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[1998] 1 All ER 559

R v Thames Magistrates' Court, ex parte Horgan

QUEEN'S BENCH DIVISION

PILL LJ AND GARLAND J


17, 25 NOVEMBER 1997



Magistrates - Jurisdiction - Trial of information - Validity of information - Laying of information - Time limit - Information in relation to Companies Act offence not laid within time limit contained in statutory provision - Offence charged triable either way - Whether statutory provision applying to offences triable either way or solely to offences triable only summarily - Whether magistrate having jurisdiction to try case - Magistrates' Courts Act 1980, s 127(1)(2) - Companies Act 1985, s 731(2).

In December 1996, more than 12 months after evidence to justify proceedings came to the knowledge of the Director of Public Prosecutions, an information was laid against the applicant under s 222(6) of the Companies Act 1985, alleging that, as an officer of a company, 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. That offence was triable either on indictment or summarily. The stipendiary magistrate ruled that s 731(2)^a of the 1985 Act, which provided that notwithstanding anything in s 127(1)^b of the Magistrates' Courts Act 1980, an information relating to an offence under the 1985 Act which was triable by a magistrates' court had to be laid within 12 months after evidence to justify proceedings came to the knowledge of the Director of Public Prosecutions, related exclusively to offences triable only summarily. He concluded therefore that he had jurisdiction to try the applicant for the s 222(6) offence. The applicant applied for judicial review of the stipendiary magistrate's decision, contending that s 731(2) was not restricted to offences triable only summarily.

^a     Section 731(2) is set out at p 561 a b, post

^b     Section 127, so far as material, is set out at p 561 j to p 562 b, post

Held - Section 731(2) of the 1985 Act had to be read together with s 127 of the 1980 Act, as express reference therein was made to it. Accordingly, since s 127(2) of the 1980 Act provided that nothing in s 127(1) or any other enactment which imposed a time limit on the power of a magistrates' court to try an information, should apply to any indictable offence, and the definition of an indictable offence in Sch 1 to the Interpretation Act 1978 included an offence triable either way, s 731(2) could not be read as applying to such an offence. It followed that s 731(2) applied solely to offences triable only summarily and that the magistrate's decision was correct. The application would therefore be dismissed (see p 563 d to j, post).

Notes

For where and how long a company's accounting records have to be kept, and the prosecution of offences under the Companies Acts, see 7(2) Halsbury's laws (4th edn reissue) paras 802, 1164.

For the Interpretation Act 1978, Sch 1, see 41 Halsbury's Statutes (4th edn) (1995 reissue) 1001.

[1998] 1 All ER 559 at 560

For the Magistrates' Courts Act 1980, s 127, see 27 Halsbury's Statutes (4th edn) (1992 reissue) 282.

For the Companies Act 1985, s 731, see 8 Halsbury's Statutes (4th edn) (1991 reissue) 594.

Cases referred to in judgments

Beswick v Beswick [1967] 2 All ER 1197, [1968] AC 58, [1967] 3 WLR 932, HL.

IRC v Hinchy [1960] 1 All ER 505, [1960] AC 748, [1960] 2 WLR 448, HL.

Cases also cited or referred to in skeleton arguments

Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590, [1934] All ER Rep 385, CA.

Kemp v Liebherr-GB Ltd [1987] 1 All ER 885, [1987] 1 WLR 607, DC.

London and Country Commercial Property Investments Ltd v A-G [1953] 1 All ER 436, [1953] 1 WLR 312.

Vickers Sons & Maxim Ltd v Evans [1910] AC 444, HL.

Application for judicial review

Michael Desmond Horgan applied with leave of Potts J granted on 2 July 1997 for judicial review by way of an order of certiorari to quash the decision of Shamoon Somjee Esq, a metropolitan stipendiary magistrate sitting at Thames Magistrates' Court on 1 May 1997, whereby he ruled that s 731(2) of the Companies Act 1985 related exclusively to offences triable only summarily and that accordingly he had jurisdiction to try the applicant for an offence under s 222(6) of the 1985 Act. The facts are set out in the judgment of Pill LJ.

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

John McGuinness (instructed by the Solicitor to the Department of Trade and Industry) for the respondent.

Cur adv vult

25 November 1997. The following judgments were delivered.



PILL LJ.

This is an application by way of judicial review to quash the decision of Shamoon Somjee Esq, a metropolitan stipendiary magistrate sitting at Thames Magistrates' Court, whereby on 1 May 1997 he ruled that s 731(2) of the Companies Act 1985 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 s 222 of the 1985 Act.

On 9 December 1996 an information was laid against the applicant under s 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 Sch 1 to the Interpretation Act 1978, that is triable either on indictment or summarily. The issue in the case is whether the time limit provided by s 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.

[1998] 1 All ER 559 at 561

Section 731(2) of the 1985 Act provides:

'Notwithstanding anything in section 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 3 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 maybe) to justify the proceedings comes to his knowledge.'

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 s 731(2) is plain and unambiguous. An either way offence is triable by a magistrates' court and the subsection is not restricted to offences triable only summarily. Had Parliament intended to restrict the operation of the subsection in that way, it could easily have done so by inserting the word 'only' after the word 'triable'. Alternatively, the form of words in s 274 of the Merchant Shipping Act 1995 could have been employed. Section 274(1) provides that 'no person shall be convicted of an offence under this 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 [1967] 2 All ER 1197 at 1202, [1968] AC 58 at 73 Lord Reid stated:

'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. If, however, 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 Hinchy [1960] 1 All ER 505 at 512, [1960] AC 748 at 767 Lord Reid stated:

'... we can only take the intention of Parliament from the words which they have used in the Act and, therefore, the question is whether these words are capable of a more limited construction. If not, then we must apply them as they stand, however unreasonable or unjust the consequences and however strongly we may suspect that this was not the real intention of Parliament.'

For the respondent magistrate, Mr McGuinness seeks to place s 731(2) in the context of s 127 of the Magistrates' Courts Act 1980 and earlier Companies Acts. Section 127 of the 1980 Act provides:

'(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 6 months from the time when the offence was committed, or the matter of complaint arose.

[1998] 1 All ER 559 at 562

(2) Nothing in--(a) subsection (1) above; or (b) ... any other enactment (however framed or worded) which, as regards any offence to which it applies, would but for this section impose a time-limit on the power of a magistrates' court to try an information summarily or impose a limitation of the time for taking summary proceedings, shall apply in relation to any indictable offence ...'

Schedule 1 to 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. Section 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, in so far as is material, as an offence which is triable 'either on indictment or summarily'. In context, Mr McGuinness submits, s 731(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 s 731(2) enacted following the Report of the Committee on Company Law Amendment (Cmd 6659 (1945)). The report recommended that because of the lapse of time which sometimes occurred before offences came to light, the six-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 three years elapsed from the commission of the offence' (see para 169).

Section 442(1) of the Companies Act 1948 provided:

'All offences under this Act made publishable by any fine may be prosecuted under the Summary Jurisdiction Acts, and proceedings under those Acts in respect of any such offence may, notwithstanding anything contrary therein, be taken by the Director of Public Prosecutions or by the Board of Trade at any time within twelve months from the date on which evidence sufficient in the opinion of the Director or the Board, as the case may be, to justify the proceedings comes to his or their knowledge: Provided that proceedings shall not be so taken more than three years after the commission of the offence.'

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.

Section 49 of the Companies Act 1967 provided, in so far as is material:

'(1) All offences under the principal Act or this Part of this Act made punishable by fine alone shall be triable summarily ...

(3) Notwithstanding anything in section 104 of the Magistrates' Courts Act 1952, an information relating to an offence under the principal Act or this Part of this Act 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 twelve months after the date on which evidence sufficient in the opinion of the Director of Public Prosecutions or the Board of Trade, as the case may be, to justify the proceedings comes to his or their knowledge ...'

[1998] 1 All ER 559 at 563

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 trial 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 s 731(2) with s 127 of the 1980 Act. That the two should be read together is established by the express reference in s 731(2) to s 127(1). That in turn refers to s 127(2) and must be read with it. Section 127(1) deals only with offences tried summarily because it is expressed to be subject to sub-s (2) and s 127(2) provides that nothing in sub-s (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 s 127(1) therefore applies exclusively to offences triable summarily only. The reference in s 731(2) to s 127(1) of the 1980 Act, which deals with proceedings triable summarily only, strongly suggests that s 731(2) itself is concerned solely with offences triable only by a magistrates' court. As contemplated by its opening words, s 731(2) extends the time limit for such offences under the Companies Acts and does not create a time limit for other offences. Moreover, the operative words of s 127(2) also provide: 'Nothing in ... any other enactment [and s 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.' Section 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 s 731(2) be said to repeal the earlier s 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 s 731(2) to achieve the result of limiting the scope of that subsection to offences triable only by a magistrates' court. That conclusion is also consistent with s 731(2) appearing in the same section as sub-s (1), which deals with 'summary proceedings'. That is also the sidenote to the section.

I would refuse the application for judicial review.



GARLAND J.

I agree.

Application dismissed.

Dilys Tausz Barrister