Divisional Court reverses Bakers of Nailsea in relation to summary offences; to which the normal six month time limit applies

Public sector prosecutors regularly commence criminal prosecutions by applying for a summons (aka laying an information).  Since the judgment of the Divisional Court in Bakers of Nailsea (Carr LJ and Picken J, [2020] EWHC 3632 (Admin)) they have had to positively demonstrate that the intended prosecution was commenced in time to avoid the prosecution being a nullity.  This issue has caused significant problems for such prosecutors and has been the subject of many Magistrates’ Court judgments across the country, which have been divided on this issue.

In London Borough of Barking and Dagenham v Argos Limited [2022] EWHC 1398 (Admin) a separately constituted Divisional Court (Edis LJ, Deputy Senior Presiding Judge, McGowan J) has today decided that the Divisional Court in Bakers of Nailsea was wrong in so far as its judgment applied to the six month time limit in which a prosecution has to be commenced for a summary offence under section 127 Magistrates’ Court Act 1980.

The Court decided that the prosecution complies with  CrimPR 7.2(3)(b)(i) in a case within section 127 by, when making an application for a summons, setting out the allegation in a way which makes it clear it is an allegation of a summary only offence, which specifies the date(s) on which the offence was said to have been committed, specifies the legislation which creates the offence, and dating the application, but without drawing the court’s attention to section 127.

Other considerations may apply where a more complex time limit applies, where the prosecutor may be required to provide more information to the Court.

The Court also observed that, in any event, failure to comply with the rule does not result in the prosecution becoming a nullity.

The Court also considered the question of whether a trading standards prosecution (selling a knife to a minor) was an abuse of the process because the trader had a primary authority partnership with a trading standards authority which had issued advice to the trader as to how to avoid prosecution by carrying out due diligence, with which the trader said it was complying at the time of the alleged offence (to which the Regulatory Enforcement and Sanctions Act 2008  procedures did not apply at the relevant time) .   The Court found it was not an abuse and it was for the trader to prove any due diligence defence based on the advice from the primary authority, at trial.

Argos has sought permission to appeal to the Supreme Court.

The judgment is here

Adam Heppinstall QC and Thomas Mallon, instructed by Adam Rulewski, acted for the prosecutor.

They are both able to advise and represent public and private sector clients in a wide range of regulatory matters.