01 Jan 2018

In a significant judgment handed down on 18 April 2013, the Divisional Court (Sir John Thomas P and Simon J) has emphasised that only in an exceptional case should a criminal court stay criminal proceedings on the basis of a challenge to the decision to prosecute.

The case concerned the prosecution of the Claimant company by Runnymede Borough Council for eight alleged contraventions of the Food Hygiene (England) Regulations 2006 in respect of a pub operated by the company in Surrey.  The prosecution followed an inspection of the kitchen at the pub by a senior environmental health technician in March 2011.  He wrote a report recommending prosecution, but under the Council’s scheme of delegation the ultimate decision to prosecute rested with the Corporate Head of Governance and Assets (Mr Leo) in consultation with the Director of Technical Services (Mr Sims).  The statutory Code of Practice issued by the Secretary of State under the 2006 Regulations required enforcing authorities to operate a graduated and educative approach to enforcement and only move to formal action (ultimately prosecution) if informal action did not achieve the desired effect.  The Code stated that an authority’s Food Law enforcement policy should reflect the factors set out in the Code and departures from the policy “should be exceptional and the reasons for any departure should be recorded.”  Before deciding to prosecute, a food authority should consider whether the enforcement policy had been adhered to.

Following the issue of the summons the company’s solicitors sought to persuade the Council to drop the prosecution on the basis that prosecution was not in accordance with the Council’s enforcement policy.  The Council declined to do so and the company applied to the court to stay the prosecution for abuse of process on the basis that the decision to prosecute was irrational, inconsistent with the Council’s own published enforcement policy and not proportionate in all the circumstances.  At the hearing in December 2011 it was unclear who had taken the decision to prosecute and, as the case had to be adjourned, the District Judge said that he would give the Council the opportunity to call the decision-maker at the next hearing.  The Council then disclosed the prosecution report which revealed that while Mr Sims stated that he had considered the enforcement policy, Mr Leo had merely signed off the report “Authorisation to proceed with this prosecution is hereby given.” Mr Leo did not attend the adjourned hearing (he was said to be in Hong Kong) but he had made a short witness statement: in this he stated that he had reviewed the evidence and had satisfied himself that the evidential and public interest tests in the Code for Crown Prosecutors had been met, but he made no reference to the Council’s enforcement policy.

District Judge Workman found that it was more likely than not that Mr Leo had not considered the enforcement policy “as he was required to do under the legislation.”  However, he held that he also had to consider whether bringing the prosecution was oppressive.  Refusing a stay, he held that if the condition of the kitchen on the day of the inspection was “so lacking in cleanliness” as to infringe the regulations, a conviction could not regarded as oppressive unless a defence on the facts could be raised.  The company challenged this in judicial review proceedings, arguing that if, on a proper application of the policy the prosecution would not have been brought, it was oppressive without more for the prosecution to be allowed to continue.  The DPP was given permission to intervene in order to be heard on the issue (raised by the Council at the leave hearing) whether a magistrates’ court could review a prosecutorial decision as a “mini judicial review.”

The Divisional Court dismissed the JR application.  They held (i) that a magistrates’ court has no power to review a prosecutorial decision other than through an abuse of process application; and (ii) on a review of all the evidence, including a letter written by Mr Leo to the company’s solicitors, the Council had followed its own enforcement policy.  In view of that second holding, the court did not need to consider the oppression issue.  However, they did so, holding that an erroneous application of the policy would not suffice: only if the decision to prosecute had been “entirely arbitrary” might a court hold that it would be oppressive for the prosecution to continue.

It is arguable whether the court should have effectively reversed the District Judge’s finding that Mr Leo had not considered the council’s enforcement policy.  The Council had not sought to cross appeal on that issue and, as a finding of fact, it should only have been reversed if “perverse,” a word not used in the judgment.

Two concluding observations in the judgment are, perhaps, controversial:

First, at para 51(iv) the court discourages the disclosure of the document recording the decision to prosecute, saying that a report recommending and recording the decision to prosecute “is generally a confidential document” and that reasons for a decision to prosecute should be given “exceptionally.”  However, the   statutory Code of Practice under Food Hygiene Regulations clearly envisages that such a document will be disclosed, since para 3.1.4 states that “Officers should explain the reason for bringing a prosecution and record that reason, which may later be referred to in open Court.”

Second, and seemingly following on from the above, para 51(v) of the judgment appears to be suggesting that the DPP should have an input in the Codes of Practice issued by secretaries of state under regulatory law (such as the Food Hygiene Regulations) for which the DPP is not the enforcing authority.  Surely this is a matter for the Attorney-General, if anyone, not the DPP?  The implications are obvious and it will interesting to see how, if at all, the Government responds.

David Lamming appeared for Barons Pub Company Ltd.