Burwell v Director of Public Prosecutions

For a statutory time limit based on when sufficient evidence came to the prosecutor’s knowledge, the prosecutor is the person or body actively instrumental in making or prosecuting the charge. A forensic expert engaged to investigate and preserve evidence does not become the prosecutor merely because the expert works with the police or recommends that the matter be reported. Knowledge is assessed by reference to the opportunity for persons with appropriate prosecutorial skills to consider whether the evidence justifies proceedings.

The appellant was prosecuted for offences under section 1 of the Computer Misuse Act 1990. The NHS Trust instructed Parkhill Audit Agency to conduct a forensic investigation. Parkhill later worked with the police, and the CPS received an evidential package before charges were brought.

Following an earlier case-stated appeal, the matter was remitted to the magistrates, who held that the charges were not time-barred. The issues were whether the prosecutor was confined to the police and CPS, and whether the police acquired statutory knowledge of evidence gathered by Parkhill.

1. Appeal dismissed. For section 11 of the Computer Misuse Act 1990, the relevant prosecutor was confined to the police and the Crown Prosecution Service. The NHS Trust was not the prosecutor, and Parkhill was a forensic investigator rather than a prosecuting body.

2. The court applied the principle in Morgans v DPP [1999] 1 WLR 968 that the prosecutor ordinarily includes anyone actively instrumental in making or prosecuting the charge. Parkhill’s forensic work, cooperation with the investigating officer and recommendation that the case be reported did not make it the prosecutor.

3. The court followed RSPCA v Johnson [2009] EWHC 2702 (Admin). Knowledge does not arise merely because an employee possesses relevant information. There must be an opportunity for persons with appropriate skills to assess whether the evidence justifies prosecution. Prosecutors may not manipulate the time limit by shuffling papers or withholding information.

4. The second question was unnecessary in view of the first answer. In any event, on the facts, the police did not acquire knowledge merely because Parkhill gathered evidence on their behalf. The charges were brought within time, and the appeal was dismissed.

1. High Court (Administrative Court) — The earlier appeal held the prosecutor’s certificate defective in [2009] EWHC Admin 1069 and remitted the matter to the magistrates.
2. Redhill Magistrates’ Court — The Deputy District Judge held that the charges were not time-barred.
3. High Court (Administrative Court) — The present case-stated appeal was dismissed.