Rockall v Department for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Latham,MR JUSTICE OUSELEY,MR JUSTICE UNDERHILL,LORD JUSTICE MOSES,MR JUSTICE BLAKE |
| Judgment Date | 03 July 2008 |
| Neutral Citation | [2008] EWHC 2408 (Admin),[2007] EWHC 614 (Admin),[2008] EWHC 1150 (Admin) |
| Docket Number | CO/2595/2008,Case No: CO/128/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 July 2008 |
[2007] EWHC 614 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
ON APPEAL FROM LOWESTOFT MAGISTRATES' COURT
Lord Justice Latham and
Mr Justice Davis
Case No: CO/128/2007
Mr David Lamming (instructed by Gotelee & Goldsmith, Ipswich) for the Appellant
Mr Ian Mann (instructed by Department for Environment Food & Rural Affairs) for the Respondent
Hearing dates: 1 st March 2007
This is an appeal by way of case stated from a decision of the Justices of the Peace for the county of Suffolk on the 30 th August 2006. They ruled that they had jurisdiction to hear a summons against the appellant for an offence of felling growing trees without the authority of a licence issued by the Forestry Commission, contrary to section 17(1) of the Forestry Act 1967. The issue was whether or not the proceedings had been commenced in time. Section 17(2) of the Act provides:
"Proceedings for an offence under this section may be instituted with in six months from the first discovery of the offence by the person taking the proceedings, provided that no proceedings shall be instituted more than two years after the date of the offence."
This provision is an exception to the general rule in section 127(1) of the Magistrates' Court Act 1980 that a magistrates court does not have jurisdiction to try an information unless it has been laid within six months from the time when the offence was committed, "except as otherwise expressly provided by any enactment".
It was common ground for the purpose of determining this issue that the date upon which the respondent first discovered that the alleged offence had been committed was on the 12 th August 2005. Six months therefore expired on the 12 th February 2006, which was a Sunday. It follows that the question which had to be determined was whether or not the proceedings had been "instituted" for the purposes of section 17(2) of the Act on or before Friday the 10 th February 2006. The respondent's case was that a copy of the information signed by the prosecutor together with a draft summons was sent by fax to the clerk to the justices on Friday 10 th February 2006 and that, accordingly, that information was laid before the magistrates court within the six months time limit. At the time of the hearing before the justices, both parties took the view that the relevant proceedings were "instituted" at the time of the laying of the information, although, before us, Mr Lamming, on behalf of the appellant, has submitted that that was a concession that he should not have made. I will return to that point later in the judgment.
In the case stated, the justices set out the evidence before them as follows:
"a. A letter from DEFRA addressed to the court, dated the 8 th November 2005 [sic], enclosing the information for laying, together with a draft summons."
(The respondent never suggested that this letter had in fact been sent on the 8 th November 2005).
b. A copy of the information signed by the prosecutor with a fax header line giving the following details:
10/02'06 16:01 FAX 020 7238 1218 Defra Legal B3 003,
c. A copy of a draft summons with the following fax header line details: 10/02'06 16:01 FAX 020 7238 1218 Defra Legal B3 002
d. A copy of the letter mention in (a) with the following fax header line details: 10/02/06 16:00 FAX 020 7238 1218 Defra Legal B3 001"
This letter had a handwritten endorsement "Summons rtd 14.2.06 TB".
e. A copy of the summons, dated 14.2.06, upon which "13.2.06" had been handwritten as the "Date of Information" alongside the rubberstamp signature "V Rees-Morgan AUTHORISED BY THE CLERK TO THE JUSTICES"
f. A fax transmission report produced by the respondent as a business record showing that a three page fax was sent to 901502513875 with a starting time of "10/02 16:00" and the result of that transmission being shown as "OK"."
Having rehearsed the respective arguments and the advice given to them by their legal adviser, the justices concluded the case stated as follows:
"10. We considered the points raised and we concluded that upon physical transmission of the information to the office of the clerk to the justices, within business hours and within the six month time limit, the information had been received by a member of staff of the clerk to the justices, expressly or impliedly authorised to receive it. We were aware that a later date had been endorsed upon the summons, for whatever reason, but that had no affect (sic) upon our decision that there was good service of the information to the office of the Clerk to the Justices within business hours. We therefore found that we had jurisdiction to hear the case and, proceeded accordingly.
11. The questions for the consideration of the High Court are:
(1) On the basis that by "good service" we mean "effective laying of the information" whether there was evidence on which we could find that the said information was laid on the 10 th February 2006, rather than on the 13 th February 2006.
(2) Whether, on the said basis, we were entitled to find that the information had been laid on the 10 th February 2006 when
(i) the letter from the respondent to the court dated 08/11/05 and faxed to the court at 4 p.m. on the 10 th February 2006 enclosing the information "for laying" requested the court to return a copy of the information "duly stamped with the date of laying":
(ii) no evidence was adduced relating to the receipt of the said fax; and
(iii) the information was returned to the Respondent duly stamped by a person authorised by the clerk to the justices, and showing the Date of information as 13.2.06."
The letter dated the 8 th November 2005 stated:
"Further to our recent telephone conversation, I enclose one information for laying (plus a copy of each) and one draft summons (plus 2 copies of each) against Michael J Rockall
…..
I shall be grateful if the issued summonses can be returned to this office for service by Recorded Delivery together with a copy of the signed information duly stamped with the date of laying of the informations."
Having accepted jurisdiction in these terms, the justices proceeded to hear the information, found the case proved and ordered the appellant to be conditionally discharged for 12 months and to pay £750 prosecution costs.
As I have indicated and is implicit in the case stated, the argument before the justices proceeded on the basis that the justices had jurisdiction if it could be properly said that the information had been "laid" before them on the 10 th February 2006. Mr Lamming has reconsidered the matter in the light of the fact that section 17(2) of the Forestry Act imposes a time limit by reference to the institution of proceedings. He submits that proceedings are not "instituted" for the purposes of this sub-section until the issue of a summons based upon the information. As the question with which we are concerned relates to the jurisdiction of the court, we permitted him to argue this point, despite the fact that it was not clearly raised until he drafted his addendum to his skeleton argument on the 27 th February 2007. Mr Mann, on behalf of the respondent, raised no objection.
Mr Lamming's submission is based fairly and squarely on a decision of this court in Price –v- Humphries [1958] 3 WLR 304. The question in that case was whether or not the prosecution had proved that the relevant proceedings had been "instituted" by or with the consent of the minister or other authorised agent as required by section 53(1) of the National Insurance Act 1946. At page 306, having set out the provisions of that section, Devlin J said:
"Proceedings in summary jurisdiction of this sort are instituted by the laying of an information and the issue of a summons, and, when the summons is issued, that is the institution of the proceedings."
Mr Lamming submits that this is consistent with authority as far back as R –v- Willace (1797) 1 East PC 186 where the commencement of a prosecution was held to be "the information and proceeding before the magistrate". Mr Lamming submits that these authorities make it abundantly plain that the commencement or institution of proceedings can only occur once the justices have had an opportunity to consider the information, to have accepted it as a valid information, and issued the appropriate process. However, he has not been able to cite to us any authority for the proposition that that is the meaning to be given to the word "instituted" in the Act with which we are concerned. And I am mindful of the fact that, when considering whether proceedings have been "begun" in any court for the purposes of section 34(2) of the Children and Young Persons Act 1969 Saville LJ, said in Director of Public Prosecutions –v- Cottier [1996] 1WLR 826, at page 831G-H:
"We were referred to a number of authorities which considered somewhat similar provisions, but all I glean from those is that the answer to the question when proceedings are instituted or begun depends on the context in which the words are used and the purpose of the provision."
The provisions with which we are concerned would appear to be identical in purpose to the provisions of section 127 of the Magistrates' Court Act 1980, to which I have already referred, and which impose a time limit of six months on the commencement of proceedings for summary offences. Whilst I acknowledge the difference in wording, namely that section 127 expressly refers to the laying of the information (and the making of...
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