Breach of Procedure not fatal to prosecution

01 Jan 2018

Licensing, Public Law and Judicial Review

The Divisional Court has allowed the Council’s appeal in the case of Aylesbury Vale District Council v Call a Cab Limited. It ruled that a single breach of a procedural requirement upon which a prosecution depends does not automatically mean that prosecution will fail. The Defendants were prosecuted for operating a private hire vehicle without a licence. They claimed that the Council had failed to carry out the correct procedures in 1989 when they sought to adopt the private hire controls in Part 2 of the Local Government (Miscellaneous Provisions) Act 1976. The District Judge accepted their argument, ruling that a failure to notify 12 out of the 112 parish councils in the district meant that the Act had never been validly adopted and the prosecution therefore failed. This case caused such concern that the Local Government Association wrote to all councils in July warning them of the implications. In an ex tempore decision Mr Justice Ouseley, with whom Lord Justice Treacy agreed, said that the starting point must be the statutory context read as a whole. He said it was significant here that the Defendants had suffered no prejudice because the Act did not require notification to them, but to the parish councils. He said that the magistrate ought to have considered the degree to which there had been “substantial compliance” with the procedural requirement, echoing the words of Lord Woolf in R v SSHD ex parte Jeyeanthan [2000] 1 WLR 354. They remitted the matter back to the magistrates’ court for further consideration. Mr Justice Ouseley rejected the Council’s first ground of appeal, which concerned the inferences the District Judge drew from the lack of mention of receipt of any notices in parish council minutes, but did comment as to a number of different ways a council might be able to demonstrate service and confirmed that any Court examining the matter should start from the presumption of regularity, i.e. that the Council had done what it ought to have done.

James Findlay QC commented: “In Boddington v British Transport Police the House of Lords ruled that a defendant was entitled to raise the invalidity of an instrument as a defence in the magistrates’ court, rather than seeking judicial review but there has been a lack of guidance from the higher courts as to how magistrates’ courts should approach public law defences in a criminal context. This case for the first time directly addresses that issue and provides at least some guidance as to the proper approach.”

For full transcript of the case, please click here: AVDC Transcript

James Findlay QC and Rory Clarke appeared for AVDC; Philip Kolvin QC appeared for Call a Cab Ltd.