Winder v Director of Public Prosecutions

An appeal by way of case stated cannot ordinarily challenge an interlocutory ruling in criminal proceedings which have not been finally determined by the magistrates’ court. The appropriate route may instead be judicial review, but conversion is exceptional and requires a powerful reason. The court must consider practical prejudice, delay and the possibility that the defendant may be acquitted or alter a proposed plea.

For statutory time limits based on when sufficient evidence comes to the prosecutor’s knowledge, the prosecutor is the authorised person or organisation which initiates the prosecution and has authority to bring the charge. It need not be the police or the first investigator to possess the evidence. The proceedings were therefore brought within time.

The appellant faced summary charges under section 127 of the Communications Act 2003. The District Judge ruled that the proceedings had been commenced within the statutory time limit and stated a case for the High Court.

The appeal was lodged one day late and concerned an interlocutory ruling, since the appellant had not yet been convicted. The court extended time, declined to entertain the matter as an appeal by way of case stated, but converted it into a judicial review after the appellant undertook to plead guilty if unsuccessful. The central issues were whether that conversion was appropriate and whether the Crown Prosecution Service was the relevant prosecutor for section 127(5)(b).

1. Jurisdiction. The court extended time for the appeal because it was only one day late and the consequences of the limitation issue were potentially criminal liability. However, an appeal by way of case stated could not ordinarily be brought against an interlocutory or preliminary ruling before the magistrates’ court had finally determined the case. That approach reflected sound practical reasons, including the possibility of acquittal.
2. Conversion to judicial review. The court could, in an appropriate case, treat the matter as an application for judicial review and hear it substantively. This was an unusual course requiring considerable caution. Here, the issue effectively determined the proceedings, the appellant undertook to plead guilty if unsuccessful, and there was a real risk that he might serve a community disposal before a later appeal. Those circumstances supplied the necessary powerful reason.
3. Meaning of prosecutor. Section 127(5)(b) of the Communications Act 2003 did not restrict the prosecutor to the police. The Crown Prosecution Service was authorised and competent to bring the charges and therefore fell within the statutory term. The relevant person was the authorised entity or decision-maker who initiated the prosecution, rather than every employee who first encountered the evidence.
4. The statutory scheme allowed more than one properly authorised organisation to charge offences under section 127. The CPS might need to assess other potential offences, including matters beyond the police’s charging authority, or resolve complex evidential issues. Concerns about delay or manipulation could in rare cases support an abuse-of-process remedy, but they did not arise here.
5. The certificate established that the charges were brought within the periods specified by section 127(5). Both questions stated by the District Judge would have been answered affirmatively. Treated as judicial review, the application was dismissed.

1. Poole Magistrates’ Court — ruled on 3 September 2019 that the charges had been brought in time and stated a case for the High Court.
2. High Court (Administrative Court) — declined to entertain the matter as an appeal by way of case stated, converted it into judicial review, and dismissed the application.