Director of Public Prosecutions v Edward Cook & Anor

A prosecutor’s certificate under section 127(7) of the Communications Act 2003 is conclusive evidence of the relevant date unless it is not in the proper form, contains an error on its face, or is fraudulent. A court may examine the certificate against the statute or applicable authority to identify a facial error, but it may not use extraneous evidence, agreed facts or oral testimony to establish that the certified date is wrong. The statutory reference to evidence which the prosecutor considers sufficient preserves a primarily subjective prosecutorial judgment. It does not permit an objective re-assessment of when the prosecutor ought to have reached that conclusion. The facial-error limitation cannot be circumvented by recasting the challenge as abuse of process.

The Director of Public Prosecutions appealed by case stated against a decision of District Judge Mallon at Leeds Magistrates’ Court on 17 December 2020. The District Judge dismissed prosecutions against the respondents for alleged offences under section 127 of the Communications Act 2003, holding that the proceedings were out of time.

The prosecutor’s certificate stated that the relevant evidence came to the prosecutor’s knowledge on 27 November 2019. The District Judge relied on an agreed chronology and oral evidence to conclude that sufficient evidence had been available earlier, and treated the certificate as plainly wrong. The central issues were whether the certificate could be challenged by reference to extraneous evidence and whether the District Judge had applied the statutory test correctly.

1. Appeal allowed. The District Judge materially erred in law. The certificate was in proper form, fraud was neither alleged nor established, and no error on the face of the certificate was identified.
2. The three permissible grounds for impugning a certificate under section 127(7) of the Communications Act 2003 are: failure to comply strictly with the statutory requirements; an error on the face of the certificate; and fraud. A certificate unimpeachable on those grounds is conclusive evidence of the relevant date.
3. The District Judge’s reliance on the agreed chronology, documents and oral evidence involved an impermissible enquiry. The fact that material is agreed or uncontroversial does not prevent it being extraneous evidence. The court must not investigate whether the certified fact is correct by reference to external factual material.
4. The discussion in R (Chesterfield Poultry Ltd) v Sheffield Magistrates’ Court at [2020] 1 WLR 499, §60, concerned the meaning of the relevant date under section 127(5)(b), not the grounds on which a certificate may be challenged. The statutory question includes the prosecutor’s judgment that the evidence is sufficient to justify proceedings.
5. A certificate may be examined against the statutory wording or applicable authority to identify a facial error. That limited exercise does not permit an evidential investigation. Nor can the statutory limitation be avoided by alleging that maintaining an erroneous certificate constitutes abuse of process.
6. The District Judge’s findings that evidence was objectively sufficient earlier, and that there had been ample time to decide whether to prosecute, could not justify going behind the certificate. Those issues presupposed an impermissible enquiry.
7. The District Judge’s determination dismissing the proceedings was quashed. The matter was remitted to the magistrates’ court with a direction to refuse the application to dismiss the proceedings.

• High Court (Administrative Court): The appeal by case stated was allowed. The magistrates’ court decision was quashed and the matter remitted with a direction to refuse the application to dismiss the proceedings.
• Leeds Magistrates’ Court: On 17 December 2020, the District Judge dismissed the prosecutions as out of time.