R (Securiplan Plc) v Security Industry Authority
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Mr Justice Blake |
| Judgment Date | 25 July 2008 |
| Neutral Citation | [2008] EWHC 1762 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3878/2008 |
| Date | 25 July 2008 |
[2008] EWHC 1762 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay and
Mr Justice Blake
Case No: CO/3878/2008
Mr Andrew Mitchell QC and Mr Hugo Keith (instructed by Osborn Abas Hunt) for the Claimants
Mr David Perry QC and Mr Sam Grodzinski (instructed by Treasury Solicitor) for the Defendant
Stokoe Partnership for the Interested Party
Hearing dates: 9 and 10 July
The Private Security Industry Act 2001 (the Act) is described in its long title as “an Act to make provision for the regulation of the private security industry”. Section 1 established the Security Industry Authority (SIA) as a body corporate and defined its functions, which include licensing, monitoring and inspection. It is also empowered by section 1(3) to do
“anything that it considers is calculated to facilitate or is incidental or conducive to, the carrying out of its functions.”
The Act creates a number of criminal offences including engaging in licensable conduct except under and in accordance with a licence (section 2(1)). Other offences include using unlicensed security operatives (section 5), using unlicensed wheel-clampers (section 6) and offences aimed at supporting the SIA in the discharge of its functions (section 19(6) and 22(1)). The offence under section 5 was brought into force with effect from 20 March 2006, although those who would require licences were able to apply for them from 10 January 2005. On 23 and 24 March the SIA carried out inspection visits at various sites where the corporate claimants provided security services to well-known companies. It is alleged that they there found numerous security staff who had been deployed by the claimants but who were “unlicensed security operatives”. In due course, the SIA procured summonses to be issued against the corporate and individual claimants, the individuals being directors or managers of the companies in respect of whom criminal liability is provided for by section 23. The alleged offences are triable either in the Magistrates Court or on indictment in the Crown Court. Here, the cases have proceeded to the Crown Court.
In Southwark Crown Court, but not earlier, the claimants contended that the SIA has no power or authority under the Act to institute or continue a prosecution. On 18 March 2008, His Honour Judge Rivlin QC rejected that contention. On 23 April 2008, the claimants lodged this application for permission to apply for judicial review. They seek to challenge not the ruling of the judge in the Crown Court but the prior decisions of the SIA to prosecute. By order of Ouseley J, the application has been listed before us on a “rolled-up” basis. We indicated at the commencement of the hearing that we were content to receive full submissions on all issues and would decide later whether to grant permission and, if so, whether to grant substantive relief.
The case for the claimants is that the SIA has no statutory power or authority to prosecute because its capacity as a statutory corporation is limited by the enabling statute and that is silent on the question of prosecution. The case for the SIA is that it is acting within its statutory powers. However, it takes two preliminary points, namely (1) that this Court has no jurisdiction to entertain the claimants' application because it concerns a matter “relating to trial on indictment” pursuant to section 29(3) of the Supreme Court Act 1981 or, alternatively, we should refuse to entertain the application as a matter of discretion, given its subject matter; or (2) that we should reject the application because it was not made promptly or, in any event, within three months of the decision to prosecute in accordance with CPR 54.5 and there is no good reason to extend time.
Logically, these preliminary points should be considered first. However, both parties have urged us to express a view on the merits, even if we are persuaded by one or other of the preliminary points raised by the SIA and, in these circumstances, we shall deal with the merits ahead of the preliminary points. Before that, however, it is necessary to set out more of the statutory provisions.
The statutory provisions
Section 1(2) of the Act provides:
“The functions of the Authority shall be –
(a) to carry out the functions relating to licensing and approvals that are conferred on it by this Act;
(b) to keep under review generally the provision of security industry services and other services involving the activities of security operatives;
(c) for the purpose of protecting the public, to monitor the activities and effectiveness of persons carrying on businesses providing any such services as are mentioned in paragraph (b);
(d) to ensure the carrying on of such inspections as it considers necessary of the activities and businesses of –
(i) persons, engaged in licensable conduct; and
(ii) persons registered under section 14 as approved providers of security industry services;
(e) to set or approve standards of conduct, training and levels of supervision for adoption by –
(i) those who carry on businesses providing security industry services or other services involving the activities of security operatives; and
(ii) those who are employed for the purposes of such businesses;
(f) to make recommendations and proposals for the maintenance and improvement of standards in the provision of the security industry services and other services involving the activities of security operation;
(g) to keep under review the operation of this Act.”
Section 1(3) then provides:
“The Authority may do anything that it considers is calculated to facilitate or is incidental or conducive to, the carrying out of its functions.”
Section 1(4) provides that, without prejudice to section 1(3) the SIA may, for any purpose connected with the carrying out of any of its functions, (a) make proposals to the Secretary of State for the modification of any provision in the Act and (b) undertake, arrange for or support (whether financially or otherwise) the carrying out of relevant research.
The system for licensing and approvals is provided for by sections 3 – 18. Powers of entry and inspection are the subject of sections 19 and 20. I shall have to make more detailed reference to some of these provisions later.
Does the SIA have power to prosecute?
It is, of course, correct that a statutory corporation only has competence to act to the extent that it is empowered by statute. It is also obvious that the functions of the SIA, as prescribed by section 1(2) of the Act, do not include any express reference to “prosecution”. Nevertheless, on behalf of the SIA, Mr David Perry QC submits that the SIA is competent to prosecute because to do so is “calculated to facilitate or is incidental or conducive to, the carrying out of its functions”, pursuant to section 1(3). This is essentially a matter of construction upon which we have received rival submissions as to the intention of Parliament. In evaluating them, it is appropriate to keep in mind the words of Lord Nicholls of Birkenhead in R v Secretary of State for the Environment, ex parte Spath Holme Ltd [2001] 2 AC 349, at pp 396F-397A:
“Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that 'the intention of Parliament' is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman or of individual members or even of a majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and words used may be impressively complete or woefully inadequate. Thus, when courts say that such-and-such a meaning 'cannot be what Parliament intended', they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning. As Lord Reid said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613: 'We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used'.”
Lord Nicholls also went on (at p.397F-398E) to articulate “an important caveat” regarding the use of external aids to construction, reminding us that:
“… the constitutional implications point to a need for courts to be slow to permit external aids to displace meanings which are otherwise clear and unambiguous and not productive of uncertainty.”
In the present case, we have been referred by counsel on both sides, but particularly by Mr Andrew Mitchell QC on behalf of the claimants, to numerous external aids, including the White Paper which preceded the legislation (Cmnd 4254, March 1999), ministerial statements in the course of the legislative process, later ministerial comment and, by way of comparison, other regulatory statutes covering...
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