Azam v Epping Forest District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCOTT BAKER,MR JUSTICE CRANSTON |
| Judgment Date | 14 October 2009 |
| Neutral Citation | [2009] EWHC 3177 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 October 2009 |
| Docket Number | CO/2073/2009 |
[2009] EWHC 3177 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE DIVISIONAL COURT
Before: Lord Justice Scott Baker
Mr Justice Cranston
CO/2073/2009
Mr M Huseyin (instructed by Imran Khan and Partners, London WC1X 8SP) appeared on behalf of the Appellant
Mr G Atkinson (instructed by Epping Forest District Council) appeared on behalf of the Respondent
(As approved)
I ask Cranston J to give the first judgment.
MR JUSTICE CRANSTONIntroduction
The legal question posed to us in this case stated turns on a certificate issued by a prosecutor as to the date on which evidence sufficient, in his opinion, to justify prosecution, came to his knowledge. That date starts the clock ticking for the time limit within which a prosecution must be brought. As will be seen, such provisions exist in a variety of legislation, such as section 6 of the Road Traffic Offenders Act 1988.
The case stated concerns section 116(3) of the Social Security Administration Act 1992. Specifically we are asked, when a certificate had been issued under that section, whether the court is prevented from considering evidence that the true date on which sufficient knowledge came to the prosecutor's knowledge was earlier than that stated in the certificate. We are also asked whether in this case the District Judge's finding that the date was 16 November 2007 was supported by the evidence.
Background
The background is as follows. The prosecution in this case was taken by Epping Forest District Council (“the Council”). They administer housing benefit and council tax in their area. On 13 February 2008, they laid an information to the effect that:
(1) On 31 March 2006, Mr Azam (the appellant) made a false statement or representation to obtain housing benefit and council tax benefit, namely, that he failed to declare that he and his wife held two other bank accounts and that he was receiving other income.
(2) On 1 April 2006, he made a false statement or representation in that he failed to declare that he was receiving other income.
(3) Between 31 October 2005 and 29 August 2006 there had been a change in circumstances affecting his entitlement to housing benefit and council tax benefit, namely, that he was undertaking paid consultancy employment.
The Council completed a certificate that day, 13 February 2008, in accordance with section 116(3)(b) of the 1992 Act. It was signed by the Director of Corporate Support Services for the Council. It read as follows:
“In the opinion of Epping Forest District Council sufficient evidence to justify a prosecution for the offences alleged in the information laid on 13 February 2008 relating to Mohammed Aurooj Azam came to the Authority's notice on 16 November 2007.”
No point is taken that this is a defective certificate.
The Council's investigation into Mr Azam's circumstances began in late 2005. It was conducted by Lynn Hepburn, an investigation officer with the Council and Martin Crowe, a senior investigation officer. Mr Azam had received jobseeker's allowance since 2004. The investigation was triggered following the termination of his entitlement to jobseeker's allowance in October 2005, following receipt of a “housing benefit matching service identification” discrepancy.
Mr Azam was interviewed on 15 March 2006. He said he was not working or receiving income. Ms Hepburn visited a company, Optoma (Europe) Limited (“Optoma”), and eventually obtained a witness statement that Mr Azam had been working for them. The payment of income was to a company called NexGen DNC. Then the Council obtained a witness statement and copies of invoices from another company, Certus Sales Limited (“Certus”). That was on 3 May 2007. These documents suggested that Mr Azam himself had undertaken work for Certus, for which remuneration had been paid following receipt of invoices from a firm, ID consultants.
At this point it was decided to interview Mr Azam again. That interview was conducted under caution in accordance with PACE. Mr Azam attended with his legal representative on 22 May 2007. During the interview he asserted that although he had undertaken work for Optoma and Certus, any payments made by those companies in respect of this work were made to ID Consultants, a company run by his father. These payments, mainly cheques posted to his home address, were paid into the ID Consultants' bank account held by Barclays Bank. Mr Azam asserted that his only involvement with this account was to pay the cheques in and send the statements to his father in Pakistan. He asserted that he had not received any payments from his father for the work he had undertaken.
After the interview, transaction details in relation to the ID Consultants' account with Barclays Bank were obtained, as well as details of other personal bank accounts for both Mr and Mrs Azam, which had not been declared in their housing benefit and council tax benefit claims. This bank information suggested a contradiction between Mr Azam's assertions in interview that he did not have any involvement with the ID Consultants' bank account and the reality of inter-bank transfers. Apparently in September the Council became aware that Mr Azam had also undertaken work for Barnet London Borough Council.
The case was discussed between Ms Hepburn and Mr Crowe in October and it was decided to give Mr Azam an opportunity to explain these discrepancies and to comment on the evidence. Therefore another interview under caution took place on 12 November 2007. At this interview, apart from making an initial statement, Mr Azam gave “no comment” answers to the remainder of the questions put to him. That day the matter was referred to Julian Lewis, the Council's benefits manager, so that there could be a determination of the exact amount of housing benefit and council tax overpayment.
On 16 November 2007, Mr Lewis had made a calculation that the total overpayment was £8,686.44. He passed the file back to Ms Hepburn the same day, who sent it to Mr Crowe. In the absence of the investigations and interventions manager, the responsibility for deciding to prosecute fell to Mr Crowe. He decided to prosecute, taking into account the evidence and also that the total overpayment was significantly in excess of the minimum amount for a prosecution set out in the Council's prosecution policy. Under that prosecution policy there are other options for a lesser amount than this: thus the Council may proceed by means of an administrative penalty.
Once the information was laid on 13 February 2008, summons were issued and the matter eventually came before District Judge Cooper, sitting at the Chelmsford Magistrates' Court. On 28 November 2008 he ruled firstly, that there was no scope for the defence to argue at the end of the case that a certificate issued under section 116 of the 1992 Act was never in evidence and could not be relied upon; secondly, that the certificate was conclusive evidence as to the date on which sufficient evidence was available to justify a prosecution, and that he had no power to go behind the certificate; thirdly, even if the court could go behind the certificate and entertain an abuse of process argument, no manipulation of the court process was established; fourthly, that the period for commencement of summary proceedings was when sufficient evidence to justify proceedings came to the knowledge of the Director of Corporate Support Services, which was 16 November 2007, when the overpayment of benefit was established; and, fifthly, that Article 6 of the European Convention on Human Rights was not engaged.
The legal framework
Section 112 of the 1992 Act contains the offences under which Mr Azam was prosecuted. Subsections (1) and (1A) are as follows:
“(1) If a person for the purpose of obtaining any benefit or other payment under the relevant social security legislation to whether for himself or some other person, or for any other purpose connected with that legislation—
(a) makes a statement or representation which he knows to be false; or
(b) produces or furnishes, or knowingly causes or knowingly allows to be produced or furnished, any document or information which he knows to be false in a material particular,
he shall be guilty of an offence.
(1A) A person shall be guilty of an offence if—
(a) there has been a change of circumstances affecting any entitlement of his to any benefit or other payment or advantage under any provision of the relevant social security legislation;
(b) the change is not a change that is excluded by regulations from the changes that are required to be notified;
(c) he knows that the change affects an entitlement of his to such a benefit or other payment or advantage; and
(d) he fails to give a prompt notification of that change in the prescribed manner to the prescribed person.”
Also within Part VI of the 1992 Act, entitled “Legal proceedings”, is section 116. The relevant aspects are as follows:
“(2) Notwithstanding anything in any Act -
…
(b) proceedings for an offence under this Act relating to housing benefit or council tax benefit … may be begun at any time within the period of 3 months from the date on which evidence, sufficient in the opinion of the appropriate authority to justify a prosecution for the offence, comes to the authority's knowledge or within a period of 12 months from the commission of the offence, whichever period last expires.”
…
(3) For the purposes of subsection (2) above—
…
(b) a certificate of the...
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