Dr Philippa Noon, River Manager, Conservators of the River Cam v Samuel Matthews and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Mr Justice Holroyde |
| Judgment Date | 19 December 2014 |
| Neutral Citation | [2014] EWHC 4330 (Admin) |
| Docket Number | Case No: CO/2589/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 December 2014 |
[2014] EWHC 4330 (Admin)
Lord Justice Beatson
Mr Justice Holroyde
Case No: CO/2589/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Christopher Knight (instructed by Hewitsons LLP) for the Appellant
Simon Butler (instructed on a Direct Access Basis) for the Respondents
Hearing date: 18 November 2014
I. Introduction
This is an appeal by way of case stated pursuant to section 28 of the Senior Courts Act 1981. The first issue is whether the Conservators of the River Cam ("the Conservators") can lawfully delegate the power to institute and bring prosecutions for contraventions of Byelaws made by the Conservators pursuant to powers in the River Cam Conservancy Act 1922 and earlier legislation to their Control Officer and Clerk, now more generally known as the River Manager. The second issue is whether, if it is lawful to delegate part of the function of prosecution, on the agreed facts of this case, the Conservators did not exercise any oversight and review of their officer's prosecutorial function.
The case concerns a decision to prosecute Messrs Arnold, Kovakevich, Matthews, Prevett, Sugden, Tyrell and Wright, who are all punt operators on the River Cam, for various breaches of the bye-laws. Summonses were laid before the Cambridge Magistrates' Court on 4 November 2013 by Dr Philippa Noon, who, at that time and until 31 January 2014, was the River Manager, and issued by the court between 20 November and 20 December 2013. Dr Noon appeals against the decision of District Judge (Magistrates' Court) Sheraton sitting at South Cambridgeshire Magistrates' Court on 4 March 2014, that she did not have power to lay the summonses and that, on the agreed facts, the Conservators had not shown that they had exercised oversight and review of their prosecutorial function.
The District Judge has stated two questions for the opinion of this court:
(1) Whether he was correct in finding that the Conservators were not entitled to delegate completely the function of bringing prosecutions to enforce Byelaws to an employee; and
(2) Whether he was entitled, on the agreed facts, to find that the Conservators had not shown that they exercised oversight and review of their officer's prosecutorial function.
For the reasons given in the remainder of this judgment, I have concluded that the answer to the first of these questions is "yes", but a qualified "yes", and the answer to the second question is "no". Before giving those reasons, I will summarise the agreed facts as contained in the case stated, and the legislative and regulatory framework.
II The factual background
Paragraphs 1 – 3 of the case stated summarise the nature and history of the proceedings. It is stated that the summonses were issued against "Samuel Matthews and others" alleging that they had contravened Byelaws made under section 25 of the 1922 Act. The District Judge stated that, for the purpose of stating the case, it was unnecessary to set out the detail of each allegation against each defendant. He stated (case, §1) that there were 34 offences alleged between them, and that following not guilty pleas to all allegations the case was listed for hearing. I add that the summonses against the punt operators cited various allegations that each had contravened the Byelaws and had committed various offences, in particular keeping an unregistered punt on the river, navigating an unregistered punt, and failing to operate from a recognised punt station.
Those against whom the summonses were issued applied to the court to stay the proceedings on the ground that the Conservators had no power to delegate their power to prosecute to Dr Noon. The District Judge heard their application on 3 March 2014 on the basis of an agreed five page abstract of the facts prepared by counsel for the defendants. The District Judge summarised the agreed facts as follows:
"5. The River Cam Navigation Act 1851 had made provision for the appointment of Conservators of the River Cam [the Conservators]; their constitution was amended by the River Cam Conservancy Act 1922 to consist of a total of 13 Conservators within a body corporate.
6. Neither statute gave express power to [the Conservators] to prosecute, but that such power was implied by the power to impose penalties for breach of byelaws. Neither statute gave express authority for [the Conservators] to delegate power to an officer to prosecute or defendant, or to institute criminal proceedings in their own name in the manner in which, e.g. local authorities have such power expressed by statute. There was a dispute which I had to determine as to whether such authority could be implied.
7. On 17 th January 2013 [the Conservators] prepared a document headed 'Delegation of Powers', (page 336 of bundle). 1 It stated that (despite paragraph 7 above): Under the Acts, … the Conservators may delegate certain powers to the Chairman, Deputy Chairman and officers. It went on, inter alia that the River Manager and officers be authorised and directed … to enforce the Byelaws and statutes and to defend actions on behalf of the Conservators. The River Manager be appointed to appear before any court of competent jurisdiction for these purposes and the powers of the Conservators for this purpose be delegated formally to Dr P Noon and her Deputy….
8. At a meeting of the Board of [the Conservators] on 26 th September, 2013 Dr Noon was expressly instructed 'to prepare more prosecution cases against unlawful punt operators, assisted by Mr Brown and the Chairman'. On 2 nd October 2013 Anthony Clive Gordon Brown, current Deputy Chairman of [the Conservators], met with Dr Noon, Mr Adams, (the then Chairman) and the River Bailiff. Dr Noon was instructed to proceed with the prosecutions. She kept Mr Brown and Mr
Adams generally informed of progress in the proceedings. The status of proceedings was reported to the Conservators at their meeting on 23 rd January 2014." 2
III The legislative and regulatory framework
The Conservators are a body corporate. Their origins are an Act of Parliament in 1702. Their powers and duties are currently contained in the River Cam Navigation Act 1851 ("the 1851 Act") and the River Cam Conservancy Act 1922 ("the 1922 Act"). Some of the provisions in the Commissioners Clauses Act 1847 ("the 1847 Act") have been incorporated into the 1922 Act by section 2 of the 1922 Act, which provides that references in the incorporated provisions to "the Commissioners" mean "the Conservators". The jurisdiction of the Conservators covers the River Cam and River Granta in an area between Newnham Mill, sluice gates near Sheep's Green, and Kings Mill and Bottisham Locks: see section 13 of the 1922 Act and section 14(1) of the Cambridge City Council Act 1985.
Section 5(1) of the 1922 Act provides that there shall be thirteen Conservators, seven appointed by the City Council, three appointed by the Council of the Senate of the University of Cambridge, one appointed by Cambridgeshire County Council, and two appointed by the Environment Agency (as successor to the Ouse Drainage Board).
The provisions for meetings are contained in the 1851 Act. Section VI requires the Conservators to hold an "Annual Meeting" in (broadly speaking) the first half of June each year. Section VII provides that it is lawful for the Conservators "to hold Quarterly Meetings for the transaction of general business…". In practice the Conservators meet quarterly, although section VIII provides that three or more of the Conservators "may require a Special Meeting to be held", provided ten clear days' notice is given. Section XII empowers the Conservators at any of these meetings to order payment of sums due by them. The 1847 Act contained provisions authorising and relating to the holding of monthly meetings by what are now the Conservators, but these provisions were not incorporated into the 1922 Act.
The Conservators are empowered by section 25(1) of the 1922 Act to make such Byelaws as they think fit for the area within their jurisdiction for a number of specified purposes. It suffices to refer to the three purposes relevant to the main offences charged in this case:—"(b) for the regulation of vessels, boats and other craft on the said rivers and waters", "(g) for prohibiting or allowing upon and subject to such conditions as may be referred in the Byelaws the putting down or placing of mooring ropes…", and "(h) for requiring the registration of pleasure-boats…prescribing the fees to be paid in respect of certificates of registration…".
Section 26 of the 1922 Act provides:
"The Conservators may by any Byelaws made by them impose on offenders against the same such reasonable penalties as they think fit not exceeding [a fine at level 1] and in the case of a continuing offence a daily penalty not exceeding a like amount…".
Section 52 of the 1922 Act provides that all offences under it or the 1851 Act, or the Byelaws made under them, "may be prosecuted and recovered in a summary manner". The penalties in square brackets are those specified by Byelaw 18.
There are three provisions of the 1847 Act which have been incorporated into the 1922 Act which are of some importance in these proceedings. The first is section 65, which provides:
"The [Conservators] may from time to time appoint and employ a treasurer, clerk elector assessor, and all such other officers to assist in the execution of this and in the...
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