Neutral Citation Number: [2007] EWHC 614 Admin
Case No: CO/128/2007
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT
ON APPEAL FROM LOWESTOFT MAGISTRATES’ COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 22/03/2007
Before :

LORD JUSTICE LATHAM
and
MR JUSTICE DAVIS
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Between :
	
	ROCKALL	Appellant	
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	DEPARTMENT FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS	Respondent	

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Mr David Lamming (instructed by Gotelee & Goldsmith,  Ipswich) for the Appellant
Mr Ian Mann (instructed by Department for Environment Food & Rural Affairs) for the Respondent

Hearing dates : 1st March 2007
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Judgment

Lord Justice Latham : 

1.	This is an appeal by way of case stated from a decision of  the Justices of the Peace for the county of Suffolk on the 30th August 2006.  They ruled that they had jurisdiction to hear a summons against the appellant for an offence of felling growing trees without the authority of a licence issued by the Forestry Commission, contrary to section 17(1) of the Forestry Act 1967.  The issue was whether or not the proceedings had been commenced in time.  Section 17(2) of the Act provides:
“Proceedings for an offence under this section may be instituted with in 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.”
2.	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”.
3.	It was common ground for the purpose of determining this issue that the date upon which the respondent first discovered that the alleged offence had been committed was on the 12th August 2005.  Six months therefore expired on the 12th February 2006, which was a Sunday.  It follows that the question which had to be determined was whether or not the proceedings had been “instituted” for the purposes of section 17(2) of the Act on or before Friday the 10th February 2006.  The respondent’s case was that a copy of the information signed by the prosecutor together with a draft summons was sent by fax to the clerk to the justices on Friday 10th February 2006 and that, accordingly, that information was laid before the magistrates court within the six months time limit.  At the time of the hearing before the justices, both parties took the view that the relevant proceedings were “instituted” at the time of the laying of the information, although, before us, Mr Lamming, on behalf of the appellant, has submitted that that was a concession that he should not have made.  I will return to that point later in the judgment.  
4.	In the case stated, the justices set out the evidence before them as follows:
“a.	A letter from DEFRA addressed to the court, dated the 8th November 2005 [sic], enclosing the information for laying, together with a draft summons.”
(The respondent never suggested that this letter had in fact been sent on the 8th November 2005).
b.	A copy of the information signed by the prosecutor with a fax header line giving the following details:
10/02’06  16:01  FAX 020 7238 1218 Defra Legal B3 003,
c.	A copy of a draft summons with the following fax header line details: 10/02’06 16:01  FAX 020 7238 1218 Defra Legal  B3 002
d.	A copy of the letter mention in (a) with the following fax header line details: 10/02/06 16:00 FAX 020 7238 1218 Defra Legal B3 001”
This letter had a handwritten endorsement “Summons rtd 14.2.06 TB”.
e.	A copy of the summons, dated 14.2.06, upon which “13.2.06” had been handwritten as the “Date of Information” alongside the rubberstamp signature “V Rees-Morgan AUTHORISED BY THE CLERK TO THE JUSTICES”
f.	A fax transmission report produced by the respondent as a business record showing that a three page fax was sent to 901502513875 with a starting time of “10/02 16:00” and the result of that transmission  being shown as “OK”.”
5.	Having rehearsed the respective arguments and the advice given to them by their legal adviser, the justices concluded the case stated as follows:
“10.  We considered the points raised and we concluded that upon physical transmission of the information to the office of the clerk to the justices, within business hours and within the six month time limit, the information had been received by a member of staff of the clerk to the justices, expressly or impliedly authorised to receive it.  We were aware that a later date had been endorsed upon the summons, for whatever reason, but that had no affect (sic) upon our decision that there was good service of the information to the office of the Clerk to the Justices within business hours.  We therefore found that we had jurisdiction to hear the case and, proceeded accordingly.
11.	The questions for the consideration of the High Court are:
(1)	        On the basis that by “good service” we mean “effective laying of the information” whether there was evidence on which we could find that the said information was laid on the 10th February 2006, rather than on the 13th February 2006.
(2)	Whether, on the said basis, we were entitled to find that the information had been laid on the 10th February 2006 when 
(i) the letter from the respondent to the court dated 08/11/05 and faxed to the court at 4 p.m. on the 10th February 2006 enclosing the information “for laying” requested the court to return a copy of the information “duly stamped with the date of laying”:  
(ii) no evidence was adduced relating to the receipt of the said fax; and 
(iii)  the information was returned to the Respondent duly stamped by a person authorised by the clerk to the justices, and showing the Date of information as 13.2.06.”
6.	The letter dated the 8th November 2005 stated:
“Further to our recent telephone conversation, I enclose one information for laying (plus a copy of each) and one draft summons (plus 2 copies of each) against Michael J Rockall 
.....
I shall be grateful if the issued summonses can be returned to this office for service by Recorded Delivery together with a copy of the signed information duly stamped with the date of laying of the informations.”
7.	Having accepted jurisdiction in these terms, the justices proceeded to hear the information, found the case proved and ordered the appellant to be conditionally discharged for 12 months and to pay £750 prosecution costs.
8.	As I have indicated and is implicit in the case stated, the argument before the justices proceeded on the basis that the justices had jurisdiction if it could be properly said that the information had been “laid” before them on the 10th February 2006.  Mr Lamming has reconsidered the matter in the light of the fact that section 17(2) of the Forestry Act imposes a time limit by reference to the institution of proceedings.  He submits that proceedings are not “instituted” for the purposes of this sub-section until the issue of a summons based upon the information.  As the question with which we are concerned relates to the jurisdiction of the court, we permitted him to argue this point, despite the fact that it was not clearly raised until he drafted his addendum to his skeleton argument on the 27th February 2007.  Mr Mann, on behalf of the respondent, raised no objection.  
9.	Mr Lamming’s submission is based fairly and squarely on a decision of this court in Price –v- Humphries [1958] 3 WLR 304.  The question in that case was whether or not the prosecution had proved that the relevant proceedings had been “instituted” by or with the consent of the minister or other authorised agent as required by section 53(1) of the National Insurance Act 1946.  At page 306, having set out the provisions of that section, 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.”
10.	Mr Lamming submits that this is consistent with authority as far back as R –v- Willace (1797) 1 East PC 186 where the commencement of a prosecution was held to be “the information and proceeding before the magistrate”.  Mr Lamming submits that these authorities make it abundantly plain that the commencement or institution of proceedings can only occur once the justices have had an opportunity to consider the information, to have accepted it as a valid information, and issued the appropriate process.  However, he has not been able to cite to us any authority for the proposition that that is the meaning to be given to the word “instituted” in the Act with which we are concerned.   And I am mindful of the fact that, when considering whether proceedings have been “begun” in any court for the purposes of section 34(2) of the Children and Young Persons Act 1969 Saville LJ, said in Director of Public Prosecutions  –v- Cottier [1996] 1WLR 826, at page 831G-H:
“We were referred to a number of authorities which considered somewhat similar provisions, but all I glean from those is that the answer to the question when proceedings are instituted or begun depends on the context in which the words are used and the purpose of the provision.”
11.	The provisions with which we are concerned would appear to be identical in purpose to the provisions of  section 127 of the Magistrates’ Court Act 1980, to which I have already referred, and which impose a time limit of six months on the commencement of proceedings for summary offences.  Whilst I acknowledge the difference in wording, namely that section 127 expressly refers to the laying of the information (and the making of a complaint), I can see no justification for concluding that there should be any distinction between the application of the time limit in section 17(2) of the Act with which we are concerned, and the application of the general time limit under section 127.  Time limits are there to protect people from stale charges or claims.  But they also take away rights, in this case, of informants or complainants, who otherwise would have proper grounds for bringing court proceedings. It would therefore seem appropriate that the time limit should only bite in relation to steps over which the informant or complainant can exercise control as is the case in relation to proceedings subject to the limitation Act.  Subject to the arguments as to the meaning of the word “laid” to which I shall return,  an informant can exercise control over the time at which he lays his information.  He has no control over the issue of a summons or any other form of process.   As a matter of principle, therefore, it seems to me that the laying of the information is the act which should determine whether or not the time limit has been met.  
12.	There is no direct authority on this point.  But it seems to me that the decision of the House of Lords in R –v- Manchester Stipendiary Magistrate, ex parte Hill et al [1993] AC 328 gives support for this approach.  The case concerned two separate aspects of the application of section 127 of the Magistrates Court Act; first was the question of when an information was laid, and second was the power of delegation where a justice of the peace or the clerk did not personally receive or consider the information in question.  The headnote deals with the two issues as follows:
“That in each case the information was laid when it was received at the office of the clerk to the justice by a member of the staff expressly or impliedly authorised to receive it...... 
...per curiam: the laying of an information is a matter for the prosecution.  It is the prosecutor’s duty, if he wishes to prosecute, to prepare and lay the information before the magistrates’ court.  The acts of delivery and receipt are ministerial and justices of the peace or clerks to the justices may delegate to an appropriate subordinate authority.  But if a summons is required, the information must after receipt be laid before a justice or the clerk to the justices; the function of a justice or the justices clerk in determining whether a summons should be issued is a judicial one which must be performed judicially and which cannot lawfully be delegated to a subordinate.”
13.	The single reasoned speech was given by Lord Roskill.  At page 342B he said as follows:
“.... First, in their criminal jurisdiction, what magistrates’ courts have jurisdiction to try summarily is an information, and what is required to give them that jurisdiction is that an information has been laid before them.  Secondly, in their civil jurisdiction, what magistrates’ courts have jurisdiction to try is a complaint, and what is required to give them that jurisdiction is that a complaint has been made to them.  Their jurisdiction in criminal cases does not depend upon a summons or a warrant being issued and their civil jurisdiction does not depend on a summons being issued ...
My Lords, it is of crucial importance to appreciate that the laying of an information is a matter for the prosecution just as the making of a complaint is a matter for the complainant.  In each case it is for the prosecutor or the complainant to decide how the information or how the complaint shall be formulated.  I agree with the Divisional Court in the present cases that the commencement of criminal proceedings lies in the hands of the prosecutor.  It is, in my opinion, the prosecutor’s duty, if he wishes to prosecute, to prepare and lay the information before the magistrates’ court, which means a justice of the peace or the clerk to the justices.  The laying of an information before or the making of a complaint to a justice of the peace or the clerk to the justices to my mind means, in reference to a written information or complaint, procuring the delivery of the document to a person authorised to receive it on behalf of the justice of the peace and the clerks.  The acts of delivery and receipt are ministerial, and I see no reason why the justice of the peace or the clerk to the justices should not delegate an appropriate subordinate authority to receive the information which the prosecutor desires to deliver.  It can sensibly be inferred that any member of the staff in the office of the clerks to the justices authorised to handle incoming post has such authority.  Accordingly, once the information has been received at the office of the clerk to the justices, which today in most cases is likely to be at the magistrates’ court house, the information in my view have been laid.  No more is required of the prosecutor to launch the intended criminal proceedings.  Similarly with a complaint - once the complaint is received at the office of  the clerk to the justices no more is required of the complainant.
What happens thereafter is not within the province of the prosecutor or the complainant but of the court...... ”
14.	At a later stage, at page 344 C, Lord Roskill reiterates the fact that the foundation of the magistrates’ court’s jurisdiction is the laying of the information or the making of a complaint “and not the issue of any summons which may or may not follow the laying of an information or the making of a complaint.”.
15.	In conclusion, dealing with the particular question with which the House was concerned, he said at page 346:
“I would answer the certified question by saying:
“An information is laid for the purpose of section 127 of the Magistrates’ Courts Act 1980 when it is received at the office of the clerk to the justices for the relevant area.”
I would add that is not necessary for the information to be personally received by justices of the peace or by the clerks to the justices.  It is enough that it is received by any member of the staff of the clerk to the justices, expressly or impliedly authorised to receive it, for onward transmission to a to a justice of the peace, or to the clerk to the justices.  The same applies to the making of a complaint.”
16.	Leaving aside, for the moment, the question of what Lord Roskill meant by “an information is laid ... when it is received”, these passages make it plain, in my view that a prosecutor commences his proceedings by laying the information.  That is the act which sets in train whatever process will then follow, which is out of his hands.  He has “instituted” proceedings.  In the context, therefore, with which we are concerned, it seems to me that Lord Roskill’s speech makes it plain that proceedings are “instituted” for the purpose of section 17(2) when the information is laid.  Further support for this construction of section 17(2) can be found in the provisions of section 15(2) of the Prosecution of Offences Act 1985, which are in the following terms:
“For the purposes of this Part, proceedings in relation to an offence are instituted – 
(a)	where a justice of the peace issues a summons under section 1 of the Magistrates’ Court Act 1980, when the information for the offence is laid before him; ”
17.	Although that sub-section does not apply to section 17(2), it is entirely consistent with the view that I have formed of the proper meaning to be given to the word “instituted” in this context.
18.	The correct question was, therefore, considered by the justices.  Were they entitled, on the evidence, to conclude the information had been laid on Friday 10th February 2006?  Mr Lamming says not, for two separate reasons.  First, he submits that the above citations from Lord Roskill’s speech make it plain that it is not sufficient for a prosecutor to establish that an information has been sent or delivered to the office of the magistrates’ court clerk, he must prove that it was “received at” the office.  And, he submits, Lord Roskill had in mind, as is apparent from the last passage on page 346, that it has to be “received by” a member of staff.  No evidence was given by the respondent in this case as to receipt by any member of staff, save that the documents do not appear to have been dealt with by anyone with the appropriate authority until Monday 13th February.  That leads to his second point, which is that even if the justices would in other circumstances be entitled to infer that the fax had not only reached the office, but had been received by a member of staff, that inference is displaced by the date on the information on the summons, which clearly state that the information was laid on the 13th February.  He submits that it was for the respondent to establish that the information was laid in time; and on the evidence before the justices, they could not properly have concluded that it had discharged that burden.
19.	Mr Lamming has taken us through both the criminal and the civil procedure  rules dealing in particular with service of documents, to show that there is no established consistency of approach in relation to documents transmitted by fax which could justify the conclusion that there is a presumption, one way or another, as to what constitutes delivery, receipt, or service.  As a result, he submits, it was not open to the justices to draw any inferences either from the fax header lines on the relevant documents or the fax transmission report to show that the documents had been received, as required by the decision of the House of Lords in Hill.  In particular, he submits, this material is insufficient to justify the conclusion that the documents were printed out, even if they had been transmitted, let alone retrieved from the machine by any member of the court staff.  In other words, whilst the material might have been sufficient to justify a finding that the information had been delivered, it was insufficient to justify the conclusion that it had been received.  And, he submits, Lord Roskill made that distinction in the sentence to which I have already referred.
“I see no reason why the justices of the peace or the clerks to the justices should not delegate to an appropriate subordinate authority to receive the information which the prosecutor desires to deliver.”
20.	For the respondent, Mr Mann points out that the House of Lords in Hill was dealing with postal delivery.  It was not concerned with the different questions which arise when delivery is achieved by electronic means.  The rules to which Mr Lamming referred make it clear that the rules relating to postal delivery and the rules relating to electronic delivery are different.  He has referred us to the only two cases in relation to electronic delivery in this context of which either counsel are aware.
21.	The first is R –v- Pontypridd Juvenile Court ex parte B and others (1988) 153 JP 213.  In that case, the court was concerned with the time limit in s.127 of the 1980 Act in circumstances where there was a computer link between the police station and the magistrates’ court.  The practice for laying an information was for the police to feed the information into the system which transmitted it to the court.  The six month time limit expired on Saturday 6th June.  The informations against the defendants were fed into the system by the police on Friday the 5th June.  The input was not printed out at the magistrates’ court until Monday 8th June.  The stipendiary magistrate held that the informations had been laid within time.  The court dealt with the matter shortly.  Mann LJ with whose judgment Schiemann J agreed, said at page 215D-E:
“Mr Leighton Davies felt constrained – in my view, rightly so, – to accept that if the letter had been received on Friday but not opened until Monday, section 127 would have been satisfied.  In 1988 and in the light of what Lord Roskill said in 1982, it appears to me quite unrealistic to suggest that there is any distinction between feeding information into a computer which is printed out on Monday and posting a letter which is opened on Monday.  I regret that there is nothing that I can see in these applications despite all that Mr Leighton Davies has said on behalf of the applicants.”
22.	The second case is Atkinson –v- Director of Public Prosecutions [2005] 1WLR 96, which was again a case concerned with the time limit in section 127 of the 1980 Act.  It was also a case involving automatic electronic communication between the police and the court office.  The six month time limit expired on the 16th December.  The documents served on the defendant showed an “information date” of 10th December, but the summons was dated the 9th January.  It transpired that the information date referred to the first date upon which any data relating to the case were entered on the computer.  That data may only have been the bare bones of the incident in question for example the offence and the date and not sufficient to amount to an information.  The entry could then have been amended at any time thereafter without any record being made of such amendment.  Once the police were satisfied that the information was complete, the entry would have been “validated”.  It was only when the details had been “validated” that the computer at the court would generate the summons.
23.	Before the magistrate, the argument was that the prosecution amounted to an abuse of process.  But as this court pointed out, the true issue was one of jurisdiction.   The court held, applying the decision of this court in Lloyd –v- Young [1963] Crim LR 703, that it was for the prosecution to prove when the information had been laid.  If there was any doubt about the date of the laying of the information, the magistrate should have declined jurisdiction.  In paragraph 19 of his judgment, Auld LJ, with whom Pitchers J agreed, said:
“The data giving rise to the printing of the summons in the magistrates’ court shortly after the effluxion of the time limit may or may not have been in sufficient form at the initial data entry date or over the few days thereafter before the effluxion of that limit.”
24.	In paragraph 23, he recognised that this might have significant practical consequences, and said:
“It may be that the computer can be programmed so as to make  readily retrievable any entries and their dates between the initial entry date and that of printing of the summons.  Or it may be that it could be programmed so that there is no communication of entries on the police system to the magistrates’ court terminals until validation, so that the date of validation would patently be the date of the laying of the information before the magistrates.”
25.	Clearly, neither of these authorities deals directly with the issue with which we are concerned, namely the transmission of what was undoubtedly sufficient to constitute an information by fax.  But the decision in the Pontypridd case seems to me to 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.  And implicit in the judgment of Auld LJ in Atkinson is the conclusion that if the prosecutor there had been able to establish when data sufficient to amount to an information had been entered in the computer so as to be available to the magistrates’ court, that would have been sufficient to amount to the laying of the information.
26.	It seems to me that the essential concept running through all these authorities is that the information should be made available to the justices, or the clerk to the justice, within time.  This will be so in relation to postal delivery when it can properly be inferred that it has been received, whether opened or not; and as far as transmissions by fax or other electronic means are concerned, that will be when it can properly be inferred that the information is retrievable, whether retrieved in fact or not.  In his note to the Pontypridd decision in [1988] Crim LR 842, Sir John Smith said:
“If the information is in a letter posted on Friday and received on Monday the information, surely, is not laid until Monday.  If however, the information which is fed into the computer on Friday is accessible by the justices or their clerk or a person authorised by them to receive it on Friday, then the information is laid on Friday though the authorised person does not in fact print it out until Monday.  Such a case is rightly equated with the case of the letter being received on Friday and not opened until Monday.”
27.	The question, therefore, for us is whether or not the justices in the present case could properly find on the evidence before them that the material comprising the information had been made available to those working at their court office on the Friday.  The evidence upon which they relied comprised the fax headings and the fax transmission sheet.  In the absence of any contrary evidence, that would undoubtedly be sufficient to justify the inference that the  information had been made available within time.  The real problem arose because there was some evidence to the contrary, namely the dates inserted on the information itself and the summons indicating that the information had not been laid until the Monday.  The justices dealt with this in short form saying that they were aware that a later date had been endorsed upon the summons “for whatever reason”.  I can readily understand how the justices in effect came to the conclusion that that was simply because the fax print out was not put in front of the person authorised to issue the summons until the Monday.  There was nothing perverse about such a finding .   Indeed, bearing in mind the time at which the fax was sent, it was the most likely explanation.
28.	In those circumstances, I consider that the justices were entitled to conclude as they did that the information was laid within time and would dismiss this appeal.

Davis J. : 
29.	The first line of argument advanced by Mr Lamming was by reference to the provisions of s.17(2) of the Forestry Act 1967, which state that “proceedings may be instituted” within 6 months of the first discovery of the relevant offence.  The answer to the question when proceedings are instituted  depends on the particular statutory context in which the words are found:  see the comments of Saville LJ in DPP – v – Cottier [1996] 1WLR 826 at p831H (that being a decision in which most of the authorities now relied on before us by Mr Lamming had also been cited).   In the context of the Forestry Act 1967 I agree with Latham LJ that the application of the time limit is to be equated with that prescribed under s.127 of the Magistrates Court Act 1980.  I would add that no doubt there will be many contexts where the “institution” of proceedings can be taken to have the same meaning as the “commencement” of proceedings:  but it may be that in some contexts that will not be so and the two concepts are not necessarily to be taken as always synonymous.  That, however,  is not a point which arises in this particular case.
30.	Turning, then, to the second line of argument advanced by Mr Lamming, I take the view that, on the evidence before them, the justices were entitled to conclude that the information had been effectually transmitted by fax to the Magistrates’ Court on the afternoon of Friday 10th February 2007.  Mr Lamming’s further submission to the effect that, before the information could be said to have been laid, such fax had to be shown to be received by (in the sense of taken into the hands of) a duly authorised official, is not obviously consistent with the remarks of Lord Roskill in ex parte Hill at p343A-C; and is positively inconsistent with the decision of the Divisional Court in the Pontypridd Juvenile Court case.  In my judgment therefore, the justices were entitled to conclude, on the facts of this case, that the information had been laid, and the proceedings accordingly instituted, before the expiry of the relevant 6 month period.
31.	For these short reasons, and for the reasons more fully given by Latham LJ with which I agree, I would answer the questions posed in the case stated in the affirmative; and I also would dismiss this appeal.