Local Authority Prosecutions: When the General Power to Prosecute Gives way to a Specific Power
| Author | Neil Parpworth |
| DOI | http://doi.org/10.1177/00220183231152634 |
| Published date | 01 February 2023 |
| Date | 01 February 2023 |
| Subject Matter | Case Notes |
Local Authority Prosecutions: When
the General Power to Prosecute
Gives way to a SpecificPower
R (on the application of City of York Council) v
AUH and others; R (on the application of
Birmingham City Council) v BIY and another
[2022] EWCA Crim 1113
Keywords
Local authorities, consumer offences, general power to prosecute, expediency test,
specific power to prosecute
In the York appeal, the respondents were alleged to have conspired to defraud individuals by operating a
bogus model agency. An initial investigation had been carried out into the matter by Bristol City Council,
whereas a subsequent and related investigation had been commenced by the City of York Council. In due
course, the City of York Council took over the earlier investigation and decided to prosecute the accused.
An instrument of delegation of functions was executed between the two councils pursuant to s.101(1)(b)
of the Local Government Act 1972, whereby Bristol delegated its powers under the Consumer Rights Act
2015 and the 1972 Act to investigate and prosecute. At the respondents’trial before the York Magistrates’
Court, and following a preparatory hearing lasting more than two weeks, HHJ Burn ordered a stay of
proceedings as an abuse of process. He did so on the basis that regardless of paragraph 46(1) of
Schedule 5 to the 2015 Act, which provides that ‘a local weights and measures authority in England
or Wales may bring proceedings for a consumer offence allegedly committed in a part of England or
Wales which is outside the authority’s area’, the council’s power to prosecute the respondents was gov-
erned by s.222(1) of the 1972 Act, and that the ‘expediency test’contained therein had not been satisfied.
The Birmingham appeal concerned an allegation of illegal money lending. An investigation had been
undertaken by the Illegal Money Lending Team operated by Birmingham City Council. It decided to
prosecute the accused before the Snaresbrook Crown Court for offences contrary to s.39(1) of the
Consumer Credit Act 1974 and s.23(1) of the Financial Services and Markets Act 2000. In contrast to
what had earlier happened in the York Magistrates’Court, the trial judge, HHJ Southern, dismissed
an application to stay the proceedings as an abuse of process. He did so on the basis that although the
expediency test under s.222(1) of the 1972 Act had not been met, Birmingham City Council nevertheless
had the power to prosecute the offences by virtue of paragraph 46(1) of Schedule 5 to the 2015 Act.
The two appeals were therefore concerned with a common issue; whether paragraph 46(1) of Schedule
5 to the 2015 Act conferred a power on local authorities to prosecute consumer offences irrespective of a
connection with their area or, alternatively, whether the power to prosecute was governed by s.222(1) of
the 1972 Act, that is, when it was expedient for the promotion or protection of the interests of the inha-
bitants of the relevant local authority’s area.
Held, that whilst s.222(1) of the 1972 Act conferred a general power enabling local authorities to
engage in civil and criminal proceedings, public inquiries and the like, it could not be interpreted as
Case Note
The Journal of Criminal Law
2023, Vol. 87(1) 57–60
© The Author(s) 2023
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DOI: 10.1177/00220183231152634
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