Continuing Offences
The question of whether a particular offence is a continuing one was raised by the Court of Appeal in R v Moss [2015] EWCA Crim 713, but was left undecided. Victor Smith contemplates the answer. First published in the Criminal Law & Justice Weekly (2015) 179 JPN 472.
R v Moss
In R v Moss, ante, Moss was a cattle farmer with an apparent aversion to record keeping. He pleaded guilty to four offences in the Magistrates' Court, including three under the Cattle Identification Regulations 2007 ("CIR"). Suffolk Trading Standards had investigated whether Moss had also been involved in the unlawful slaughtering and unlawful sale of meat, but did not bring any charges in respect thereof. Moss was committed to the Crown Court under s.70 of the Proceeds of Crime Act 2002 ("POCA") with a view to a confiscation application under s.6 POCA. In the confiscation proceedings the Recorder found, on the evidence presented to him, that there had been unlawful slaughter and butchery of 116 cattle from Moss's farm and he made a confiscation order in the sum of £83,000. Upon Moss's appeal against that order, the Court of Appeal found a number of flaws in the way in which the "criminal lifestyle" issue under s.75(2)(c) POCA had been dealt with. The appeal was allowed on the ground that the Recorder was wrong to find Moss had benefited from the offences to which he had pleaded guilty. Most of the flaws found are outside the scope of this article, but those relevant to "continuing offences" centred on whether it had been proved that Moss had been convicted of at least one offence which had been committed over a period of at least six months. Two of his convictions under the CIR had been relied upon as meeting that criterion. The relevant parts of the informations, which the Court referred to as the second and third offences, read:
2. "Between 1 January [2005] and 30 May 2009 being the registered keeper of 94 cattle … failed to notify the Secretary of State of their movement off, or death on, the farm within seven days of such movement or death – contrary to Regulation (EC) no. 911/2004 and 1760/2000 by virtue of conditions 1 and 2 of Schedule 4 and Regulation 7 [CIR]"
3. "Between 2 July 2009 and 30 September 2010 being the keeper of approximately 165 cattle found on [the farm], and the registered keeper of 94 cattle registered as being on the farm that were no longer there, failed to produce a Cattle Movement Register as required by Schedule 5 [CIR] when required to do so by … a person acting under the [CIR], contrary to Article 7(3) of Regulation (EC) no. 1760/2000 and by virtue of Regulation 13(d) (sic) [CIR]."
A point, which was apparently not taken or raised, was that, although the CIR were made to enforce certain EC Regulations, the offence in each case was the breach of the CIR, not the EC Regulations. The offences should therefore have been expressed as "contrary to" and not "by virtue of" the CIR. Regulation "13(d)" should have read "13(1)(d)".
Reg.7 CIR provides: "Schedule 4 (notification of movements or death) has effect." Schedule 4 provides: "1(1) A keeper must notify the Secretary of State within three days of any movement of cattle on to or off a holding … 1(2) Failure to comply with this paragraph is an offence. … 2(3) … when an animal dies or is killed the keeper must notify the death … to the Secretary of State within seven days. … 2(6) Failure to comply with this paragraph is an offence." Reg.13(1)(d) CIR provides: "A person who … fails to produce a passport, document or record when required to do so to any person acting under these Regulations, is guilty of an offence."
It can be seen that the "second offence" expressed the period of offending as being continuous whereas the offending itself is couched in terms of a number of apparently discrete failures to notify movements or deaths within seven days. Sweeney J, giving the judgment of the Court, which included Thomas LCJ, said: "… careful analysis was … required as to whether … the [second] offence was committed over a period of at least six months and whether [Moss] had benefited from the conduct which constituted that offence. That should have been carefully considered but, against the background that no question had been raised about the six month period, was not." Similarly, in relation to the "third offence" Sweeny J said: "[It] was incumbent on the Recorder not just to take the charge at face value but to consider both the charge and the evidence in relation to it, and then to decide whether it amounted to an offence committed by [Moss] over a period of at least six months … It was at least arguable that the third offence, although charged over the period between 2 July 2009 and 30 September 2010, related only to the three days during that period on each of which [Moss had been required to produce the relevant records] rather than being a continuous offence over the whole period. Yet this was not raised or considered, and it needed to be if appropriate findings were to be made in the confiscation proceedings."
So, were the offences continuing offences, as implied by the wording of the informations, or did each information in fact contain a series of fixed date offences as the Court of Appeal at least suspected?
What is a continuing offence?
In British Telecommunications plc v Nottinghamshire County Council [1998] EWHC Admin 989, ("the BT case") Bingham LCJ said: "Whether a statutory provision creates a continuing obligation such that failure to comply with it creates a continuing offence necessarily depends on the language of the provision in question and on its correct construction. For that reason it seems to me that caution is called for when applying the observations in one case with reference to one statute, to different provisions of a different statute in another case. However, … Croom-Johnson J in R v Wimbledon Justices, ex parte Derwent [1953] 1 QB 380, … said: 'As a general rule, the court is not, I think, eager to find continuing offences created by a statute, and certainly not without express words which make clear that that was the intention of the legislature when the statute was passed.' That seems to me to be consistent with the general approach in these matters that conduct is not to be criminalised unless Parliament has made plain its intention that it should." Nonetheless, judicial precedent is always valuable especially when it is an authority of the Supreme Court or, formerly, the House of Lords.
In Hodgetts v Chiltern District Council [1983] 2 AC 120, Hodgetts was served with a planning enforcement notice under s.87 of the Town and Country Planning Act 1971 ("TCPA") requiring steps to be taken to discontinue the use of certain land and buildings within three months of 27 February 1980. He was subsequently convicted on an information which alleged that "on and since May 27 1980" he permitted that use contrary to s.89 TCPA. Hodgetts' appeal to the Crown Court succeeded on the basis that the alleged offence was one which reoccurred each day and hence that the information, which related to more than one day, was bad for duplicity. The Council's appeal to the Divisional Court was dismissed but it successfully appealed to the House of Lords which held that it was not duplicity to charge a continuing offence as occurring over a period of time although it would have been better to have charged the offence as having been committed between two specified dates. Lord Roskill differentiated between the two classes of enforcement notice dealt with in s.89 TCPA. He noted that both s.89(1) and (4) dealt with penalties when the notice required the owner of land to do something – this he characterised as a "do notice". By contrast, s.89(5) dealt with a notice which required the user of land to stop doing something – a "desist notice". The penalty prescribed for an initial failure to comply with either type of notice on summary conviction was £400 whereas, for failure after conviction, was £50 for each day on which the non-compliance continued. Lord Roskill concluded:
"It is not an essential characteristic of a criminal offence that any prohibited act or omission, in order to constitute a single offence, should take place once and for all on a single day. It may take place, whether continuously or intermittently, over a period of time. The initial offence created by [s.89(1)] in the case of non-compliance with a 'do notice', is complete once and for all when the period for compliance with the notice expires; but it is plainly contemplated that the further offence of non-compliance with a 'do notice' created by [s.89(4)], though it too is a single offence, may take place over a period of time, since the penalty for it is made dependent upon the number of days on which it takes place. Similarly, as respects non-compliance with a 'desist notice', it is in my view clear that the initial offence (as well as the further offence) though it too may take place over a period, whether continuously or intermittently (e.g. holding a Sunday market), is a single offence and not a series of separate offences committed each day that the non-compliance prior to the first conviction for non-compliance continues. If it were otherwise it would have the bizarre consequence that upon summary conviction a fine of £400 per diem could be imposed for each such separate offence committed before the offender received his first conviction, whereas for any further offence committed after the offender against a 'desist' notice had been convicted, a daily fine of only £50 could be inflicted. Uniquely a previous conviction would be a positive advantage to the offender. This can hardly have been Parliament's intention."
As a result of the obiter dicta in the above passage, Hodgetts has been taken as authority that generally failure to comply with a "do notice" gives rise to a "once and for all" offence, whereas non-compliance with a "desist notice" is a "continuing" offence. Lord Roskill, however, was clearly not seeking to create a formula which would necessarily be applicable to all legislation and the fact that he pointed to exceptions where the offending occurred after an initial conviction shows that he was acutely aware of the need to look first and foremost at the wording of the particular legislation creating each offence. Nonetheless, in the absence of clarity in a specific statute, and assuming the offending can properly be regarded as either a breach of a "do" or "desist" requirement, Hodgetts can be decisive.
The defendant in John Mann International Limited v Vehicle Inspectorate [2004] EWHC 1236 (Admin), was a road haulage company upon which the Vehicle Inspectorate ("VI") served a notice, on February 2002, under s.99(1) of the Transport Act 1968 requiring the production of all tachograph record sheets, for a three month period, by 26 February 2002. Not all the records were produced and VI made a further request resulting in the production of additional records. Some records were still missing and VI made a third request for those outstanding records to be produced by 2 August 2002. When no further record sheets were produced, VI laid informations alleging that on 3 August 2002 D had failed to produce tachograph records within the time specified, contrary to s.99 of the Transport Act 1968. Before the justices, the company submitted that the offence was committed when it failed to produce the records, in response to the first notice, by 26 February 2002, that the informations had not been laid within six months as specified in s.127 of the Magistrates' Courts Act 1980 ("MCA"), and that the failure to respond to the second and third notices could not give rise to further criminal offences as they related to the same records. VI responded that the offences were continuing ones and, alternatively, that the company should have complied with the third notice, which was the one in respect of which the informations were laid, in time. The justices did not accept that the offences were continuing offences, but considered that they were entitled to convict in relation to the third notice. The company appealed to the Divisional Court against conviction by way of case stated. Owen J first looked at whether the justices were right in concluding that, although there was a continuing obligation to retain and produce tachograph records, "it is a once only obligation to produce on each order for production whether or not this results in a prosecution." Owen J held that: "Lord Roskill's analysis [in Hodgetts, ante,] plainly applies to the offence created by s.99(4) of the Transport Act 1968. It is an offence of non-compliance with a 'do notice' which is 'complete once and for all when the period of compliance with the notice expires'. It follows that … the Justices were correct in their conclusion that the offence did not continue beyond the date specified in the notice for production of the records." He also found that the justices were, nonetheless, right to convict. "An operator is obliged to retain tachograph records for a period of a year. He can be called upon at any point to produce such records by a notice served under s.99(1). The failure to produce such records in compliance with the notice will amount to an offence. I see no reason in law why an information should not be laid as a result of failure to comply with the third notice."
In Hertsmere Borough Council v Alan Dunn Building Contractors Ltd (1985) 84 LGR 214, ("the Dunn case") the company had failed to deposit plans or give notices as required by Building Regulations. The offence provision, in s.4(6) of the Public Health Act 1961, provided: "If a person contravenes or fails to comply with any provision contained in building regulations ... he shall be liable to a fine ... and to a further fine not exceeding £50 for each day on which the default continues after he is convicted." The informations were laid more than six months after the relevant work began. Neill LJ was able to apply Hodgetts directly to the case under consideration: "In the first place, if one slightly adapts Lord Roskill's language, it is plain that the requirements in regulations A10 and A11 are 'do provisions'. Secondly, it follows that the initial offence of non-compliance with the 'do provision' is complete once and for all when the period for compliance with the provision expires."
Continuing Offences is continued in Part 2.