Donnachie, R (on the application of) v Cardiff Magistrates' Court & Anor

As long ago as January 2006 the Cardiff City Council (“The Council”) laid informations before the Cardiff Magistrates’ Court (“The Magistrates’ Court”). The informations were in the form of six draft charges against Sharyn Donnachie (“the Claimant”) who was, and still is, the Company Secretary of Supatax 2000 Limited (“Supatax”) a company concerned in the running of a licensed cab business in Cardiff. Each draft charge alleged that Supatax had committed an offence contrary to Section 1(1)(a) of the Trade Descriptions Act 1968 (“The 1968 Act”) by applying a false odometer reading to a particular car, in a particular place, on a particular date, and that the offence was attributable to the neglect of the Claimant, in relation to whom an address in Cardiff was set out.

It should have been a straightforward case. Events over the last three years provide a salutary reminder of the need for prosecutors, before laying informations, to think through the nature of the proposed charges and the legal issues surrounding them.

Summonses in the same form as the draft charges were issued on 26 January 2006. A series of hearings took place before the Magistrates’ Court in 2006 and 2007. The summonses were radically amended. In November 2006 the Claimant elected to be tried on indictment. On 12^th February 2007 District Judge Charles ruled that the original informations had been laid within the time limit imposed by Section 19(1) of the 1968 Act, and committed the case for trial. On 27^th July 2007 this Court (Sedley LJ and Nelson J) in Regina (Donnachie) v Cardiff Magistrates’ Court [2007] EWHC 1846 (Admin) ruled that, on the time limit issue, the District Judge had erred in accepting the Prosecution interpretation of both Section 1(1)(a) and Section 19(1) of the 1968 Act. Accordingly, both the time limit finding, and the committal for trial, were quashed, and (with a Declaration as to the correct law to be applied) the case was remitted to the District Judge for re-determination.

In the light of that judgment, the Prosecution thereafter abandoned four of the summonses. The two remaining summonses were concerned, respectively, with a Vauxhall Omega S729 FLG and an Audi A4 S107 RWA. As originally drafted the informations and summonses in respect of these vehicles alleged that Supatax had committed their offences when the vehicles were sold at Manheim Auction in Gloucester, and at Newport Auctions in Newport respectively.

A further series of hearings then took place at the Magistrates’ Court. In particular, in December 2007, the date for the re-determination hearing was fixed for 7^th January 2008. The Claimant’s solicitor then gave notice (for the first time) that he also intended to argue, principally on the basis of the decision of this Court in Brighton& Hove City Council v Woolworths Plc [2002] EWHC Admin 2565, that the Council had no power to lay the original informations alleging offences by Supatax outside Cardiff, and that thus the informations had been void ab initio.

The hearing duly took place before District Judge Charles at the Magistrates’ Court on the 7^th and 8^th January 2008. The Claimant was not present, having been summonsed to attend a civil case, but she was represented by her solicitor Mr Morgan. An adjournment was refused. Ten witnesses, all employees, or former employees, of the Council were called. At the conclusion of the hearing, the District Judge ruled that the informations had not been void at the outset, and had been properly amended in accordance with Section 123 of the Magistrates’ Courts Act 1980 (“The 1980 Act”). At a further hearing on 22^nd January 2008, he ruled that the informations had been laid within the requisite time limits. On 28^th January 2008 committal proceedings under the provisions of Section 6(1) of the 1980 Act took place. The Claimant was present. At the conclusion, she was (again) committed for trial at the Cardiff Crown Court. On 17^th March 2008 the District Judge formally declined to state a case.

With leave of H.H. Judge Kay QC, the Claimant now applies for Judicial Review against the following decisions of District Judge Charles:-

At the conclusion of the argument, Mr Yeo (on the instructions of the Claimant) indicated that he would not seek a ruling on the Proceeding in Absence Point – sensibly recognising that a ruling in the Claimant’s favour on that point alone would only result in more delay, with another re-hearing at the Magistrates’ Court, but with no real prospect of advantage to the Claimant.

It is against that background that I now concentrate upon the Geographic Point.

Taking the Vauxhall Omega as an example, the information laid in January 2006 was in the following terms

“The Information of DAVID IVOR HOLLAND, Operational Manager, Consumer Protection, duly authorised on behalf of The County Council of the City and County of Cardiff who states that the defendant committed the offence(s) of which particulars are given in the Schedule hereto..

..

1.

For that Supatax 2000 Ltd, 110 Whitchurch Road, Cardiff did, at Manheim Auction, Gloucester, on or about the 10 April 2004 apply a false trade description to goods namely a Vauxhall Omega motor vehicle index S729 FLG by means of the odometer, being an indication of the history of the vehicle, that the said vehicle had traveled approximately 86130 miles when in fact it had travelled in excess of 148738 miles CONTRARY TO Section 1 (1)(a) of the Trade Descriptions Act 1968.

And Cardiff County Council being the Weights and Measures authority concerned are reasonably satisfied that the said offences were attributable to the neglect of Sharyn Donnachie, 33 Bradley Street, Roath, Cardiff, the Company Secretary of the said Supatax 2000 Limited and the said informant now applies that the said Sharyn Donnachie should also be charged with the offence listed above in accordance with Section 20 of the Trade Descriptions Act 1968.”

The original summons was in the same terms. On 25^th September 2006, and also at some stage after 12^th October 2006, the summons was amended without objection by the Claimant.

By the time of the hearings in January 2008, the summons was in the following terms:-

“For that Supatax 2000 Ltd, 110 Whitchurch Road, Cardiff did on or before 10 April 2004 apply a false trade description to goods namely a Vauxhall Omega motor vehicle index S729 FLG by means of the odometer, being an indication of the history of the vehicle, that the same had been reduced by at least 56,000 miles CONTRARY TO Section 1(1)(a) of the Trade Descriptions Act 1968.

And Cardiff County Council being the Weights and Measures authority concerned are satisfied that the said offences were attributable to the neglect and/or consent or connivance of Sharyn Donnachie, 33 Bradley Street, Roath, Cardiff, the Company Secretary of the said Supatax 2000 Limited and the said informant now applies that the said Sharyn Donnachie should also be charged with the offence listed above in accordance with Section 20 of the Trade Descriptions Act 1968.”

It will be noted that:-

In relation to the Audi A4, the original information and summons alleged an offence by Supatax at Newport Auctions on or about 3^rd June 2004, and neglect by the Claimant. As eventually amended, the summons alleged an offence by Supatax on or before 3^rd June 2004 (said at the hearing on 7^th January 2008 to be the period from 29^th April 2003 to 30^th October 2003), and that the offence was attributable to the neglect and/or consent or connivance of the Claimant. Again there were no specific geographical averments as to where the offence by Supatax, or the conduct of the Claimant, took place, and the summons was still in the form of an application by the Council, rather than a properly drafted charge.

The parties agree that the power of a local authority to prosecute criminal offences in cases of this type may arise in three ways:-

As to necessary implication in relation to trade description offences, the relevant parts of the 1968 Act are as follows:-

“Section 1(1) Any person who, in the course of a trade or business –

(a)

applies a false trade description to any goods; or

(b)

supplies or offers to supply any goods to which a false trade description is applied;

shall, subject to the provisions of this Act, be guilty of an offence.

Section 20(1)… Where an offence under this Act which has been committed by a body corporate is proved to have been committed with the consent and connivance of or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who is purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Section 26(1)… It shall be the duty of every local Weights and Measures authority to enforce within their area the provisions of this Act, and of any order made under this Act.”

In Wales, by virtue of Section 69(2) of the Weights and Measures Act 1985, the local Weights and Measures authority for each County Borough is the relevant County Borough Council.

An offence under Section 1(1)(a) of the 1968 Act is committed when the odometer on the relevant vehicle is changed, not (as the Council wrongly believed when the informations were laid) when the vehicle is offered for sale with the changed odometer – see e.g. Newman v HackneyLLC [1982] RTR 296 and Regina (Donnachie) v Cardiff Magistrates’ Court (above).

As to the delegation of power, Section 101(1) of the 1972 Act states that:-

“Subject to any express provision contained in this Act, or any Act passed after this Act, a local authority may arrange for the discharge of any of their functions –

(a)..

(b)

By any other local authority.”

As to it being otherwise expedient, Section 222(1) of the 1972 Act states that:-

“When a local authority consider it expedient for the promotion or the protection of the interests of the inhabitants of their area –

(a)

They may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name.”

In Brighton & Hove City Council v Woolworths Plc [2002] EWHC Admin 2565, the Divisional Court (Laws LJ and Field J) considered the ability of a local authority to prosecute for offences outside its area under the Toy (Safety) Regulations 1995 and Section 14 of the Consumer Protection Act 1987. Absent proper proof of delegation under Section 101 of the 1972 Act, the Court ruled (at paragraph 33) that such a prosecution could not ex-hypothesi be expedient for the promotion or protection of the interests of the inhabitants of Brighton & Hove as required by Section 222(1) of the 1972 Act.

A decision whether or not to issue a summons following the laying of an information involves the exercise of a judicial discretion, and is subject to potential Judicial Review. The factors that ought to be considered include – (i) whether the offence is an allegation known to the law; (ii) if so, whether the essential ingredients of the offence are prima facie present; (iii) that the offence alleged is not out of time; (iv) that the Court has jurisdiction; (v) that the informant has the necessary authority to prosecute; (vi) that the allegation is not vexatious. See, for example, R v West London Justices ex parte Klahn [1979] 2 AER 221, and R (Charleson) v Guildford Magistrates’ Court and others [2206] EWHC 2318 (Admin).(Silber J)

The information needs to be looked at as a whole – DPP v Short [2001] EWHC (Admin) 885 (Owen J), and (as a general principle) Magistrates ought to issue a summons unless there are compelling reasons not to do so – R (Mayor and Burgesses of London Borough of Newham) v Stratford Magistrates’ Court [2004] EWHC 2506 (Davis J).

Section 123(1) of the 1980 Act provides that:-

“No objection shall be allowed to any information or complaint, or to any summons or warrant to procure the presence of the defendant, for any defect in it, in substance or in form, or for any variants between it and the evidence adduced on behalf of the prosecutor or claimant at the hearing of the information or complaint.”

The two most important witnesses called were Mr Hay (the investigating officer), and Mr Holland (the Operational Manager who was delegated to take the decision whether to prosecute, and who laid the informations). Mr Hay said that the focus of the investigation had been on the supply (sale) of the vehicles, that he understood that authority was required to prosecute offences outside Cardiff, and that he did not seek authority as that was Mr Holland’s role. Mr Holland said that at the time of laying the information, there were no Section 101 of the 1972 Act cross-border agreements in place with Gloucestershire and Newport – such agreements had only been entered into after the event (in March 2006 and June 2006 respectively). He indicated that it was his belief that, in the circumstances of this case, Section 222 of the 1972 Act applied to provide authority to prosecute. He said that he had been involved in ten to twelve cases over the last decade when Section 222 had been relied upon for this purpose. When, in cross-examination, Mr Holland was asked in terms whether he had relied on Section 222 in deciding whether to prosecute in this case, Mr Williams on behalf of the Council actually objected to him giving an answer. However, Mr Holland said that he had relied upon the section.

On the Claimant’s behalf, Mr Morgan submitted that the informations were laid without authority to prosecute, and that therefore the Court had no jurisdiction. In support of this proposition he argued that:-

Mr Williams, appearing then as now on behalf of the Council, argued that:-

District Judge Charles gave judgment in the following terms:-

“So far as Sharyn Donnachie is concerned it is contended that the two remaining informations concerning her were not properly laid. The objection to the informations is that at the time of issue they alleged offences committed outside the geographical area of Cardiff. Since the issue of the two summonses the amendments now allege that the offences were committed within the Cardiff area. The truth of the matter is that we do not know, if the speedometers were altered, where the alterations took place.

I am asked by the Defence to take into account that the original information alleged offences outside this area, that Mr Cummings lives outside the Cardiff area, and the company Supatax has no trading place as such in Cardiff. The Prosecution point out the overwhelming Cardiff connection. The Defendant is the Company Secretary of Supatax. She is summonsed as a Director of Supatax, its registered office is in Cardiff. Both vehicles were licensed and operated either as private hire or Hackney carriages in the Cardiff area. The vehicles would have been maintained in the Cardiff area, and the Trade Descriptions Act does not impose any geographical restriction.

It is quite clear it was a mistake to allege that these offences took place at the point of sale. The informations were amended and alleged offences committed in Cardiff. It is very late in the day to object to informations that have been amended by the Court. If there was to be any objection it should have been made when the amendment was sought. This Court has jurisdiction to hear these allegations, the informations were not void at the outset, and the informations were properly amended within Section 123 of the Magistrates’ Courts Act. The facts behind these offences have not changed. The sole error was one of place of commission of any offence. That has been amended. The Court has always had jurisdiction, there is no evidence to suggest that the offences were committed in Newport or Gloucester or anywhere else, and it would be illogical and inexpedient to prosecute these offences anywhere other than Cardiff.”

Thus it appears that the District Judge accepted the arguments then advanced on behalf of the Council.

On behalf of the Claimant, Mr Yeo submitted that:-

On behalf of the Council, Mr Williams submitted that:-

As indicated above, the District Judge appears to have accepted the Council’s arguments, when he found that the Council had proceeded on the basis that the Supatax offences were committed in Cardiff, and that the references to Gloucester and Newport were the result of mistake, and thus susceptible to amendment.

There are however a number of significant matters that are inconsistent with the Council’s argument, and hence the District Judge’s findings, as follows:-

The combined effect of these inconsistencies persuades me that the District Judge’s acceptance of the factual scenario asserted on behalf of the Council was wrong. On the evidence, he should have found that the Council had decided that the predicate Supatax offences had taken place in Gloucester and Newport, and had thus intended, however mistakenly, to charge the offences as having taken place in those locations. In my view, however, it is nevertheless appropriate now to decide the question of jurisdiction upon that, correct, factual basis.

It will be recalled that Mr Yeo, on behalf of the Claimant, argues that:-

Section 222(1) of the 1972 Act has been the subject of consideration on two occasions by the Court of Appeal, Criminal Division.

R v Jarrett and Steward (Unreported 30^th January 1997) was concerned with the issue of whether a local authority could prosecute for a conspiracy to defraud, when the underlying offences were breaches of the 1968 Act. The prosecution had relied on Section 222 of the 1972 Act. The defence had asserted that Section 222 was limited to matters such as nuisance, highways and boundary disputes. The conviction was upheld. In giving the judgment of the Court, Rose LJ referred to the terms of Section 222(1), and said:-

“So far as that section is concerned, there is, in our judgment, no warrant for limiting in any way the words of the section, which, on their face, are extremely wide. It is to be noticed that what is of significance is whether the local authority ‘consider it expedient for the protection of the interests of the inhabitants in the area’. It is to be noted that they may prosecute any legal proceedings. In our judgment there is no warrant for limiting the words of that section in the way which (counsel) suggests.”

R v Richards [1999] Crim LR 598 was another case in which the local authority had charged an offence of conspiracy to defraud when the underlying offences were breaches of the 1968 Act. The prosecution, relying upon Jarrett v Steward (above) asserted that Section 222 applied. The defence, relying on the decision of the Court of Appeal in Stoke-on-Trent City Council v B and Q Retail Ltd [1983] 3 WLR 78, argued that there had to be specific consideration of, and reliance upon, Section 222 before an information could be laid for conspiracy to defraud, and there was no evidence that such had been the case. The court ruled that:-

Whilst Mr Yeo relies on the speeches in the House of Lords in Stoke-on-Trent case, they do not, in my view, detract from the Court of Appeal’s decision in Richards as to the application of the maxim in criminal proceedings when Section 222 is under consideration.

In any event, on all the evidence before the District Judge, it is clear that, when deciding whether or not to lay the information, the Council specifically considered and applied Section 222 in this case.

As to whether Section 222(1) actually provided authority to prosecute for the offences in Gloucester and Newport in this case, Mr Yeo relies on the Brighton & Hove case (above) where (on his analysis) despite the risk that the dangerous toys bought in Filton, Rye, Hastings and Enfield could have ended up in Brighton and Hove, the court nevertheless ruled that, ex hypothesi, Section 222(1) was of no application. However, in that case, the level of risk, and hence the need for protection from it, was negligible. In those circumstances, in my view, it is hardly surprising that the court concluded that Section 222 was of no application. The facts in this case are very different.

It must be remembered that, as Rose LJ said in Richards (above) the words of Section 222(1) are extremely wide, there is no warrant for limiting them in any way, the local authority may prosecute any legal proceedings, and what is of significance is whether the authority consider it expedient to do so for the promotion or protection of the interests of the inhabitants in the area. Given the nature of Supatax’s business, and the closeness of its connection with Cardiff and its inhabitants, on the facts of this case it was, in my view, self-evidently in the interests on the inhabitants of Cardiff for the Claimant to be prosecuted in respect of Supatax’s alleged offences in Gloucester and Newport.

In the circumstances, in my view, the Council clearly had authority to lay the information in respect of the Vauxhall Omega S729 FLG and the Audi A4 S107 RWA.

It follows that the informations were valid, and all of the other arguments on behalf of the Claimant necessarily fall away.

I therefore conclude that:-

As to the future:-