Securiplan Plc & Ors, R (on the application of) v Security Industry Authority & Anor

A statutory regulator may prosecute offences where prosecution is calculated to facilitate, or is incidental or conducive to, the performance of its statutory functions. An express power to prosecute is unnecessary where that power arises by proper construction of the enabling Act. External legislative materials and comparisons with other statutes cannot displace clear statutory language. Judicial review of prosecutorial vires may be available if brought promptly, but once criminal proceedings have reached the Crown Court and the issue has been ruled upon, section 29(3) of the Supreme Court Act 1981, the rule against collateral challenges and delay may prevent review. The application was therefore dismissed.

The claimants were security companies and individuals prosecuted in the Crown Court for alleged offences under the Private Security Industry Act 2001. They sought judicial review of the Security Industry Authority’s decisions to institute or continue the prosecutions, arguing that the Authority had no statutory power to prosecute.

The Authority argued that prosecution was within its incidental statutory powers. It also relied on the exclusion in section 29(3) of the Supreme Court Act 1981, discretion and delay. A Crown Court judge had already rejected the vires argument. The central questions were whether the Authority had power to prosecute and whether the High Court could entertain the challenge at that stage.

1. Power to prosecute. The Authority’s functions under section 1(2) of the Private Security Industry Act 2001 included licensing, monitoring and inspection. Under section 1(3), it could do anything calculated to facilitate, or incidental or conducive to, carrying out those functions. Properly construed in the context and purpose of the Act, prosecution of offences facilitated the licensing function by enforcing sanctions and deterring unlicensed activity. It also supported inspection and information-gathering powers by underpinning the offences concerning obstruction and non-compliance.
2. Limits of the incidental power. Section 1(3) was not a discrete source of new functions. It authorised ancillary powers connected with existing functions. The power to prosecute fell within that limit because it was incidental to licensing and inspection. Section 1(4), being expressly without prejudice to section 1(3), did not restrict the latter provision.
3. Judicial review jurisdiction. The application was a matter relating to trial on indictment within section 29(3) of the Supreme Court Act 1981. The criminal proceedings had reached the Crown Court and the Crown Court had ruled on the same issue. A collateral challenge in the Administrative Court would risk delay and duplication. The application was therefore excluded from the High Court’s supervisory jurisdiction at that stage.
4. Discretion and delay. Independently, the court would decline to entertain the application. The policy against satellite litigation in pending criminal proceedings creates a strong presumption against review where the issue can be raised in the trial and appellate process, absent exceptional circumstances. The applications were not made promptly or within three months. The claimants had chosen to litigate the issue in the Crown Court, and extending time would have caused duplication and further costs.
5. Disposition. The court concluded that the Authority had power to prosecute, but refused permission by reason of section 29(3), discretion and delay. The judgment was authorised for reporting and reliance despite refusal of permission.

This was a first-instance judicial review application in the Administrative Court. The judgment records that the Crown Court had previously rejected the claimants’ vires argument, but that ruling was not the decision under appeal.