Alec Jarrett Limited & Ors, R (on the application of) v Bristol Magistrates Court

The designation of the Food Standards Agency as competent authority for specified animal-welfare functions does not include bringing prosecutions unless the legislation clearly so provides. Measures under article 138 of Regulation (EU) 2017/625 are principally forward-looking measures to remedy non-compliance and prevent recurrence. They do not include prosecution for past offending.

Where legislation creates an offence without specifying who may prosecute, the usual position is that any person may do so. A Secretary of State constituted as a corporation sole has the same capacity as a private individual to commence a prosecution, subject to proper-purpose constraints. An allocation of functions by the Attorney General under section 3(2)(g) of the Prosecution of Offences Act 1985 can allocate that prosecutorial function to the Director of Public Prosecutions.

The claimants were prosecuted for alleged offences under regulation 30(1) of the Welfare of Animals at the Time of Killing (England) Regulations 2015. The CPS relied on an Attorney General’s Assignment dated 10 July 2011, made under section 3(2)(g) of the Prosecution of Offences Act 1985.

A District Judge held that the prosecution had been lawfully commenced. On judicial review, the claimants argued that the FSA, rather than the Secretary of State, had the relevant prosecutorial function under regulation 4 of WATOK and article 138 of Regulation (EU) 2017/625. They also challenged the interpretation and effectiveness of the Assignment. The central issues were whether the Secretary of State had power to prosecute and whether that power had been validly allocated to the CPS.

1. Assignment. The Assignment was to be interpreted according to the natural and ordinary meaning of its language, read in context and with common sense, as explained in Lambeth LBC v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33. It was a statutory allocation of functions by the Attorney General under section 3(2)(g) of the Prosecution of Offences Act 1985, rather than an inter partes transfer of proprietary rights.
2. The context showed an intention that DEFRA’s prosecutorial work should pass to the CPS. The references to investigations conducted by FSA officials within the Secretary of State’s area of responsibility were descriptive, not limiting. The Assignment therefore covered prosecutions arising from FSA investigations into WATOK offences.
3. FSA competence. Regulation 4 of the Welfare of Animals at the Time of Killing (England) Regulations 2015 gave the FSA competence for specified functions and made the Secretary of State competent otherwise. Article 138 concerned investigation, remedial action and measures directed to future compliance. Its listed measures were forward-looking and materially different from prosecution for past conduct. The omission of prosecution from the non-exhaustive list, together with article 138(3) and (4), reinforced that conclusion.
4. The distinction between investigation and prosecution was well established. The allocation of prosecution to the CPS was consistent with that distinction and was not irrational merely because the FSA possessed specialist investigative expertise.
5. Secretary of State’s power. WATOK did not expressly identify the Secretary of State as prosecutor. Applying the usual approach described in R v Rollins [2010] UKSC 39, the offences were therefore prosecutable by any person. The Secretary of State, as a corporation sole, had the capacity to prosecute as a private individual would. The power was also within the proper functions of the Secretary of State.
6. That prosecutorial function was capable of allocation under the statutory Assignment and had been validly allocated to the DPP. The CPS was therefore entitled to prosecute in reliance on the Assignment.
7. The arguments concerning a general CPS power and section 31(2A) of the Senior Courts Act 1981 were academic. In any event, section 31(2A) would not have prevented relief if the District Judge’s decision had been unlawful, because the relevant conduct was the decision made on the facts as they stood, including reliance on the Assignment.

The claim was dismissed. The District Judge had correctly held that the prosecution was properly instituted.

This was a first-instance judicial review of the District Judge’s decision. The judgment does not state a further appellate history.