Azam v Epping Forest District Council

I ask Cranston J to give the first judgment.

The legal question posed to us in this case stated turns on a certificate issued by a prosecutor as to the date on which evidence sufficient, in his opinion, to justify prosecution, came to his knowledge. That date starts the clock ticking for the time limit within which a prosecution must be brought. As will be seen, such provisions exist in a variety of legislation, such as section 6 of the Road Traffic Offenders Act 1988.

The case stated concerns section 116(3) of the Social Security Administration Act 1992. Specifically we are asked, when a certificate had been issued under that section, whether the court is prevented from considering evidence that the true date on which sufficient knowledge came to the prosecutor's knowledge was earlier than that stated in the certificate. We are also asked whether in this case the District Judge's finding that the date was 16 November 2007 was supported by the evidence.

The background is as follows. The prosecution in this case was taken by Epping Forest District Council ("the Council"). They administer housing benefit and council tax in their area. On 13 February 2008, they laid an information to the effect that:

The Council completed a certificate that day, 13 February 2008, in accordance with section 116(3)(b) of the 1992 Act. It was signed by the Director of Corporate Support Services for the Council. It read as follows:

The Council's investigation into Mr Azam's circumstances began in late 2005. It was conducted by Lynn Hepburn, an investigation officer with the Council and Martin Crowe, a senior investigation officer. Mr Azam had received jobseeker's allowance since 2004. The investigation was triggered following the termination of his entitlement to jobseeker's allowance in October 2005, following receipt of a "housing benefit matching service identification" discrepancy.

Mr Azam was interviewed on 15 March 2006. He said he was not working or receiving income. Ms Hepburn visited a company, Optoma (Europe) Limited ("Optoma"), and eventually obtained a witness statement that Mr Azam had been working for them. The payment of income was to a company called NexGen DNC. Then the Council obtained a witness statement and copies of invoices from another company, Certus Sales Limited ("Certus"). That was on 3 May 2007. These documents suggested that Mr Azam himself had undertaken work for Certus, for which remuneration had been paid following receipt of invoices from a firm, ID consultants.

At this point it was decided to interview Mr Azam again. That interview was conducted under caution in accordance with PACE. Mr Azam attended with his legal representative on 22 May 2007. During the interview he asserted that although he had undertaken work for Optoma and Certus, any payments made by those companies in respect of this work were made to ID Consultants, a company run by his father. These payments, mainly cheques posted to his home address, were paid into the ID Consultants' bank account held by Barclays Bank. Mr Azam asserted that his only involvement with this account was to pay the cheques in and send the statements to his father in Pakistan. He asserted that he had not received any payments from his father for the work he had undertaken.

After the interview, transaction details in relation to the ID Consultants' account with Barclays Bank were obtained, as well as details of other personal bank accounts for both Mr and Mrs Azam, which had not been declared in their housing benefit and council tax benefit claims. This bank information suggested a contradiction between Mr Azam's assertions in interview that he did not have any involvement with the ID Consultants' bank account and the reality of inter-bank transfers. Apparently in September the Council became aware that Mr Azam had also undertaken work for Barnet London Borough Council.

The case was discussed between Ms Hepburn and Mr Crowe in October and it was decided to give Mr Azam an opportunity to explain these discrepancies and to comment on the evidence. Therefore another interview under caution took place on 12 November 2007. At this interview, apart from making an initial statement, Mr Azam gave "no comment" answers to the remainder of the questions put to him. That day the matter was referred to Julian Lewis, the Council's benefits manager, so that there could be a determination of the exact amount of housing benefit and council tax overpayment.

On 16 November 2007, Mr Lewis had made a calculation that the total overpayment was £8,686.44. He passed the file back to Ms Hepburn the same day, who sent it to Mr Crowe. In the absence of the investigations and interventions manager, the responsibility for deciding to prosecute fell to Mr Crowe. He decided to prosecute, taking into account the evidence and also that the total overpayment was significantly in excess of the minimum amount for a prosecution set out in the Council's prosecution policy. Under that prosecution policy there are other options for a lesser amount than this: thus the Council may proceed by means of an administrative penalty.

Once the information was laid on 13 February 2008, summons were issued and the matter eventually came before District Judge Cooper, sitting at the Chelmsford Magistrates' Court. On 28 November 2008 he ruled firstly, that there was no scope for the defence to argue at the end of the case that a certificate issued under section 116 of the 1992 Act was never in evidence and could not be relied upon; secondly, that the certificate was conclusive evidence as to the date on which sufficient evidence was available to justify a prosecution, and that he had no power to go behind the certificate; thirdly, even if the court could go behind the certificate and entertain an abuse of process argument, no manipulation of the court process was established; fourthly, that the period for commencement of summary proceedings was when sufficient evidence to justify proceedings came to the knowledge of the Director of Corporate Support Services, which was 16 November 2007, when the overpayment of benefit was established; and, fifthly, that Article 6 of the European Convention on Human Rights was not engaged.

Section 112 of the 1992 Act contains the offences under which Mr Azam was prosecuted. Subsections (1) and (1A) are as follows:

Also within Part VI of the 1992 Act, entitled "Legal proceedings", is section 116. The relevant aspects are as follows:

Section 116 of the 1992 Act, or provisions comparable to it, have been considered by this court in a quartet of decisions. R v Haringey Magistrates' Court, ex parte Amvrosiou [1996] EWHC 14 (Admin) is the seminal case. It concerned section 6 of the Road Traffic Offenders Act 1988 ("the 1988 Act"), which is in similar terms to the relevant parts of section 116. Auld LJ, with whom Ebsworth J agreed, held that section 6(3) of the 1988 Act, the conclusive certificate provision, meant that a court could only go behind a certificate if it was inaccurate on its face, or if fraud could be shown (paragraphs 19, 23 and 27). The statutory purposes behind section 6(3), the court held, were to achieve certainty both for the prosecutor and for the defendant, and to prevent what would otherwise be an exercise in discovery of the prosecution process as to when particular information came to hand and as to when decisions as to sufficiency should have been made. Auld LJ commented that clearly any such possibility in the context of this sort of provision would be an intolerable burden to the prosecution and a cog in the wheels of justice at the summary level (paragraph 22). Auld LJ continued that the test in-section 6(1) of the 1988 Act, as in section 116 of the 1992 Act, is whether the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings had come to his knowledge:

Auld LJ went on to consider two further overlapping submissions which, in effect, invited the court to conclude that there was an abuse of process, because there was sufficient evidence to the prosecutor's knowledge well before the date set out in the certificate. R v Rotherham Magistrates' Court ex parte Brough [1991] Crim LR 522 was cited as to the limits of the court's jurisdiction as to abuse of process. There at page 13A to D of the transcript Bingham LJ, as he then was, said:

Concerning that aspect of abuse of process - manipulation or misuse of the rules to deny the appellant the benefit of the time bar - Auld LJ held that the magistrates' assessment of this could only be upset on judicial review grounds. In that case the magistrates considered the matter, albeit briefly, and the factors in the delay, concluding that the confusion was caused by the appellant giving a false name to the other person in the accident and the failure of communication within the Metropolitan Police. There was no unlawfulness in the magistrates' treatment of the matter and no irrationality.

The second case in the quartet, Morgans v the Director of Public Prosecutions [1999] 1 WLR 968, went to the House of Lords on another point [2001] 1 AC 315. With regard to the issue of time for a prosecution, I can deal with the case shortly. Although it is the only case in the trilogy which has been reported in the authorised reports, it has limited application for the reasons given by this court in the last of the cases, Burwell v Director of Public Prosecutions [2009] EWHC 1069 (Admin, (2009) 173 JP 351. Morgans was a prosecution under the Computer Misuse Act 1990. At the time of the case there was a provision in that Act comparable to that in section 116 in the 1992 Act, although that was coupled with a three-year absolute time bar on prosecutions after the commission of an offence.

In mid January 1996 a DC Waller had submitted evidence on which a prosecution could be brought to the Crown Prosecution Service for advice. He then fell ill. In early August, in his absence, another officer charged the appellant and later that month a CPS prosecutor formed the opinion that there was sufficient evidence to warrant proceedings and signed a certificate to that effect. This court held that once DC Waller had all the evidence for a prosecution in February time began to run. Moreover, the phrase "sufficient in the opinion of the prosecutor to warrant the proceedings" was merely descriptive of the evidence and a prosecutor would not have to form his opinion before time began to run. The provision had to be construed narrowly, concluded Kennedy LJ, because the time allowed to the prosecutor was an exception to the normal rule that summary offences had to be prosecuted in six months. However, as this court pointed out in Burwell, Morgans was decided without Amvrosiou, the seminal case, having been cited. Moreover, and perhaps crucially, there was no consideration in Morgans of the certification provision then contained in the Computer Misuse Act of 1990. As Burwell held, the decision of Morgans is weakened by these defects.

The third case in the quartet is Eyeson v Milton Keynes Council [2005] EWHC 1160 (Admin). That was a case on section 116 of the 1992 Act, the statutory provision in the present appeal. That case is not on all fours with the one before us because no reference was made to the certificate during the hearing before the magistrates, and the appellant was unaware of it until later. This court held that in those circumstances the Council could not rely on the certificate. In his judgment, Moses J, with whom Maurice Kay LJ agreed, said that the difficulties could have easily been avoided if the certificate had been available to explain the delay (paragraph 27).

The magistrates in that case had said that it was accepted that all documentary evidence sufficient to justify a prosecution was available to the Council on 10 February 2003. Nevertheless, they held that there was a satisfactory explanation for the delay because the appellant was given the opportunity to attend interviews later that year and it was only after that the Council took the view that a prosecution was justified. Moses J rejected that. Section 116(2)(b) does not refer to any public interest requirement, but focuses upon the sufficiency of evidence in the opinion of the local authority. Therefore it was not open to the Council to contend that they needed more information through the interviews before deciding whether it was in the public interest to prosecute the appellant (paragraph 26).

Finally, there is Burwell v Director of Public Prosecutions, another case under the Computer Misuse Act 1990. A certificate signed by a principal crown prosecutor, dated 28 June 2008, was before the court. The operative part of that certificate said that proceedings had been brought within a period of six months from the date on which evidence sufficient in the opinion of the prosecutor to warrant proceedings came to his knowledge, but it did not state that date. The appellant argued that the police had in fact sufficient evidence to bring proceedings against him six months earlier, between July and August 2007. On a proper interpretation of section 11, it was therefore submitted that the period for prosecution had expired. The magistrates held that the terms of section 11(4) meant that they could not go behind the prosecutor's certificate and that the defence were precluded from arguing that the prosecution was out of time.

This court held that the magistrates were right to regard section 11(4) as normally making a certificate complying with that provision determinative. Section 11(4) was an exception, as Kennedy LJ said in Morgans, to the usual six months' time limit for summary offences and should therefore be strictly construed. The section required that a prosecutor to state in a certificate the date on which he had sufficient evidence, in his opinion, to warrant the start of proceedings. The certificate did not do that because it did not state a date. It was not open to the respondent, therefore, to rely upon extrinsic evidence to make good that deficiency.

Keene LJ held that a prosecutor could only avail himself of the benefits of such a certificate if the certificate complied fully with the requirements of the section. There was a good reason for that because the defendant was entitled to have that date stated, rather than merely to have a more general statement about the fact that the proceedings had been started within the relevant period. On that basis this court held that the appeal ought to be allowed and the case remitted to the magistrates to decide whether the proceedings were in fact brought within the time period specified in section 11(2).

In my judgment, the principles to be derived from these authorities are as follows:

In his cogent submissions on behalf of the appellant Mr Huseyin contended that, on the evidence heard by the lower court, the latest date on which the prosecuting authority could be said to have the evidence sufficient to justify a prosecution was 12 November 2007. Thus the commencement of the prosecution on 13 February was out of time, being beyond the three month limit. The time taken between 12 November and 16 November to obtain information was not required to prove an element of one of the relevant offences. Rather it was pertinent to the discretion whether or not to prosecute on policy grounds. The prosecutor was seeking to ascertain the precise amount of the benefit overpayment. Consequently, the four-day period should not have been viewed by the Council, or by the District Judge, as a matter which affected the date on which sufficient evidence came to the attention of the prosecutor. By 12 November all of the evidence in the case was in the possession of the actual decision-maker, Mr Crowe, and a "no comment" interview had taken place. Mr Crowe admitted in cross-examination that 12 November was the crucial date.

Mr Huseyin further contended that the identification by the District Judge of the maker of the certificate as the decision-maker to whom the issue of knowledge of facts sufficient to justify proceedings should be imputed was artificial and misconceived. There should be no reference to the Director of Corporate Support Services since he was not the actual decision-maker. The provisions had to be construed purposively so as to protect defendants from protracted investigations. The contrary policy consideration, mentioned by Auld LJ, of not burdening the prosecution did not arise in this case because the date the appellant contended was the key date was 12 November, at the end of the investigation following the "no comment" interview. There was no need to make any enquiry before that date.

There was an abuse of process because the certificate made it appear that time began to run on 16 November, when all the evidence was available to Mr Crowe on 12 November. That applied as well to the third charge under section 112(1A) because the non-entitlement to benefit, and the fact of overpayment, had been identified as early as May 2007. In Mr Huseyin's submission the extent of the overpayment was a different matter and did not go to the events relevant to section 112(1A). There was no reason to consult the benefits manager for the purposes of establishing whether or not the elements of the three offences had been satisfied.

In my view Mr Huseyin is right to contend that the focus of attention must be on Mr Crowe, the prosecutor. In as much as the District Judge gave attention to the Director of Corporate Support Services, that was wrong. The Council undertakes the prosecution. Acts of individuals are attributed to it. The key person is the one who, as a matter of fact, makes the decision to prosecute. In this case that was Mr Crowe, not the director.

However, in my view none of Mr Huseyin's further submissions, however persuasively put, advance the appellant's case. The fact is that there is a certificate. It is not attacked as a defective certificate. It is in statutory form and on the authorities is determinative. Despite the need to protect the interests of defendants, the bases for going behind a certificate are limited to fraud or an error on its face. In this case there is neither inaccuracy on the face of the certificate, nor is it misleading. There has been no allegation of fraud. As the District Judge decided, there is no basis for an abuse of process argument, not surprising given the requisite misconduct for abuse of conduct stated by Bingham LJ in the Rotherham decision. That, in my view, is an end of the matter.

The District Judge has asked a second question, which is only relevant to the situation were this court to have decided that the certificate was bad. That is, whether the evidence supported his finding that the date on which evidence sufficient in the opinion of the prosecutor to justify a prosecution came to his knowledge was 16 November. To express it another way, were the four days from 12 November still part of the period in which the prosecutor could be said to be forming his opinion on the evidence, or was it time which could not be counted since, in this case, it was really time taken to assess whether, as a matter of policy, the prosecution should be taken, the evidential issue having crystallised earlier.

It seems to me that a four-day time period between 12 November and 16 November could well be said to fall within the margin of judgment the prosecutor had to decide whether there was sufficient evidence to prosecute. Given the nature of this type of prosecution, it could well be said that the prosecutor needed to know the exact extent of any overpayment before reaching a final decision on the prosecution. The prosecutor could well have been criticised in deciding to launch a prosecution without knowing the precise extent of the overpayment irrespective of whether or not, as a result of the decision in R v Passmore [2007] EWCA Crim 2053, the extent of the overpayment is a necessary element of an offence under section 112(1A). Certainly there was no evidence before the District Judge that the four days used by the Council to ascertain the exact extent of the overpayment was a stalling device, or that the 16 November date was patently misleading.

In my view, therefore, the answer to the first question of the case stated is that in the limited circumstances described in the judgment it is possible to go behind a certificate. I do not regard it as necessary to answer the second question.

LORD JUSTICE SCOTT BAKER: I agree. Any other applications?

MR ATKINSON: My Lord, may I apply for costs of the respondent in this matter? I have served on the appellant in the sum of a modest £3,611.80.

LORD JUSTICE SCOTT BAKER: What do you say about that, Mr Huseyin?

MR HUSEYN: In these proceedings the appellant is legally aided with no contribution. There was a stage three prosecution in the Magistrates' Court when the (inaudible), but despite what has been said about him in other quarters that is his financial position. I would ask for the order not to be enforced without leave of the court.

LORD JUSTICE SCOTT BAKER: He has been throughout publicly funded in these proceedings.

MR HUSEYN: Quite the opposite: what happened was that he was privately funded through the Magistrates' Courts' proceedings and incurred costs of some £11,000. After the findings he lost those sources of income, about which there was some publicity, and hence the financial position he finds himself in.

LORD JUSTICE SCOTT BAKER: Why should he not pay the costs of the respondent up until the time he was publicly funded, and leave it to the respondent to decide whether to enforce the order or not?

MR HUSEYN: Looking at the break down, the costs asked for by my learned friend are the costs of this stage of the proceedings, not the costs of the Magistrates' Court.

LORD JUSTICE SCOTT BAKER: That is right, is it not?

MR ATKINSON: Yes.

LORD JUSTICE SCOTT BAKER: Very well. We make an order for costs not to be enforced without the leave of the court.