Non-compliance with CrimPR does not render otherwise timely information a nullity

The Court confirmed that, while offences must be charged within any applicable time limit for charging, the requirement that the charge must contain "such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant", in Criminal Procedure Rule (CrimPR) Rule 7.3(1)(b), did not require a statement from the prosecutor that the offence had been laid within the relevant time limit if the timing of the offence was not an element specified in the offence.

This article was first published in Lexis Nexis

The court confirmed that where the offence is validly laid within time, non-compliance with a requirement in the CrimPRs would not render an otherwise valid set off proceedings irregular, or a nullity. 

Barking and Dagenham London Borough Council v Argos Ltd and other cases [2022] EWHC 1398 (Admin)

What are the practical implications of this case? 

The case confirms that, unless there is an unusual or complex time limit, or a time limit other than that derived from section 127 of the Magistrates' Courts Act 1980 (MCA 1980), the requirements contained in the CrimPR will be satisfied by providing the court with the date of the alleged offence. The court commented that otherwise valid proceedings are not rendered a nullity by procedural non-compliance.

What was the background? 

The London Borough of Barking and Dagenham applied for a summons for Argos to appear and answer charges of selling a knife to a person under the age of 18. As the offence is summary only, it must be laid within 6 months, under section 127 of the MCA 1980. Rule 7.3(1)(b)(i) of the CrimPRs requires that, on application for a summons, the charge must contain "such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant".  The District Judge considered that she was bound by the decision in Food Standards Agency v Bakers of Nailsea Limited [2020] EWHC 3632, which required her to hold a summons issued in pursuance to an application made without a statement that it was laid within the applicable time limit, to be a nullity under Crim PR 7.3(1)(b)(i).

The District Judge, having found that there was a nullity, then declined jurisdiction to hear an application to stay the proceedings as an abuse of process, on the basis that the defendants had received and followed advice from another local authority and it would be unfair to try Argos, even though the trial itself would be fair.  The court held that, while such a situation was capable of amounting to an abuse, it needs to be weighed in the balance when considering whether it would be fair to prosecute Argos. The court noted that the authority which gave the advice was not the prosecutor, the advice was not an unequivocal representation and the statutory defence of due diligence was available to Argos, which would permit Argos to rely upon its compliance with the advice provided by the other local authority, in its defence.

What did the court decide? 

The court noted that the decision in Bakers of Nailsea was fact specific in a case where the time limit was special to the offence, complex, conceded as an issue in that case, and not the standard 6 month time limit referred to in section 127 of the MCA 1980. It was additionally unclear whether the wider question of compliance with CrimPR 7.3(1)(b) formed part of the decision. The court considered Bakers of Nailsea to be "wrong, wider than necessary and therefore obiter, and in any event distinguishable." 

In the court's view, the purpose of the requirement in CrimPR 7.3(1)(b) was to provide sufficient information to the court for it to be able to determine whether the information was made within the time limit, if there was one, and was discharged when the court was provided with the date of the offence, from which the court can, with the knowledge of the time limit in section 127, deduce whether the information was laid in time and therefore whether a summons should be issued.

In terms of the impact of non-compliance with CrimPR 7.3(1)(b), the court held that it does not necessarily render the summons issued a nullity and will never do so in a case where the time limit derived from section 127. 

The court, having decided that there was no breach of the CrimPRs, then turned to the question of how to dispose of the application for the case to be stayed as an abuse of process and decided that, there being no issues of fact and being well versed in the issues to be determined, having already expended judicial time in considering the matters, the interests of justice would be best served by determining the application.