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[1997] All ER (D) 89

R v Thames Magistrates' Court, ex parte Horgan

Queen's Bench Division, Divisional Court

Pill LJ and Garland J


25 November 1997



Company - Magistrates' Court - Jurisdiction - Offence triable either way - Prosecution brought within 3 years of date of offence, but more than 12 months from date Secretary of State having knowledge of offence - Magistrate determining matter suitable for summary trial - Whether magistrate having jurisdiction to try case - Companies Act 1985, s 731(2) - Magistrates' Courts Act 1980, s 127.

The applicant was an officer of a company, which had been made subject to a winding up order. An information was laid against him under s 222(6) of the Companies Act 1985, alleging that he had permitted default to be made by the company, in that it had failed to preserve all its accounting records for a period of three years from the date on which they were made. The offence was an offence triable either on indictment or summarily. Section 731(2) of the 1985 Act provided: 'Notwithstanding anything in s 127(1) of the Magistrates' Courts Act 1980, an information relating to an offence under the Companies Acts which is triable by a magistrates' court in England and Wales may be so tried if it is laid at any time within three years after the commission of the offence and within 12 months after the date on which evidence sufficient in the opinion of the Director of Public Prosecutions or the Secretary of State (as the case may be) to justify the proceedings comes to his knowledge.' Section 127 of the 1980 Act provided, so far as material: '(1) Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates' court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within six months from the time when the offence was committed, or the matter of complaint arose.' The matter came before a stipendiary magistrate who ruled that s 731 related exclusively to offences triable only summarily, so that he had jurisdiction to try the applicant for the offence, even though it was common ground that the information against the applicant had not been laid within 12 months after the date on which evidence to justify proceedings came to the knowledge of the prosecution. The applicant applied for judicial review of that decision, contending that the time limit provided by s 731(2) applied to both offences which were triable only summarily and to offences which were triable either way provided they were in fact tried summarily.

The application would be dismissed.

It was necessary to read s 731(2) of the 1985 Act with s 127 of the 1980 Act because of the express reference in that subsection to s 127(1), which in turn referred to s 127(2). Section 127(2) provided that nothing in subsection (1) should apply to any indictable offences. Since an offence triable either way was an indictable offence by virtue of the Interpretation Act 1978, s 127(1) applied exclusively to offences triable summarily only. That strongly suggested that s 731(2) was concerned solely with offences triable only by a magistrates' court. Accordingly, the magistrate had been correct to assume jurisdiction.

Ian Winters (instructed by Peters & Peters) for the applicant.

John McGuinness (instructed by the Legal Department, Department of Trade and Industry) for the respondent.

Dilys Tausz Barrister.

Judgment

UNREVISED JUDGMENT

Pill LJ:

This is an application by way of judicial review to quash the decision of Shamoon Somjee Esq Metropolitan Stipendary Magistrate sitting at Thames Magistrates Court whereby on 1 May 1997 he ruled that s 731(2) of the Companies Act 1985 ("the 1985 Act") relates exclusively to offences triable only summarily and that accordingly he had jurisdiction to try the applicant Mr Michael Desmond Horgan for an offence under 5 222 of the 1985 Act.

On 9 December 1996, an information was laid against the applicant under 5 222(6) of the 1985 Act alleging that, as an officer of a company, he had permitted default to be made by the company in that it failed to preserve all its accounting records for a period of three years from the date upon which they were made. The company concerned was Concept Information Ltd which had been made subject to a winding up order on 12 January 1994. The offence was an "offence triable either way" within the meaning of that term in Schedule 1 of the Interpretation Act 1978 ("the 1978 Act"), Schedule 1, that is, triable either on indictment or summarily. The issue in the case is whether the time limit provided by 5 731(2) of the 1985 Act applies solely to offences which are triable only summarily or also to offences which are triable either way provided they are in fact tried summarily.

S 731(2) of the 1985 Act provides:

It is common ground that the information was not laid within 12 months after the date on which evidence to justify proceedings came to the knowledge of the Director of Public Prosecutions so that if the information relates to an offence under the Companies Acts "which is triable by a magistrates' court in England and Wales", within the meaning of the section, the magistrates' court has no jurisdiction to try it.

Mr Winter, for the applicant, submits that the wording of 5 73 1(2) is plain and unambiguous. An either way offence is triable by a magistrates' court and the sub-section is not restricted to offences triable only summarily. Had Parliament intended to restrict the operation of the sub-section in that way, it could easily have done so by inserting the word "only" after the word "triable". Alternatively, the form of words in 5 274 of the Merchant Shipping Act 1996 could have been employed. 5 274(1) provides, that "no person shall be convicted of an offence under the Act in summary proceedings" unless brought within the time limit imposed.

Mr Winter relies upon statements of high authority in support of his submission. In Beswick v Beswick [1968] AC 58, Lord Reid stated, at p 73G that "In construing any Act of Parliament we are seeking the intention of Parliament and it is quite true that we must deduce that intention from the words of the Act. If the words of the Act are only capable of one meaning we must give them that meaning no matter how they got there. But if they are capable of having more than one meaning we are, in my view, well entitled to see how they got there". In IRC v Hinchey [19601 AC 748, Lord Reid stated, at p 768:

For the respondent magistrate, Mr McGuinness seeks to place 5 73 1(2) in the context of 5 127 of the Magistrates' Courts Act 1980 ("the 1980 Act")and earlier Companies Acts. 5 127 of the 1980 Act provides that:

Schedule 1 of the 1978 Act provides that "indictable offence" means an offence which, if committed by an adult, is triable on indictment, whether it is exclusively so triable or triable either way. S 127(2)(b) therefore applies to an offence such as the present which is triable either way. The expression "offence triable either way" is defined, insofar as is material, as an offence which is triable "either on indictment or summarily". In context, Mr McGuinness submits, 5 73 1(2) applies to offences which are only triable summarily and not to offences triable either way which are in fact tried summarily.

Mr McGuinness relies on statutory predecessors of 5 731(2) enacted following the Report of the Committee on Company Law Amendment presented to Parliament in June 1945 (Cmd. 6659). The Report recommended that because of the lapse of time which sometimes occurred before offences came to light, the 6 months limitation contained in the then current Summary Jurisdiction Act 1848 was too short and a provision should be inserted in the Companies Act that "summary proceedings would be capable of being instituted within a year of discovery ... provided that not more than 3 years elapsed from the commission of the offence".

S 442(1) of the Companies Act 1948 provided that:

It is submitted that the section empowered prosecution by way of summary proceedings and did no more than extend the time limit for summary prosecution, following the 1945 recommendation. Mr Winter contends that "either way offences" existed in the Companies Acts at that time, though not known as such, and if they were "prosecuted" as summary proceedings, the time limit applied.

S 49 of the Companies Act 1967 provided, insofar as is material:

The format of the relevant section in the 1985 Act follows that in the 1967 Act and there is no evidence of any Parliamentary intention to change the law upon the present issue either between 1948 and 1967 or between 1967 and 1985, it is submitted.

Supporting the opinion of the learned magistrate, Mr McGuinness also submits that the construction advocated by the applicant would produce absurdity in the case of an either way offence in that it would only be when forum is decided by the application of the procedures in the 1980 Act, as amended, that it would be known whether an information had been laid in time. Mr Winter submits that the prosecution should be able to predict whether the case, subject to the defendant's right to claim right by jury, is appropriate for summary trial and that prompt action is required in the public interest if proceedings in the magistrates' court are contemplated. He also submits that, if one does look behind what he submits are plain words, the classification of offences in the 1978 Act underlines the need for the word "only" before "triable", in a statute enacted after that Act, if the respondent's decision is to be upheld.

I have come to the conclusion that the learned Magistrate's decision was correct. While I do find that the statutory history favours the respondent's case, I base my conclusion on the need to read 5 731(2) with 5 127 of the 1980 Act. That the two should be read together is established by the express reference in 5 73 1(2) to 5 127(1). That in turn refers to 5 127(2) and must be read with it. S 127(1) deals only with offences tried summarily because it is expressed to be subject to subsection (2) and 5 127(2) provides that nothing in sub-section (1) shall apply in relation to any indictable offences. An offence triable either way is an indictable offence by virtue of the 1978 Act and 5 127(1) therefore applies exclusively to offences triable summarily only. The reference ins 731(2) to 5 127(1) of the 1980 Act, which deals with proceedings triable summarily only, strongly suggests that 5 731(2) itself is concerned solely with offences triable only by a magistrates' court. As contemplated by its opening words, 5 731(2) extends the time limit for such offences under the Companies Acts and does not create a time limit for c offences. Moreover, the operative words of 5 127(2) also provide that "nothing in any other enactment (and 5 731(2) is of course such an enactment) ... which would but for this section impose a time limit ... shall apply in relation to any indictable offence". S 731(2) cannot in that context be read as applying to an offence triable either way which is by definition an indictable offence. Nor, given the overall relationship between the two sections, can 5 731(2) be said to repeal the earlier 5 127 to the extent of any inconsistency. I do not consider that they need or should be read as inconsistent with each other.

The word "only" need not therefore appear after the word "triable" in 5 731(2) to achieve the result of limiting the scope of that sub-section to offences triable only by a magistrates' court. That conclusion is also consistent with 5 731(2) appearing in the same section as sub-section (1) which deals with "summary proceedings". That is also the side-heading to the section.

I would refuse the application for judicial review.

GARLAND J:

I agree.