Revenue & Customs (Prosecution Office) v NE Plastics Ltd

For Customs and Excise summary offences, the six-month period linked to the prosecutor’s acquisition of sufficient evidence under section 146A of the Customs & Excise Management Act 1979 begins when that evidence comes to the knowledge of the Director of the Revenue & Customs Prosecution Office or the Director’s officials. Knowledge held by investigating officers of HM Revenue & Customs is not imputed to the prosecuting authority.

The statutory time limit must be applied according to its plain meaning. Any culpable delay which makes a prosecution unfair may be addressed by a stay for abuse of process, rather than by altering the statutory construction.

The Revenue & Customs Prosecution Office appealed by Case Stated against a District Judge’s ruling that informations charging NE Plastics Ltd with 16 summary offences had been laid out of time. The alleged offences concerned failures to submit monthly Intrastat declarations between March 2005 and June 2006.

The parties agreed that HM Revenue & Customs officers had sufficient information to prosecute before the information reached the Director’s office, but that the information was laid within six months of reaching that office. The central question was whether knowledge possessed by HM Revenue & Customs officers was to be imputed to the Director of Revenue & Customs Prosecutions for the purposes of section 146A.

Appeal allowed. The certified question was answered in the negative. The case was remitted to the District Judge to proceed in accordance with the High Court’s decision.

1. Section 146A(3) of the Customs & Excise Management Act 1979 provides an outer limit of three years from commission of the offence. Subject to that limit, proceedings may be commenced within six months from the date on which sufficient evidence comes to the knowledge of the prosecuting authority.
2. The statutory definition of the prosecuting authority is the Director of Revenue & Customs Prosecutions. The statutory separation introduced by the Commissioners for Revenue & Customs Act 2005 between investigation and prosecution was designed to secure prosecutorial independence. In that context, knowledge of HM Revenue & Customs investigators cannot be imputed to the Director or the Revenue & Customs Prosecution Office.
3. The plain statutory meaning is not displaced by the fact that the limitation period may be substantially longer than the period which would have applied before prosecutorial independence was established, or than the general six-month period under section 127 of the Magistrates’ Courts Act 1980. The difference is a consequence of Parliament’s chosen statutory structure.
4. The Code for Crown Prosecutors and the possibility of an indolent investigation did not justify a different construction. However, where delay attributable to culpable inactivity makes a trial unfair, the proper remedy may be a stay for abuse of process. That issue was not determined on the appeal.
5. Mr Justice Blake agreed with Lord Justice Maurice Kay. He added that any possible argument concerning delegated functions or notices issued by Commission staff did not arise on the facts found.

• High Court (Administrative Court): On an appeal by Case Stated, the court allowed the appeal, answered the certified question in the negative and remitted the case to the District Judge.
• Magistrates’ Court: The District Judge had accepted NE Plastics Ltd’s submission that the informations were out of time and halted the prosecution.