Reporting restrictions have recently been lifted on the Court of Appeal judgment, handed down on 9 August 2022, in R v AUH [2022] EWCA Crim 1113. The conjoined appeals concerned the power of local weights and measures authorities to prosecute “consumer offences” outside of their own geographical area, regardless of whether the local expediency test in s.222 of the Local Government Act 1972 (‘Section 222’) was met.
Background
14 defendants were prosecuted by City of York Council for conspiracy to defraud individuals by operating a bogus model agency and resulting money laundering (‘the York case’). At a preparatory hearing, the Judge stayed the proceedings as an abuse of process. He held that the council had no power to prosecute as regardless of paragraph 46(1) of Schedule 5 to the Consumer Rights Act 2015 (‘Paragraph 46’), which provided that “a local weights and measures authority in England or Wales may bring proceedings for a consumer offence allegedly committed in a part of England or Wales which is outside that authority’s area”, its power to prosecute was governed by Section 222, and the prosecution did not satisfy the expediency test. The prosecution appealed.
In Birmingham, Birmingham City Council prosecuted defendants for illegal money lending (‘the Birmingham case’). At a preparatory hearing, and in contrast to the York case, the Judge dismissed an application to stay the proceedings as an abuse of process, holding that although the Section 222 expediency test had not been met, the council had the power to prosecute under Paragraph 46. The defence appealed.
The appeals were listed together to consider the common issue: does Paragraph 46 confer power on a local authority to prosecute consumer offences irrespective of a connection with the local area?
The Court of Appeal’s decision
In an important, but succinct judgment, the Court of Appeal held that Paragraph 46 “confers a free-standing power to prosecute, unconstrained by section 222 of the 1972 Act” where “consumer offences” are prosecuted. The Court relied on the following arguments in support of this conclusion:
- The words of Paragraph 46 were clear. They permit a local weights and measures authority to bring proceedings for a consumer offence outside of its area, without reference to Section 222.
- This was reinforced by the pre-legislative history.
- Section 222 cannot be interpreted as qualifying legislation which confers specific powers. Through Paragraph 46 Parliament has legislated to provide power unfettered by the local expediency test. This legislative technique mirrored that found in other prosecutorial powers.
The full judgment can be read here: R. v AUH
Jonathan Kirk KC, Cameron Crowe and Sabrina Goodchild acted in the York case for the National Trading Standards ECrime Unit based in York.