Burnett: Council’s construction would drive coach and horses through LSA
A council’s failure to comply with the Legal Services Act 2007 (LSA) by ensuring that either a lawyer authorised to conduct litigation or an exempt individual served a Crown Court indictment did not “automatically invalidate” it, the Court of Appeal has ruled.
The Lord Chief Justice, Lord Burnett, said it would be a “particularly capricious outcome” to invalidate an indictment because it was served by an unauthorised person when, under the rules, it could have been “electronically generated automatically”.
At first instance, His Honour Judge Burn, sitting at Bradford Crown Court, held that Colin Rumford, head of regional investigations at City of York Council, was not qualified under the LSA to conduct proceedings in the Crown Court.
But he rejected the further submission that, in consequence, the proceedings in the Crown Court were a nullity and declined to stay the case as an abuse of process.
R (The City of York Council) v AUH and others [2023] EWCA Crim 6 concerned 14 people alleged to have conspired to defraud by operating a bogus modelling agency. The main thrust of the case was whether local authorities could prosecute consumer offences irrespective of a connection to the area (the court held they could).
While section 223 of the Local Government Act 1972 allowed Mr Rumford to conduct litigation in the magistrates’ court, only the Law Society and Bar Council (or rather their regulatory arms) could authorise the reserved activity of Crown Court litigation, the court noted.
Giving the ruling, Lord Burnett said: “No complaint can be made about the initiation of these criminal proceedings nor the way in which they were conducted by Mr Rumford on behalf of the prosecutor, York, in the magistrates’ court.
“Nor can any complaint be made about the sending of the case to the Crown Court for trial. The proceedings reached the Crown Court in an entirely regular way untainted by any irregularity.”
Once the case was in the Crown Court, Mr Rumford instructed leading and junior counsel on behalf of York. The issue was the draft indictment, drafted by counsel, circulated by Mr Rumford and then served by him on the Crown Court.
The council argued that it could only conduct litigation through the actions of its officers, servants or agents; here Mr Rumford effectively “embodied” it for the purposes of conducting proceedings and so was an exempt person under the LSA.
The court disagreed: “The embodiment argument, if correct, would have far-reaching consequences for the conduct of litigation and rights of audience across the spectrum of civil and criminal proceedings in which a corporation, statutory or otherwise, were a party.”
At all times, the council was the party to the proceedings – its nomination and authorisation of Mr Rumford did not make him one.
“The construction advanced by York would drive a coach and horses through the regulatory regime of the LSA 2007,” Lord Burnett went on.
“It would also impose onerous personal obligations and liabilities on the person authorised by the corporation in question in both civil and criminal proceedings.”
There was no equivalent to section 223 for the Crown Court, he added. “Indeed, if the argument advanced by York were correct, statutory and other corporations would be able to identify an individual to act as their alter ego and circumvent much of the statutory scheme of the LSA 2007…
“Corporations, whether statutory or otherwise, have the benefit of multiple legislative provisions which enable them to conduct proceedings, or certain aspects of them, in the magistrates’ courts and the Crown Court.
“None to which our attention has been drawn enables a local authority to conduct litigation in the Crown Court other than through an authorised lawyer.”
But the indictment was not a nullity, the court held. The Criminal Procedure Rules allow magistrates’ courts and Crown Courts to make arrangements to automatically generate a draft indictment when the case is transferred to the latter.
Though there was no such arrangement here, “it is, to our minds, significant when thinking of the consequences of York’s failure to use an authorised person to conduct the Crown Court litigation that the rules do not even require the indictment to be drafted and served by the prosecutor”.
The council’s failure to use an authorised litigator to serve the indictment was a failure to comply with the LSA, but did not “automatically invalidate” the indictment.
“Our conclusion is that the draft indictment served by York in November 2020 was valid. It was thereafter amended in an unexceptional way with its final form being produced in open court by leading counsel.”
Lord Burnett said that, like HHJ Burn, the Court of Appeal considered “the circumstances in which York came to overlook the need” to conduct Crown Court litigation through an authorised professional were “far removed from the sort of conduct” that could found a successful abuse of process argument.
“In this case, the mistake had no adverse impact on the defendants. There was no bad faith.”
Lord Burnett added that the court received written submissions from the Law Society “which emphasise the importance in the public interest of adherence to the statutory scheme governing the regulation of legal services, including the conduct of litigation”.
Mr Justice Jay and Mrs Justice Cutts contributed to the judgment.
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