Begum & Anor v Luton Borough Council

The Respondent, the Luton Borough Council, endeavoured to serve informations on the last day of the available six months’ period provided by s.127(1) of the Magistrates’ Courts Act 1980 (“the MCA”). The court counter at Luton magistrates’ court had been closed some months previously. The informations were left with a sub-contracted court security guard at the magistrates’ court. By the time the informations were passed to the court’s administrative staff, they were out of time.

Two related questions arise. First and principally, whether a sub-contracted court security guard was a court officer with implied authority to accept the informations, within r. 4.3(1)(e) of the Criminal Procedure Rules 2015 (“the Crim PR”)? (“Question I”) Secondly and depending on the answer to the first question, whether the informations were laid in time? (“Question II”)

The answers to these questions do not depend on the merits (if any) of the underlying case of the Appellants, Ghansia Begum and Mumtaz Begum. Nor do they depend on the reasons (such as they are) for the Respondent seeking to lay the informations so late in the day. Accordingly, it is unnecessary to take up time with either of these matters.

The Appellants appeal to this Court by way of case stated against the ruling made on the 9^th June, 2017 by District Judge Dodds, sitting at Milton Keynes magistrates’ court. The Judge ruled that the informations were laid within the statutory time limit and that court security officers are impliedly authorised to accept service on behalf of Her Majesty’s Courts and Tribunals Service (“HMCTS”). On the 31 August 2017, the Judge stated a Case (“the Case”) and posed these Questions (“the Questions”) for the consideration of this Court:

“(a)

Was my ruling that the informations were laid within the statutory time limit correct in law and that the magistrates’ court therefore had jurisdiction to try the case correct in law?

(b)

Was my ruling that court security officers are impliedly authorised to accept service on behalf of HMCTS correct in law in the absence of express written delegation to that effect?”

The Appellants invite the answer of “No” to both Questions (a) and (b). The Respondent invites the answer of “Yes” to both Questions (a) and (b). Question (b) corresponds to my Question I and Question (a) to my Question II.

One matter can be disposed of at the outset. There was, initially, an issue as to whether a District Judge had jurisdiction to state a case in criminal proceedings until a final determination had been reached. In the event, following a ruling by Goose J, on the 8 November 2017, staying the trial in the magistrates’ court pending the outcome of this appeal, that question is (sensibly) no longer live. I say no more of it.

The facts appear from the Case. The Appellants each faced 20 informations for alleged offences under the Housing Act 2004 (“the HA 2004”).

The Judge helpfully summarised (at [2]) the considerable area of agreement between the parties:

“ (a) It was agreed that each of the offences was summary only and subject to the six months time limit for laying an information …. Given that the date of the alleged offences was 2 June 2016 it was agreed that the six months time limit expired on 2 December 2016.

(b)

It was agreed that an officer of Luton Borough Council, Ms Oliver, had delivered the informations and draft summonses by hand in an envelope to a security officer at Luton Magistrates’ Court on 2 December 2016 which was within the six months time limit.

(c)

It was agreed that the information and draft summonses were not placed before the administrative staff of ….[HMCTS]…until 5 December 2016 when they were received, opened and date stamped by HMCTS administrative staff which was outside the six months limit.

(d)

Before me there was an agreed statement under Section 9 of the Criminal Justice Act 1967 from Karen Wicks, Court Delivery Manager, Luton Magistrates’ Court, HMCTS confirming the situation in (c) above and stating that in her view the informations were not deemed laid until 5 December 2016 when they were received, opened and date stamped by HMCTS administrative staff.”

After setting out the rival arguments, the Judge indicated his conclusions. He approached the matter (correctly, as is not in dispute) on the basis that the burden of proof to the criminal standard rested on the Respondent to prove that the informations were laid within the 6 months’ time limit, namely, by 2 December 2016.

Rr 7.2(1) and (5) of the Crim PR allowed a prosecutor to serve an information in writing on a court officer or present it to the court. R. 4.3(1) of the Crim PR allowed a prosecutor to serve a document on the court by handing the document to a court officer with authority to accept it at the relevant court office – with the date of service being that day.

A court security guard was appointed by the Lord Chancellor under s.51 of the Courts Act 2003 (“the Courts Act”) “under a contract and so designated”. A court security officer was an officer of the court for the purposes of contempt under s.12 Contempt of Court Act 1981 (“the CCA 1981”), pursuant to para. 29 of Schedule 11 to the Criminal Justice Act 1991 (“the CJA 1991”).

The Judge’s key conclusions then followed:

“ viii. It being agreed that there is no counter facility at Luton Magistrates’ Court as a matter of law, public policy and common sense it must be legally compliant for a prosecutor or any party to proceedings to be able to deliver correspondence by hand via the Security Officer at a court house. This is a position confirmed by Karen Wicks….namely that it is open to court users to hand documents to a court security guard in the absence of a court usher instead of posting the correspondence in the letter box.

ix.

That an information is laid when delivered to the court and not when handled by court staff.

x.

Case of Ex parte Hill [1982] 1 AC specifically provides for a subordinate authority to receive the information so once an information is received at the office the information has been laid. The case also provides that an information is laid when received at the office of the Clerk to the Justices by a member of staff expressly or impliedly authorised to receive it. Though the Criminal Procedure Rules have overtaken Ex p Hill I implied that the CPR allow a member of staff impliedly authorised to receive documentation to do so in my interpretation of r 4.3(1)(e) above i.e. authorised means expressly authorised or impliedly authorised.

xi.

As a matter of policy and practice and common sense now that many court counters have been closed where individuals wish to hand in documents for the court the only readily available persons for them to do this are court ushers or court security guards. Court ushers are not always full time and also have duties away from the court entrance and court waiting area (e.g. in a courtroom) leaving only HMCTS contracted court security guards (who have to be available all the time the court is open) at the front entrance. HMCTS in providing the opportunity for person to hand documents in at a relevant court house without a public counter can be assumed to have either expressly or impliedly authorised court security officers to be able to accept documents handed in to them for the attention of the court staff who then process that documentation.”

At the request of the Court, HMCTS made representations on the point/s in issue on this appeal and the Court is most grateful to Mr Tom Ring, Deputy Director (Legal Operations) for producing the helpful memorandum dated 5 December 2016 (“the HMCTS memorandum”). With the agreement of all parties, this memorandum has been admitted in evidence and considered by the Court, though falling outside the Case.

The HMCTS memorandum said this:

“ One of the consequences of the closure of public counters at many court and tribunal buildings is that either court security staff or ushers are the principal point of contact for court users. It is common practice, and has been for many years, for court security staff to receive deliveries of all kinds, including letters and other official documentation, and to pass these items, unopened, to court staff to be dealt with. Court security staff are not employees of HMCTS. In the short time available I have been unable to trace any express authority for a member of the court security team to receive the documents relevant to this case. I annex a copy of a document on the HMCTS intranet, which is available to all staff. The final page of this document makes reference to the duties of court security staff; these include ‘handling public inquiries’ and ‘receipt of DX boxes’. HMCTS would argue that, to the extent that it failed to give court security staff express permission to receive such documentation, such authority is implied from custom and practice over several years.”

It can fairly be inferred (even if not said in terms) that the HMCTS memorandum did not share Ms Wicks’ view that the test for the date of laying informations was when they were received, opened and date stamped by HMCTS administrative staff. The HMCTS memorandum concluded as follows:

“ HMCTS would argue that there can be no criticism of the Delivery Manager in this case who dealt with this matter in the absence of clear written guidance. However, HMCTS would have intended that handing a document to a member of court security staff would have no lesser status than posting it through the court’s posting box, or emailing it to the court. Once the Divisional Court has made a decision in the instant case we will ensure that our guidance to staff and court users is updated.”

(1) The MCA: For present purposes, it is clear from the MCA that laying an information within the statutory 6 months’ time limit (from the time when the offence was committed) is a jurisdictional requirement: ss. 1(1) and 127(1).

The Crim PR give effect to the MCA, by providing that a prosecutor who wants the court to issue a summons must “serve an information in writing on the court officer” (r.7.2(1)(a)), “not more than 6 months after the offence alleged” (r.7.2(5)).

In Atkinson v DPP [2004] EWHC 1457 (Admin); [2005] 1 WLR 96, this Court underlined that whether an information had been laid outside the time limit was an issue of jurisdiction. Furthermore, the burden was on the prosecution to prove, to the criminal standard, that the information was laid within the time limit.

(2) The Crim PR – methods of service: The provisions of the Crim PR as to methods of service are central to the resolution of this appeal. Part 4 deals with the service of documents. R. 4.2 deals with methods of service:

“ (1) A document may be served by any of the methods described in rules 4.3 to 4.6…..

(2)

Where a document may be served by electronic means under rule 4.6, the general rule is that the person serving it must use that method.”

There is no dispute that the informations in the present case could have been laid by emailing them to the court on the 2^nd December, 2016 and, if the email had been sent before 14.30 that day, the date of service would have been the same day: see, esp., r.4.11(2)(d).

R.4.3 provides for service by handing over a document. The interpretation of r. 4.3(1)(e) lies at the heart of the dispute. It provides as follows:

“(1)

A document may be served on –

(e)

the court officer by handing to a court officer with authority to accept it at the relevant court office…”

In turn, “court officer” is defined (under r.2.2) as meaning “the appropriate member of the staff of a court” and “the relevant court office” mean, in the case of a magistrates’ court “the office at which that court’s business is administered by court staff” (r.4.3(4)(a)). When this method of service is used, the date of service is the day it is handed over: r.4.11(1).

As distinct from service by handing over a document dealt with by r.4.3, r.4.4 addresses service by leaving or posting a document. These are thus different methods of service. R. 4.4(1) provides:

“ A document may be served by addressing it to the person to be served and leaving it at the appropriate address for service under this rule, or by sending it to that address by first class post or by the equivalent of first class post. ”

Under this rule, the “address for service” in respect of the court officer is the relevant court office: r. 4.4(2)(e). So far as here relevant, when this method of service is used, the date of service is as follows (r. 4.11(2)):

“(a)

in the case of a document left at an address, on the next business day after the day on which it was left;

(b)in the case of a document sent by first class post or by the equivalent of first class post, on the second business day after the day on which it was posted or despatched;…”

Similarly, r.4.5 makes provision for service by document exchange (“DX”), with the date for service being the second business day after the document is left there (r.4.11(2)(c)).

(3) The Courts Act: S.1 of the Courts Act imposes a general duty on the Lord Chancellor to ensure “that there is an efficient and effective system to support the carrying on of the business of”, inter alia, the magistrates’ courts “and that appropriate services are provided for those courts”. S.2(1) provides that the Lord Chancellor “may appoint such officers and other staff as appear to him appropriate for the purpose of discharging his general duty in relation to the courts”. In accordance with s.2(4), such appointment may be made by contracts with other persons for the provision of officers, staff or services by them or their sub-contractors. S.2(4) is, however, subject (inter alia) to s.2(6), which provides that the Lord Chancellor may not enter into contracts “for the provision of officers and staff to carry out the administrative work of the courts unless an order made by the Lord Chancellor authorises him to do so”. S.37 is in these terms:

“(1)

Any reference in an enactment to the designated officer, in relation to a magistrates’ court…..is to a person who is –

(a)

appointed by the Lord Chancellor under section 2(1) or provided under a contract made by virtue of section 2(4)….”

S.51(1) deals with Court Security Officers. A court security officer is a person who is:

“(a)

appointed by the Lord Chancellor under section 2(1) or provided under a contract made by virtue of section 2(4), and

(b)

designated by the Lord Chancellor as a court security officer.”

Ss. 52 and following confer on Court Security Officers powers to be expected in relation to their core functions, such as powers of search, powers to exclude, remove or restrain persons and powers to seize and retain articles.

(4) The CCA 1981 and the CJA 1991: S.12 of the CCA 1981 addresses offences of contempt of magistrates’ courts and makes provision for the court to order (inter alia) “any officer of the court” to take the offender into custody and detain him until the rising of the court. Para. 29(1) of Schedule 11 to the CJA 1991, makes express provision as follows:

“ Section 12(2) of the Contempt of Court Act 1981….shall have effect as if the reference to any officer of the court included a reference to any court security officer…. ”

(5) Authority: Only brief further reference need be made to authority. In Ex p Hill (supra), the House of Lords answered the certified question by holding that for the purposes of s.127 of the MCA, an information was laid when it was received at the office of the clerk to the justices of the relevant area. That said, as Lord Roskill observed (at p.346), it was not necessary for the information to be personally received by a justice of the peace or by the clerk to the justices. It sufficed that it was received “…by any member of the staff of the clerk to the justices, expressly or impliedly authorised to receive it, for onward transmission to a justice of the peace or to the clerk to the justices”.

(1) The rival cases: For the Appellant, Ghansia Begum, Mr Walters submitted that a security guard was not a “court officer” within the meaning of Crim PR r.4.3(1)(e). Accepting service was not part of a security guard’s contract of employment and the HMCTS memorandum said nothing about accepting an information. If akin to anything, leaving an information with a security guard, was akin to service by DX or by posting through the letter box – but service by either of these methods would not avail the Respondent because of the date consequences set out in r.4.11. Faced with the need to lay the informations on the 2^nd December, there was no good reason for the Respondent not doing so electronically. R.4.3 gave effect to the earlier decision in Ex p Hill but the Respondent could not bring itself within that rule. Laying an information was an important stage in a prosecution; accepting an information was not something to be casually done.

For the Appellant, Mumtaz Begum, Ms Maddocks submitted that the security guard did not have express authority to accept the information and there was no basis for implying authority to do so. If such authority was conferred on security guards, it would make them “active participants” in the process of service. No provision had been made for any such additional functions in the HMCTS/Ministry of Justice (“MoJ”) contract with MITIE (the employers of the security guard in question). An implication of authority as held by the Judge would contradict s.2(6) of the Courts Act. It was noteworthy that express statutory provision had been made for including a court security officer within the meaning of an “officer of the court” in s.12(2) of the CCA 1981.

For the Respondent, Ms Rao, in her very able submissions, contended that, on the 2^nd December, the informations had been handed to a court officer at the relevant court office. The definition of court officer in r. 2(2)(1) extended to sub-contractors; the words “appropriate member” meant appropriate for the task or duty in question. As appeared from the HMCTS memorandum, security officers had express authority to accept DX boxes and to collect post. So, here, it was appropriate to accept documents coming through the door. Having regard to the closure of court counters, for effect to be given to r.4.3(1), security officers ought to have such authority. Importantly, the only authority required related to accepting the documents handed to the security officer. The provisions as to electronic service could not be mandatory in all cases, as allowance needed to be made for those without internet access. S.2(6) of the Courts Act did not tell against her submissions; the security guard here was not carrying out the administrative work of the courts. In the circumstances now prevailing, with the closure of court counters, it was expedient and fair to treat a court security officer as coming within r.4.3(1)(e) and the Judge was correct to hold accordingly. His decision should be upheld.

(2) Discussion:(A) Overview: Looking at the matter in the round, the laying of an information is a critical jurisdictional step. Intuitively, it would be surprising if a sub-contracted security guard had the requisite authority to accept an information for the purposes of r.4.3(1)(e) – at least absent express authority conferred upon him/her to do so. The typical powers of a court security guard are very different and appear from ss.52 and following of the Courts Act - powers to search, exclude, remove or restrain persons and powers to seize and retain articles. Involving court security guards (or officers) in the process of service for the purposes of r.4.3(1)(e) would be a significant additional responsibility, not, on the evidence, presently within their contracts of employment; or the terms of the HMCTS/MoJ arrangements with MITIE (or other contractors); or mentioned in the document on the HMCTS intranet referred to in the HMCTS memorandum.

While by no means decisive, it is of some interest that the legislature thought it appropriate to make express statutory provision to bring a court security officer within the meaning of an “officer of the court” in s.12(2) of the CCA 1981 – a context much closer to the core functions of a court security officer than that with which we are here concerned.

Against this background, I would be reluctant to conclude that a court security officer had implied authority to accept an information for the purposes of r.4(3)(1)(e), unless the Crim PR or the practical context require me to do so. For the reasons which follow, I conclude that they do not.

(B) The Crim PR: So far as concerns the Crim PR, the point is short and stark: it goes to the difference in date consequences between the various methods of service provided by r. 4.

As it seems to me, r.4.3 gives effect to Ex p Hill: the information may be handed over to a court officer; it does not need to be handed over to a justice’s clerk personally. But, for r.4.3(1)(e) to apply, it must be handed over to a “court officer with authority to accept it”. If it is, the date of service is the date it is handed over.

By contrast, an information may be left at the court, or posted to the court, or sent by way of DX, pursuant to rr. 4.4 or 4.5. However, none of these methods achieve same day service – the various date consequences appear from r.4.11. Accordingly, none of these options avails the Respondent, as all would result in the information being laid out of time.

For my part, I see no difficulty whatever with an information being left with a court security guard. Service then takes effect in accordance with r.4.4, with the relevant date consequences provided by r.4.11. No specific authority is vested in the court security guard beyond that necessarily commensurate with his duty of receiving deliveries of all kinds.

I am, however, unable to go further and accept that a court security guard has the necessary authority for the purpose of accepting an information, so as to result in same day service under r.4.3(1). It is plain from the contrasting language that while a document or information may be left or sent to a court pursuant to rr. 4.4 and 4.5 - and thus necessarily received by any member of staff - r.4.3(1) contemplates handing over to more circumscribed group of staff members. As is common ground, court security guards do not have express authority for the purposes of r.4.3(1). To my mind, to imply authority to do so would be a step too far. Accordingly, I am not persuaded that a security guard is “the appropriate member of the staff of a court” for the purposes of r.4.3(1). It is to be underlined that the service of originating process has jurisdictional consequences and these do not fall naturally within the sphere of a security guard. That the security guard here was sub-contracted, weighs additionally against his having authority under r. 4.3(1) – though I do not say that simply because a member of staff is engaged through an agency, or otherwise sub-contracted, by itself means that he does not come within r.4.3(1). What matters far more is the nature of the functions or duties for which the staff member in question is engaged.

(C) The practical context: As part of HMCTS Reform, court counters have been closed and more will no doubt be closed. Modernising the delivery of justice is necessary and beneficial. The important point is to take account of the new realities as to counters, court offices and the like and to make appropriate provision for changed circumstances.

These changed circumstances do not, however, persuade me to accept, as a matter of expediency, policy or common sense, that an implication is to be made conferring on a security guard authority to accept an information under r.4.3(1).

In the HMCTS memorandum, reference is made to court security staff receiving deliveries of all kinds “including letters and other official documentation” and passing them on, unopened, to be dealt with by court staff. The HMCTS memorandum goes on to say (in effect) that court security staff would be expected to handle public inquires and to receive DX boxes. Finally, it says that HMCTS would have intended that “handing a document” to a member of the court security staff “would have no lesser status than posting it through the court’s posting box” or emailing it to the court.

All this is well understood and there is, as already indicated, no difficulty in leaving an information with a member of the court security staff, or sending it to the court where it may be received by court security staff. But, the consequences for the date of service do vary. Thus, a document left at the court, will be served on the next business day (r.4.11(2)(a)); a document posted to the court will be served on the second business day after the day on which it was posted (r. 4.11(2)(b)), as would a document sent by DX (r.4.11(2)(c)). Contrastingly – a distinction overlooked by the HMCTS memorandum - a document emailed to the court would be served on the day which it is sent, if sent on a business day and by no later than 14.30 that day (r.4.11(2)(d)(i)).

It follows that, in the present case, had the informations been handed to the security guard on the previous day (no more than one day before the expiry of the time limit), they would have been laid in time. Moreover, the Respondent could have properly effected last minute service on the 2^nd December, 2016 by emailing the informations to the court – and plainly could have done so before 14.30 (as it is clear from the Case that they had been left at the court before that time). The practicalities of the matter do not therefore require the implication of authority under r.4(3)(1) for which the Respondent contends and which the Judge found. The only real practical difficulty would be that experienced by a court user, without access to email, seeking to lay an information on the final day of the six months’ period. That, however, is a matter for the future (see below) and, in any event, leaving the laying of an information until the very last day is necessarily fraught with risk.

For completeness:

As to the way ahead, first, HMCTS may wish to consider reviewing their contractual arrangements, so as to consider conferring on security guards express authority to accept informations for the purposes of r.4(3)(1). Any such review would also, no doubt, encompass compliance with such requirements of the Courts Act as may be applicable. On any view, the issue which has arisen in this case should be addressed together with the Senior Presiding Judge.

Secondly, at least for professional users (and, perhaps, all those with email access), service by electronic means (see, r.4.2(2)) is the obvious and desirable method to follow.

For the reasons given, I would answer Question I (as I have defined it), “No”.

The answer to this Question is apparent from my conclusion on Question I. On the facts of the case, it is, necessarily, “No”.

For the reasons given, differing with respect from the Judge, I would allow the appeal. I formally answer the Questions posed in the Case as follows: