Neutral Citation Number: [2012] EWHC 3658 (Admin)
Case No: CO/6049/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Bristol Civil Justice Centre

Date: 18/12/2012

Before:

PRESIDENT OF THE QUEEN'S BENCH DIVISION

MR JUSTICE BEATSON
and
MR JUSTICE BURNETT
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Between :

	Moss & Son Ltd	Appellant	
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	Crown Prosecution Service	Respondent	

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Adam Vaitilingam QC (instructed by Clarke Willmott) for the Appellant
Brendon Moorhouse (instructed by CPS) for the Respondent

Hearing date: 6 November 2012
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Judgment

President of the Queen’s Bench Division: 
This is the judgment of the court.

1.	This appeal is brought by the appellant, a dairy farming business, by way of case stated against the dismissal by District Judge Cooper at Swindon Magistrates’ Court of its application to stay as an abuse of process a prosecution initiated in October 2010 by the Gangmasters Licensing Authority (GLA).  The GLA is an agency established under s.1 of the Gangmasters (Licensing) Act 2004 (the Act) and as its name implies licences those who provide workers for the agricultural and other industries.  The CPS has taken over the proceedings.  It is the respondent to the appeal.
The factual background
2.	The case for the prosecution as set out in the case stated and found proved can be summarised as follows:
i)	Marden Management Limited (Marden) was an agency that supplied workers to dairy farmers and others.
ii)	It was not licensed to supply such labour as is required by s.6 of the Act.
iii)	In 2007 there was a shortage of dairy herdsmen.
iv)	Marden supplied the appellant with a herdsman who held a BSc in Agriculture from a university in the Philippines and had worked in Saudi Arabia.
v)	The appellant paid a monthly fee to Marden who paid the herdsman his wages.
vi)	The herdsman stayed with the appellant until 2011 when the appellant ceased the business of dairy farming.
vii)	The herdsman made no complaint against the appellant which he said had treated him well.
viii)	However Marden paid the herdsman less than the minimum agricultural wage.  That amounted to the financial exploitation of him by Marden.
ix)	Marden has been prosecuted for acting as an unlicensed gangmaster.
x)	The prosecution accepted that the appellant as a labour user was not aware that the herdsman was exploited by Marden.
3.	It was the prosecution’s case that on the above facts the appellant was guilty of an offence under s.13(1) of the Act which provided:
A person commits an offence if – 
(a) he enters into agreement under which a person (“The Gangmaster”) supplies him with workers or services, and
(b) the Gangmaster in supplying the workers or services contravenes s.6 (Prohibition of Unlicensed Activities) 
4.	It was contended that the offence was one of strict liability, subject to a defence under s.13(2) of due diligence.  The appellant did not advance a defence of due diligence and accepted the offence was otherwise an offence of strict liability.  In the event, after the District Judge had dismissed the application to stay the proceedings, a short trial followed in which the District Judge found the matters we have set out proved and held that the appellant had committed the offence under s.13.  The appellant was given an absolute discharge and ordered to pay £1,000 by way of costs.
5.	Before the hearing that led to that conviction, it was argued on the appellant’s behalf that the proceedings should be stayed as an abuse of the process of the court and the case stated relates solely to that application.  It arose out of the following circumstances.
The circumstances giving rise to the argument that there was an abuse of process
(i)	The GLA’s Dairy Policy
6.	In the course of the GLA’s investigations into unlicensed gangmasters in the dairy farming industry it became apparent that there were a large number of farming businesses who had received the services of farm workers through unlicensed gangmasters.  The GLA was concerned about the cost and proportionality of proceeding against so many persons in the farming industry.  Therefore in August 2010 the GLA devised a policy entitled The GLA Dairy Policy (the Dairy Policy) in consultation with the Executive Management Board of the GLA and the Litigation and Prosecution Division of the Department of the Environment, Food and Rural Affairs.
7.	The policy referred to a general enforcement policy which set out factors which should be taken into account in order to determine whether a case should be taken forward for criminal proceedings.  Neither the District Judge nor this court was provided with a copy of that policy.  It appears from the documents before this court that the general enforcement policy did not cover the circumstances which arose in this case, as the GLA considered that the Dairy Policy was required to demonstrate a consistent approach on how cases relating to the provision of labour to the dairy industry be taken forward.  The Dairy Policy made a general reference to: 
“Factors to be taken into account include those previously stated and also issues relating to worker and animal welfare.”
As the general enforcement policy was not provided to the court, it is not clear to what previously stated factors that passage referred.  
8.	The Dairy Policy set out seven options available to meet its aims:
“1.	Prosecute all labour providers which had previously supplied workers to the dairy industry without a licence and those labour users who engaged the services of the labour provider for workers supplied.
2.	Prosecute all labour providers and issue formal warnings to all labour users identified.
3.	Prosecute any labour provider that is shown to be either exploiting the worker and/or the Exchequer.  Then prosecute all labour users who had engaged the services of that labour provider.
4.	Prosecute any labour provider that is shown to be either exploiting the worker and/or the Exchequer.  Then prosecute any labour user who had engaged the services of that labour provider and by cause of his/her actions contributed to the exploitation of the worker or Exchequer.  Remaining labour users identified should be issued with formal written warnings.
5.	Prosecute any labour provider that is shown to be either exploiting the worker and/or the Exchequer.  Then issue formal written warnings to all labour users who had engaged the services of the labour providers.
6.	Issue formal written warnings to all labour providers and users.
7.	Prosecute neither labour providers nor labour users.”
9.	All options were considered.  Option 4 was the preferred and agreed option for the following reasons: 
i)	The evidence obtained so far did not indicate widespread exploitation of either the worker or the Exchequer.
ii)	To prosecute everyone would not be seen as a reasonable and proportionate approach.  It might have an adverse effect on the industry.  It would not be seen to be proportionate when applying the public interest test.
iii)	As the potential number of prosecutions could well exceed 500 cases, the GLA did not have the capacity to undertake the work involved to progress the cases without adverse effects on other parts of the sector for which it was responsible.
iv)	“To prosecute those who facilitate, or who are believed to be complicit in, practices which exploit workers and/or the Exchequer sends a clear message that the GLA is taking a stand against the worst areas of abuse.  This message should encourage the compliance of other businesses and deter those from exploiting workers within this sector.”
v)	The GLA would continue to work to encourage compliance.
vi)	Formal warnings would be issued to all labour users “who have not facilitated or contributed to the exploitation”.
10.	Option 4 was described as proportionate for the following reasons.  It would reduce the burden on the sector and encourage compliance.  It sought “to prosecute those involved in the exploitation of the worker and/or Exchequer”.  Investigations had to be consistent in approach to include worker and labour user interviews, so as to ensure that all factors required to be taken into account in any decision to prosecute had been examined in each case.
11.	It was stated that one Head of Operations would control the investigations.  The GLA would follow the same format so that decisions were based on the same factors.  Each decision was, however, to be taken on a case by case basis.
(ii)	The application of the policy
12.	When applying option 4 of the Dairy Policy the GLA used a number of criteria in determining who to prosecute. One of the criteria was that the farming enterprise had employed the supplied labour for a minimum of 12 months.  The application of this cut-off period resulted in a total of 20 farmers being selected for prosecution in respect of the offence under s.13.  The case against each farming enterprise was that each had entered into a contract for services with Marden which allowed Marden to exploit the worker.
(iii)	The contentions of the parties
13.	The appellant contended that the simple fact of a farming business entering into an agreement for the supply of a worker with an unlicensed gangmaster who was financially exploiting the worker was not enough to bring the farming business within the terms of the Dairy Policy. It contended that what the policy required was that the farming business (a) engage the services of the gangmaster, and (b) contribute to the exploitation of the worker, and that simple fact of entering into an agreement for the supply of a worker only showed the first of these.  The GLA had therefore breached its own settled policy.  The minimum period of 12 months to which we have referred in paragraph 12 was arbitrary and outside [and irrelevant to] what was stated in the policy.  In all the circumstances the prosecution was therefore oppressive and should be stayed as an abuse of process.
14.	The GLA contended that it was entitled to designate a minimum 12 month employment period to mark the degree of exploitation for the purposes distinguishing between those who would be prosecuted and those who would not under the Dairy Policy.  It was therefore not in breach of its Dairy Policy.  Even if it had been, that did not constitute an abuse of process.
(iv)	The decision of the District Judge
15.	The District Judge proceeded on the basis that his power to stay a prosecution should be exercised sparingly and only where there was a clear breach of a settled prosecution policy.  He rejected the submission made on behalf of the appellant.  He held there was no real difference between options 3 and 4 which we have set out.  The decision by the GLA to use a 12 month minimum period was a matter of the practical application of the policy and did not take the case outside the policy.  He therefore held that, as there had been no failure to follow the prosecution policy, there could be no abuse of process.
The issues
16.	There were two main issues in the appeal:
i)	Was there a breach of the Dairy Policy?
ii)	If so, should the District Judge have ordered a stay?
(1)	Was there a breach of the Dairy Policy?
17.	It was common ground at the hearing before us that the Dairy Policy was not well drafted.  It did not follow the usual form of guidance given by the CPS for prosecutions.  It did not, as we have observed, identify the other documents to which it referred.  We have therefore found it far from easy to give it a sensible and reasonable interpretation.   
18.	We have sympathy with the view of the District Judge that there appeared to be very little difference, if any, in the description of labour users who fell within Option 3 and those who fell within Option 4.  That is one consequence of the way the Dairy Policy is drafted.  Nonetheless, it does seem to us that it is possible, reading the document as a whole including the reasons given for choosing Option 4 and endeavouring to make sense of what the draftsman intended, that Option 4 was meant to set a higher requirement than Option 3.  Option 4 uses the words “because his/her actions contributed to the exploitation of the worker”.  One of the reasons given by the GLA for selecting it is (see the passage we have set out at paragraph 9.iv) above) to prosecute “those who facilitate” and “those who are believed to be complicit in practices”.  Another phrase used in the GLA’s reasons, and which we have set out in paragraph 10 above, refers to prosecution of “those involved in the exploitation”.
19.	As it is accepted that the offence is one of strict liability with the defence of due diligence, it would not make sense to interpret the phrases to which we have referred as requiring knowledge.  Each of the phrases employed refers to a different degree of participation in the exploitation of the worker or the Exchequer.  It seems to us, therefore, that what the draftsman intended was that Option 4 would provide for the prosecution of those farming businesses whose use of labour had made the actual exploitation greater, either by reference to the length of time during which a person had been working for the farming business or by reference to the number of persons working for farming business.  Trying to make the best sense we can of the Dairy Policy, Option 4 was therefore intended to capture those labour users where, from the perspective of actual exploitation of either the worker or the Exchequer, the exploitation had been the greatest.
20.	In our judgment, therefore, it follows that the selection of a minimum period of 12 months for employment was a permissible interpretation of the policy.  It follows, therefore, that there was no breach.
21.	It follows further from our conclusion that there had been no breach of the Policy, that the judge was plainly right in refusing a stay on the grounds of abuse of process.  
(2)	Should there have been a stay? 
(a)	The necessity of proving oppression
22.	Although that is sufficient to dispose of the appeal, nonetheless, as the second issue was argued before us, we will briefly set out our conclusions on it on the basis that, contrary to our conclusion, there had been a breach of the Dairy Policy.  
23.	It is well established that a challenge to the decision to prosecute must be brought in the proceedings wherever that is possible.  The challenge therefore must ordinarily be made by way of an application to stay for abuse of process.  It is only in the exceptional case where such a remedy is not available that an application can be made to seek judicial review of the decision to prosecute in breach of a policy.
24.	It was accepted before us that a failure to follow and apply the Dairy Policy would not of itself give rise to a stay on the grounds of abuse of process.  More had to be proved.  That concession was rightly made, particularly in the light of the decision in R v A [2012] EWCA Crim 434.  Lord Judge CJ there made clear that provided that the exercise of a prosecutorial discretion has been conscientiously undertaken, the only question for the court is whether the offence has been committed or not.  He went on to say at paragraph 84 that where an argument was advanced by reference to a policy or guidance issued by the Director of Public Prosecutions, there were three matters to emphasise:
First, that the decision whether to prosecute or not must always be made by the Crown Prosecution Service and not the court.  The court does not make prosecutorial decisions. 
Second, provided there is evidence from which the jury may properly convict, it can only be in the rarest circumstances that the prosecution may be required to justify the decision to prosecute. 
Third, the decision whether or not to prosecute in most cases requires a judgment to be made about a multiplicity of interlocking circumstances.  Therefore even if it can be shown that in one respect or another, part or parts of the relevant guidance or policy have not been adhered to, it does not follow that there was an abuse of process.  Indeed, it remains open to the prosecution in an individual case, for good reason, to disapply its own policy or guidance.
25.	It is clear therefore that in an application to stay for abuse where a breach of policy is established, the applicant must go on and establish misconduct or oppression of the type explained in ex parte Bennett [1994] 1 AC 42.  That requirement must be the same in the rare cases where a challenge can be made by judicial review.  In the course of argument reliance was placed on an observation at paragraph 56 of the decision in R (on the application of E, S & R) v the DPP [2011] EWHC 1465, where the challenge to a decision had been brought by way of judicial review for reasons described by the court in R v A as “wholly exceptional” (see paragraph 82).  We do not read the judgment in E, S & R’s case as implying any different test; indeed it is impossible to see how the test could be different in judicial review to that on an abuse of process application.
(b)	The position where the prosecution is not brought by an independent prosecutor
26.	The decision in A and similar decisions involve prosecutions by the Crown Prosecution Service.  The Director of Public Prosecutions, as head of the Crown Prosecution Service, is independent of the Executive branch of the Government.  He and other prosecutors, including the Director of the Serious Fraud Office and the Director of Service Prosecutions, occupy a unique place in our Constitution.  When Parliament legislates to create offences, it does so on the basis that there is no duty to prosecute in each case, simply a discretion entrusted to an independent prosecutor.  The duty of such a prosecutor is to decide whether or not to prosecute in the circumstances of each case; it may also involve setting a policy or giving guidance.  The width of that discretion is premised upon the independence of the prosecutor; it is central to the proper functioning of the administration of justice and to the relationship between the courts and the prosecutor.  The courts accord the degree of respect exemplified in A to the decision a prosecutor such as the Director, as the prosecutor has been given a discretion by Parliament because of his independence from the Executive.
27.	Where the decision to prosecute is entrusted to the police, again a broad discretion is accorded, as the police are in making such decisions (and policies), constitutionally independent of the Executive Government and of any local authority, or other official or office holder, to whom the police are accountable in other respects:  see Fisher v Oldham Corporation [1930] 2KB 364, R v Commissioner of Police for the Metropolis ex p Blackburn [1968] 2QB 118 at 136 and 139.
28.	However, in the present case, it appears (see paragraph 6) that the Dairy Policy was devised and drafted by the Executive Management Board of an agency of the Executive Government and not by a prosecutor, independent of it and of any other part of the Executive Government.  Although for the purpose of these proceedings it was accepted, despite the lack of clear provision in the Act, that the GLA had authority to prosecute, it was by no means clear that either the Dairy Policy or the initial decision to prosecute was under the control of a person independent of the Executive Government.  Indeed it seems that the decision on the Dairy Policy was that of its Agency Executive Management Board; if so, an essential part of the prosecutorial discretion was not being independently exercised.
29.	It would, however, be highly undesirable if there was a different standard of review in abuse of process applications dependent upon whether the setting of a policy or guidance and the control of prosecutions were in the hands of a independent prosecutor such as the Director of Public Prosecutions or whether it was in the hands of an emanation of the Executive Government.  There must nonetheless be a powerful argument that a court should apply a more stringent standard to prosecution policy devised and implemented by the Executive Government, as the deference to the Director of Public Prosecutions and other independent prosecutors is grounded on his constitutional independence of the Executive Government.  Such a decision when not made by an independent prosecutor may be thought to be little different to other decisions of the Executive Government and therefore subject to the same standards of review.
30.	It is clear that the discretion entrusted to prosecutors should, for these and other reasons of constitutional principle, be in the hands of a person independent, and seen to be independent, of the Executive Government.  We understand that such independence, both in fact and in perception, is being achieved by the new arrangements being made by the Director of Public Prosecutions with those Departments of State where prosecutions hitherto had been undertaken within the Department.  In the present case, the prosecution had, as we have noted, been taken over the CPS through the transfer of the prosecution function to the CPS.  It follows that the CPS must have adopted the decision to prosecute.  No different test is therefore applicable in this case.  However, as many prosecutors are developing policies and guidance and satellite litigation challenging decisions is an unwelcome development (as was observed in A at paragraph 80), it is of some importance that the principles in A can be applied to all prosecutorial decisions.  For that and other constitutional reasons, there should be clear arrangements which ensure that decisions on prosecution policy and the decision to prosecute are made by persons who can exercise their judgment entirely independently of the Executive Government or Executive Agency.
31.	In the cases which involve prosecutions by local authorities, such as R v Adaway [2004] EWCA Crim 2831 and Wandsworth London Borough Council v Rashid [2009] EWHC 1844 (Admin), [2010] Env. LR 22, the courts have proceeded on the assumption that decisions to prosecute are independently made and have applied the wide test.  In Adaway, the court found that the prosecution was oppressive as the local authority had not given any thought to its policy and so held there was an abuse of process, whereas in Rashid it was found that the approach of the local authority had not been oppressive.
(c)	No oppression on the facts
32.	In the present case, if we had found there had been a breach of the policy, we would not have considered the decision to prosecute was oppressive.  The GLA gave consideration to the application of its policy.  If, contrary to our view, the appellant did not fall within Option 4, the GLA conscientiously tried to apply its Policy and did no more than make a mistake.  The decision was adopted by the CPS.  The prosecution of the appellant was not arbitrary and given the fact that the offence is one of strict liability (subject to due diligence), there would have been no grounds for concluding that the prosecution was oppressive.