R David Michael Forsey (Claimant) The Northern Derbyshire Magistrates' Court (Defendant) Robert Stephen Palmer (First Interested Party) The Secretary of State for Business, Innovation and Skills (Second Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Treacy,Mr Justice Foskett |
| Judgment Date | 19 May 2017 |
| Neutral Citation | [2017] EWHC 1152 (QB) |
| Docket Number | Case No: CO/3400/2016 |
| Court | Queen's Bench Division |
| Date | 19 May 2017 |
[2017] EWHC 1152 (QB)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Treacy
and
Mr Justice Foskett
Case No: CO/3400/2016
and
Mr David Perry QC and Ms Katherine Hardcastle (instructed by RPC) for the Claimant
Mr Paul Ozin QC (instructed by The Secretary of State for Business, Innovation and Skills) for the Second Interested Party
Hearing date: 30 March 2017
Introduction
This is a challenge by way of judicial review to the decision of District Judge Davison, sitting at the defendant court on 27 April 2016, not to stay the claimant's prosecution by the second interested party under the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act) for an offence contrary to s.194. That is an offence arising from an alleged failure by an employer to give notice to the Secretary of State of certain redundancies. The claimant seeks a quashing order and a declaration that the institution of criminal proceedings against him was a nullity.
The core issue in the case is whether the Secretary of State may lawfully rely on the principle in Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 to institute criminal proceedings against the claimant who was alleged to have been guilty of the offence under s.194(3) as a director of the company concerned. The issue, therefore, is concerned with the true construction of s.194(2) of the Act and whether that true construction has the effect of excluding the ' Carltona principle' as it is called.
The section provides:
194 – Offence of failure to notify.
(1) An employer who fails to give notice to the Secretary of State in accordance with section 193 commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(2) Proceedings in England or Wales for such an offence shall be instituted only by or with the consent of the Secretary of State or by an officer authorised for that purpose by special or general directions of the Secretary of State.
An officer so authorised may […]
prosecute or conduct proceedings for such an offence before a magistrates' court.
(3) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
(4) Where the affairs of a body corporate are managed by its members, subsection (3) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
The claimant was prosecuted as a director of West Coast Capital (USC) Ltd, which entered into administration in January 2015, and whose 84 employees at a warehouse operated in Dundonald, Scotland were made redundant on 14 January 2015. It was alleged that the company committed an offence contrary to s.194 by failing to notify the Secretary of State in writing of a proposal to dismiss and make redundant 20 or more employees. The claimant is said also to be guilty on the basis that he had consented to, connived at, or neglected to prevent this failure.
Proceedings were commenced by postal requisition, setting out the offence in the manner described above and signed by Ian Whittaker, a senior lawyer employed by the Secretary of State. The letter included the wording, "Charge authorised by: Ian Whittaker." It gave details to enable contact to be made with him.
Solicitors acting for the claimant wrote to Mr Whittaker seeking clarification of the basis upon which proceedings had been brought in the light of the express words of s.194(2). Mr Whittaker replied, stating:
"Authority to prosecute: I confirm that I neither received the consent of, nor authorisation from the Secretary of State to commence these proceedings. This is because by virtue of the Carltona principle, derived from Carltona Ltd v Commissioner of Works [1943] 2 All ER 560, I am the Secretary of State for these purposes."
In the light of that response the claimant challenged the lawfulness of the proceedings by way of an application to the Magistrates' Court. The matter was heard by the district judge as a preliminary issue, over two days in March 2016. He handed down his ruling on 27 April 2016.
His conclusion was that on a true construction of s.194(2), the Carltona principle applied and was not ousted by the words used in s.194(2). Accordingly, he rejected an application for the charge to be dismissed as a nullity.
The terms of the Carltona principle and its effect were not controversial as between the parties. What was in issue was whether an analysis of s.194(2) led to the conclusion that it did not apply in this case. An authoritative account of the principle can be found, (including a citation from the original case), in R (King) v Secretary of State for Justice, also known as R (Bourgass) v Secretary of State for Justice, [2016] AC 384 at paragraphs 48 to 53. In brief, the functions given to ministers are so multifarious that no minister could ever personally attend to all of them. In those circumstances, the duties imposed upon ministers, and the powers given to them, are normally exercised under the authority of the minister by responsible officials of the department. Constitutionally, the decision of such an official is that of the minister. This is not a matter of agency or delegation to the official, but one of devolution to the official as the alter ego of the minister. For these purposes the official must be suitably qualified. It is not in issue that Mr Whittaker was so qualified.
Claimant's Submissions
Mr David Perry QC submitted that s.194(2) identified those who may lawfully institute proceedings in England and Wales by using a drafting technique which was inconsistent with the application of the Carltona principle. When the section is looked at in context, Parliament had expressed itself in terms which excluded the possibility of devolution to an official such as Mr Whittaker. The subsection should be read as dividing those entitled to initiate proceedings into three categories: (i) the Secretary of State personally; (ii) a person acting with the consent of the Secretary of State; or (iii) an officer authorised for that purpose by direction of the Secretary of State.
It was contended that categories (ii) and (iii) represented persons specifically nominated by the Secretary of State. These would be examples of delegated, rather than devolved authority and thus would fall outside the Carltona principle. Mr Whittaker's letter had confirmed that he did not fall into either of these two latter categories. The fact that such categories existed was an indication that Parliament had not intended the Carltona principle to apply to s.194(2). The existence of a mechanism to enable those in categories (ii) and (iii) to issue proceedings, meant that the rationale for the Carltona principle did not apply.
Mr Perry further submitted that the context in which the s.194 offence arose was important. It was in a part of the Act dealing with industrial relations, and in a chapter dealing with the procedures for handling redundancies. He submitted that those provisions represented a social and political settlement in a sensitive and controversial area of the law, namely that of industrial relations. Section 194(2) was a re-enactment of a provision which had originally been enacted in s.105 of the Employment Protection Act 1975. He reminded the court of the sensitivity of industrial relations legislation in the 1970s and submitted that that was a potential indicator that Parliament had intended the Secretary of State personally, or those specifically nominated by him to have the power of initiating proceedings, rather than some wider class under the Carltona principle.
Mr Perry also made reference to the requisition letter process asserting that if the Carltona principle applied to it, it would represent a derogation from levels of scrutiny and transparency in the initiation of proceedings commented on by Devlin J in Price v Humphries [1958] 2 QB 353 at 358, a case where the issue of a summons would have been scrutinized by a Justice or Justice's clerk.
He also placed reliance on Price v Humphries together with Commissioners of Customs and Excise v Cure and Deeley Ltd [1962] QB 340, as providing examples of drafting techniques, akin to those in the present case which led to the exclusion of the Carltona principle, and thus supported his case. He relied on the latter case as authority for the proposition that where Parliament has expressly delegated authority to prosecute it must be taken to have restricted the possibility of devolution under the Carltona principle. Moreover, observations by Sachs J in that case as to a narrow approach to be adopted in construing a taxation statute should be applied in relation to a criminal law statute.
I note that the statutory provisions involved in the two cases cited above were the only examples which had been found of something akin to the formula used in s.194(2). The precise formula used in s.194(2) is not found in any other provision of the Act, or in any other legislation. The Act contains five offence creating provisions: three of them (ss. 45, 240 and 241) have no consent requirement, and s.251B...
To continue reading
Request your trial
-
The Queen (on the application of Robert Palmer) v Northern Derbyshire Magistrates' Court
...on the basis that the prosecution infringed the Carltona principle (see R (Forsey) v The Northern Derbyshire Magistrates' Court [2017] EWHC 1152 (QB)). Permission to proceed was granted by Nicol J on 18 January 2019. Mr Palmer contends that as an administrator of USC, he cannot properly be......
-
DELEGATION OF POWERS FOR MODERN GOVERNMENT
...1 AC 254 at 303. 52 [1991] 1 AC 254. 53 R v Secretary of State for the Home Department, ex parte Oladehinde [1991] 1 AC 254 at 302. 54 [2017] EWHC 1152. 55 R (Forsey) v Northern Derbyshire Magistrates' Court [2017] EWHC 1152 at [36]. 56 R (Forsey) v Northern Derbyshire Magistrates' Court [2......