Neutral Citation No : [2012] NICA 35	Ref:     	MOR8588	
			
Judgment: approved by the Court for handing down	Delivered:	21/09/12	
(subject to editorial corrections)*			

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
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ON APPEAL BY WAY OF CASE STATED UNDER THE MAGISTRATES' COURTS (NORTHERN IRELAND) ORDER 1981
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Between:
PATRICIA YOUNG
Appellant;
-and-
PUBLIC PROSECUTION SERVICE
Respondent.
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Before: Morgan LCJ, Higgins LJ and Coghlin LJ
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MORGAN LCJ
[1] 	This is an appeal by way of case stated against the refusal of a District Judge (Magistrates’ Courts) to stay proceedings against the appellant. Mr Sayers appeared for the appellant and Mr Maguire QC and Ms McKay for the respondent. We are grateful to counsel for their helpful and well prepared oral and written submissions.
 
[2]	In October 2009 the appellant was a care worker engaged in looking after a 70 year old woman in her house. As a result of video footage obtained from a camera installed in the house to capture the care worker at work, it appeared that she was eating the food which had been prepared for the 70 year old in her care. The police became involved and the appellant was interviewed on 10 November 2009.  She was then charged with two offences of ill-treatment of a patient contrary to article 121(2) of the Mental Health (Northern Ireland) Order 1986 (the 1986 Order). The complainant in the summons was the Director of Public Prosecutions (DPP).

[3] 	At Lisburn Magistrates’ Court on 21 January 2011 the appellant entered pleas of guilty to the alleged offences. The matter was adjourned to 22 February 2011 for sentencing. Shortly after the first appearance the parties turned their minds to Article 126 of the 1986 Order which provides as follows.

“No proceedings shall be instituted for an offence under Article 120, 121, 122 or 123 except by or with the consent of the Director of Public Prosecutions for Northern Ireland.”

It is common case that both the prosecution and defence interpreted Article 126 as requiring consent from the DPP to the institution of the proceedings to which the appellant had pleaded guilty. No such consent had been obtained prior to the institution of the proceedings. Both parties concluded that the original summons was therefore a nullity and conveyed that common position to the learned District Judge on 22 February 2011. The court accepted the joint submission that the proceedings were a nullity and struck out the summons as null and void.

[4] 	In the interim fresh proceedings relating to the same alleged offences were instituted by the DPP on 3 February 2011 by way of summons. By a document dated 4 February 2011 the DPP provided a written consent to the taking of the proceedings against the appellant. The respondent contended that the written consent was prefaced by a decision of the acting DPP to issue a fresh summons for the two offences on 27 January 2011 and to consent to such prosecution.

[5] 	On 5 July 2011 the appellant applied to stay the proceedings on foot of the second summons on the basis:

(i)  	that the DPP could not lawfully consent to the institution of proceedings in the period between 21 January 2011 and 22 February 2011; and

(ii) 	that the DPP’s purported consent on 4 February 2011 to the taking of proceedings was not in accordance with the requirement of consent to the institution of proceedings flowing from Article 126 of the 1986 Order as that consent post-dated the institution of the proceedings.

The learned District Judge was of the opinion that since the original proceedings were void ab initio the Public Prosecution Service could validly issue fresh proceedings prior to the 22nd February 2011. In addition she took the view that the consent of the acting Director of Public Prosecutions complied with the provisions of Section 33(2)(b) of the Justice (Northern Ireland) Act 2002 (the 2002 Act) which provides that a consent provision is deemed to be complied with if the consent is produced to the court at any time before the plea of the accused person is taken. The fact that the document was not signed until the 4th February 2011 did not affect the validity of the proceedings. Accordingly she refused the application to stay proceedings.

[6] 	The District Judge agreed to state the following questions for the Court of Appeal:

1) 	Was I correct in law to refuse an application to stay proceedings against the appellant on the basis that the Director of Public Prosecutions was entitled lawfully to consent to the institution of proceedings against the appellant before the invalidity of proceedings concerning the same allegations in which the appellant had entered pleas of guilty had been established by a court on 22 February 2011?

2) 	Was I correct in law to refuse an application to stay proceedings against the appellant on the basis that the requirement of consent to the institution of proceedings imposed by article 126 of the Mental Health (Northern Ireland) Order 1986 was, notwithstanding the issue of a summons on foot of a complaint on 3 February 2011, deemed to be complied with by the production to the court of the consent of the Director of Public Prosecutions dated 4 February 2011?

Consideration

[7] 	As appears from the terms of Article 126 of the 1986 Order set out at paragraph 3 above no proceedings for an offence under Article 121 of the 1986 Order shall be instituted except by or with the consent of the DPP.  The conditions are disjunctive. The argument before the learned District Judge proceeded on the basis that the issue between the parties was the need for consent to the institution of proceedings. Before us it was submitted on behalf of the respondent that the proceedings had been instituted by the DPP and accordingly there was no need for consent. In support of that submission the respondent relied on Section 44(1)(a) of the 2002 Act which provides that proceedings in relation to an offence were instituted when a summons was issued under Article 20 of the Magistrates’ Courts (Northern Ireland) Order 1981 where the complaint for the offence was made under that Article. It is common case that Article 20 applies in this case. The DPP was the complainant, the power to institute the prosecution is found in section 31 of the 2002 Act and the authority to delegate the power to any public prosecutor or member of staff of the Public Prosecution Service is contained in Section 26 of the 2002 Act.

[8] 	In answer to these submissions the appellant submitted that the statutory purpose of the consent provision was identified by Lord Hope in R (Purdy) v Director of Public Prosecutions [2009] UKHL 45 where he noted the content of:

“… the Home Office Memorandum to the Departmental Committee on section 2 of the Official Secrets Act 1911 (The Franks Report, 1972, Cmnd 
5104, vol 2, p 125, para 7), in which the point was made that the basic reason for including in a statute a restriction on the bringing of prosecutions was that otherwise there would be a risk of prosecutions being brought in inappropriate circumstances. 

Among the five reasons that were given by the Franks Committee were to secure consistency of practice, to prevent abuse of the kind that might otherwise result in a vexatious private prosecution, to enable account to be taken of mitigating factors and to provide some central control of the use of the criminal law where it has to intrude into areas which are particularly sensitive or controversial…”

[9] Accordingly, it was submitted, the statutory purpose of the consent provision was to ensure that the decision to prosecute was considered at the appropriate level. The appellant contended that this argument was supported by the PPS Code for Prosecutors which explained the requirement for consents in paragraph 4.9.1.

“There are a number of offences for which a Public Prosecutor must seek the consent of the Director … prior to continuing a prosecution.  The requirement for consents for specific offences is determined by Parliament and is to ensure that cases of a particular nature are considered at the appropriate level”.

In addition paragraph 4.9.2 of the PPS Code indicates that a public prosecutor must seek the consent of the Director for the prosecution of certain offences including an offence under Article 3 of the Child Abduction (Northern Ireland) Order 1985 which has a restriction on the institution of proceedings in identical terms to that in Article 126 of the 1986 Order.

[10] 	These arguments provided the foundation for the submission that the need to ensure that the decision to prosecute was made at an appropriate level led to the conclusion that the DPP could not utilise the delegation powers in section 36 of the 2002 Act since to do so would dilute the statutory intention of the restriction contained in Article 126 of the 1986 Order.

[11] 	We are unable to accept that argument. Article 126 of the 1986 Order imposes a restriction on the institution of prosecutions. We consider that the purpose of such a restriction is, as identified by Lord Hope, to guard against the risk of prosecutions being brought in inappropriate circumstances. The 2002 Act provides a mechanism for the delegation of prosecution decision-making by the Director and there is no material before us to challenge the manner in which that delegation has been exercised. In our view the statutory purpose is not undermined by any delegation of the exercise of prosecutorial discretion. The objectives of the statute, as described by Lord Hope, can still plainly be achieved.

[12] 	We do not consider that the appellant derives any support from paragraph 4.9.1 of the PPS Code. That paragraph deals with cases where the sole restriction on the institution of the prosecution is the need for the consent of the Director. In those cases the Code suggests that the objective is to ensure that the decision is made at an appropriate level. One can well understand that if a decision is to be made about whether to consent to a private prosecution it might be appropriate to ensure that it is made at a senior level. There may well be considerable sensitivity about whether to interfere with a wish to prosecute especially if there was evidence to support the charge. It does not follow, however, that the same need for supervision of the prosecutorial process arises where the decision is to be made by a prosecutor to whom the Director has decided to give delegated powers to make the decision. The two statutory triggers for prosecution are intended to achieve the same statutory purpose which is to guard against the risk of prosecutions being brought in inappropriate circumstances.

[13] 	Paragraph 4.9.2 is, for the reasons set out above, inaccurate insofar as it suggests that the consent of the Director is required where a prosecution under Article 3 of the Child Abduction (Northern Ireland) Order 1985 has been instituted by the DPP.

[14] 	We have accordingly concluded that the questions posed by the learned District Judge do not arise on the facts found in this case. The consent of the Director was not required for the prosecution and we decline to answer either of the questions posed. The case will be remitted to the learned District Judge.