Court of Appeal rules on power to prosecute consumer offences outside local authority area

The Court of Appeal has handed down a key ruling in conjoined appeals on the power of a local authority to prosecute consumer offences outside its area.

In City of York Council, R (On the Application Of) v AUH & Ors [2022] EWCA Crim 1113, published on Bailii last month, the Lord Chief Justice, Lord Burnett of Maldon, said the two appeals against rulings in separate preparatory hearings were listed together because they raised a common issue:

“Does paragraph 46(1) of schedule 5 to the Consumer Rights Act 2015 ("the 2015 Act") confer power upon a local authority to prosecute consumer offences irrespective of a connection with the area? Alternatively, is that power governed by section 222(1) of the Local Government Act 1972 ("the 1972 Act") (a general power to prosecute and defend criminal and civil proceedings) which enables them to do so only when they consider it expedient for the promotion or protection of the interests of the inhabitants of their area?”

Both cases arose from alleged criminality which was said to comprise consumer offences under paragraph 46(2) of Schedule 5 to the 2015 Act, which the two local authorities [City of York Council and Birmingham City Council], as local weights and measures authorities, have a duty or power to enforce within their areas, as domestic enforcers within the meaning of paragraph 3(1)(b) of Schedule 5 to that Act.

The first case, brought by City of York, involved 14 accused who were alleged to have conspired to defraud individuals by operating a bogus model agency. His Honour Judge Burn ordered a stay of the proceedings as an abuse of the process.

The second case, brought by Birmingham, involved an allegation of illegal money lending. His Honour Judge Southern dismissed an application to stay the proceedings as an abuse of the process.

Lord Burnett said: “We state our conclusion immediately. We are satisfied that paragraph 46 of schedule 5 to the 2015 Act confers a free-standing power to prosecute, unconstrained by section 222 of the 1972 Act.”

Later in the ruling the Lord Chief Justice said:

30. The starting point is the wording of paragraph 46(1) of Schedule 5 to the 2015 Act. The words are clear. On their face they enable a local weights and measures authority to bring proceedings for a consumer offence committed in England and Wales which is outside its area, without reference to section 222(1) of the 1972 Act. The pre-legislative history reinforces that conclusion. There is, in our view, no proper basis for seeking to read in the constraint contended for by the alleged offenders in these cases. Section 222(1) of the 1972 Act provides a general power which enables local authorities to engage in civil and criminal proceedings, public inquiries and the like but cannot be interpreted as qualifying legislation which confers specific powers. Paragraph 46(1) of Schedule 5 to the 2015 Act is an example of such a power. We recognise the importance of section 222(1) in governing most legal proceedings in which local authorities become involved, but Parliament is free to legislate to provide power unfettered by the local expediency test. That is what it has done in the 2015 Act. Paragraph 46(1) of Schedule 5 relates to a specific power, as opposed to the general power provided by section 222(1).

31. The context in which the legislation was passed included a concern to dispense with the need for the local expediency test before a prosecution could be commenced, due to the nature and range of modern consumer offending. Systems were established to centralise investigation and funding to support the changes made by the 2015 Act. We consider there is force in the submission advanced by the councils that paragraph 46 would have little discernible purpose if interpreted as the alleged offenders suggest.

32. The legislative technique adopted mirrors that found in the other prosecutorial powers drawn to our attention (which were not suggested by counsel to be a complete list). The Animal Welfare Act 2006 gives a useful illustration. Section 30 provides that "a local authority in England or Wales may prosecute proceedings for any offence under this Act." That section was considered by the Divisional Court, albeit obiter, in Lamont-Perkins v Royal Society for the Prevention of Cruelty to Animals [2012] EWHC 1002 (Admin).

33. In his judgment, Wyn Williams J, with whom Sir John Thomas PQBD (as he then was) agreed, observed that,

“22.  … I accept that section 30 confers an express power upon local authorities to prosecute under the Act and, of course, a local authority is a creature of statute. It seems to me, however, that this express provision is included so as to avoid any suggestion that a local authority has power to prosecute under the 2006 Act only if the requirements of section 222 of the Local Government Act 1972 are satisfied. Section 222 of the 1972 Act empowers a local authority to prosecute only if it considers it expedient for the promotion or protection of the interests of inhabitants in its area. If section 30 of the 2006 Act did not exist there might be scope for considerable argument about whether a local authority could satisfy section 222 of the 1972 Act if it decided to prosecute in an animal welfare case. Section 30 removes the scope for such argument and in my judgment is included within the 2006 Act deliberately so as to remove the scope for such an argument.”

34. We respectfully agree. The same is true of paragraph 46.

35. We see nothing in the point concerning the use of the words "may bring proceedings", as opposed to "prosecute", in paragraph 46(1) of Schedule 5. Their meaning in the context of these cases is the same.

36.  Moreover, we see nothing "illogical" arising from the fact that paragraph 46(1) of Schedule 5 is concerned only with proceedings for consumer offences allegedly committed outside the local authority's area. A prosecution for offences committed within the authority's area would almost inevitably satisfy the requirement of local expediency under section 222(1) if prosecution were, in any event, the proportionate response.”

Lord Burnett said the Court of Appeal was “satisfied that the clear words of paragraph 46(1) of Schedule 5 to the 2015 Act empower a local weights and measures authority to prosecute for consumer offences allegedly committed in a part of England or Wales which is outside the authority's area, without reference to section 222(1) of the 1972 Act.”