Letherbarrow v Warwickshire County Council

Section 31 has been very recently considered by a Divisional Court comprising Pitchford LJ and Hickinbottom J in Davies v The Environmental Agency (Wales) (14th November 2014, as yet unreported), a case heard at Cardiff. In that case, which was also a prosecution under animal health legislation (though under sections 71 to 73 of the Animal Welfare Act 1981 rather than the Act of 2006) investigations had taken place over a period from January 2009 to well into 2010. BTB (bovine tuberculosis) tests had been carried out by DEFRA-authorised surgeons in early 2009. Pathologists’ reports had been obtained in June and July 2009. Unsuccessful attempts were made from April to September 2010 to get the appellant to attend for interview and it was not until November 2010 that Ms Butterworth, a lawyer acting on behalf of the Welsh Ministers who were or had become the prosecutor in that case, issued a certificate under the equivalent of section 31(2) of the 2006 Act as to the date of knowledge and the prosecution was then launched.

It was argued that the Welsh Ministers, through officers or employees other than Ms Butterworth, had had the required knowledge for the purposes of the statutory time limit long before Ms Butterworth had reviewed the file on the 1st October 2010. Reference was made to the decision of this court in R (on the application of) Donnachie v Cardiff Magistrates' Court [2007] EWHC 1846 (Admin), [2007] 1 WLR 385, in which it was held that a prosecutor for the purposes of the Trade Descriptions Act was the council and not an individual employee.

But reference was also made to RSPCA v Johnson [2009] EWHC 2702, in which, as in this case, the prosecution was bought under the Animal Welfare Act 2006. In Johnson this court (Pill LJ and Rafferty J) declined to hold that Donnachie established any principle of law and took the view that the prosecutor for the purposes of section 31 was the RSPCA's case manager given responsibility for making the important decision of whether to prosecute.

This court held that time did not begin to run just because some other employee of the RSPCA may have had prior knowledge of the relevant evidence. At paragraph 33 of his judgment Pill LJ said this:

I agree with those observations of Pill LJ and, in my view, the particular terms of section 31(1) strongly support them. It is an unusual time limit provision in that it extends the time limit for prosecution potentially well beyond the usual 6 months set out in the Magistrates' Court Act 1980. It creates a first alternative, a long stop time limit of 3 years and a second alternative, 6 months beginning with the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to his knowledge. If the prosecution do nothing at all for more than 2 years, then stir themselves and issue summonses within 5 months of evidence coming to their knowledge, then they would be within the time limit set out in section 31(1).

What the section does show is that Parliament expected the consideration of a prosecution under this section to be the subject of a careful decision. The decision which the prosecutor has to make under this subsection is not whether there is a prima facie case but whether the evidence is sufficient to justify a prosecution. That will involve, as this court said in Davies v Environment Agency (Wales), a consideration of what is in the interests of justice. It will usually involve (and certainly in the present case was rightly regarded as involving) the opportunity for the defendant to make a statement either at interview or, as Mr Letherbarrow did, in writing by way of mitigation. Such further material may show that the defendant’s animal husbandry practices are now improving; or, conversely, that matters are so bad that the authority ought to press on with an application for a ban to prevent him from keeping livestock altogether.

The time bar provision has to be considered in this case on the date at the beginning of the period of 6 months leading up to the date on which the summons were issued and laid before the Magistrates' Court. If one looks at that date (26th or 27th May) the defence had indicated that Mr Letherbarrow would not be attending for interview but had also indicated that he would be sending in written responses to questions and those responses were not received until 14th June. On the day to which I have referred, namely 26th or 27th May, there was not evidence which the prosecutor thought was sufficient to justify the proceedings. That is even before one gets on to the question of who is “the prosecutor” making that judgment, which is the next point.

As this court held in the Davies case, the prosecutor is the Council, but the Council does not decide collectively whether evidence is sufficient to justify proceedings. Section 31(1)(b) involves the exercise of a judgment by an individual, namely (see Johnson) the individual who is given responsibility for making the important decision whether to prosecute. Prosecutors are entitled to have a system which lays down at what level of seniority this decision is made. In the present case, it was laid down that it should be made at the level of Group Manager (Trading Standards) and Ms Faulkner duly made the decision on 5th August 2013. That was not paper pushing, as Pill LJ described it in Johnson, it was a proper internal system for having these important decisions taken at an appropriate level.

The third point raised in this case is about the issue of the certificate. Perhaps too much attention in the court below was focussed on the certificate rather than on the question of the date on which evidence came to the prosecutor's knowledge which the prosecutor thought was sufficient to justify the proceedings. As Ms Clover, in her able submissions for the appellant, has accepted, a certificate is not essential. If a challenge is made to the time limits for a prosecution under section 31 the prosecution may surmount the time bar hurdle by either of two means. The first is the issue of a certificate. The second is the adducing of evidence of fact showing who made the decision that a prosecution was justified and when. In this case a certificate was issued after the challenge had been raised before the Magistrates' Court. There is no reason why it should not be, as Owen J held in RSPCA v King and Wyn Williams J held in Browning v RSPCA. So the date on which the certificate was issued is unimportant.

In any event in the present case the internal report which is before us, though unfortunately it was not before the Magistrates' Court, shows that Ms Faulkner did in fact make the decision on 5th August 2013. So the certificate simply states what in fact occurred. It is therefore unnecessary to go into the case law which indicates that the provision in section 31(2)(a) that the certificate shall be “conclusive evidence” of the date on which evidence thought to be sufficient to justify proceedings came to the prosecutor's knowledge, does not quite mean what it says, and that such a certificate can be impugned if it is shown to be either fraudulent or clearly wrong. None of that arises here.

In any case, as I have said, the certificate is unimportant. It is quite plain that at the beginning of the 6 month period the prosecution had not yet heard from the defendant. They acted entirely properly in waiting for the response which came on 14th June. They would indeed have had a further short period after that; but it is unnecessary to decide how long, because the summonses issued on 25th November were plainly in time.

In my judgment, therefore, the defendant was correctly convicted. I would answer the questions in the case stated as follows. Firstly, the test in law is not whether the informations were laid within 6 months of the respondent concluding investigations. The test is as set out in section 31(1)(b) as to whether the informations were indeed laid in time. Secondly, correspondence should not be taken as conclusive as to the date on which the respondent was fixed with the requisite knowledge. Thirdly, a certificate under section 31(2) can be issued after a challenge has been raised in court proceedings; but I would add that the certificate is not essential for the reasons I have given. Fourthly, the magistrates did not err in accepting the certificate under section 31(2). They should, in my view, have ordered disclosure of the report which gave rise to the certificate; but now that we have seen it, we can say that it could not have availed the appellant at all if they had (although it might have either reduced or eliminated some of the points raised before us). Finally, as to the meaning of the word "prosecutor" in section 31(1)(b) I would answer the question as this court did in Johnson, namely that although the prosecutor in the case as a whole is the collective body (here, the County Council), it is the individual with responsibility for deciding whether a prosecution should go forward whose thoughts and beliefs are relevant. For the purposes of section 31(1)(b) in this case it was Janet Faulkner.

MR JUSTICE HICKINBOTTOM: I agree.