The Court of Appeal, Criminal Division, declared that, in the circumstances, a council had had no power to prosecute three defendants under section 222 of the Local Government Act 1972. Further, as an entirely statutory creation, the council had had no free-standing common law power to prosecute more generally.

R v AB and others [2017] EWCA Crim 534

Section 222 of the Local Government Act 1972 provides, so far as material: ‘(1) Where a local authority consider it expedient for the promotion or protection of the interests of the inhabitants of their area— (a) they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name, and (b) they may, in their own name, make representations in the interests of the inhabitants at any public inquiry held by or on behalf of any minister or public body under any enactment…’

The first defendant was the principal of a solicitors’ practice (the practice). The second defendant was the compliance officer and practice manager. The third defendant was the office and billing manager. The practice had a contract with the Legal Aid Agency (the LAA) to provide advice and assistance in relation to immigration matters. Between January 2000 and January 2013, it made 18,415 asylum and immigration claims with a value of just under £10.5m. All claims were made by the third defendant or someone using his login account details for the legal aid billing portal. In February 2013, the LAA noticed anomalies in the information being supplied. Claims were being made under similar names but with differing dates of birth and addresses. The practice was asked to provide 50 files. In June 2013, the LAA received three boxes of files. The LAA auditor noticed what were said to be irregularities and it appeared from checks with the Home Office that sample names were false. The defendants were prosecuted for a single count of conspiracy to defraud, contrary to common law, and a single count of doing acts tending and intended to pervert the course of public justice, contrary to common law. The prosecution, however, was not brought by the Crown Prosecution Service or the Serious Fraud Office. It was brought by Thurrock Council (the council), the unitary local authority for the borough of Thurrock in Essex, following an investigation made by the Fraud Investigation Department of the council for the LAA. At a preparatory hearing in December 2016, the defendants contended that the council had no power to bring the prosecution under section 222 of the Local Government Act 1972 (section 222) (the 1972 Act). No point was taken as to the council’s power to investigate. The judge concluded that there was no good reason to find that the prosecution was invalid on the ground that it had not been properly brought under section 222. The defendants appealed against that ruling.

The issues for determination were: (i) whether the court could look behind the council’s decision to prosecute at all; (ii) if so, whether it could be said that the council’s decision had been so unreasonable that the court should interfere; and (iii) in any event, whether the council had a free-standing common law right to prosecute. Consideration was given to section 6(2) of the Prosecution of Offences Act 1985 (the 1985 Act).

The court ruled:

(1) The court had jurisdiction to review the council’s decision to prosecute. However, that was an exercise to be carried out sparingly and within the parameters of the very broad discretion granted to the council under section 222. There was a high hurdle to be overcome before the court would interfere with a local authority’s exercise of discretion under section 222 (see [43] of the judgment).

Barking and Dagenham London Borough Council v Jones [1999] All ER (D) 923 applied; Brighton and Hove City Council v Woolworths plc [2002] All ER (D) 156 (Nov) considered; R (on the application of Donnachie) v Cardiff Magistrates’ Court [2009] All ER (D) 158 (Mar) considered; Oldham Metropolitan Borough Council v Worldwide Marketing Solutions Ltd [2014] EWHC 1910 (QB) considered.

(2) The power under section 222 arose by reference to a consideration of expediency; the expediency had to be for the promotion or protection of interests. The interests were those of the inhabitants of the local authority’s area. If those elements were satisfied, then the local authority might prosecute. Relevant considerations were not limited strictly by geography and it was permissible to take broad policy considerations into account. Each case would turn on its own facts, however, the court should be slow to interfere given the very broad power given to a local authority under section 222 (see [49]-[52] of the judgment).

The council’s decision to prosecute had fallen outside the ambit of its broad powers under section 222. There had been no proper grounds for it to consider that it had been expedient for the promotion or protection of the interests of the inhabitants of Thurrock to prosecute the defendants (and not to have referred the present very serious matter to the Director of Public Prosecutions (the DPP) for prosecution). The council could not reasonably have thought that there had been. Accordingly, subject to consideration of the council’s case that it had an unfettered common law right to prosecute, the prosecution proceedings had been commenced unlawfully (see [53], [57] of the judgment).

R (on the application of Donnachie) v Cardiff Magistrates’ Court [2009] All ER (D) 158 (Mar) distinguished; Oldham Metropolitan Borough Council v Worldwide Marketing Solutions Ltd [2014] EWHC 1910 (QB) distinguished.

(3) Local authorities were entirely a statutory creation, and might only engage in activities which they were permitted to by the 1972 Act and related Acts. The council’s power to prosecute arose under section 222. It had no common law power to prosecute more generally (see [75], [85] of the judgment).

As the DPP had taken over the conduct of the prosecution, in having exercised her powers under section 6(2) of the 1985 Act, it was not necessary to consider whether the proceedings should be stayed. Therefore, the proceedings had to continue with the DPP conducting the prosecution. It would simply be declared that the council had had no power to prosecute under section 222 (see [89], [90] of the judgment).

R v Rollins; R v McInerney [2010] 1 All ER 1183 distinguished; Gouriet v Union of Post Office Workers [1977] 3 All ER 70 considered.

Pavlos Panayi QC and Stephen Fidler for the first and second defendants.

Elizabeth Lambert for the third defendant.

Andrew Campbell-Tiech QC and Richard Heller for the council.

David Bedenham for the LAA.

Jonathan Kinnear QC for the DPP.

Manveer Cheema Barrister.