In the recent case of Rockall v DEFRA (22 March 2007) [2007] EWCA Div 614 the Divisional Court was asked to decide two fundamentally important issues as to when proceedings for regulatory offences are as a matter of law "instituted" in the magistrates' court. The resolution of these issues affect the way in which magistrates' courts accept the initiating process for all prosecutions and when time stops in relation to limitation.
Issue 1: fax service
The first issue was whether service of an information commencing regulatory proceedings by DEFRA pursuant to the Forestry Act 1967 could be lawfully "served" by way of fax. The Appellant contended that in the absence of detailed provision for service by way of fax in the Criminal Procedure Rules, such as those contained in the Civil Procedure Rules, service ought properly to be lawfully effected only when received "by a member of staff of the clerk to the justices" (citing Lord Roskill, in Regina v Manchester Stipendiary Magistrates' Court ex parte Hill [1983] 1 AC 328). The Respondent argued that an information was received at a magistrates' court when a fax arrived at a court fax machine. It was irrelevant if a person physically picked up that fax so long as it had arrived at the fax machine before the expiry of the limitation period. The same principles already applied to postal deliveries in that a letter left unopened in a court office was deemed received when it had arrived and not when a court official opened it.
Second 2: "Institute" proceedings
The second issue that the Appellant invited the Divisional Court to decide was the meaning of the word "institute" in the context of the proceedings commenced by DEFRA for the purposes of limitation. Section 17(1) of the Forestry Act 1967 provides that proceedings for an offence under this section may be instituted within six months from the first discovery of the offence by the person taking the proceedings, provided that no proceedings shall be instituted more than two years after the date of the offence. This provision is an exception to the general rule in section 127(1) of the Magistrates' Court Act 1980 that a magistrates court does not have jurisdiction to try an information unless it has been laid within six months from the time when the offence was committed, "except as otherwise expressly provided by any enactment". The Appellant relied upon Price -v- Humphries [1958] 3 WLR 304 where Devlin J said: "Proceedings in summary jurisdiction of this sort are instituted by the laying of an information and the issue of a summons, and, when the summons is issued, that is the institution of the proceedings." This would mean that not only would an information purporting to initiate proceedings by fax have to be received at the court office, but there would then have to be a summons issued in relation to it. The Respondent argued that this was wrong in law because the initiating act of laying an information and thereby stopping time from continuing to run must be a unilateral act by the prosecuting authority. Otherwise, no prosecuting authority could ever ensure that a summons was laid in time because the stopping of time was contingent on actions of persons other than the prosecutor.
The Divisional Court in Rockall v DEFRA considered that the decision in the Pontypridd case lead inexorably to the conclusion that, if it can properly be established, by inference or otherwise, that the information was transmitted to the magistrates' court's fax machine within time, that would be sufficient to constitute the laying of the information. The Divisional Court in Rockall v DEFRA considered that a prosecutor, at least in this context, commences his proceedings by laying the information.
Conclusions
It must be right that the ability to stop time from running on the limitation period must be within the sole province of the prosecuting authority. Otherwise some remarkably arbitrary results follow. For example, if there is a strike by members of the court staff, a situation could easily arise where a prosecutor had quite properly laid the information within time, but it actually opened after the limitation period. Further, it is an arbitrary distinction to have a fax lying on the fax machine as opposed to a fax that has been picked up off a fax machine and thrown on a desk.
Magistrates' courts across the country have been using for some time imaginative ways of jointly accessing electronic informations. The decision in Rockall v DEFRA is a welcome sign for the progression of these mechanisms.
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