AB & Ors, R. v

A local authority may prosecute under Local Government Act 1972, section 222, only where it reasonably considers prosecution expedient for promoting or protecting the interests of its inhabitants as inhabitants of that area. Relevant considerations may extend beyond the authority’s geographical area, but a general public interest shared by national taxpayers is insufficient.

Commercial income, or the wish to maintain a fraud unit by offering prosecution services to paying external bodies, cannot supply the required local connection. A local authority is a statutory corporation. It has no unfettered common-law right to prosecute and cannot rely on private-prosecution principles to escape section 222.

The appellants awaited trial on charges of conspiracy to defraud the Legal Aid Agency and acts tending and intended to pervert the course of public justice. Thurrock Council had investigated the alleged fraud and commenced the prosecution after an arrangement with the Legal Aid Agency.

At a preparatory hearing, the Crown Court rejected the appellants’ contention that the Council lacked power under section 222 of the Local Government Act 1972. The appellants brought an interlocutory appeal under the Criminal Procedure and Investigations Act 1996.

The central issue was whether the Council’s prosecution was expedient for the promotion or protection of the interests of Thurrock’s inhabitants, or whether the Council had an independent common-law right to prosecute. During the appeal, the Director of Public Prosecutions took over the prosecution.

Disposition

1. The appeal succeeded. The court declared that Thurrock Council had no power to prosecute under section 222 of the Local Government Act 1972. Since the Director of Public Prosecutions had taken over and continued the case under section 6(2) of the Prosecution of Offences Act 1985, no stay was required and the prosecution was to continue under the Director’s conduct.
2. A criminal court may review a local authority’s decision to prosecute under section 222, normally through an abuse-of-process application. Review is sparing because the provision gives the authority a broad discretion, but the court may intervene where the statutory conditions are not met.
3. Section 222 requires expediency for the promotion or protection of the interests of the authority’s inhabitants. Those interests are not confined to conduct within the authority’s area, and broad policy considerations may be relevant. The alleged offending must nevertheless affect the inhabitants in their capacity as inhabitants of that authority, rather than merely as citizens or taxpayers.
4. On the facts, there was no sufficient Thurrock-specific interest. The general interest in preventing fraud on the legal-aid system was shared nationally. The Council’s financial interest in receiving payment for external investigative and prosecutorial work could not justify prosecution. Otherwise, section 222 would permit any local authority to operate a paid national prosecution or defence service, which Parliament could not have intended.
5. The Council’s alternative argument failed. A local authority is a creature of statute and may exercise only powers expressly conferred or implied by statute. Section 6(1) of the Prosecution of Offences Act 1985 preserves criminal proceedings by persons other than the Director; it does not enlarge a local authority’s statutory powers. No general implied power to prosecute arose from the Council’s objects or functions.

The court added, obiter, that major national fraud prosecutions should ordinarily be conducted by the national prosecuting authority. A financially incentivised local-authority prosecution arrangement created serious public-interest and conflict concerns.

• Court of Appeal (Criminal Division) — allowed the interlocutory appeal and declared that the Council lacked power under section 222 of the Local Government Act 1972; the DPP’s takeover meant that the prosecution continued: [2017] EWCA Crim 534.
• Crown Court at Southwark — at a preparatory hearing on 12 December 2016, HH Judge Grieve QC held that there was no good reason to find the prosecution invalid for want of compliance with section 222.