7.2(3)(b)(i).
Another caution for disregarding Bakers of Nailsea altogether is that if a prosecutor does file an application for summons which is not compliant with CrimPR 7.2(3)(b)(i) then it may still be considered null. As highlighted above the ruling in Argos aims to create binding precedent that a failure to comply with this rule will not affect jurisdiction but it is by no means clear that other courts will consider it as binding. As a final word of warning Argos may yet appeal the decision.
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