'Off-piste' prosecutions

Local authorities have wide general powers to conduct legal proceedings. Where a council considers it expedient for the promotion or protection of the interests of its area’s inhabitants, section 222(1) of the Local Government Act 1972 allows it to prosecute, defend or appear in any legal proceedings. But can an authority prosecute off-piste – that is, outside its area? For crime respects no administrative borders and criminal breaches of consumer protection legislation can often occur across several local authority areas. Section 101(1) of the 1972 act can assist by enabling a local authority to arrange for the discharge of any of its functions by (among other things) another local authority (subject to any express statutory provision).

Nevertheless, since section 222 was first enacted, local authorities also now have various specific powers to investigate, prosecute and/or bring proceedings for various offences. Among these is the Consumer Rights Act 2015. Paragraph 46(1) of schedule 5 to that act (paragraph 46) specifically enables relevant authorities to prosecute outside their area. This provides 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.’

However, in this connection, section 222 has encountered a little flight turbulence over the years. So, in November 2002 Mr Justice Field (with whom Lord Justice Laws agreed) found in Brighton and Hove City Council v Woolworths plc [2002] EWHC 2565 (Admin) (Woolworths) that the authority had no power to prosecute offences outside its area since such a prosecution could not be expedient for the promotion or protection of the interests of the inhabitants of its area under section 222(1). Nevertheless, the Court of Appeal in R v AB and others [2017] EWCA Crim 534 saw things differently, indicating that: ‘In so far as it was suggested in Woolworths… that a breach outside a local authority’s area could “ex hypothesi” not be expedient for the purpose of section 222, it was wrongly decided.’

The Court of Appeal consequently approved the view of Phillips J in Oldham v Worldwide Marketing Solutions [2014] EWHC 1910 (QB) (Oldham) that: ‘…a local authority can properly take into account broader considerations of how to promote or protect the interests of its inhabitants, not limited to situations where unlawful activity is continuing or contemplated within its area’.

And the Court of Appeal considered that while the court has jurisdiction to review prosecution decisions, ‘that is an exercise to be carried out sparingly and within the parameters of the very broad discretion granted to the Council under section 222’. There is also ‘a high hurdle to be overcome before the court will interfere with a local authority’s exercise of discretion under section 222’.

The scope of section 222 and its interaction with specific powers to prosecute were more recently considered by the Court of Appeal (Criminal) on 9 August 2022. This was before lord chief justice Lord Burnett, Mr Justice Baker and Mr Justice Cutts in R (City of York Council) v AUH and others [2022] EWCA Crim 1113. The case concerned two appeals raising a common issue, namely: does paragraph 46 give a local authority power to prosecute irrespective of local area connection, and alternatively, is the paragraph 46 power governed by section 222(1), enabling authorities to do so only when they consider it expedient for the promotion or protection of the interests of the inhabitants of their area?

The court considered that the starting point is the clear words of paragraph 46: ‘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’. And a general power like section 222(1) ‘cannot be interpreted as qualifying legislation which confers specific powers’. While the Court of Appeal recognised the importance of section 222(1) in governing most local authority legal proceedings, parliament is nevertheless free to legislate to provide power unfettered by the local expediency test. And it so acted in paragraph 46, which relates to a specific power as opposed to the general power in section 222(1). The court also indicated that the context in which paragraph 46 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 consequently established to centralise investigation and funding to support the 2015 act changes.

Lord Burnett and his colleagues saw ‘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’. For, ‘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.’ The Court of Appeal was consequently ‘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’.

Section 222(1) therefore remains a measure giving ‘broad discretion’ as to how authorities exercise it. For (per Oldham), section 222(1) is ‘widely worded imposing no express restriction on what a local authority may properly consider to be expedient to promote or protect the interests of its inhabitants’.

Nicholas Dobson writes on local government, public law and governance