Legal perspectives: time limits In this feature l CPUT l discovery l prosecutor When the clock is ticking How to avoid being caught out by time limits when prosecuting regulatory offences, by Robin Kingham T hose involved in prosecuting regulatory offences will be familiar with the importance of charging the defendant within the time limits imposed by statute. But what is the relevant time limit? And when does time begin to run? Defences based on time limits may seem technical and legalistic, but they go to the heart of the courts jurisdiction. Ifaprosecution is brought out of time, the court is forbidden from trying the case even if the offence is otherwise proven. Its no surprise that good defence lawyers will consider the relevant time limits at the outset of a case. As a result, prosecuting authorities must be careful that defendants are charged in time to avoid costly but ultimately futile courtproceedings. Unfortunately, the law relating to time limits hasnotalways been entirely straightforward and the result is unnecessary litigation. Look at the statute Legislation time limits will vary, both in length of term and in the manner in which they are calculated, so it is important to focus on the wording of the particular statute. Regulation 14(1) of the Consumer Protection from Unfair Trading Regulations 2008 (CPUT) is a good example of the sort of language often used in regulatory instruments: No proceedings for an offence under these Regulations shall be commenced after: a) the end of the period of three years beginning with the date of the commission of the offence, or b) the end of the period of one year beginning with the date of discovery of the offence by the prosecutor, whichever is earlier. Paragraph (a) provides a fairly straightforward longstop of three years,from the commission of the offence (although, admittedly, the nature of some offences for example, continuing offences may complicate that calculation). However, the wording of paragraph (b) begs two questions: firstly, what counts as discovery; and secondly, who is the prosecutor? Aswill be seen, the second question is trickier than the first. Particular attention must be paid to the time limit provisions of the particular statute, as both the length and method of calculation of the time limit will vary What counts as discovery? The meaning of discovery was explained by the Divisional Court in a series of judgments handed down in the 1980s. In Brookes v Club Continental Ltd,1 the court held that discovery meant: ll the facts A material to found the relevant charge were disclosed to the appropriate ofcer. The word discovery here does not import any investigation by the ofcer. It is simply his knowledge, from disclosure to him in some way, of the material facts which would found the offence. It is the facts disclosed to the investigating officer that matter, not whether the officer realised that those facts amounted to a criminal offence. Similarly, once those facts have been disclosed, time starts to run, even though the officer carries out an investigation to collect further evidence before deciding whether or not to prosecute. As the court explained in R v Beaconseld Justices, ex p Johnston & Sons Ltd 2: [The prosecution confused] the issue of knowledge of the facts with conrmation of the facts there is a difference between information and facts which are known to the prosecuting authority and admissible evidence to support those facts The Act itself provides a year from the discovery of the offence within which the proceedings can be taken and itis within that year that the authority must take steps to obtain admissible evidence to prove the offence charged. The next question then, is whether the officer who has made the determination is also the prosecutor. Who is the prosecutor? The prosecutor must be someone who is able to make a judgment about whether to prosecute It has not always been entirely clear whose knowledge was relevant to start time running. This ambiguity arises from whether the prosecutor is some particular officer, or whether it refers to the enforcement authority itself that is, any of its officers. On the one hand, it is unrealistic to think that an enforcement authority is in a position to consider whether to prosecute a case just because someone at the authority has been given relevant information. On the other hand, it would not be fair to permit papers to be shuffled from one person to another just to prevent time from expiring. The identity of the relevant prosecutor will differ depending on the wording of the statute. Unfortunately, however, the courts have not agreed on how to approach the question in relation to CPUT or discovery-type offences. In the R v Beaconseld Justices case, the judge referred to the facts known to the prosecuting authority, rather than to a specific individual or officer. However, in Brookes v Club Continental Ltd, the judge mentioned the facts disclosed to the appropriate ofcer. Other commentators have suggested that time starts running when a complaint is made to the relevant department of the authority.3 While this issue has not yet been resolved in relation to CPUT, the High Court has provided some guidance in the context of analogous prosecutions brought under the Animal Welfare Act 2006. In RSPCA v Johnson,4 the court held that: It is right that prosecutors are not entitled to shufe papers between ofcers, or sit on information so as to extend a time limit. There is, however, a degree of judgment involved in bringing a prosecution, and knowledge, in my judgment, involves an opportunity for those with appropriate skills to consider whether there is sufcient information to justify a prosecution. This reasoning has recently been approved and followed by the High Court in Letherbarrow v Warwickshire County Council 5, which stated that the process involved: the exercise of a judgment by an individual, namely (see Johnson) the individual who is given responsibility for making the important decision whether to prosecute. Prosecutors areentitled to have a system which lays down at what level of seniority this decision is made. In the present case, it was laid down that it shouldbe made at the level of group manager (trading standards) That was not paper pushing, as Pill LJ described it in Johnson, it was a proper internal system for having these important decisions taken at an appropriate level. While the judgments in Johnson and Letherbarrow have helped to clarify this issue in relation to animal welfare prosecutions, they cannot be applied across the board. The Animal Welfare Act 2006 is not a discovery-type offence. Rather, time begins to run under the Act from the date on which evidence the prosecutor thinks is sufficient to justify the proceedings comes to his knowledge. Clearly, in these sufficiency of evidence-type cases (rather than discovery-type cases) the prosecutor must be someone who is able to make a judgment about whether to prosecute not just any officer at the enforcement authority. As a result, the judgments in Johnson and Letherbarrow cannot becarried across to CPUT and other similar offences. Until the highercourts have reconsidered the issue in the specific context of discovery-type offences, the identity of the prosecutor will remain open to interpretation. In the meantime, however, enforcement authorities should err on the side of caution and assume that an offence has been discovered under CPUT (and similar statutes) as soon as the facts of the offence become known to any investigating officer. In relation to sufficiency of evidence-type prosecutions, the relevantknowledge will be that held by the individual responsible for taking the decision on whether to prosecute. In those cases, there must be clearly defined systems in place for swiftly notifying the person responsible for these decisions when relevant information is provided tothe department. Conclusion The law relating to time limits for regulatory offences is still developing and subject to change. Nevertheless, there are three precautionary steps that trading standards departments can take: l Particular attention must be paid to the time limit provisions ofthe particular statute, as both the length and method of calculation will vary l In discovery-type offences such as CPUT, it should be assumed that time has started to run as soon as any investigating officer is informed of the facts of the offence l In relation to sufficiency of evidence-type prosecutions, procedures should be developed for ensuring that information is swiftly passed to the individuals responsible for making prosecutorial decisions so that a determination may be made as to whether the evidence is sufficient to ground a prosecution With these systems and procedures in place, trading standards departments stand a better chance of not being caught out of time. References 1 13 October 1981, unrep., DC/345/81 2 (1985) 149 JP 535, DC 3 Butterworths Trading and Consumer Law at 3-37 4 [2009] EWHC 2702 (Admin) 5 [2015] EWHC 4820 (Admin) Credits Robin Kingham is a barrister at Gough Square Chambers Images: Minii Ho / Shutterstock To share this page, in the toolbar click on You might also like Data discussions February 2016