Burwell v Director Of Public Prosecutions

A prosecutor’s certificate under the Computer Misuse Act 1990, section 11(4), is ordinarily conclusive as to the date when sufficient evidence came to the prosecutor’s knowledge. It must, however, comply fully with the statutory wording and state that date. Extrinsic evidence cannot cure its omission. A plainly inaccurate certificate remains challengeable by the courts. The appeal was allowed because the certificate stated only that proceedings had been brought within six months.

The appellant appealed by way of case stated from the Redhill Magistrates’ Court. He had pleaded guilty to five offences under section 1 of the Computer Misuse Act 1990. The magistrates held that a prosecutor’s certificate under section 11(4) prevented a challenge to the timeliness of the proceedings.

The issues were whether a compliant certificate was conclusive, whether the courts could examine its evidential basis, and whether the particular certificate complied with section 11(4).

1. Appeal allowed and case remitted. The certificate was invalid because it did not state the date on which sufficient evidence came to the prosecutor’s knowledge. The magistrates were directed to determine whether the proceedings were brought within section 11(2).
2. A certificate complying with section 11(4) is normally determinative. The provision aims to create certainty and avoid an inquiry into the prosecuting process. The prosecutor retains a degree of judgment as to when evidence is sufficient.
3. The certificate does not confer an unlimited power to delay proceedings. A certificate that is plainly inaccurate, even if honestly made, may be challenged before the magistrates as an abuse of process or by judicial review.
4. The provision must be strictly construed because it is an exception benefiting the prosecution. The certificate must state the relevant date. A general statement that proceedings were brought within six months is insufficient, and extrinsic evidence cannot cure the defect.
5. The Article 6 arguments failed. The courts retain jurisdiction to intervene against a plainly wrong certificate, so the case differed from Terra Woningen v Netherlands (1997) 24 EHRR 456 and Capital Bank AD v Bulgaria (2007) 44 EHRR 48.

The court preferred R v Haringey Magistrates’ Court, ex parte Amvrosiou [1996] EWHC Admin 14 to Morgans v DPP [1999] 1 WLR 968, although the latter might remain relevant where no valid certificate exists.

1. Redhill Magistrates’ Court: held that the certificate was determinative under section 11(4); the appellant pleaded guilty.
2. High Court (Administrative Court): allowed the appeal by way of case stated and remitted the case for determination under section 11(2).