Lee Qualter Commercial Reduction Services Ltd & Anor v Crown Court At Preston

is contained in an Act passed after the end of the Session in which this Act is passed, or

is contained in this Act, or in any other Act passed no later than the end of the Session in which this Act is passed, or

is contained in an instrument made under an Act and comes into force before the commencement of section 1;

is contained in this Act, or in any other Act passed no later than the end of the Session in which this Act is passed, or

is contained in an instrument made under an Act and comes into force before the commencement of section 1.

We were invited by CWAC to consider the effect of the Consumer Rights Act 2015 on the vires of their investigation. Paragraph 46 of Schedule 5 of that Act is in these terms:

We shall not consider the effect of the 2015 Act and whether it would provide CWAC with the power to bring proceedings for offences of money laundering. It was not an issue raised in the course of the hearing before Judge Brown. It was not raised in the detailed grounds of response filed by CWAC save as follows:

“Specific powers for the investigation and prosecution of consumer protection offences (including business to business crime) are set out in relevant statutes and statutory instruments, including the Consumer Rights Act 2015. It is unnecessary to consider them in detail within these detailed grounds.”

It was only in the Skeleton Argument filed by CWAC on 5 June 2019 – two weeks prior to the full hearing before us - that it was argued that the 2015 Act removed any geographical restriction on a local authority to prosecute consumer offences and, more significantly for the purposes of these proceedings, offences originating from an investigation into consumer offences. No clear submission was made on the effect of the phrase “an offence originating from an investigation” into a consumer offence. By implication (but no more than that) we understood the proposition to be the provisions of Schedule 5 of the 2015 Act would encompass offences discovered in the course of an investigation into consumer offences. This argument was raised very late in the day. In the skeleton argument it was not developed other than in vague terms. For those reasons we do not consider it appropriate to consider the argument any further.

The 2^nd to 7^th Interested Parties responded in writing to CWAC’s skeleton argument. They argued that the proposition that “originating from” is to be interpreted as “discovered in the course of” (if that was the submission made by CWAC) was flawed. They also argued that the 2015 Act does not override the expediency test set out in Section 222(1) of the 1972 Act. Whether these submissions are correct is for another day and another case. The provisions of the 2015 Act will not inform our decision in this case.

On behalf of the Claimants Mr Daw QC submitted that CWAC were undertaking a national fraud and money laundering investigation which they had no power to do. He argued that such an investigation was wrong in principle. He went on to submit that, even if a local authority based in the North West notionally did have the power to conduct such an investigation, no consideration had been given at any point by any local authority to the expediency test in Section 222(1) of the 1972 Act. Finally, he argued that, even if a local authority in the North West such as Lancashire had lawfully commenced an investigation into the activity of the Claimants, the delegation of that investigation to CWAC was unlawful.

Mr Daw supported his legal analysis by referring to the circumstances of the investigation. It had begun by 2014 at the latest yet no charges had been brought some 5 years later. This demonstrated the inherent unsuitability of CWAC to conduct such an investigation and supported the proposition that CWAC was not empowered to investigate allegations of national fraud and money laundering. He also argued that there had been a lack of candour in the approach taken by CWAC both in the hearing before Judge Brown and in these proceedings.

On behalf of the 2^nd to 7^th Interested Parties Mr Marshall QC argued that CWAC could not suggest that the investigation they were conducting would promote or protect the interests of the residents of Cheshire. Thus, they only could act lawfully if there had been a lawful delegation of the power to investigate offences of fraud and money laundering by a local authority for whose residents such an investigation would be expedient. Mr Marshall submitted that the decision to delegate had been in respect of offences under the 2008 Regulations. Thus, the claim for judicial review should succeed without more. He further argued that there had been no decision by Lancashire County Council to prosecute the Claimants or any other party in which event no power to delegate or to investigate could arise. Such ancillary powers could only be exercised if and when such a decision had been taken.

Mr Marshall went on to argue that, even if CWAC were in a position to say that they were able to prosecute, this type of case is not suitable for prosecution by a local authority. He relied on what the Court of Appeal Criminal Division said in R v AB and others [2017] 1 WLR 4071. Mr Marshall said that this case was a first in terms of local authority prosecution. It related to fraud and money laundering rather than trading standards offences.

Mr Thomas QC on behalf of CWAC submitted that there was nothing exceptional or unusual about the investigation being undertaken. Fraud in its various manifestations is the bread and butter work of modern trading standards departments. There was a clear distinction between the circumstances in AB and the investigation in this case. In relation to the expediency test under Section 222 of the 1972 Act this was satisfied because the businesses under investigation were based in the North West, in particular in Lancashire and Blackpool. The inhabitants of those areas had an interest in Lancashire and Blackpool not being used as a centre of fraudulent activity. CWAC was conducting the investigation pursuant to legitimate delegated powers. Mr Thomas also argued that it was in any event premature for CWAC or any local authority in the North West to make a decision as to whether the expediency test was met. This test related to prosecuting or defending or appearing in any legal proceedings. Before the decision could be made, the local authority had to investigate in order to gather evidence. The decision could only be properly made in the light of the evidence. Finally Mr Thomas relied on Section 1 of the Localism Act 2011 as providing CWAC with the power to investigate.

Before we discuss the competing submissions, we shall review the relevant authorities as cited to us in relation to the nature and extent of the power of a local authority in the context of fraud and/or criminal proceedings. We observe that none of the authorities purports to deal with the lawfulness of an investigation by a local authority as opposed to whether a local authority had the power to prosecute or appear in proceedings. This is unsurprising given the language of Section 222(1) of the 1972 Act. Equally, it may be of significance in determining the assistance to be gained from the authorities.

In London Borough of Barking and Dagenham v Jones [1999] All ER (D) 923 CA the Court of Appeal was concerned with the legitimacy of injunctive relief sought by the local authority against a trader in office supplies who operated from premises in the area covered by the local authority. The trader conducted his business via telesales, his salesmen making cold calls to businesses offering to supply printer supplies. The salesmen were instructed to make and did make false claims about the longevity of ink cartridges to be supplied. Over a period of around 5 years the trader was prosecuted to conviction for trading standards offences on a dozen or more occasions at courts around the country. He continued to trade in a fraudulent manner throughout. As a result the local authority for the area in which his business was based sought an injunction restraining the trader from engaging in certain specific fraudulent practices. The judge at first instance refused to grant injunctive relief. This decision was reversed by the Court of Appeal. One of the reasons relied upon by the judge in refusing to order an injunction was that the proceedings were not expedient for the promotion or protection of the interests of the inhabitants of the local authority area. There was no satisfactory evidence of any business within the area being the victim of the trader’s fraud. This reasoning was rejected by the Court of Appeal.

Lord Justice Brooke gave the judgment on this issue as follows:

In Mole Valley DC v Smith [1992] 24 HLR 442 Lord Donaldson MR said at p 450:

“... It is not for the courts in these proceedings to review the decision of the respondent councils under Section 222 of the Local Government Act 1972. ... where the balance of the public interest lies is for the respondent councils to determine and not for this court.”

A similar approach was adopted by Mr Justice Phillips in Oldham Borough Council v World Wide Marketing Solutions [2014] EWCA 1910 QB. This case also concerned the application by a local authority for injunctive relief against a trader who engaged in telesales directed at small businesses. The facts are of no particular assistance to our determination of this claim but the judge, in granting injunctive relief, emphasised that Section 222(1) is widely worded and that the local authority is not limited to considering activities directly affecting the inhabitants of its area.

In R (on the application of Donnachie) v Cardiff Magistrates’ Court and Cardiff City Council [2009] EWCA 489 (Admin) the same issue arose in the context of criminal proceedings. Donnachie was an officer of a taxi company called Supatax based in Cardiff which sold its redundant taxis at auctions in Newport and Gloucester. Prior to sale taxis had been “clocked”. This process had taken place at the taxi company’s premises in Cardiff but the consequent application of the false trade descriptions was committed at the point of sale in Newport or Gloucester. This court considered a challenge to the validity of the informations laid by Cardiff City Council in the Cardiff Magistrates’ Court. The challenge was based on the fact that the offences were not committed in Cardiff. The argument was that the expediency test could not be met. Mr Justice Sweeney giving the judgment of the court said this:

The Claimants and the 2^nd to 7^th Interested Parties argue that the decision of this court in Brighton and Hove City Council v Woolworths [2002] EWHC 2565 (Admin) supports their position in relation to the test of expediency. They argue that the facts in that case are more apposite to the circumstances with which we are concerned than those in Donnachie and the injunctive relief cases. Woolworths was a well known national company. Brighton and Hove Council had served a suspension notice on Woolworths at its head office in London under Section 14 of the Consumer Protection Act 1987. The effect of the notice was to prohibit the sale of a particular type of toy scooter at any of its outlets. Woolworths sold the relevant toy in breach of the suspension notice at three of its outlets in different parts of the country away from Brighton and Hove. Brighton and Hove Council sought to prosecute the company for those breaches of the suspension notice. The magistrates’ court dismissed the informations because there was no proof of delegation of the power to prosecute by the local authorities where the breaches had occurred. In this court Brighton and Hove Council sought to circumvent the lack of evidence of delegation by submitting that they had issued the suspension notice and that they and they alone had the power to prosecute breaches of the notice wherever they may have occurred.

The court rejected that argument. In the course of his judgment Mr Justice Field said this:

In AB and others the Court of Appeal Criminal Division was concerned with the ambit of Section 222(1) of the 1972 Act in the context of an appeal from a ruling made in a preparatory hearing. The court reviewed the authorities to which we have referred. In relation to the Woolworths decision, the court said at paragraph 50:

However, the Claimants and the 2^nd to 7^th Interested Parties argue that the facts in AB and others are on all fours with the circumstances in this case. The outcome in AB and others was a finding that the local authority had prosecuted allegations of fraud and perverting the course of public justice when they had no power to do so pursuant to Section 222(1) of the 1972 Act. Thus, it is submitted, the same should follow in this case. This proposition requires examination of the facts in AB and others. The local authority involved was Thurrock Council, a unitary authority in Essex. In 2013 the local authority had established a Fraud Investigation Department (“FID”). The FID was described as a counter fraud and criminal investigation service responsible for the prevention, detection and deterrence of economic crime committed against the public purse. It employed 26 people trained to the same standard as police officers involved in investigation of complex crime. Unlike a trading standards department of a local authority, the FID did not purport to fulfil any ordinary function of a local authority.

Presumably in order to market its services the FID shortly after it had been established made a presentation at a conference concerned with fraud prevention. An official of the Legal Aid Agency (“LAA”) had been present at the conference as a result of which he contacted the FID. Initially this was in order to obtain forensic computing advice in relation to suspected fraud. Within a matter of weeks the FID had been commissioned to conduct a full investigation into a suspected fraud on the legal aid fund involving some £6 million by a firm of solicitors in London. From the end of 2013 the FID carried out the investigation. In due course, the prosecution was commenced by Thurrock Council.

When the case was sent to the Crown Court, the defendants sought a ruling from the trial judge at the preparatory hearing in relation to the locus of Thurrock Council to prosecute allegations of fraud and associated offending by a firm of solicitors in London. The judge ruled that Thurrock Council came within the provisions of Section 222(1) of the 1972 Act. The evidence before the judge came from the head of the FID who set out various factors which he said were an indication that the prosecution was in the interests of the inhabitants of Thurrock. The judge accepted that three of the factors taken together satisfied the expediency test: the legal aid system is provided to all citizens including those of Thurrock and the Council’s joint work with the LAA would be in the interest of those in the Council’s borough to protect the fund from abuse; the LAA would be funding the resources in the FID assigned to investigate its matters, with their time shared for preventing and detecting fraud in Thurrock; the LAA was to provide the equivalent of two full time staff to the Council to work on this investigation and any fraud matters in Thurrock.

The Court of Appeal rejected the reasoning of the judge. The court concluded that preventing fraud on the legal aid fund was in the interests of UK taxpayers generally. For Section 222(1) of the 1972 Act to apply, the prosecution had to engage the interest of Thurrock residents in their capacity as such, not just as ordinary UK citizens. It did not do so. The firm allegedly engaged in the fraud was unconnected to Thurrock. No inhabitants of Thurrock were directly or indirectly affected by the alleged fraud. The court further decided that financial advantage could not justify a local authority setting up as a prosecution service. Thus, the court concluded that the prosecution was unlawful. The court also rejected the argument that Thurrock

The circumstances in AB and others were very different to the facts of this case. Thurrock Council in effect had set up a commercial investigative agency which could gather evidence of financial crime on behalf of another party with a view to the local authority then prosecuting alleged offences revealed by the investigation. It was not part of any national strategy. It was unconnected to any of the local authority’s ordinary functions. No issue of delegation by another local authority arose since the activity was not allied to the protection or promotion of the inhabitants of any particular local authority.

It is of significance that the court in AB and others emphasised that the objection taken by the defendants was in relation to the decision to prosecute. It was noted more than once that no point was taken on the power of Thurrock Council to investigate. The court did not suggest that this approach was inappropriate or incorrect. The unlawfulness arose from the taking of proceedings when the requirements of Section 222(1) of the 1972 Act were not met.

The Claimants and the 2^nd to 7^th Interested Parties submit that the lawfulness of an investigation should be allied to the lawfulness of a proposed prosecution. Section 111 of the 1972 gives a local authority “power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.” It is argued that, by analogy with R v Richmond on Thames LBC ex parte McCarthy & Stone (Developments) Ltd [1992] 2 AC 48, the power to investigate only arises if the local authority has the power to prosecute i.e. satisfies the expediency test. McCarthy & Stone involved a challenge to the imposition of a charge by a local authority for pre-planning advice. The giving of such advice was not a function of the local authority. Thus, to charge for such advice was not “incidental to the discharge of any of their functions”. The facts in McCarthy & Stone are far removed from the circumstances of this case. Moreover, the charge levied by the local authority was in relation to something which could not ever be a function of that authority. Here, the activity of investigating the alleged offending was a precursor to the prosecutorial function of CWAC. That CWAC had such a function is not in doubt. The submission based on McCarthy & Stone cannot overcome the observations in AB and others.

The starting point is to underline that we are concerned with an investigation not a prosecution. The cornerstone of the Claimants’ case as supported by the 2^nd to 7^th

The argument that CWAC’s failure to have made a decision as to the expediency of any prosecution must render any investigation unlawful similarly must fail. Since CWAC have yet to make any decision to prosecute, there can be no requirement on CWAC (or any local authority which may have delegated its power to take proceedings to CWAC) to show that a prosecution would be expedient to promote or protect the interests of the inhabitants of the area of the relevant local authority. At the stage of conducting an investigation it is most unlikely to be known whether a prosecution will (as opposed to might) be expedient within the meaning of s.222(1). The submission that the claim for judicial review must succeed because of the lack of any consideration of the expediency test is likewise misconceived. This conclusion follows from the unequivocal terms of Section 222(1) of the 1972 Act. Our conclusion is supported by the approach of the Court of Appeal in AB and others.

Next, what power do CWAC have to engage in the investigation of the Claimants and the 2^nd to 7^th Interested Parties and their alleged criminal activity involving fraud and money laundering? As it seems to us, CWAC plainly have such a power. This is by way of one or more of Section 1 of the Localism Act 2011, Section 101 of the 1972 Act and Section 111 of the 1972 Act. We take these provisions in turn.

Section 1 of the Localism Act 2011 gives a general power of competence to local authorities. This provision replaced what was known as the well-being provisions of the Local Government Act 2000. Section 2 of the 2000 Act gave a local authority power to do anything which it considered likely to promote or improve the economic, social and environmental well-being of their area. The power was limited by Section 3 of the 2000 Act in that a local authority was not enabled to do anything it was unable to do by reason of some other statutory restriction. The width of those provisions was reduced significantly by the interpretation put on them in Brent LBC v Risk Management Partners [2009] EWCA Civ 490. In that case two London local authorities participated in the setting up of a mutual insurance scheme which was intended to reduce their insurance costs. They purported to do by virtue of the power in Section 2. The court concluded that they did not have such power.

Lord Justice Moore-Bick (at [180]) explained the position in this way:

It is clear from the terms of Section 1 of the Localism Act that Parliament intended that the power of local authorities should be widened. The section makes no reference to outcome. It permits the exercise of the power “in any way whatever”.

This power is not unfettered. Section 2 of the Act establishes that it cannot be used to circumvent restrictions on a pre-existing power or to avoid an express statutory restriction. Thus, it does not give rise to a right to prosecute because Section 222(1) of the 1972 Act still applies: see AB and others. In addition, any exercise of the general power of competence will remain subject to judicial review on ordinary public law principles. Where activity by a local authority properly can be said to be irrational or Wednesbury unreasonable, it will be liable to be quashed. In the context of an investigation of the kind with which we are concerned, there might be circumstances in which there could be a finding of irrationality. It would not be helpful to suggest specific circumstances which could give rise to such a finding. That is not the basis of the Claimant’s case in these proceedings.

All that said, whatever the limits of section 1 and subject to any separate, specific objection, there can be no doubt that a local authority has a general power of competence to conduct an investigation. On this footing, Lancashire’s general power to conduct an investigation cannot realistically be challenged.

For completeness, we acknowledge that the use of the term “an individual” in the context of a local authority i.e. a corporate public authority is “legally puzzling” as it is put in the current edition of De Smith’s Judicial Review. Many things an individual can do will be impossible for a local authority. Conversely, many of the functions of a local authority are conducted on a systemic basis with no individual being responsible for the entirety of the function concerned. It is, however, unnecessary to take time to resolve this puzzle.

The Claimants and the 2^nd to 7^th Interested Parties argue that CWAC’s investigation could not have been conducted by an individual. We agree that the applications with which Judge Brown was concerned could not have been made by any individual. An application for a production order pursuant to the Proceeds of Crime Act 2002 can only be made by “an appropriate officer”. In the context of a money laundering investigation, such an officer must be one of the following: a constable, an SFO officer, an accredited financial investigator, an officer of Revenue and Customs or an immigration officer. An officer of this description by definition will be “an individual” albeit one of a particular type. However, it does not begin to follow that the investigation could not have been conducted by an individual.

In our judgment, Section 1 amply entitles a local authority to engage in an investigation in relation to fraudulent trading practices prima facie falling within their function as a trading standards authority, albeit that the local authority’s action in doing so could be subject to challenge on well-established public law principles.

In oral argument Mr Thomas accepted that an investigation by a local authority into criminal activity could be open to a rationality challenge. He emphasised that any challenge would not easily succeed. He cited what was said in AB and others in relation to the court’s power to review a decision to prosecute pursuant to Section 222(1) of the 1972 Act, namely:

Mr Thomas suggested that the test as applied to the circumstances of this case could be expressed as follows: could the local authority reasonably have believed that the investigation being undertaken might lead to a prosecution pursuant to the discretion under Section 222(1) of the 1972 Act? Since the Claimants have not made a rationality challenge the basis of their case, it is not necessary for our decision to reach any firm conclusion on whether this is the appropriate test. An alternative test, where such a challenge is made, would be an objective variant, namely whether there was any realistic possibility that the investigation might lead to a prosecution within s.222(1). We make clear that, in an appropriate case, a rationality challenge to an investigation by a local authority could succeed on whichever test is appropriate. We shall not express a view as to which test should be applied since we have heard no argument on the topic. On the facts of this case, we have no doubt that CWAC would satisfy whichever of these tests is appropriate.

As we have explained, Lancashire’s power to conduct the investigation cannot realistically be challenged. CWAC are conducting the investigation by reason of a delegation of the investigative function by Lancashire. Lancashire may not have referred specifically to Section 101 of the 1972 Act. That does not affect the legitimacy of the delegation so long as they were delegating a lawful function. As we have set out, the process of delegation was conducted via NTS. Contrary to the submissions made by the Claimants and the 2^nd to 7^th Interested Parties, the nature and extent of the alleged offending and the potential offences committed were identified in the reference by Lancashire to NTS. Although there was no specific reference to money laundering, it is inherent in allegations of corporate fraud that such offences are likely to have been committed. The delegation of the investigative function by Lancashire to CWAC was not rendered unlawful because Lancashire did not identify every potential allegation. What was delegated was the investigation of the allegedly fraudulent activity of various companies and individuals.

Mr Thomas relied on the protocol agreement of 2012 reached between each of the trading standards authorities in the North West as justifying the activity of CWAC. Mr Thomas sought to rely on the agreement of itself as rendering lawful delegation of investigative functions from any North West local authority to CWAC. We do not

Over and above Lancashire’s and, hence, CWAC’s, power to conduct the investigation under section 1 of the Localism Act 2011, we are persuaded that they enjoyed a like power pursuant to s.111 of the 1972 Act, i.e., to conduct an investigation of this kind as something “calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions”. In this instance the relevant function is the commencement of criminal proceedings, necessarily and implicitly, a prosecution coming within s.222 of the 1972 Act. While, as already emphasised, at the investigation stage it is most unlikely to be known whether a prosecution will (as opposed to might) be “expedient” within the meaning of s.222, the conduct of an investigation with a view to deciding whether or not to prosecute is capable of satisfying the requirements of s.111 - provided only (as already outlined) that the local authority entertains a reasonable belief or there is a realistic possibility that the investigation might result in a prosecution coming within s.222. On this footing, the investigation can properly be seen as calculated to facilitate, or conducive or incidental to, the discharge by the local authority’s function of commencing criminal proceedings. The conduct of an investigation is not an end in itself; it is designed to lead to a decision as to further action (prosecution or a decision not to prosecute). If there is a realistic possibility (to use one of the possible tests) that the investigation might result in a s.222 prosecution, then s.111 would be satisfied. Here, if need be, we are satisfied that this is the case.

We summarise the position as follows:

Strictly, consideration of whether a prosecution of the Claimants would promote or protect the interests of the inhabitants of Lancashire and/or Blackpool is premature. However, we shall address the issue since, at the grant of permission, the court indicated that the issue of the impact of fraud by a trader on the inhabitants of the area from where the fraud was conducted ought to be considered. We emphasise that every case will depend upon its own facts and that a court should be slow to interfere with a local authority’s exercise of discretion as to what will promote or protect the interests of their inhabitants. What is clear from the authorities we have reviewed is that a local authority properly can consider the impact on the area in terms of reputational damage. Further, there will be adverse resource implications if a trader repeatedly engages in fraudulent practices from a local authority’s area without any effort by the local authority to take enforcement action to prevent such trading. The trading standards officers employed by the local authority are likely to be diverted from other useful activity due to the need to monitor and to deal with complaints about the trader. This approach was approved in AB and others. There is a clear distinction to be drawn between the activity of Thurrock Council in setting up a freestanding investigation and prosecution service and Lancashire (via CWAC) pursuing allegations of fraud being practised within its area – a matter rooted locally even if its consequences are geographically more widespread.

As we have set out above, the power of any local authority to engage in investigation of criminal activity is not unfettered. The power of a local authority to engage in legal proceedings is defined by Section 222(1) of the 1972 Act. The fact that a Government Department funds NTS to fulfil objectives including national consumer enforcement work cannot provide any local authority with a power which it does not otherwise have. NTS is not a legal entity capable of commencing a prosecution. The Regional Investigation Teams to which NTS refers cases similarly have no legal entity for such purposes. It follows that any so-called national prosecution must be conducted by a local authority whether in the interests of its own inhabitants or the inhabitants of another local authority which has delegated its prosecutorial function. The creation of regional or national investigative teams cannot override the clear provisions of Section 222(1) of the 1972 Act. On the facts of the present case, however, for the reasons already given, the structures put in place to take effective regional action against alleged criminal activity do not result in the local authorities in question exceeding their statutory powers.

Mr Thomas relied on what is known as the Home Authority Principle to justify the investigation. As expressed in an eponymous document published by Lancashire a home authority will place special emphasis on the legality of trading activity originating within its area. That may be so. But this principle remains subject to the various statutory provisions to which we have referred. These are the basis of any local authority’s powers.

Mr Daw and Mr Marshall relied on the delays in this case to support the argument that CWAC lacked the vires to conduct this investigation. They argued that the delays demonstrated that the investigation was beyond the powers of a local authority. This argument is without foundation. Either CWAC is empowered to investigate the Claimants and the 2^nd to 7^th Interested Parties or it is not. The fact – if fact it be – that the investigation is being conducted inefficiently or too slowly is irrelevant to the issue of vires.

The real investigation in this case commenced at the beginning of 2015. In 2016 warrants were executed which resulted in CWAC obtaining a very substantial body of digital material which required analysis. In 2017 there was an application before the Crown Court in relation to that material. The resulting decision was the subject of an application for judicial review in 2018. We were told in the course of the hearing that a charging decision is anticipated at some point before the end of 2019. We agree that

Delay may be relevant at the point at which any prosecution is commenced. In the first instance that will be a matter for the court seized of the proceedings. We do not intend to rehearse the potential consequences of delay on those proceedings. They are outwith the issues which arise in this claim for judicial review. Equally, as we indicated in the course of the hearing, there is an obvious need for progress in the case – and we strongly urge CWAC to now urgently undertake such work as is necessary to bring this investigation to a conclusion, one way or another.

It was suggested in the course of the hearing that we should invite the Crown Prosecution Service or the Serious Fraud Office or the National Crime Agency to consider intervening in the proceedings much as occurred in AB and others. On reflection, we rejected that suggestion. It was made very much at the eleventh hour. It would have introduced yet further delay. In any event, we ultimately concluded that it was extremely unlikely that any of these agencies would have been able or willing to offer any useful assistance.

We dismiss the claim for judicial review of the decision of Judge Brown to grant production orders. Judge Brown granted the orders on the basis of relatively limited argument and material. We have heard much broader submissions and we have received evidence not available to Judge Brown. We are satisfied that the material we have seen and heard only goes to confirm that his decisions both as to the vires of the investigation underpinning the production orders and as to the merits of the applications for those orders were correct.