Food Standards Agency v Bakers of Nailsea Ltd

This is an appeal by way of case stated under s. 111 of the Magistrates' Court Act 1980 (“s. 111”) by the Appellant, the Food Standards Agency (“the FSA”), against the ruling dated 7 November 2019 of District Judge (Magistrates' Court) Taylor sitting at Yeovil Magistrates' Court (“the District Judge”) as follows:

The question that has been posed for the Court in the case stated by the District Judge on 25 February 2020 is as follows:

“Did I err in law by concluding that the informations were nullities and that I had no jurisdiction to try them?”

The question assumes that the FSA is at liberty to contend that the District Judge did err in law in so concluding. Whether or not that assumption is correct is something that I consider below.

I record at the outset my gratitude to all counsel for their helpful written and oral submissions.

BNL is a food business operator and operated an abattoir at premises in Nailsea, near Bristol. The applications (also referred to as “informations”) were served by the FSA against BNL as follows:

The allegations related to BNL’s facilities for disinfecting tools, handwashing facilities and carcass trimming, alleged failures to comply with hygiene improvement

Regulation 18 of the 2013 Regulations provides:

“No prosecution for an offence under these Regulations, which is punishable under these Regulations under paragraph (2) of Regulation 19, shall be begun after the expiry of three years from the commission of the offence; or one year from its discovery by the prosecutor.”

The applications were listed to be heard before the Magistrates' Court on 26 April 2019. At that hearing BNL raised a number of preliminary points relating to jurisdiction and abuse of process. A preliminary hearing was listed accordingly before the District Judge on 6 and 7 November 2019.

One of the preliminary points raised was whether the applications were a nullity by reason of the FSA’s failure to comply with the mandatory requirements of CPR 7.2(3)(b)(i). At paragraph 9 of the case stated the District Judge records:

“Before me the appellant conceded that they had not complied with Rule 7.2(3)(b)(i) and, because of this failure, if the informations had not been validly laid, then it was now too late to lay fresh informations as they would be out of time. The issue before the court was whether the complete failure by the [FSA] to comply with Rule 7.2(3)(b)(i) meant that the informations purported to be laid were, as a consequence, invalid or not.”

The case stated records specifically that counsel for the FSA conceded, both in writing and orally, that there had been non-compliance with CPR 7.2(3)(b)(i), “either directly or in a way that compliance could be inferred”. The prosecution response to the defence note (2) dated 27 August 2019 stated at paragraph 32:

“While the rule requires only that the application demonstrates that it is made in time and an argument might be constructed that it impliedly did so, that is not an argument that is pursued. These submissions proceed on the basis that there was indeed a failure to comply with r.7.2 in this regard”.

The District Judge stated that he considered that he was entitled to rely upon this clear concession as a matter that was not in dispute. I refer below to the concession by the FSA as“the FSA’s concession”.

The District Judge concluded that the applications were, indeed, invalid, a nullity, and that he accordingly did not have jurisdiction to hear them.

Part 7 of the CPR deals with “Starting a prosecution in a Magistrates' Court”. Rule 7.1 is headed “When this Part applies”. The relevant provision in force from 5 October 2015 to 5 April 2020 stated:

“(1)

This Part applies in a Magistrates' Court where-

(a)

a prosecutor wants the court to issue a summons … under section 1 of the Magistrates’ Courts Act 1980.”

S.1(1)(a) of the Magistrates' Court Act 1980 provides:

“On an information being laid before a justice of the peace that a person has, or is suspected of having, committed an offence, the justice may issue a summons directed to that person requiring him to appear before a Magistrates' Court to answer the information.”

Rule 7.2 is headed “Application for a summons etc.”. On 2 April 2018, by virtue of the Criminal Procedure (Amendment) Rules SI 2018 No. 132, Part 7 of the CPR was amended so as to introduce Rule 7.2(3), including Rule 7.2(3)(b)(i). As so amended, Rule 7.2 reads materially (with emphasis added) as follows:

“(1)

A prosecutor who wants the court to issue a summons must-

(a)serve on the court officer a written application; or

(b)unless other legislation prohibits this, present an application orally to the court, with a written statement of the allegation or allegations made by the prosecutor …

Rule 7.3 is headed “Allegation of offence in application for summons, etc., or charge”. The relevant provisions in force from 2 April 2018 state:

“(1)

An allegation of an offence in an application for the issue of a summons … must contain-

(a)

a statement of the offence that-

(i)

describes the offence in ordinary language and

(ii)

identifies any legislation that creates it; and

(b)

such particulars of the conduct constituting the commission of the offence as to make it clear what the prosecutor alleges against the defendant.

(2)

More than one incident of the commission of the offence may be included in the allegation if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission.”

Rule 7.4 is headed “Summons, warrant and requisition”. The relevant provisions in force from 2 April 2018 state:

“(1)

A summons … may be issued in respect of more than one offence;

(2)

A summons … must-

(a)

contain notice of when and where the defendant is required to attend the court;

(b)

specify each offence in respect of which it is issued;

(c)

in the case of a summons, identify-

(i)

the court that issued it, unless that is otherwise recorded by the court officer; and

(ii)

the court office for the court that issued it …

(3)

A summons may be contained in the same document as an application for the issue of that summons …

(5)

Where the court issues a summons-

(a)

the prosecutor must-

(i)

serve it on the defendant; and

(ii)

notify the court officer; or

(b)

the court officer must-

The FSA, through fresh counsel, now seeks to resile from the FSA’s concession, arguing that it was wrong in law. It wishes to contend that there is no requirement in CPR 7.2 to state expressly:

Mr Wright QC for the FSA developed ten points before the court this morning:

Accordingly, it is said that the District Judge was wrong in law to conclude that the FSA had failed to demonstrate that the applications had been made in time and so failed to comply with CPR 7.2, and wrong in law to conclude that the proceedings were thereby invalidated, that the applications were a nullity and the court had no jurisdiction.

Mr Wright further argued, as he must, that the FSA is entitled to advance this argument on appeal, notwithstanding the FSA’s concession. He contends that a concession regarding statutory interpretation of the law, which is wrong in law, is not a valid concession. Reliance is placed on Whitehead v. Haines [1965] 1 QB 200 (“Whitehead”) where Winn J stated (at 209D to E):

“In my judgment, it would not be right for this court to decline to entertain and determine, on an appeal raised by a case stated, a point of pure law open on the facts found in that case to a defendant convicted on a criminal charge which, if sound, might afford him a defence, merely because that legal objection to the charge has been first appreciated after his conviction. In particular, it appears to be essential to the due performance of justice that the court should not uphold a conviction for an offence non-existent in law.”

Mr Wright submits that the concession here was not a factual concession nor was it a concession of mixed fact and law, as was the case in R v. E [2018] EWCA 2426 Crim. (“R v. E”) and R. v. R [2015] EWCA Crim. 1941 (“R v. R”). It is said that it is not in the interests of justice for a prosecution to be halted as a nullity on an erroneous basis. In his words, the FSA should not be “stuck with it”.

Finally, I record that the FSA’s skeleton argument contains a brief undeveloped submission that, even if the applications were invalid, the District Judge had jurisdiction “having regard to the overriding objective of the Criminal Procedure Rules”. It is suggested that a breach of a procedural rule does not override or trump the jurisdiction of a court to try an information which identifies an offence known in law, contains the essential ingredients of the charge, has been granted with any necessary authority to prosecute and has, in fact, been brought in time.

This submission falls outside the grounds of appeal which were lodged after the case stated was issued. The grounds of appeal, fairly read, are confined to the single contention that the District Judge was wrong in law to conclude that the prosecution had failed to comply with CPR r.7.2(3)(b)(i). Mr Wright points to the breadth of the question in the case stated, but, as indicated, the grounds postdate that. Analysis of this issue would require consideration, as Mr Hercock for BNL points out, of an extensive line of authorities and jurisprudence which have not been placed before the court, with the result that the court is not equipped to deal with the argument in any event. For these reasons, I decline to entertain the additional argument.

BNL resists the appeal. First, the FSA having decided not to pursue the argument before the District Judge, and the FSA having expressly conceded that there had been a failure to comply with CPR r.7.2(3)(b)(i), BNL contends that it is not now open to the FSA to pursue the ground advanced an appeal. Whitehead cannot assist the FSA. Further, it cannot logically be contended that the District Judge was wrong in law to conclude that the FSA had failed to comply with the requirements of CPR r.7.2(3)(b)(i), because it is said that the point was not in dispute. Reliance is placed on Lycamobile UK v. London Borough of Waltham Forest [2014] EWHC 1829 Admin.(“Lycamobile”) (at [17] to [20]). Mr Hercock suggests that the FSA’s approach goes beyond the parameters of an appeal by way of case stated under s.111; reference is made to the statement of Sir Brian Leveson P in Lycamobile (at [24]):

“In my judgment, short of allegations of incompetence, it is not the role of the court to remedy failures by advocates adequately to put their case in the court below or otherwise to rule in circumstances which did not, in fact, generate a decision of the court which can properly be challenged”.

At the very least, submits Mr Hercock, permission should only be granted to the FSA to change its position “very exceptionally” (see R v. E and R v. R).

Beyond that Mr Hercock submits that Part 7 of the CPR requires an application for the issue of a summons to have particular content. It sets out a series of mandatory requirements for an application for the issue of a summons to be valid. Following the introduction of CPR

I address BNL‘s procedural objection first. There was a clear and valid concession by the FSA that the applications did not comply with CPR r.72(3)(b)(i). There was an open, conscious and expressed decision that, to the extent that there might be a debate about that, the point was not being pursued: to the extent that it might be argued that the FSA had

“impliedly” demonstrated that they were in time, that “was not an argument that [was] pursued”.

Compelling circumstances would be needed in order to persuade this court to allow the FSA, a sophisticated and fully-represented party, to resile from this position.

I do not consider that Whitehead assists the FSA. In Whitehead, a defendant was convicted of breaching a condition of a music and dancing licence, granted under the Public Health (Amendment) Act 1890. The hearing before the Justices proceeded on a “tacit assumption” that, if the performance was not licensed, it contravened the legislation in question (see 208G). On appeal, the defendant was permitted to advance a new point of law relating to the proper construction of the statute so as to contend that the licence condition was ultra vires.

There is a number of material distinctions to be drawn. First, the decision in Whitehead was concerned to address the fact that a defendant should not be convicted of an offence that did not exist in law. That is not this case. Secondly, the ground that the FSA seeks to advance does not raise a pure point of law. It relates to a question of mixed fact and law. Thirdly, most significantly, the ground that the FSA seeks to advance is not a new point first appreciated after the decision below; quite to the contrary, it was a point expressly considered and discarded. There was no “tacit assumption” on the issue.

As for the additional matters relied upon by BNL, I am not attracted to the argument that the District Judge did not make any ruling on the question of compliance. This is not a situation akin to that in Lycamobile , where the relevant issue was withdrawn from the debate. Whether or not the applications complied with CPR r.7.2(3)(b)(i) was something upon which the District Judge did rule, as reflected in the question posed by him in the case stated, albeit that it was a ruling based on a concession. He made the order that each application was a nullity. Nor do I necessarily accept that the approach of the FSA in some way goes beyond the jurisdictional parameters of an appeal by way of case stated.

But I do very much accept that, having made the FSA’s concession, permission should only be granted to the FSA to change its position on appeal if there are exceptional circumstances justifying such latitude. In R v. E Sir Brian Leveson P stated (at [19):

“… the court referred the parties to the decision of this court in R v. R … Dealing with concessions made during the course of the hearing in the Crown Court, it was made clear:

‘53. Before leaving this part of the case, three other issues must be addressed. The first is to underline one of the “overarching principles” set out in the Review of Efficiency in Criminal Proceedings 2015. The principle is “getting it right first time” and its relevance to the present case arises from the fact that the appellant’s stance before this court is substantially different from that adopted before [the trial judge]. Before the judge, as discussed in further detail below, the appellant essentially acquiesced in the judge’s proposals as to disclosure. The appellant’s case below was that, with more time, they could and would comply with the requirements canvassed with the parties by the judge. On appeal, the case is that those proposals were misconceived with regard to the stage of initial disclosure imposed upon them under protest and led the parties and the case on to the wrong road.

54.

Changes of case of this nature are disconcerting and potentially very wasteful of time and costs. Whether or not in the present proceedings the appellant is permitted to change its case on appeal, it must be emphasised that parties generally can have no expectation that such a course will be open to them; save, very exceptionally, a party is not permitted to acquiesce in an approach to the case before the judge at first instance and then renounce its agreement and advance a fundamentally different approach on appeal. Parties must get it right first time.’”

There is no good, let alone an exceptional, reason to allow the FSA to change its stance on appeal. The FSA simply wants to have a second bite at the cherry. To allow it to do so would not be in accordance with the overriding objective and the important principle of “getting it right first time”. This is not contrary to the interests of justice: there is nothing contrary to the interests of justice in the circumstances of this case in tying the FSA to the express and considered position that it took below on the very point in issue.

The question posed by the case stated remains for us to consider, even if only briefly and even although, if the FSA is right, as Mr Wright put it, the FSA would be “winning the battle but losing the war”.

Before setting out what I consider to be the correct position as a matter of construction, it is worth noting that the setting of time limits for the prosecution of offences is designed to have two important consequences: first, to provide protection to the citizen who may have committed a criminal offence and, secondly, to bring about, in the authority having responsibility for the prosecution, an efficient and timely investigation of the offence (see Tesco v. Harrow London Borough Council [2003] EWHC 2929 Admin. at [25]).

I would reject the FSA’s construction of and approach to CPR r.72.(3)(b)(i) for the following reasons:

For these reasons, the FSA’s concession was, in my judgment, in any event made correctly.

In those circumstances, having ruled that it is not open on this appeal for the appellant to argue otherwise, it follows that the applications are to be treated as a nullity and the District Judge had no jurisdiction to entertain them. For these reasons, I would not allow the FSA to resile from the FSA’s concession and, in any event, answer the question posed for the court in the negative.