Azam v Epping Forest District Council

Where legislation makes a prosecutor’s certificate conclusive as to the date on which sufficient evidence came to the authority’s knowledge, the court must respect that statutory finality. A valid certificate may be challenged only if it is plainly inaccurate on its face or fraudulent. Abuse of process may also arise where the prosecution has manipulated or misused the process to defeat a time bar. If no certificate is issued, or it is defective, the court determines the true date by reference to the prosecutor’s opinion, allowing a margin of judgment but disregarding time spent deciding only whether prosecution is in the public interest.

The appellant was prosecuted by Epping Forest District Council for alleged false statements and failures to notify changes affecting housing benefit and council tax benefit. The Council issued a certificate under section 116(3)(b) of the Social Security Administration Act 1992, stating that sufficient evidence came to its knowledge on 16 November 2007. The District Judge held that the certificate was conclusive and that the prosecution was not an abuse of process.

On a case stated, the Divisional Court considered whether the court could investigate whether sufficient evidence had been available earlier, and whether the evidence supported the District Judge’s alternative finding concerning the date.

1. The appeal was dismissed in substance. The certificate was in the statutory form, was not defective, was not inaccurate on its face and was not alleged to be fraudulent. It was therefore determinative of the date stated.

2. The relevant focus is the prosecutor who makes the decision to prosecute. In this case that was Mr Crowe, rather than the officer who signed the certificate. The Council’s acts were attributed to the individual responsible for the prosecution decision.

3. The authorities establish that, where no certificate is issued or the certificate is defective, the court must determine when evidence sufficient, in the prosecutor’s opinion, to justify prosecution came to his knowledge. The prosecutor has a margin of judgment. Time spent deciding only whether prosecution is in the public interest is disregarded, and a prosecutor cannot prevent time running by failing to apply his mind to the case.

4. A certificate must comply exactly with the statutory requirements, including stating the relevant date. Extrinsic evidence cannot cure a deficiency. A valid certificate can be displaced only for patent facial inaccuracy, fraud, or an abuse of process involving manipulation or misuse of the process to deprive the defendant of the statutory time bar.

5. There was no basis for an abuse-of-process argument. The four days between the second interview and the calculation of the overpayment could, in any event, fall within the prosecutor’s margin of judgment. The court did not need to answer the second question in the case stated.

• Chelmsford Magistrates’ Court: the District Judge held that the certificate was conclusive, that there was no abuse of process, and that the relevant date was 16 November 2007.
• High Court (Administrative Court): on the case stated, the court held that a valid certificate was determinative and found no basis to interfere with the decision.