A Local Authority’s Ability To Prosecute Outside Its Area.
First published in the Justice of the Peace (2003) 167 JPN 227.
S 222 Local Government Act 1972
Section 222(1) of the Local Government Act 1972 ("LGA") provides: "Where a local authority consider it expedient for the promotion or protection of the inhabitants of their area ... they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name." At first blush, this provision appears to give a local authority all the power it needs to prosecute offences which have been committed outside of its area, even if there is no duty to do so, provided always that such a prosecution is in the interests of its local residents.
The ability of a local authority to prosecute offences committed outside of its borders will often be in the interests of all concerned, including the accused. A defendant who commits the same type of offence in the domain of more than one local authority can have all the matters dealt with by a single prosecutor in a single court. There will be savings in time, public money and resources, and also in defence costs. It also means that the defendant can be sure that the court dealing with him, if he pleads or is found guilty, will sentence him once and for all for the entire bout of criminal activity. This may be particularly important in cases where the defendant commits a consumer offence involving the sale or offer for sale of identical goods in different geographical areas. If prosecuted by different local authorities, the defendant could find himself effectively punished several times over for what is substantially the same offence. In December 1999 the Audit Commission published its national report entitled "Measure for Measure – the best value agenda for trading standards services" in which it noted that large companies may sometimes be prosecuted for the same offence by several authorities. The report observed that poor co-ordination between authorities results in duplication and a reduced ability to deal with rogue traders who cross council boundaries". The Audit Commission cited as an example the prosecution of the national retailer, Poundstretcher, in 1997. Seven separate trading standards authorities had investigated Poundstretcher's sale of a "Kids Art Collection Set" which contained pens without the necessary hole in the end of their caps to prevent choking, and possible death, if swallowed. Five of the authorities prosecuted Poundstretcher and, in different courts on the same day, they were fined £2,500 and £500 respectively for selling the same pens in the different local authority areas. Of the other three prosecutions, one was withdrawn and two resulted in absolute discharges. The Audit Commission highlighted the duplication of cost and effort by the local authorities concerned and that "the company was prosecuted and incurred costs several times for what was essentially a single error on its part."
Another graphic example of where a defendant may find itself prosecuted several times for a single act is where it publishes a false statement in a brochure or advertisement. It was held by the House of Lords in Wings Ltd v Ellis [1985] 1 AC 272, that a separate offence of making a false statement, contrary to s 14(1) of the Trade Descriptions Act 1968, may be committed not just when the statement is printed, but each time it is read and indeed at other stages before it is read. Hailsham LC said: "When in the course of a trade or business, a brochure containing a false statement is issued in large numbers through a chain of distribution involving several stages, and intended to be read and used at all or some of the stages, it does not follow that it is only 'made' at its ultimate destination. It may be 'made' when it is posted in bulk, when the information is passed on by telephone or in smaller batches by post, and when it is read by the ultimate recipient, provided that at each stage what happens is in accordance with the original intention of the issuing house." These various offences in the case of a brochure are quite likely to take place in the areas of numerous local authorities and, in the case of a holiday brochure, quite possibly in every local authority area in the country. Although Hailsham LC warned that, depending on the circumstances, "a prosecution policy of excessive zeal involving repeated attempts to convict a firm in respect of each separate communication of an individual copy of a brochure ought to meet with … reprobation from the courts" there could clearly be a number of prosecutions flowing from publishing a single false statement or from composing a single label which is then applied to thousands of identical copies of the same goods.
Whereas the prospect of several local authorities prosecuting a trader for what may amount to a single offence can be oppressive, a local authority which does not enable itself to apprise the court of the full extent of a defendant's activities, by including cross-boundary offences within its prosecution, could be failing in its duty to the court and to the general public. The Code for Crown Prosecutors published by the Crown Prosecution Service is generally applied, where relevant, by local authority prosecutors. Paragraph 7 of the Code provides that the prosecution should select charges which, inter alia, "(a) reflect the seriousness of the offending; (b) give the court adequate sentencing powers; and (c) enable the case to be presented in a clear and simple way". In some cases, to confine the evidence made known to the court to a single geographical area may deprive the court of relevant knowledge and of an appropriate level of sentencing powers.
Where it is in the common interests of their local residents, a number of local authorities may (subject to other constraints such as avoiding undue delay and complying with statutory time limits) collaborate on prosecuting an offender and agree that one of them should undertake all the prosecutions. The local authority chosen to prosecute may well be the "home authority" i.e. the local authority where the defendant's business primarily operates. In some cases, however, another local authority may take up the mantle because it had made all the running in terms of conducting the investigations or because the majority of offences had been committed in its area.
Duty or Power
Regulatory legislation will often impose a duty on a local authority to enforce its provisions within their area. For example, s 26 of the Trade Descriptions Act 1968 ("TDA") provides that "it shall be the duty of every local weights and measures authority to enforce within their area the provisions of this Act and of any order made under this Act." A similarly couched duty can be found in s 27 of the Consumer Protection Act 1987 ("CPA"). Where there is such an express duty to enforce and hence, where appropriate, to prosecute offences, there can be no doubt that it carries with it either directly or in conjunction with s 222 LGA, a power to prosecute such offences. In R v Weights and Measures Authority ex p Wedgewood (CO/1208/98), a disgruntled consumer sought judicial review of a local authority's decision not to prosecute the publishers of a book, the title of which he considered to be misleading. Turner J said: "It is not necessarily the case that even if the authority had been persuaded that the inclusion of the word 'science' in the title of a book was a matter of fact falsely stated, that the authority would have been under any obligation to bring proceedings. It is true that a local authority is charged with the power to bring proceedings as an enforcer, it is not obliged to do so." Although Turner J did not expressly refer to s 26 TDA, it is apparent that he was taking the duty to enforce, imposed by that provision, as carrying with it a power to prosecute. The decision whether or not to prosecute is, however, a matter for the local authority since there are other means of complying with the duty to enforce.
Whilst provisions such as s 26 TDA and s 27 CPA may provide local authorities with the power to prosecute specific offences, it does not follow that they cannot rely on their general powers, conferred by s 222 LGA, to prosecute where specific powers do not apply because, for example, they are limited to enforcement within the local authority's area.
The local authority's power under s 222 was held in R v Jarrett and Steward (1997) 161 JPN 816, to be wide enough to enable a local authority to prosecute a car dealer for the common law offence of conspiracy to defraud, by car clocking, even though the duty imposed by s 26 TDA was limited to prosecuting offences under that Act. The defendant argued that the local authority's power under s 222 LGA was limited to matters relating to the interests of local inhabitants such as nuisance, highways and boundary disputes. Rose LJ, however, decided that: "So far as [s 222 LGA] is concerned, there is … no warrant for limiting in any way the words of the section which, on their face, are extremely wide."
In Nottingham City Council v Zain (A Minor) [2002] 1 WLR 607, the local authority's application for an injunction to restrain the defendant from entering a housing estate in its area was refused by the County Court judge on the basis that s 222 LGA did not empower the institution of proceedings unless the local authority was under a duty to enforce a relevant enactment or to protect the relevant interests of the local inhabitants. On appeal, the Court of Appeal rejected the respondent's submission "that in the absence of any express power to take action in relation to such non-statutory public nuisances a local authority was acting beyond its powers in busying itself with such matters." Schiemann LJ said: "In my judgment it is within the proper sphere of a local authority's activities to try and put an end to all public nuisances in its area provided always that it considers that it is expedient for the promotion or protection of the interests of the inhabitants of its area to do so in a particular case. … I consider that an authority would not be acting beyond its powers if it spent time and money in trying to persuade those who were creating a nuisance to desist."
In Middlesborough Borough Council v Safeer [2001] 4 All ER 630, the defendant was convicted in the magistrates' court of using a motor vehicle without insurance, contrary to s 143 of the Road Traffic Act 1988 ("RTA"). He appealed to the Crown Court which held that the prosecutor had no power to bring the prosecution. The Crown Court accepted that s 4 of the Road Traffic Offenders Act 1988 (the "RTOA") contained an exhaustive list of offences under the RTA in respect of which a local authority could "institute" proceedings and that s 143 was not included in that list. The local authority, it was held, could not prosecute any offences not in the list because their powers under s 222 to "prosecute" did not include the power to "institute" proceedings. On the local authority's appeal to the Divisional Court, Silber J said: "The use of the word 'prosecute' means that the local authority is entitled to take all steps necessary to institute and pursue a prosecution. I do not accept that the word 'prosecute' has any more limited meaning than that and, in particular, I do not accept that it excludes the institution of proceedings. … There is no statement, expressed or implied, in s 4 of the [RTOA] which states that it sets out the only circumstances in which the local authority can prosecute. Thus, I conclude that s 4 has no effect on any other power given to the local authority to prosecute." It follows, by analogy, that if the enforcement "duty" created by such provisions as s 26 TDA and s 27 CPA give a local authority a "power" to prosecute, they do not prevent a local authority from exercising its quite separate power to prosecute under s 222 LGA. Whilst the duty to prosecute derived from s 26 TDA or s 27 CPA is confined to the local authority's own area, the general power conferred by s 222 LGA is not so circumscribed provided that "the local authority consider it expedient for the promotion or protection of the interests of the inhabitants of their area."
Not for court to determine if s 222 applies
It is to be observed that the question of what is expedient under s 222 LGA is a subjective one. It is for the local authority, not anyone else, to determine whether a prosecution outside its borders will benefit its residents. Furthermore the maxim omnia praesumuntur rite esse actum (that all things done are presumed to have been done properly) applies. Hence, there is a presumption that a local authority has properly considered whether it is expedient to prosecute using its s 222 powers.
In the unreported case of London Borough of Barking & Dagenham v Jones (1999/035/1), the local authority applied for an injunction to restrain Jones from persisting in breaches of the TDA, Unsolicited Goods and Services Act 1971 ("UGSA") and Business Names Act 1985. The order sought was to prevent Jones from falsely describing the printer cartridges, which he sold, as being capable of producing more copies than they were and as having a longer shelf life than they did and being new when they were not. The injunction was also sought to restrain Jones from demanding, and making threats for, payment of invoices supplied to the recipients of unsolicited goods and sending business letters and invoices which did not bear his name. The local authority contended that unless the order was made, Jones would continue to deliberately and flagrantly break the law on an almost daily basis. Jones submitted, inter alia, that as none of the complainants were in the local authority's area it could not be said that the injunction was being sought for the protection of the inhabitants of that area as required by s 222 LGA. The High Court refused to grant the injunction, but it was subsequently granted by the Court of Appeal. Brooke LJ held that: "S 222 of the [LGA] gives a local authority power to bring proceedings like these in their own name where they 'consider it expedient for the promotion or protection of the interests of the inhabitants of their area'. It is for the local authority to make this judgment, not for the court, and the judge misdirected himself as to his proper role when he questioned whether the inhabitants of Barking were truly being served by the issue of these proceedings in the way which the section required, and impliedly gave the answer 'no' to that question. In Mole Valley District Council v Smith [1992] 24 HLR 442 Lord Donaldson MR said 'It is not for the courts in these proceedings to review the decision of the respondent councils under [s 222 LGA] ... Where the balance of the public interest lies is for the respondent councils to determine and not for this court.'" The application of the two local authorities in Mole Valley District Council v Smith (also reported at (1992) 90 LGR 557) was for injunctions to restrain Smith and others from using land as caravan sites for which there was no planning permission. The full text of the above quotation taken from the judgment of Lord Donaldson MR, in the Court of Appeal, is: "It is not for the courts in these proceedings to review the decision of the plaintiff councils under [s 222 LGA] to bring these proceedings on the basis of the council's view that to do so was 'expedient for the promotion or protection of the interests of the inhabitants of their area.' No doubt there are potential disadvantages for the public in moving the defendants off their existing sites if no other site is available, but where the balance of the public interest lies is for the plaintiff councils to determine and not for this court."
In R v Richards [1999] Crim LR 598, the defendant was convicted of conspiracy to defraud by clocking cars. He appealed on the basis that the prosecution's scheme of delegation only authorised "any legal proceedings arising out of the statutes relating to Trading Standards, Consumer Protection …" and hence did not enable a prosecution for conspiracy. Hidden J rejected that argument: "What the County Council was in fact doing was accepting a more effective means of charging the specific offences charged against the [TDA] by putting them compendiously in a conspiracy to defraud at common law, which this Court has several times pointed out is a sensible way of dealing with an intricate and complicated conspiracy." The defendant also argued that the prosecution had not shown that it had given proper consideration to s 222 LGA before instituting the prosecution. Hidden J held that: "The fact that [the informant] must have been considering what was expedient for the inhabitants of the area is to be inferred … from the fact that, after laying informations on a number of specific offences contrary to the [TDA] he then … as Assistant County Trading Standards Officer for and on behalf of Norfolk County Council Trading Standards Department, laid the information alleging the conspiracy to defraud. It is hard … to consider any way in which he could have come to that decision without specifically taking into his consideration the interests of the inhabitants of the area in not being deceived by a conspiracy to defraud by clocking the second-hand cars that were exposed for sale to the inhabitants in the area. We consider, in any event, that the presumption [given in the maxim omnia praesumuntur rite esse actum] arises in this case."
Then came Brighton and Hove v Woolworths
The Divisional Court's decision in Brighton and Hove City Council v Woolworths Plc (2003) 167 JP 21, if followed, will have all but removed from s 222 LGA the local authority's power to prosecute offences outside of their area. The case, however, appears to have been decided without reference to any of the previous authorities on s 222.
In the Woolworths case the local authority had served a suspension notice on Woolworths, pursuant to s 14 CPA, prohibiting them from supplying or exposing for supply a specified type of folding scooter, which was considered to be unsafe, without the local authority's consent, "at any of [their] outlets". Woolworths exposed the scooters for supply in its store in Brighton and also in its stores within the areas of local authorities in Gloucestershire, Sussex and London. Woolworths were prosecuted under s 14(6) of the CPA for offences in all four local authority areas. At the trial before the magistrates' court, Woolworths successfully contended, firstly, that a suspension notice was not effective outside of the area of the local authority which served it and, secondly, that, even if it was so effective, the local authority could not prosecute for offences outside of its area in the absence of delegated authority from the local authorities for those external areas. On the prosecuting authority's appeal by way of case stated, Field J held that: "S 14(1) does not in terms limit the power of an enforcement authority, which is a local authority, to issue a suspension notice only in respect of its area. The power conferred by the subsection is conferred on an enforcement authority, which can be the Secretary of State, any other Minister of the Crown, or a council under the duty imposed by section 27(1)(a). It is common ground that the Secretary of State and any other Minister of the Crown are empowered by section 14(1) to issue a suspension notice with countrywide effect. If this is so, the same must be true, in my opinion, as concerns a weight and measures authority. … [Woolworths] contended that section 14(1) should be strictly construed because section 14(6) provides for a criminal penalty. In my opinion the fact that by section 14(6) it is a criminal offence for a person to contravene a suspension notice does not require that the plain and ordinary meaning of section 14(1) be departed from." Thus far, therefore, Field J supported the local authority's position. Notably he held that the local authority's power to issue a suspension notice, under s 14, to take effect outside its area was not restricted by the fact that the local authority's duty to enforce s 14 was restricted by s 27 to its own geographical area. "The scope of the power conferred by s 14", he said, "is to be found in s 14 alone."
The local authority, having succeeded in its argument that it was entitled to have issued the suspension notice to take effect outside its area, went on to contend that it was entitled to prosecute breaches of such notice which took place outside its area. Moreover they argued that as they, and not the other authorities, had issued the suspension notices it was they who had the right to prosecute all of the breaches of the suspension notices. Field J, however, did not agree. He said: "In my view, [the three other local authorities] had the power to prosecute for the alleged breaches of the suspension notice which occurred in their areas and the appellant had no such power. … . The power to prosecute a breach of a suspension notice ... is derived from the duty to enforce imposed by section 27(1)(a), and that duty is a duty to enforce within the area of the weights and measures authority. ... The appellant had no power to prosecute in its own right breaches of the suspension notice which occurred outside its area because such a prosecution could not ex hypothesi be expedient for the promotion or protection of the interests of the inhabitants of its area as required by section 222(1) of the [LGA]."
With the greatest respect to Field J, his "ex hypothesi" conclusion is illogical and flawed. There was simply no basis for him to effectively rewrite s 222 by adjudging that a prosecution outside a local authority's area could never benefit the citizens of that area. It is submitted that such proposition was plainly wrong on the facts of this case. It would indeed be odd if a local authority should have the power to issue a suspension notice which was effective in the areas of other local authorities and yet not have the power to enforce it in those areas. If it was not in the interests of the inhabitants of Brighton and Hove to prosecute for offences committed outside of its area, then neither could it have been in their interests to issue the suspension notice to take effect outside its own area in the first place. Whilst local public interest is not a prerequisite of issuing a suspension notice under s 14(1), the duty to issue such a notice is, by s 27(1)(a), confined to the local authority's own area. If a local authority exercises a power to issue a notice to have effect in areas beyond the limits of its duty to do so, it must, on the face of it, be because it perceives such exercise to benefit its own inhabitants as well as those of the other areas concerned.
It should be observed that the defendant in this case was a national retailer. It was just as much in the interests of the residents of Brighton and Hove not to be sold dangerous scooters from Woolworths' shops they might visit when they ventured outside of their area as it was not to be sold such scooters from their local Brighton outlet. The interests of the local inhabitants lay in not being exposed to the danger presented by the unsafe scooters rather than in simply not having such scooters being sold in their locality.
If one explores the hypothetical situation where the nearest or most convenient Woolworths' shop for some inhabitants of one local authority is in the area of another local authority it can be seen that their interests may well be protected by cross border prosecutions. Field J's logic would seem to envisage local authorities as islands inhabited by people who never leave their shores. In reality many people live in one local authority area, but work in or otherwise travel to another. Some people may travel to or through several local authority areas in a single day. They should be no less protected when they buy unsafe goods whilst on holiday or when for work or other reasons they are many miles from home than when they buy such goods on their doorstep. The danger to the inhabitants of Brighton and Hove came not just from their ability to buy the unsafe scooters in Gloucestershire, Sussex or London but also from the prospect of the inhabitants of those areas (who may be friends or relatives) bringing such scooters into Brighton and Hove. The fact that a defendant has committed similar offences in a number of areas may be good reason for any of the local authorities for those areas to think that a combined prosecution of all the offences is more likely to deter further offences in its own area than would piecemeal prosecutions over which it has no control.
Even though Field J did not believe that prosecutions outside of Brighton and Hove could be in the interests of its inhabitants, that was not the test. It can be seen from Mole Valley District Council v Smith and London Borough of Barking & Dagenham v Jones, and indeed from the plain language of s 222 LGA itself, that it is a matter for the local authority to determine whether the bringing of proceedings is expedient.
Although Field J recognised that there could be advantages in having a multiplicity of breaches dealt with by a single prosecuting authority, he considered that that could be achieved by the Secretary of State taking over the management of the prosecutions. Such a course, however, will not always be possible or expedient and would still be inconsistent with the local authority's power to issue a nationwide suspension notice. He may not have taken account of the fact that his judgment would be taken to restrict any cross border prosecutions brought under s 222 LGA and not just those in relation to suspension notices.
No appeal by Brighton and Hove
It is understood that Brighton and Hove do not intend to appeal. Whilst it is submitted that Field J's restriction on the ambit of s 222 LGA is wrong, the basis on which Brighton and Hove argued their case before the magistrates' would have made an appeal by them inappropriate. The difficulty would have been that it was only in the Divisional Court that Brighton and Hove sought to rely on s 222 LGA. At the trial in the magistrates' court they argued that their power to prosecute was in fact derived from the delegation to them, by the other local authorities, of the right to prosecute on their behalf. They were not, however, able to produce sufficient evidence of those delegations to the satisfaction of the magistrates. Although this change of tack does not affect the point of law concerning the breadth of s 222, it could have affected an appeal. It will be remembered from R v Richards, that there is a presumption that the local authority has properly considered the expediency test under s 222 LGA. In this case, however, Brighton and Hove did not initiate the prosecutions in purported exercise of their powers under s 222. On the contrary they laid the informations on the delegated authority they professed to have from the other local authorities. That being so, even though they no doubt considered that all the prosecutions would benefit their residents they could not demonstrate that they specifically considered such expediency in the context of s 222. Had Field J dismissed Brighton and Hove's appeal for that reason, it may well have been a proper basis for doing so. His reasons, however, assume that Brighton and Hove had considered the applicability of s 222 but, in his judgment, it was not a power available to them for an out of area prosecution.
It is worth noting that there was no dispute that, if the local authority had the power to prosecute offences outside its area, the magistrate's court for the local authority's area had jurisdiction to hear them. By virtue of s 2(6) of the Magistrates' Courts Act 1980, so long as Brighton and Hove alleged one offence within the court's jurisdiction, it also had jurisdiction for any summary offences which could be tried in a different magistrates' court. S 2, incidentally, also enables the prosecution in a magistrates' court of indictable (or either way) offences committed in the area of another such court.
[Note: With effect from 1st April 2005, a new s 1(1) MCA was substituted by s 43(1) of the Courts Act 2003 such that an information may be laid before any justice of the peace and not just before a justice of the peace for the relevant commission area.
Note: With effect from 1st April 2005, a new s 2 MCA was substituted by s 44 of the Courts Act 2003 such that a magistrates' court has jurisdiction to try any summary or either way offence.]
The future options
Local authorities in the future have three options to consider should they wish to prosecute someone for offences committed outside of their area. Firstly, they could continue to exercise the power provided to them by s 222 LGA and, if challenged, rely on the authorities such London Borough of Barking & Dagenham v Jones. They would have to be aware that the defence might cite the Woolworths case against them. Should such a "defence" succeed it is to be hoped that the local authority concerned will appeal. The second possible course is to adopt the approach taken by Brighton and Hove of relying on delegated authority from the other local authorities in whose areas the offences were committed. They would, however, need to provide proof of such delegation and that there was a statutory power to delegate the prosecution of individual cases. The third possibility, in those cases where the offences concerned can be prosecuted by any individual and not just a local authority, is for the offences to be prosecuted by an individual officer in that person's own right. The second and third options are considered in more detail below.
S 101 LGA
S 101(1) of the LGA provides that, subject to certain exceptions, "… a local authority may arrange for the discharge of any of their functions- (a) by a committee, a sub-committee or an officer of the authority; or (b) by any other local authority." As already noted, Brighton and Hove, before the magistrates, sought to establish that they had the necessary delegated authority from the other three local authorities to prosecute the informations. Indeed they "accepted" that they "had to show" that they had such delegated powers. They sought to prove that they had the proper authority by relying on letters from only two of the other local authorities and on the oral evidence of the investigating officer. The letters failed to provide any "proper or admissible evidence" to prove the delegations and the officer's oral evidence was rejected as hearsay. Proving the existence of delegated powers, even as between committees and officers within a single local authority, can present some problems. Such difficulties are, however, by no means insurmountable. In the unreported case of Hilliers Ltd v Sefton Metropolitan Borough Council (CO/2165/96), Schiemann LJ said: "[S 101 LGA] provides: 'That a local authority may arrange for the discharge of any of their functions by a committee, a sub-committee or an officer of the council.' … [D] submits that the Council was not empowered in its standing orders to provide that decisions should be made by a named person or anyone whom that person should name. … I reject that submission. Once one says that the Council could have decided to name everybody on its staff for the discharge of its function, it seems to me that it can say, we leave it to the head of department to nominate whomsoever he pleases. … [The delegated person] was under no obligation to evidence his decision in writing and still less to serve the evidence on the proposed defendant."
Similarly, in Westley v Hertfordshire County Council (1996) 160 JP 813, the defendant asserted that proceedings under the Highways Act 1980 were ultra vires because it had not been established that the Director of Law and Administration had the power delegated to him to commence them on behalf of the Council. Although there was a delegation to the Director of Law and Administration it was contended that there was no evidence that the Director of Transportation, to whom the functions of the highway authority were delegated, had instructed the Director of Law and Administration to bring the proceedings. Collins J said: "The scheme of delegation [had] delegated to the Director of Law and Administration ... the power to authorise the institution, defence, withdrawal or compromise of any claims or legal proceedings, civil or criminal. … The crucial power is that of the Director of Law and Administration who undoubtedly has ... the power to institute these proceedings. So far as the court is concerned, that should suffice unless there is material put before it which persuades it that something has gone wrong at the earlier stage. The onus must ... be on the individual ... who asserts that there has been no proper internal delegation to establish it." Where, therefore, a local authority can demonstrate that it has a proper internal scheme of delegation, there is a presumption that it has been operated properly.
In the case of the delegation of the power to prosecute as between different local authorities it is unlikely, unless they regularly work together, that there will be a scheme of delegation. It is more likely that there will be a desire for one off delegations in relation to the individual prosecutions of specific defendants as and when they are required. On each such occasion, in the absence of any other power to prosecute, it will be necessary to prove that delegation.
It is important to note that the power to delegate provided by s 101 is in relation to the "discharge of any functions" i.e. any statutory powers or duties. It is questionable whether the delegation of the power to prosecute just one defendant on a single occasion is the delegation of "a function." It is, at the very least, arguable that whilst a local authority may delegate the whole (or probably a part) of any particular function e.g. its consumer protection function under the CPA, it does not have the power to delegate, not the function itself, but the exercise of the function in individual cases. In the Woolworths case it can be assumed that the three other local authorities did not delegate their consumer protection function or even the function to enforce the safety provisions of the CPA to Brighton and Hove. What is much more likely is that they (purported) to delegate the power to prosecute Woolworths for the specific breaches of the suspension notice in relation to the folding scooters. In that event, the "function" would have remained with the three local authorities and hence could not have been delegated to Brighton and Hove. It has not been forgotten that s 101 LGA speaks not of the power to "delegate" a function, but in terms of making arrangements for the "discharge" of functions. Whilst the making of arrangements for the discharge of a function may be wider than delegating a function, arranging for another local authority to prosecute a specific case is not arranging for that authority to discharge the function, but simply asking them to act as agent in a particular case. [Whereas there is no express provision enabling the delegation of the power to prosecute specific cases, it may be that it can be derived from s 101(12) which provides that: "References in this section ... to the discharge of any of the functions of a local authority include references to the doing of anything which is calculated to facilitate, or is conducive or incidental to, the discharge of any of those functions".]
Matters have been complicated further by the Local Government Act 2000 which enables local authorities to make decisions by means of "executive arrangements". They may now adopt a cabinet way of working, reminiscent of central government, rather than have the traditional hierarchy of committees and sub-committees. Where there is a desire to delegate a function from one local authority to another and such function is, within at least one authority, the responsibility of an executive, such arrangements should be made (in England) under the Local Authorities (Arrangement for the Discharge of Functions) (England) Regulations 2000.
In the case of the prosecution of indictable offences (e.g. most offences under the TDA), the fact that an offence committed in the area of one magistrates' court may be prosecuted in a court for a different area means that prosecutions brought by several local authorities could all be heard in one place and, save in the unlikely event of a conflict of interests, they could be handled by a single solicitor acting for all the local authorities involved.
The name of the prosecutor
It will be recalled that s 222(1) of the LGA enables a local authority, in the prescribed circumstances, to "prosecute … any legal proceedings and, in the case of civil proceedings, may institute them in their own name." This has, in the past, been taken to mean that, in the case of criminal proceedings, a local authority cannot institute them in their own name. If that were so then the power to prosecute would have to be delegated to an individual who would then prosecute in his name. Traditionally informations have been laid in the name of individual officers of local authorities. Some local authorities, however, have prosecuted in the name of their authority and that practice was challenged, without success, in Monks v East Northamptonshire DC (2002) 166 JP 592.
In Monks case, summonses were issued, in the local authority's own name, alleging offences contrary to the Food Safety Act 1990 ("FSA"). Monks contended that s 222(1) LGA gave express authority to local authorities to prosecute in their own name in civil proceedings, but not in criminal proceedings; that the FSA did not permit summonses to be issued in the local authority's own name; that rule 4(1) of the Magistrates' Courts Rules 1981 ("MCR") did not allow summonses to be issued in the local authority's own name, and that the issuing of summonses in the local authority's name meant that he did not know, as he was entitled to, who was the individual responsible for bringing the case against him. Monks was convicted and appealed to the Crown Court and then to the Divisional Court. Silber J said: "I am satisfied that it was not the intention of Parliament in enacting s 222 [LGA] to prescribe that there should be a difference between the way in which local authorities could commence civil and criminal proceedings. ... Indeed ... criminal proceedings under section 222 are frequently brought in the name of local authorities (see, for example, Middlesborough Borough Council v Safeer). So section 222 does not prevent the respondent from bringing criminal proceedings in their own name." Silber J considered that s 6(5) FSA conferred the right to institute proceedings on the local authority which was entitled to prosecute them in their own name. He accepted that rule 4 MCR provides that "an information may be laid by the prosecution either in person or by his counsel or solicitor or other persons authorised on his behalf"', but held that r 4 was permissive as it used the word "may". It did not preclude other means of commencing a prosecution and it did not purport to constitute an exclusive regime. The local authority relied not on r 4 but on s 6(5) FSA. Although the prosecution had been instituted in the local authority's own name it could easily be identified who the inspector was who had led the prosecution.
In passing, it will be recalled that Silber J drew some support for his conclusion that a prosecution can be brought in the name of a local authority from the fact that that had been done in Middlesborough Borough Council v Safeer. So too it can be observed that in Surrey County Council v Burton Retail Ltd (1998) 162 JP 545, the local authority, without any challenge on its authority to do so, prosecuted the defendant for two offences under the CPA. One of those offences was committed in the local authority's own area, Guildford, but the other was committed in Sunderland.
The position, then, is that a local authority may prosecute in its own name or may delegate the power to institute the proceedings to an individual. In such circumstances the local authority should be in a position to prove that the appropriate delegation to prosecute has been made. Such proof, however, will not always be necessary and is in fact irrelevant in cases where the individual who has laid the informations is entitled to prosecute in his personal capacity.
(Public) private prosecutions
Although it is usually the case that prosecutions are brought by prosecuting authorities, most notably by the police / Crown Prosecution Service or local authorities, it does not necessarily mean that a private individual cannot launch his own prosecution. Some statutes are proscriptive in terms of who may prosecute under them. S 83(1) of the Weights and Measures Act 1985, for example, provides that proceedings for most offences under that Act shall not be instituted by or on behalf of anyone other than a local weights and measures authority or the chief of police. Other statutes, however, including the TDA and CPA, have no such limitations.
In MFI Furniture Centre Ltd v Hibbert (1996) 160 JP 178, Balcombe LJ said: "S 27(1)(a) of the [CPA], which imposes a duty upon every weights and measures authority ... to enforce [within their area the safety provisions and the] provisions of Part III of the Act, does not limit the powers of others to prosecute. Thus Mr Hibbert, [the local authority officer who laid the information in this case] like any other person, had the power to prosecute – see, e.g., s 6 of the Prosecution of Offences Act 1965. … His authority to do so on behalf of the Council was irrelevant to the validity of the proceedings, although it might have been relevant on the question of costs, had the prosecution failed." Collins J added that "whether or not there was a valid delegation was irrelevant since Mr Hibbert laid the information and that, for the purposes of the criminal proceedings, was sufficient."
In the MFI case, Mr Hibbert was prosecuting offences alleged to have been committed within the area of the local authority which employed him. However, had he laid informations, under the CPA, in relation to offences committed in the areas of several local authorities the position would have been no different. He would have had the power to do so as an individual. It is not clear whether Brighton and Hove prosecuted Woolworths in their own name or in the name of an individual officer such as the head of their Trading Standards Service. What is clear is that they appealed in the name of their authority. If they had followed (or if they did follow) Mr Hibbert's lead in laying the information in the name of an individual, rather than the approach in Monks v East Northamptonshire District Council, ante, they could have succeeded, even though they had sought to rely on delegated powers, since in those circumstances the question of whether they could prove effective delegation would have been irrelevant. Nonetheless, it may be wise for prospective informants to bear in mind Balcombe LJ's cautionary words about the question of costs should a prosecution in the name of an officer fail. The officer would be wise to have an indemnity from the other local authorities concerned.
Tailpiece
The headnote to the report of Brighton and Hove v Woolworths plc at (2003) 167 JP 21, gives as the second thing which was held in the case: "That in the absence of properly delegated authority from the other local authorities in whose areas the alleged offences occurred the appellants did not have the power to prosecute." That statement cannot be faulted as it represents the finding of the High Court in relation to the second question raised in the case stated for its opinion. The question was "does the serving enforcement authority have power to prosecute an alleged breach of the notice committed outside its area in the absence of a properly delegated authority to do so granted by the enforcement authority for the area concerned pursuant to section 101 of the 1972 Act?" It will be seen that the question was rather loaded in that it presupposes that, in the circumstances of this case, there could be a properly delegated authority under s 101 LGA. It also presupposes that the prosecution could not be valid unless instituted by the enforcement "authority". It will be seen from the arguments set out above that both of those premises are challenged. What must be appreciated is that, because Brighton and Hove ripped their colours from the s 101 mast and nailed the damaged remains to the s 222 mast, the Divisional Court gave no consideration whatsoever to the question of whether s 101 did enable a local authority to delegate to another local authority the power to prosecute an individual case. The Woolworths case must not, therefore, be taken as authority for the proposition that it does. As there was no consideration of the MFI Furniture Centre Ltd v Hibbert point, the Woolworths case must neither be taken as authority for any proposition that an individual cannot prosecute for offences committed in more than one local authority area. Unfortunately the Woolworths case is authority for the proposition that s 222 LGA does not give a local authority the power (at least not in relation to s 14 CPA) to prosecute offences committed outside its area. That decision, however, for all the reasons already given, including the lack of consideration of the precedents on s 222, is a very suspect one.
VICTOR SMITH
Postscript
The scope of s 222 LGA was considered again in R (Donnachie) v Cardiff Magistrates' Court & Another [2009] EWHC 489 (Admin). That would have been a good opportunity for the Woolworths case to have met the same fate as the Woolworths stores but, unfortunately, it was merely distinguished (and not extinguished). Although the Divisional Court considered the authorities on how wide s 222 is and applied the principle in the maxim that all things done were presumed to have been done properly, it failed, yet again, to consider the authorities which say it is for the local authority (at the time) and not the court (retrospectively), to determine whether s 222 applies.
R (Donnachie) v Cardiff Magistrates' Court & Another was decisively followed in Oldham Metropolitan Borough Council v Worldwide Marketing Solutions Limited and Kay [2014] EWHC 1910, but unfortunately the judgment did not go so far as to suggest that the Woolworths case was wrongly decided.
Note: New additional powers were given to some local authorities to prosecute for offences committed outside their areas by paragraph 46 of Schedule 5 to the Consumer Rights Act 2015:
"(1) A local weights and measures authority in England or Wales may bring proceedings for a consumer offence allegedly committed in a part of England or Wales which is outside that authority's area.
(2) In sub-paragraph (1) "a consumer offence" means—
(a) an offence under legislation which, by virtue of a provision listed in paragraph 10 of this Schedule, a local weights and measures authority in England or Wales has a duty or power to enforce,
(b) an offence under legislation under which legislation within paragraph (a) is made,
(c) an offence under legislation listed in the second column of the table in paragraph 11 of this Schedule in relation to which a local weights and measures authority is listed in the corresponding entry in the first column of the table as an enforcer,
(d) an offence originating from an investigation into a breach of legislation mentioned in paragraph (a), (b) or (c), or
(e) an offence described in paragraph 36 or 37 of this Schedule.
(3) A district council in England may bring proceedings for a consumer offence allegedly committed in a part of England which is outside that council's district.
(4) In sub-paragraph (3) "a consumer offence" means—
(a) an offence under legislation which, by virtue of a provision listed in paragraph 10 of this Schedule, a district council in England has a duty or power to enforce,
(b) an offence under legislation under which legislation within paragraph (a) is made,
(c) an offence originating from an investigation into a breach of legislation mentioned in paragraph (a) or (b), or
(d) an offence described in paragraph 36 or 37 of this Schedule.
(5) A district council in Northern Ireland may bring proceedings for a consumer offence allegedly committed in a part of Northern Ireland which is outside that council's district.
(6) In sub-paragraph (5) "a consumer offence" means—
(a) an offence under legislation which, by virtue of a provision listed in paragraph 10 of this Schedule, a district council in Northern Ireland has a duty or power to enforce,
(b) an offence under legislation under which legislation within paragraph (a) is made,
(c) an offence originating from an investigation into a breach of legislation mentioned in paragraph (a) or (b), or
(d) an offence described in paragraph 36 or 37 of this Schedule."
It took well over 14 years before the Court of Appeal, in R v AB [2017] EWCA Crim 534 ('AB'), affirmed that Woolworths was wrongly decided. However, the sketchy facts of the recent cases of R (City of York Council) v AUH; R (Birmingham City Council) v BIY [2022] EWCA Crim 1113 suggest that courts of first instance, at least, may still be haunted by Woolworths.
See Access all Areas: The Ghost of Woolworths
Victor Smith ponders a recent case which suggests that the 2002 decision in Woolworths, may still be unduly influential despite the Court of Appeal having declared it to be wrongly decided. First published in the New Law Journal with Part 1 at (2023) 173 NLJ 8011 p9 and with Part 2 at (2023) 173 NLJ 8012 p11.
Related case digests
- Brighton and Hove City Council v Woolworths plc (2003) 167 JP 21 - S 14 CPA - s 222 LGA.
1) suspension notice can have effect beyond local authority's area. 2) whether local authority can prosecute offences outside its area.