Moss & Son Ltd v Crown Prosecution Service (Rev 1)

A prosecution policy must be interpreted as a whole and, where possible, in a sensible and reasonable manner. A policy may lawfully distinguish between labour users by reference to the extent of actual exploitation, including the duration or scale of labour supplied. Breach of a prosecution policy does not, by itself, constitute an abuse of process. The applicant must also establish misconduct or oppression of the kind identified in R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42. The courts ordinarily accord substantial respect to prosecutorial decisions made by independent prosecutors. The judgment also indicates that prosecution policies and decisions made by executive agencies may justify more stringent review, although the same legal test applies where the prosecution has been adopted by the Crown Prosecution Service.

The appellant, a dairy farming business, was prosecuted under the Gangmasters (Licensing) Act 2004 after engaging a worker supplied by an unlicensed labour provider. The labour provider had paid the worker less than the minimum agricultural wage, but the appellant was unaware of the exploitation.

The Gangmasters Licensing Authority’s Dairy Policy selected for prosecution labour users whose engagement had lasted at least 12 months. The appellant argued that this criterion departed from the policy, rendering the prosecution oppressive and an abuse of process. The District Judge rejected the application to stay, convicted the appellant and imposed an absolute discharge and costs. The appeal concerned whether the policy had been breached and, if so, whether a stay should have been ordered.

1. Appeal dismissed. The Dairy Policy was poorly drafted, but it had to be read as a whole and construed so far as possible to give effect to the drafter’s intention. Option 4 was intended to target labour users whose use of labour had made the actual exploitation of the worker or the Exchequer greatest. A 12-month minimum period was a permissible way of applying that policy. There was therefore no breach.
2. Even if the policy had been breached, that would not itself justify a stay for abuse of process. Ordinarily, a challenge to a prosecution decision must be made in the criminal proceedings by an application to stay. Judicial review is reserved for exceptional cases where that remedy is unavailable.
3. Following the principles stated in R v A [2012] EWCA Crim 434, the court does not make prosecutorial decisions. Even where policy or guidance has not been followed, a stay requires misconduct or oppression of the type identified in R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42. The same test applies to an exceptional judicial review challenge.
4. Prosecutorial independence explains the deference ordinarily shown to decisions of the Crown Prosecution Service and the police. Where policy is devised by an executive agency, there is a powerful argument for more stringent scrutiny, because the constitutional justification for deference is weaker. Clear arrangements should ensure that prosecution policy and individual prosecution decisions are made independently of the Executive.
5. On the assumed breach, the prosecution would nevertheless not have been oppressive. The GLA had conscientiously considered its policy, any error was a mistake rather than arbitrariness, and the prosecution had been adopted by the CPS. The strict-liability nature of the offence, subject to the due-diligence defence, provided no basis for a stay.

• High Court (Administrative Court): appeal by case stated dismissed; the refusal by District Judge Cooper at Swindon Magistrates’ Court to stay the prosecution was upheld.