Peter John Winder v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove,Lord Justice Dingemans |
| Judgment Date | 19 June 2020 |
| Neutral Citation | [2020] EWHC 1600 (QB) |
| Date | 19 June 2020 |
| Docket Number | Case No: CO/33/2020 |
| Court | Queen's Bench Division |
[2020] EWHC 1600 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Dingemans
and
Mr Justice Dove
Case No: CO/33/2020
Leslie Smith (instructed by Hogan Brown Solicitors) for the Appellant
Paul Jarvis (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 11th June 2020
Approved Judgment
This is an appeal by way of case stated following a hearing at Poole Magistrates' Court on 3 September 2019 at which, following an application by the appellant, the District Judge ruled that the charges he faced had been brought in time.
The complainants in this matter, Mr and Mrs Jones, are customers of the Santander Bank. They had been on holiday, and on return noticed potentially fraudulent activity occurring on their bank account. Mrs Jones rang the bank on 13 March 2018 and spoke to a fraud investigator, who it is clear was the appellant. They had a heated argument. The prosecution case is that the appellant then used the bank's internal system to discover the complainants' mobile and landline telephone numbers. On 18 March 2018 and 19 March 2018, Mrs Jones received a number of calls on her landline from a withheld number. These were concluded to be harassing rather than threatening calls. On 20 March 2018 Mr Jones received a call from a male saying that he knew where Mr Jones lives and that he was coming to get him.
On 18 April 2018 the appellant was arrested and interviewed by the police and his mobile phones were seized and subsequently examined. In the interview the appellant gave no comment and provided a prepared statement in relation to the allegations which were put to him. By 6 December 2018 the mobile phone examinations had been completed, and a file had been compiled for submission to the CPS. The file was reviewed by a senior police officer and it was submitted to the CPS on 18 January 2019. In a certificate signed on 17 July 2019 by a Senior Crown prosecutor she certifies that she had evidence within her knowledge sufficient to justify the commencement of criminal proceedings on 5 February 2019 and that she made a decision to charge the appellant on 4 March 2019.
The appellant was charged with offences under section 127 of the Communications Act 2003 (see below) by way of a postal requisition dated 17 May 2019. As set out above, on his behalf it was contended, unsuccessfully, before the District Judge that the prosecution had been commenced out of time. This appeal and the questions posed by the District Judge centre on the question of whether or not that decision was correct.
At the hearing on 3 September 2019 it was indicated on the appellant's behalf that a guilty plea would be likely to be entered in due course. A pre-sentence report was obtained. At a hearing on 30 September 2019 the District Judge was informed of the application that had just been made to state a case in respect of his ruling that the prosecution was in time. The District Judge indicated that in the event it was necessary for him to sentence the appellant he would be minded to impose a community disposal. Thus, the view was taken that the outcome of this question in relation to the timeliness of charging is central to the result of these proceedings.
The charges which were preferred were as follows:
“That between 17 March 2018 and 21 March 2018 19 Brookfield Avenue Liverpool L23 3DN Mr Winder persistently made use of an electronic communications network for the purposes of causing annoyance, inconvenience or needless anxiety to another, contrary to section 127 (2)(c) and (3) of the Communications Act 2003;
That on 20 March 2018 at 19 Brookfield Avenue Liverpool L23 3DN Mr Winder sent by means of a public electronic communications network a communication that was grossly offensive or of an indecent, abusive or menacing character, contrary to section 127 (1) (a) and (3) of the Communications Act 2003.”
Section 127 of the Communications Act 2003, so far as relevant to these proceedings, provides as follows:
“127 (1) a person is guilty of an offence if he—
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.
(2) a person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—
(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
(3) a person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale, or to both.
…
(5) an information or complaint relating to an offence under this section may be tried by a magistrates' court in England and Wales or Northern Ireland if it is laid or made—
(a) before the end of the period of 3 years beginning with the day on which the offence was committed, and
(b) before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings.
…
(7) a certificate of a prosecutor as to the date on which evidence described in subsection (5)(b) or (6)(b) came to his or her knowledge is conclusive evidence of that fact.”
The offences created by section 127(1) and (2) of the 2003 Act are summary only. Section 127(5) provides time limits for the bringing of a charge. It is sensible to conclude that the postal requisition process equates, for the purposes of section 127(5), to the laying of an information given that it is the commencement of the criminal proceedings.
It is common ground that, whilst the application to the Magistrates' Court for the court to state a case pursuant to section 111 of the Magistrates' Court Act 1980 was made in time, the application to appeal to this court was brought one day out of time. It was further common ground that this court has jurisdiction to extend time for the appeal to be brought before the court by virtue of the provisions of the CPR (see CPR 52.15). The explanation for the failure to comply with the time limit is simply that there was an administrative oversight by those representing the appellant. It is pointed out that it was not the appellant's fault that this occurred. Whilst it is beyond argument that a failure to comply with the time limit provided in CPR PD 52E para 2.2 is a serious failure to which significant weight should attach, and bearing in mind the fact that there is in truth no real excuse for the default, nonetheless having regard to the particular circumstances of the case and in particular the fact that the notice of appeal was submitted only one day too late and the consequences for the appellant are very significant involving criminal liability, I am satisfied that it would nonetheless be just to allow the appeal to proceed out of time.
A further preliminary point has been raised in relation to whether it is proper for the court to consider this appeal, on the basis that it is in effect an appeal by way of case stated at an interlocutory stage of proceedings. Mr Smith, who appears on behalf of the appellant, contends that in exceptional cases it is permissible for the court to consider an appeal by way of case stated in relation to a matter arising at an interlocutory stage. He relies upon the decision of this court in the case of R (on the application of Yogesh Parashar) v Sunderland Magistrates Court [2019] EWHC 514 (Admin); [2019] 2 Cr. App. R. 3, which was a case concerning the treatment by the court of an application to vacate a trial date in advance of the case being heard. A point was taken in relation to whether or not it was appropriate for the court to consider a challenge to such a decision, prior to the court proceedings being ultimately disposed of. The relevant authorities were reviewed by Bean LJ in a passage which was relied upon by Mr Smith:
“33 Mr Boyd for the CPS relied on what he described as the Buck rule. This is a reference to the decision of this court in R v Rochford Justices ex parte Buck (1979) 68 Cr. App. R. 114. Lord Widgery CJ cited with approval the decision of this court in R v Carden (1879) 5 QBD 1. In Carden Cockburn CJ had said that “while we have authority to issue a mandamus to hear and determine we have no authority, as it seems to me to control the magistrate in the conduct of the case or to prescribe to him the evidence which he shall receive or reject as the case may be”.
34 Lord Widgery CJ said that there was an obligation on this court “to keep out of the way until the magistrate had finished his determination” and that “there was no jurisdiction in this court to interfere with the justice's decision, that not having been reached by termination of the proceedings below.”
35 The “ Buck rule” is no longer a rule. More useful guidance is to be obtained from the judgement of Hughes LJ in this court in R. (Crown Prosecution Service) v Sedgemoor Justices [2007] EWHC 1803 (Admin). This was, as the name of the case indicates, an application for judicial review by the CPS to challenge a ruling of the justices that the evidence of analysis of the accused's blood specimen was inadmissible. Hughes LJ said (at [3]):-
“in general terms this court will...
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