Verderers of the New Forest v Andrew Young, Austin Walter Young and Others (No 2)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS,MR JUSTICE STANLEY BURNTON |
| Judgment Date | 01 December 2004 |
| Neutral Citation | [2004] EWHC 2954 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5008/2004 |
| Date | 01 December 2004 |
[2004] EWHC 2954 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Collins
Mr Justice Stanley Burnton
CO/5008/2004
MR MOTT QC and MR C PARRY (instructed by Moore & Blatch) appeared on behalf of the CLAIMANT
MR M GIBNEY (instructed by Jasper & Vincent) appeared on behalf of the DEFENDANTS
This is an appeal by way of case stated by the Verderers of the New Forest who issued informations in 2002 against a total of nine commoners who were alleged to have breached byelaws which governed their right to pasture animals in the New Forest. Those byelaws are contained in the New Forest (Confirmation of the Byelaws of the Verderers of the New Forest) Order 1999 which is made in pursuance of the New Forest Act 1877. The relevant byelaws are numbers 6 and 7. I need only read 6, which applies to horses, because 7 is in identical terms, save that it applies to sheep or cattle. 6 reads as follows:
"(1) No commoner shall in any calendar year cause or allow any horse to which this byelaw applies to roam at large or be depastured in the Forest unless —
(a) in the case of a horse which has been continuously depastured in the Forest since before the beginning of that year, and in respect of which the appropriate payment was made in the previous calendar year, the appropriate payment in respect thereof is made to the Verderers before the first day of May in that year; or
(b) in the case of a horse which has not been so depastured as aforesaid, it has been marked by, and the appropriate payment in respect thereof is made to, the Verderers before it is depastured in the Forest.
(2) This byelaw applies to, as respects any calendar year, any horse except a horse born after the beginning of that year."
The purpose behind that byelaw is obvious. It is that any commoner who wishes to make use of his rights to depasture or allow his animals to roam in the New Forest must pay an annual fee, and if he is one whose animals are continuously depastured in the Forest, year in year out, then he has a dispensation which enables him, instead of making a payment immediately before he depastures any such animal, to pay it on or before 30th April in any particular year.
I am told that the Verderers keep a register which should indicate those who continuously depasture. However, in respect of individual animals, that may not always be entirely accurate, nor will it normally be certain whether that is or is not the position.
What happened in this case was that on various dates during the summer and autumn of 2002 checks were made by the agisters on horses, sheep and cattle which were found in the Forest. Most of the dates that the relevant animals were seen depastured were in June or July, but there was one at the beginning of May and one or two later on in the year. Unfortunately, the informations laid were not laid in a satisfactory form. I take, because it happens to be first in the bundle, that relating to the respondent Mr Andrew Young. That was dated 31st October 2002 and what it alleged was as follows:
"On or before the 30th day of April 2002 at the New Forest, Hampshire did allow horses owned by you to be depastured without making appropriate payment to the Verderers of the New Forest on or before the 30th day of April 2002 contrary to Bye-Law 6 of the Byelaws of the Verderers of the New Forest 1999 made by the Verderers of the New Forest, in exercise of powers conferred on them by Section 25 New Forest Act 1877 and confirmed by the Minister of Agriculture, Fisheries and Food on 28 July 1999."
In respect of six of the nine respondents identical informations were preferred. In the case of three, for some reason, the wording was somewhat different, as was the date on which they were laid. Although the informations themselves bear no date, it was common ground before the Magistrates' Court that they were laid on 8th November 2002. The wording of those, and I refer to the case of Mr Horsburgh, was that: "On or before the 30th day of April 2002 at the New Forest, Hampshire did and continue to allow horses …" et cetera. Otherwise it was in identical terms to the one I have already read.
Together with the informations, there were served statements from the agisters which indicated the dates upon which the relevant animals had been seen in the Forest. I say the relevant animals because all the animals were marked and the marks could therefore be traced back to establish the relevant owners. I have already indicated what those dates were.
These prosecutions have something of a history to them, so far as the courts are concerned, because there was an argument initially raised that went to jurisdiction. The issue was whether the Magistrates had jurisdiction to deal with the matter rather than the Court of Swainmote, which was the relevant court relating to the Verderers of the New Forest, certainly as at 1877 and no doubt long before that. Indeed it apparently still exists.
The Court of Swainmote, apart from anything else, had some difficulties in complying with the European Convention on Human Rights since the Verderers constituted prosecutors, judges and recipients of any penalty which was imposed, and one can see that perhaps that does not measure up to modern requirements in relation to courts. In any event the matter came before this court on 17th December 2003, when it was decided that the Magistrates did indeed have jurisdiction. In commencing his judgment, Rose LJ stated:
"This is a unique case redolent with history. It concerns the control of animal numbers and grazing by horses, sheep and cattle in the New Forest, by way of the imposition of marking fees."
Following that decision, the matter came back to the Magistrates and was then considered by the Deputy District Judge. The point was taken, and it would appear was taken largely at her instigation, that these informations were out of time. Reliance was placed upon section 127 of the Magistrates' Courts Act 1980 which provides by subsection (1):
"Except as otherwise expressly provided by any enactment and subject to subsection (2) below [which relates to indictable offences] a magistrates' court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose."
It was said that in relation to Mr Horsburgh the information, having been laid on 8th November, was more than six months after the alleged date of the offence, namely on or before 30th April, and was therefore out of time.
Mr Gibney, who appeared for the respondents before the Deputy District Judge, did not submit that the informations which had been laid on 31st October were out of time. He, it would seem, appreciated that time did not begin to run until the day after the date of the alleged offence. That that is indeed the case is clear from a decision of this court in Marren v Dawson Bentley & Co Ltd [1961] 2 AER 270.
However, the Deputy District Judge was not aware of that authority when she made the decision which we have to consider, and accordingly she took the view that all the informations were out of time. She did not spot that one of them was clearly in time because one, for some reason, alleged that the offence was committed on or before 1st May rather than 30th April. That one on any view was in time. If I may go to the Case, in fact there were more than nine informations. I do not think it is necessary to go into the details of all of them. In some there were alleged breaches of byelaws 6 and 7 in that they had both horses and cattle or sheep, and that explains why there were more summonses than individuals. In any event, what she records in the Case is as follows:
"I heard the said informations on the 16th July 2004 and determined the following
(i) Applying section 127 of the Magistrates' Court Act 1980, each information against each of the respondents had been laid out of time.
(ii) In the light of this determination, the Court had no jurisdiction to try the informations against any of the respondents.
(iii) No evidence was adduced by either the appellants or the respondents, the determination being reached following legal submission."
She then goes into a discussion of the law which is applicable. She points out that the informations alleged 30th April was the date, save one which was the case of Mr Bessant, which was 1st May, and she continues as follows in paragraph 3D:
"It was calculated that the six month time limit during which these informations could be laid before the Court had expired on the 30th October 2002. This calculation was accepted as accurate by the respondents, although the appellants made no concession in this regard, arguing instead that the offences were 'continuing' offences. The summonses in respect of the respondents therefore appeared to offend the provisions of section 127, those informations laid on 31st October, 2002 being one day out of time and the remaining informations being more substantially out of time.
4. It was contended by the appellants that the offences disclosed in the informations were continuing offences and therefore the time limit for the laying of informations as provided by section 127 should not be applied strictly from the date of the alleged offences as detailed in...
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