Director of Public Prosecutions v Edward Cook & Anor

This is an appeal by the Prosecution by way of case stated against a decision of District Judge Mallon (“the District Judge”), sitting at Leeds District Magistrates Court on 17 December 2020. By the decision the District Judge dismissed the prosecution of the two Respondents, for offences under section 127 of the Communications Act 2003 (“the 2003 Act”). In broad terms, section 127(1) and (2) make it an offence to use a public electronic communications network for grossly offensive, indecent, obscene or menacing content, or for false messaging or persistent use purposively causing annoyance, inconvenience or needless anxiety. The District Judge dismissed the prosecution on the basis that the proceedings were brought out of time, applying section 127(5) of the 2003 Act, which provides:

At the heart of the case is a prosecutor’s certificate (“the Certificate”) issued by Elizabeth Frain, the reviewing CPS lawyer. Parliament provided for such certificates by section 127(7) of the 2003 Act, which provides:

Section 127(5) of the 2003 Act is one of those provisions which stands as an exception to the general rule contained in section 127(1) of the Magistrates’ Courts Act 1980. That general rule is that a magistrates’ court “shall not try an information” unless laid “within 6 months from the time when the offence was committed”. But that is “except as otherwise expressly provided by any enactment”. Sections 127(5) and (7) of the 2003 Act use a language and structure which are familiar in other statutory schemes. As Holgate J observed in R (Russnak-Johnston) v Reading Magistrates’ Court [2021] EWHC 112 (Admin) [2021] 1 WLR 2444 at §66, the “principles established by the case law on provisions of [this] nature were helpfully distilled” in two cases. They are the judgment of Hickinbottom LJ for the Divisional Court in R v Woodward [2017] EWHC 1008 (Admin) (2017) 181 JP 405 and the judgment of Males LJ for the Divisional Court in R (Chesterfield Poultry Ltd) v Sheffield Magistrates’ Court [2019] EWHC 2953 (Admin) [2020] 1 WLR 499. Those judgments extensively cite and analyse the previous case law. They were the only cases referred to by the District Judge and the only cases cited to us in this appeal. Like the present case, Woodward was an appeal by the Prosecution by case stated, against a decision – notwithstanding a certificate – to dismiss a prosecution on grounds of it being brought out of time. The appeal succeeded. In Chesterfield on the other hand the challenge was by way of judicial review by the Defence in the criminal proceedings, brought against a decision declining to dismiss the prosecution as being brought out of time. The claim failed. In each case – as in this case – the question was whether the magistrates’ court had been “wrong in law”.

The cases treat as settled law that a certificate can be impugned – so that the criminal court can look behind it and treat it as being other than “conclusive evidence” of the relevant date – on three grounds only.

These three permissible grounds were rolled up into the following summary in Chesterfield, among a number of conclusions described as rooted “firmly” in “policy, language and authority” (see Chesterfield §58) at §62:

The principle which requires a certificate – which is in the proper form and non-fraudulent – to have an “error on its face” before it is impugned has a necessary corollary. It involves the identification of a permissible, and an impermissible, enquiry. The permissible enquiry is encapsulated by “on its face”. The enquiry, permissibly to arrive at the conclusion that a certificate bears a vitiating “error”, is limited to looking to the “face” of the certificate. Looking beyond the “face”, to find the error by reference to “evidence” which is “extraneous”, is the impermissible enquiry. This is seen in the fuller passage from Chesterfield at §62:

Applying the relevant principles to the facts of the case, and identifying “extraneous evidence” as “inadmissible”, Males LJ concluded as follows in Chesterfield at §63:

In analysing whether the prosecution was within time or out of time, the District Judge gave a detailed 52-paragraph written judgment on 17 December 2020 (the “Judgment”). She then incorporated the Judgment in its entirety – adding one amplificatory paragraph and one final clarificatory paragraph – into the Stated Case which she issued on 23 March 2021.

The District Judge began the Judgment by summarising, as follows, the essential argument advanced by the Prosecution, which she did not accept (Stated Case at [6]):

A number of key sources stood as reference points for the District Judge’s analysis. I will identify them here by way of a chronological list. (1) The MG3 (“a police request for charging advice”) dated 8 November 2018. (2) The “evidence in the case… first received by the prosecution on 21/03/19”, at which point “some evidence was missing and request was made for further information”. (3) The “police misconduct file… received” on 10 May 2019. (4) A mobile phone “attribution statement” received on 27 November 2019. (5) The Certificate. (6) A “chronology” provided by Ms Frain in the criminal proceedings, setting out “her involvement and knowledge of the evidence in the case”, which was then embodied in the First Respondent’s skeleton argument for the hearing before the District Judge on 17 December 2020, constituting an “Agreed Chronology”. (7) The oral evidence of Ms Frain who was called as a witness at the hearing on 17 December 2020, was cross-examined by Counsel for the First Respondent and then by Counsel for the Second Respondent, then re-examined by Counsel for the Prosecution.

There were, in essence, four stages in the District Judge’s decision-making approach, leading her to the ultimate conclusion. Stage (1). The District Judge started by considering the Certificate, in the light of the contents of the Agreed Chronology. The outcome of that stage was the Judge’s conclusion that it was appropriate to hear oral evidence from Ms Frain. This first stage was described by the District Judge – in her summary of the defence argument which I have set out above (from Stated Case at [7]) – as the defence reliance on the “factual matrix in the agreed chronology” as suggestive of the Certificate as being “plainly wrong” about the date at which “the evidence came to the knowledge of the prosecutor”, on which she should “hear evidence and reach a determination on the issue”. The District Judge agreed, recording (at [7]) that:

Stage (2). Next, the District Judge allowed the introduction of the oral evidence of Ms Frain. This was evidence which the District Judge set out at length in the Judgment. Her description of it occupies 31 paragraphs of the Judgment and, by incorporation, the Stated Case. Features of that evidence included: Ms Frain’s description of the conclusions which she had reached and the date on which she had reached them; the various reviews of the file which had taken place in the date on which they had taken place; the evidence which had been received by the CPS as at March 2019 as at May 2019; the reasons why an attribution statement analysing evidence elicited from mobile phones was considered necessary; the attribution statement received on 27 November 2019; together with other matters.

Stage (3). Next, the District Judge arrived at her “findings of fact”. Those findings were set out in the Stated Case as follows (including the amplificatory additional paragraph at [49]):

Stage (4). Finally, the District Judge arrived at her ultimate conclusion. This was that the Certificate was “plainly wrong” and the prosecution of the Respondents was “out of time”. As she put it, in formulating Question (3) for this Court (to which I will return):

In her analysis the District Judge placed strong reliance on a particular passage from the “conclusions” section in the judgment of Males LJ in Chesterfield at §60, which the District Judge set out (Stated Case at [8]):

In expressing her ultimate conclusion, the District Judge picked up on that passage. She prefaced the passage which I have quoted and described as underpinning her ultimate conclusion (at [51]) with the following observation identifying what she saw as a symmetry with Chesterfield at §60:

In the Stated Case the District Judge has posed these Questions for this Court:

The Prosecution’s position on this appeal is encapsulated in its Grounds of Appeal, which are as follows:

The central issue on this appeal is whether the District Judge went wrong in law, as the Prosecution submits, because she allowed the Respondents to impugn the Certificate on an impermissible ground and by reference to an impermissible enquiry. Not so, say Mr Pitter KC for the First Respondent, and Mr Worsley for the Second Respondent. They defend the District Judge’s approach and analysis, in essence as I saw it, on the following basis.

Mr Pitter KC submitted as follows. It is correct, on the basis of Woodward and Chesterfield, that the Certificate could be impugned only on the basis of “error” if there were an “error on the face of the Certificate”, and not an “error” identifiable by reference to “evidence” which is “extraneous”. However, this is an exceptional case. Whether by way of a legally correct understanding of “error on the face of the certificate”, or if necessary by way of a narrow and principled new category of “error”, this case falls within an exceptional category of case in which the District Judge was correct, and at least entitled, to depart from the Certificate as not being “conclusive”. A number of features combine to make this case exceptional and produce that outcome. They come to this: (1) the fundamental nature of the error; (2) the degree of clarity of the conclusion reached; (3) the nature and status of the key source relied on to identify the error. A possible encapsulation of this combination of features would be as follows: this is an exceptional case, where an ‘error of approach’ was ‘clearly’ demonstratable from a ‘uncontroversial documented fact’. Recognising these key features does not, or should not, be regarded as an impermissible ground or enquiry. The key stage was stage (1). The key source for the District Judge’s clear conclusion was the Agreed Chronology. It constituted “recognised fact”. It was not, or not simply, “evidence” or “extraneous” evidence. Because the contents of the Agreed Chronology were uncontentious, the assessment of the facts did not offend the policy and purpose of insisting on an error “on the face” of the Certificate, namely to avoid a ‘satellite enquiry’ into disputed facts and contentious evidence. The facts did not require “assessment”. They did not require “forensic analysis”. True, the District Judge allowed Ms Frain’s oral evidence to be adduced. But she did so, as an act of fairness towards the Prosecution, to give a chance of attempted rebuttal of a conclusion supported by the Agreed Chronology. The nature of the error was fundamental. It was an “error of approach”. This was why the District Judge emphasised the important passage from Chesterfield at §60. In issuing the Certificate, Ms Frain had misunderstood and misapplied the statutory provisions.

Mr Pitter KC made the following further key points. First, that §60 of Chesterfield is a key part of Males LJ’s careful analysis. The District Judge rightly treated it as informing the question whether the Certificate contained an “error on its face”. The passage at Chesterfield §60 “crucially” sets out what it is that a certificate has to represent. It would be artificial to treat it as irrelevant to the grounds and enquiry by which a certificate can be impugned. Secondly, the Respondent’s analysis is supported by other passages: Chesterfield §21, where Males LJ said that “considering what the fact is of which a valid certificate is conclusive evidence” is something which serves to “inform discussion of the issue of the status of the certificate”; Chesterfield §28 which emphasises that the relevant date involves the relevant “fact”; Chesterfield §29 which identifies “the ‘fact’ which has to be certified”; and Chesterfield §57 which describes “a valid certificate”, “determinative … unless inaccurate on its face”, as one which must be “saying the right thing”. Thirdly, it would be a clear injustice if the Prosecution could continue to rely as “conclusive” on a certificate, involving an error of approach, clearly demonstrated, from uncontroversial documented fact. Fourthly, that this injustice should be confronted directly as constituting an error in the Certificate. That direct route is preferable to the possible alternative. The alternative would mean challenging the Prosecution’s decision to maintain the Certificate, as constituting a species of “abuse of process”. Mr Pitter KC told us that an “abuse of process” analysis was raised, in the alternative, before the District Judge.

Mr Worsley adopted all of these submissions and added some key points of his own. First, he had a locational point. The position – by reference to whatever route or source or enquiry – is that the “error” can be located in what is said “on the face of the Certificate”. Secondly, he described as inevitable the need for an “extraneous” source. An “error” which is “on the face” of a certificate will always need to be identifiable by using some source which shows it to be an “error”. It has to be possible to look somewhere. Third, he emphasised the reasoning in Woodward at §28. In that passage, the Divisional Court identified as “an error” which was “clear from the certificate” the fact that the certificate “did not accurately reflect the wording of [the statute]”. That was because the certificate appeared “to focus on the date upon which the evidence … had been collected … by the FSA”. The point was that the FSA was the investigatory body, not the “prosecutor”. Reference was made at §28 to the fact that the actual “prosecutor” “did not even receive the file until three months later”. That example, says Mr Worsley, illustrates reference being made to facts and matters beyond those set out in the certificate, whose contents the Court had earlier set out (Woodward at §11).

There was one point of divergence between Mr Pitter KC and Mr Worsley. Mr Pitter KC emphasised, if necessary, that the attribution statement (27 November 2019) related to the Second Respondent’s mobile phone. He says, in those circumstances, that the relevant date in the case of the First Respondent must have been earlier than 27 November 2019. That is on the basis that the attribution statement “added nothing” in the case of the First Respondent.

I am unable to accept the Respondent’s submissions. In my judgment, as soon as the Certificate was being impugned by reference to “the factual matrix in the Agreed Chronology”, for the purposes of showing that the Certificate was “wrong” or “plainly wrong”, the District Judge was allowing an impermissible ground and an impermissible enquiry. Any “error” was not “on the face” of the Certificate. Since neither of the other two permissible grounds was applicable, the Certificate could not be impugned. That was the end of it.

There is a difficulty with the District Judge’s strong emphasis on Chesterfield §60. The Respondents say she was right to rely on that passage and to apply it in finding, by reference to the Agreed Chronology, that there was an error in the Certificate. I cannot agree. It is important to appreciate that distinct questions can arise in relation to statutory provisions like section 127(5) and (7) of the 2003 Act. Section 127(5) identifies the certifiable relevant day as “the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings”. There are questions about who is “the prosecutor”; about what it means to say that “evidence comes to the knowledge of” the prosecutor; about what it means to say evidence “sufficient to justify proceedings”; and about what it means to say the prosecutor “considers” the evidence which has come to their knowledge to be “sufficient”. These are all relevant questions so far as concerns section 127(5)(b), correctly interpreted and lawfully applied by a certifying prosecutor. They are analysed in detail in the authorities, and in Chesterfield in particular. But these are distinct from the question of what permissible “grounds” – and what permissible enquiry – allow a certificate to be impugned.

In the section of Chesterfield headed “the authorities” (at §30-57) Males LJ identified these as being “issues” addressed in the previous authorities (§30):

It is the next section of the judgment (Chesterfield §§58-63) which is headed “Conclusions”. It begins with this (§§58-59):

Mr McGuinness KC submits that:

In impugning a certificate, it is not enough to try – or be able – to point to extraneous evidential material which is said to show that “the fact” which has been certified “is not correct”. The degree of certainty of the conclusion does not assist. As the cases explain, “plainly wrong” does not suffice. What is needed is that the certificate is wrong – or plainly wrong – “on its face”. That is not a reference to the location where the “error” can ultimately be found stated. It is also a reference to the enquiry which permissibly leads to the conclusion that there is a vitiating error. This is why the nature and scope of the permissible enquiry is of such importance. It is deliberately a “very limited” exception to a prohibition on an enquiry into facts. That position is encapsulated as follows (Chesterfield at §23):

Nor is it right to regard the “very limited” permissible enquiry as being an engine of injustice. In the first place, this is primary legislation in which Parliament is deliberately entrusting a function to a certifying prosecutor, applying a subjective test. The clear function and purpose of the certificate is to stand, not as “evidence” of the relevant date, but as “conclusive” evidence. Secondly, this is designed to promote certainty, so that – leaving aside fraud (which ‘unravels all’) – everyone can look at the certificate and know where they stand (including whether it is in the proper form and whether it has an error on its face). Thirdly, this is designed to avoid any external factual enquiry, and to avoid lines being drawn about questions of degree in satellite disputes. The idea of exceptionality, based on an error of approach which is clearly demonstrated, from uncontroversial documented fact, itself illustrates lines being drawn about questions of degree in satellite disputes about external factual enquiry. The principled certainty is lost. The policy and purpose of “error on the face of the certificate” are therefore undermined. As it was put in Chesterfield at §26:

I would agree with Mr Worsley – to a point – that it can be permissible to look at some “source” beyond the Certificate, in order to decide whether there is an “error on the face of the certificate”. One can take a certificate and examine it against the contents of the statutory provisions themselves, to see if what is recorded on the face of the certificate involves a recognisable error. The statute is external to the Certificate. But it does not involve an impermissible enquiry into inadmissible extraneous evidence. For the same reason, I would also agree – to a point – with Mr Pitter KC that the analysis in Chesterfield at §60 is capable of informing the assessment of whether the Certificate has an “error on its face”. One can take a certificate and examine it against the contents of the judgment in Chesterfield, including §60, to see whether there is an “error” on its “face”. If the Certificate were to say something on its “face” which shows that the certifying prosecutor has asked the wrong question – where it is Chesterfield §60 which identifies the right question – that is an “error on the face of the certificate”. But it involves the permissible ground and the permissible enquiry.

Mr Pitter KC and Mr Worsley accept that the Certificate was “in the proper form”. They did not, and do not, submit that there was “fraud”. The Agreed Chronology was “evidence”, notwithstanding that it was uncontroversial. It was akin to “agreed facts”, which is itself “evidence” (see eg. Crown Court Compendium Part I pages 4-3, 12-6). In Woodward itself the Court referred to the “evidence of the case history” (§32) which included a “chronology” as well as a “screen print of the case history” (§15). That “evidence” was “extraneous”, which means “extraneous to a … certificate” (Woodward §31). Resort even to the Agreed Chronology meant the error was not identifiable “on the face of the certificate”. The Court in Woodward concluded that the March 2016 certificate (§11) “did not accurately reflect the wording of [the statutory provision]” and which described the “date by when the evidence had been collected by the FSA” (the non-prosecutorial body with the “investigatory role”: §26). The Court said that the error which it had identified was “clear from the face of the certificate” (§28). As was later explained in Woodward (§29) the judge had erred in relation to July 2016 certificates (§14), because the judge “ought to have considered the July 2016 certificates on their face, and asked himself whether there was anything patently wrong with them”. I do not accept that Woodward can be read as involving an enquiry by reference to extraneous evidential material; nor that such an approach can survive Chesterfield.

In the present case, the only references made by the District Judge to error on the “face” of the Certificate were in the description of the Prosecution’s argument (Stated Case at [6]), which the District Judge rejected. Nowhere else did the District Judge use that expression. Nowhere did she conclude that the Certificate was erroneous on its “face”, or give reasons why. Nowhere did she say that the Agreed Chronology was being treated as anything other than “evidence”, which was “extraneous” to the Certificate. No error on the “face” of the Certificate has been identified. The true thrust of the argument was that the relevant date which was certified was incorrect – or unreasonable – when viewed against the evidence, starting with the Agreed Chronology. But that is not a permissible ground and is an impermissible enquiry.

The Prosecution’s argument – which the District Judge had summarised (at [6]) – was legally correct. The District Judge was wrong in law not to accept it. There was no challenge to the Certificate as not having been “in the proper form” and complying strictly with the statutory requirements. There was no challenge based on fraud. But nor was there any challenge based on error on the “face” of the Certificate. The District Judge’s Stage (1) was itself an impermissible enquiry into whether the Certificate could be said to be “wrong” (or “plainly wrong”) by reference to “extraneous evidence”.

It follows – since the District Judge ought to have considered only what was said on the “face” of the Certificate (from which she identified no “error”) – and ought not to have reached her adverse conclusions even by reference to the Agreed Chronology, that Grounds [1] to [3] of the Grounds of Appeal are each made out and that the answer to Questions (1)-(2) is “yes”.

That is sufficient to decide this case, but there are other points with which I should deal. First, part of the Respondents’ argument characterises the District Judge’s Stage (1) as critical, with Stage (2) as an act of fairness towards the Prosecution, to give a chance of attempted rebuttal. I do not accept that characterisation. The District Judge does not say that this is what she did. At one point (Stated Case at [54]) the District Judge describes her Stage (1) as leading to the “view” that the Certificate was “arguably” wrong. The oral evidence was undoubtedly “extraneous evidence”. The District Judge also said (at [7]) that it was “necessary” to receive evidence “to make a determination”. In the event, since even the Agreed Chronology was extraneous evidence, this point goes nowhere.

Secondly, there is the divergence point: Mr Pitter KC’s argument that the attribution statement of Ms Young (27.11.19) related only to the Second Respondent’s mobile phone, so that sufficient evidence, in respect of the First Respondent, must have been received no later than 10 May 2019. This contention itself depends on “extraneous” evidence, and how it is characterised. It does not arise on the “face” of the Certificate. It does not involve identifying an error on the “face” of the certificate itself. It cannot assist.

Thirdly, there is the distinct point raised in Appellant’s Grounds of Appeal at [4] and [5]. The argument is this. Even if it had been open to the District Judge to consider whether the Certificate was plainly wrong, by reference to extraneous evidence, she nevertheless still erred in law. That is because she substituted an “objective test” of the date at which in the District Judge’s opinion Ms Frain ought to have come to the knowledge that there was evidence she considered sufficient to justify proceedings. This was itself an error of law, given the “primarily subjective issue” as framed in section 127(5)(b). In my judgment, there is force in that submission. The District Judge herself in Question (3) describes herself as finding there to have been relevant evidence “objectively sufficient to justify the prosecution”, as well as her finding that there had been “ample time” to make the required determination. The force is that Parliament defined the relevant date by using the subjective phrase “which the prosecutor considers sufficient”. That means, even in a case in which no certificate is issued and the Court has to apply section 127(5)(b) to decide whether a prosecution is out of time, it would still be necessary to address the “relevant date” by recognising that latitude for prosecutorial judgment for which Parliament had made provision. It is unnecessary to say more. None of this arises in the present case. It presupposes an inappropriate enquiry. The legally appropriate enquiry, before a Certificate could be treated as other than conclusive evidence of the relevant date, was restricted in a way described in the authorities. The subjective/ objective criticism does not therefore arise.

Fourthly, reference was made to the alternative of an abuse of process argument. Mr Pitter KC explained why his arguments focused on direct challenge to the Certificate as involving a relevant “error”, and not indirect challenge through seeking to characterising the maintenance of the Certificate as an abuse of process. I think that focus was correct. The limits of “error on the face of the certificate” cannot be circumvented by challenging the decision to maintain an ‘erroneous’ certificate and characterising it as an abuse of process. As has been seen, this was what at Chesterfield §30(5) Males LJ had called “the abuse issue”. His answer included this (at §70):

For the reasons given, I would allow this appeal. I would answer “yes” to all Questions and would find that the District Judge materially erred in law. I would quash her determination dismissing the proceedings and remit the matter to the magistrates’ court, with a direction that the magistrates’ court refuses the application to dismiss the proceedings.

I agree.