Verderers of the New Forest v Young & Ors

For a regulatory offence requiring conduct to cease or a condition to be fulfilled, whether an offence is continuing depends on the statutory or byelaw scheme and its purpose. Where animals are depastured without an annual fee, the offence continues while the animals remain depastured after the payment deadline. The limitation period runs from the date on which the offence is alleged and evidenced, rather than necessarily from the first day of the period. An information alleging an incorrect date may ordinarily be amended where the true case is clear and no injustice results. Magistrates have only very limited power to reopen a concluded decision. A later discovery of an error in substantive law cannot generally justify reconsideration outside the statutory power.

The Verderers prosecuted nine commoners for alleged breaches of byelaws governing the depasturing of horses, sheep and cattle in the New Forest. The Deputy District Judge held that the informations had been laid outside the six-month period in section 127 of the Magistrates' Courts Act 1980 and that the court therefore lacked jurisdiction.

After being referred to Marren v Dawson Bentley & Co Ltd, she recognised that the limitation calculation was wrong for most informations. She nevertheless treated her earlier decision as a nullity and purported to reopen the matters. The Verderers appealed by way of case stated. The central issues were whether the offences were continuing, whether the informations could be amended, and whether the magistrate had power to set aside her earlier decision.

Appeal allowed. The informations were to be remitted for continuation, subject to the Verderers undertaking to seek amendments identifying the dates on which the animals were observed. The convictions and sentences of the two Pennys were restored.

1. Limitation. Under section 127 of the Magistrates' Courts Act 1980, the day of the offence is not counted when calculating the six-month period, applying Marren v Dawson Bentley & Co Ltd. The informations laid on 31 October 2002 were therefore in time.
2. Continuing offence. The byelaw was intended to prevent depasturing without payment of the annual fee. The offence crystallised when the payment deadline expired, but continued on any later date when the animals remained depastured without payment. The relevant date was therefore the date on which inspection evidence showed that the animals were being depastured. This approach was consistent with the principles illustrated by Rowley v TA Everton & Sons Ltd and Thames Water Utilities Ltd v London Borough of Bromley.
3. Amendment. The informations as drafted alleged an offence on or before 30 April, unsupported by the evidence. They should be amended to allege depasturing on the dates actually established. Amendment would normally be permitted under section 123 of the Magistrates' Courts Act 1980 because the defendants knew the case against them and suffered no prejudice.
4. Reopening decisions. Section 142(1) did not apply because the court was not dealing with an offender. The Deputy District Judge had no general common-law power to reopen the concluded decision merely because she later discovered an error. R (on the application of Steward) v Director of Public Prosecutions concerned an immediate correction of a manifest error agreed by both parties and did not justify reopening this case after the decision had been completed and accepted.

1. High Court (Administrative Court): On an earlier appeal concerning jurisdiction, the court held that the Magistrates’ Court had jurisdiction rather than the Court of Swainmote.
2. Magistrates’ Court: The Deputy District Judge ruled that the informations were out of time and purported to reopen that decision after recognising an error in the limitation calculation.
3. High Court (Administrative Court): The appeal by way of case stated was allowed. The matters were remitted for continuation subject to amendment of the informations.