DPP v Cottier
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SAVILLE,MR JUSTICE BLOFELD |
| Judgment Date | 08 February 1996 |
| Judgment citation (vLex) | [1996] EWHC J0208-7 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 February 1996 |
| Docket Number | CO/4164/95 |
[1996] EWHC J0208-7
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Before: Lord Justice Saville and Mr Justice Blofeld
CO/4164/95
MR S SALTER and MR S RICHARDS (MISS R HAYNES-08/02/96) (Instructed by Wilson and Company, London N17) appeared on behalf of the Applicant.
MR N BLAKE QC(MR R GREEN-08/02/96) (Instructed by CPS, St Albans AL1 3HZ) appeared on behalf of the Respondent.
( )
Thursday, 8th February 1996
This is an appeal by way of a case stated from the Watford Magistrates Court.
On 20th July 1995 the Respondent was charged with one breach of the Public Order Act 1986 and two breaches of the Criminal Damage Act 1971. He was bailed to appear before the Watford Youth Court on 25th August 1995 and duly did so. The case was adjourned to 6th October 1995 on which occasion the Magistrates decided that the proceedings against the Respondent were null and void, since by virtue of section 34(2) of the Children and Young Persons Act 1969) there had been a failure to comply with Section 5(8) of that Act.
Section 34(2) was amended by the Children Act 1989 and the Criminal Justice and Public Order Act 1994, the latter through SI 1995 No. 127. At the material time the two subsections provided as follows:-
"5(8)It shall be the duty of a person who decides to lay an information in respect of an offence in a case where he has reason to believe that the alleged offender is a young person to give notice of the decision to the appropriate local authority unless he is himself that local authority.
"(2) In the case of a person who has not attained the age of eighteen but has attained such lower age as the Secretary of State may by order specify, no proceedings … for an offence shall be begun in any court unless the person proposing to begin the proceedings has, in addition to any notice falling to be given by him to a local authority in pursuance of section…5(8) of this Act, given notice of the proceedings to a probation officer for the area for which the court acts;…"
"It shall be the duty of a person who decides to lay an information in respect of an offence in a case where he has reason to believe that the alleged offender is a young person to give notice of the decision to the appropriate local authority unless he is himself that authority."
The Respondent was a 'young person' within the meaning of this Act as amended by the Criminal Justice Act 1991, who had not attained the age of 18. The 'appropriate local authority' (which expression is defined in Section 5(9) of the Act) was Haringey. The 'probation officer for the area for which the Court acts' was an officer of the Watford Probation Service. On 22nd August 1995 this service was notified in writing of the proceedings. On 23rd August 1995 a police officer posted to Haringey Social Services a copy of Form 506 (which contained the information required by Section 5(8), and on the following day the same officer spoke to an individual working for the Youth Justice Team at this authority and gave him the same information. The posted information did not reach the Haringey Social Services until just after the Respondent's appearance on that day.
The Magistrates concluded that the effect of Section 34(2) was to require notice to the local authority as well as notice to the relevant probation officer to be given before the proceedings were begun. The magistrates also concluded that such notices had to be given in writing, that the proceedings were begun when the Respondent appeared on 25th August 1995, and that since no written notice had been given to the appropriate local authority before that event, the proceedings were null and void.
The Act itself does not stipulate that the notice has to be given in writing. However, reliance is placed on Section 231(8) of the Local Government Act 1972, which provides as follows:-
"Subject to subsection (3) below, any notice, order or other document required or authorized by any enactment or any instrument made under an enactment to be given to or served on a local authority or the chairman or an officer of a local authority shall be given or served by addressing it to the local authority and leaving it at, or sending it by post to, the principal office of the authority or any other office of the authority specified by them as one at which they will accept documents of the same description as that document.'
This subsection does not state in terms that all notices to local authorities must be in writing. The highest it can be put is that the modes of service it permits are obviously only available for written notices. In my judgment the provision is only dealing with cases where something in writing has to be given to or served on a local authority. It does so by prescribing methods for doing this in the case of a notice, order or other document. The closing words of the provision (which refer only to documents) make this quite clear. Those words cannot refer only to the 'other document' mentioned at the beginning of the subsection, for were that so, then the subsection would not deal with the case of notices or orders at all. These words show that the whole subsection is concerned only with documents, be they notices, orders or something else.
I can find nothing in the Children and Young Persons Act 1969 which indicates that the notices to be given under the subsections in question must be in writing. Obviously it would be good practice (if circumstances permitted) to give a written notice, but in my judgment this is not a statutory requirement. The object of the subsections is respectively to inform the local authority of the decision and the probation officer of the proceedings so that they can take appropriate action by way of assisting the Court. The means by which they are to be informed seem to me to be neither here nor there.
Section 34(2) stipulates that no proceedings shall be begun in any Court unless the requirements of the subsection are met. In my judgment these words mean when the defendant is first brought before a Court.. I reach this conclusion by reference to Section 2(14) of the Act which provided as follows:-
"For the purposes of this Act, care proceedings in respect of a relevant infant are begun when he is first brought before a juvenile Court in pursuance of the preceding section in connection with the matter to which the proceedings relate."
It is the case that Sections 1 to 3 of the Act were repealed by the Children Act 1989. However, as originally enacted Section 34(2), immediately before the reference to Section 5(8) also referred to any notice to be given under Section 2(3) in respect of care proceedings. Section 2(3) itself stipulates that no care proceedings shall be begun unless a notice is given. In these circumstances there is nothing to suggest that Parliament, when enacting Section 34(2) intended to stipulate a different test for when proceedings were begun in Court, nor I can I think of any good reason why Parliament should either wish to do so or wish to change the situation when repealing Sections 1 to 3. We were referred to a number of authorities which considered somewhat similar provisions, but all I glean from those is that the answer to the question when proceedings are instituted or begun depends on the context in which the words are used and the purpose of the provision.
In these circumstances, since it is common ground that the relevant probation officer was informed of the proceedings on 22nd August and the relevant local authority on 24th August, there was on no view a failure to comply with either Section 5(8) or Section 34(2).
Apart from this, however, I consider that Section 34(2) cannot be read as imposing a requirement that the Section 5(8) notice must be given before proceedings are begun in Court. As I have already observed, Section 2(3) itself provided that no care proceedings should be begun before a notice was given. There was, therefore, no need to repeat this in Section 34(2), which thus indicates that the words (as originally enacted) "in addition to any notice falling to be given by him to a local authority in pursuance of section 2( 3) or 5(8) of this Act" are doing no more than telling the reader that the notice to the probation officer is in addition to the notices required under other parts of the Act, and are not to be read as imposing any new or different requirement in respect of those other notices. It follows that when a Section 5(8) notice is to be given depends on the words of that Section and the purpose of that notice.
So far as Section 5(8) itself is concerned, there is nothing to indicate that the notice must be given by or before any specified time or event. The duty to give notice arises when the decision to lay an information is made, but there is also nothing to indicate that it must be given forthwith upon reaching that decision. Indeed, as a matter of practical politics, it might well be impossible or very difficult to give the notice immediately. In my view the notice must be given as soon as reasonably practicable. This accords with common sense, since it puts neither an undue nor an impossible burden on the person whose duty it is to give notice, which can hardly have been intended by Parliament.
Section 9 of the Act provides as follows:-
"9 Investigations by local authorities
(1) Where a local authority or a local education authority…proceedings for an offence alleged to have been committed by a young person or are notified that any such proceedings are being brought, it shall be...
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