CO/10882/2011 
Neutral Citation Number: [2012] EWHC 554 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Friday, 3 February 2012
 
B e f o r e:

LORD JUSTICE MOSES 

MR JUSTICE IRWIN 
- - - - - - - - - - - - - - - - -

Between: 

ROYAL MAIL GROUP LIMITED 
Appellant

v 

NICHOLAS PAUL GRAHAM LEONARD ALLEN 
Respondent 
- - - - - - - - - - - - - - - - -
Computer‑Aided Transcript of the Palantype Notes of  
WordWave International Limited
A Merrill Communications Company 
165 Fleet Street  London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - -
Mr Adrian Chaplin (instructed by Royal Mail Group Ltd, Criminal Law Team, 3rd Floor, 6A Eccleston Street, London SW1W 9LT) appeared on behalf of the Appellant
The Respondent did not appear and was not represented
- - - - - - - - - - - - - - - - -
J U D G M E N T
1.	LORD JUSTICE MOSES:  I will ask Mr Justice Irwin to give judgment in this appeal.
2.	MR JUSTICE IRWIN:  On 13 May 2011 Nicholas Allen was committed for sentence on bail by the Leicester justices to the Leicester Crown Court, having pleaded guilty to two offences contrary to section 83(1) of the Postal Services Act 2000.  At the relevant time Mr Allen was a postman and it was discovered that he had detained and kept a huge number of postal packages and letters, rather than delivering them as he should.
3.	The learned judge, His Honour Judge Pert QC, before whom the case was listed, became concerned that the pleas were wrongly entered.  As he puts it in the case that he subsequently stated, he formed the view that, although a postman and employed by the Royal Mail, Mr Allen was not a person "who is engaged in the business of a postal operator" within the terms of section 83.
4.	After an initial attempt to unravel the legal knot that the judge perceived, he put the matter back for further argument on 5 August 2011.
5.	Following that further argument, which it may be fair to say was not always presented with complete clarity, the judge again concluded that a postman was not "a person who is engaged in the business of a postal operator" within section 33.
6.	Following that the Royal Mail sought a case stated.  They seek to say that the conclusion reached by the judge was erroneous.
7.	It is helpful to look very briefly at the legislative history.
8.	At least as far back as the Post Office Act 1953, sections 52 to 68, the legislation provided in effect a code of criminal offences to do with the theft of or interference with the mail.  We pause to note how swingeing were the penalties provided: section 52 stipulated that any person who stole a mailbag was liable to life imprisonment.
9.	However, the offences differed in their applicability.  Many of the offences within that part of the Act might have been committed by "any person".  Others apply only to "any officer of the post office", those being sections 56 and 58, or in section 59 "any person employed to convey or deliver a mailbag or a postal packet", that section no doubt being designed to deal with employees of railways, ferries, airlines or other contractors.
10.	The distinction made in the former legislation was maintained when that Act was replaced by the Postal Services Act 2000.  The principal purpose of the Postal Services Act 2000 was to pave the legislative way for privatisation of the Royal Mail.  It was anticipated by the Act that the functions formerly reserved to the post office would be carried out under licence by one or more universal service providers (see section 4).
11.	A "postal service" may or may not be "universal" and may or may not be performed by a "universal service provider" (see Part II of the Act).  A "postal operator" is defined by section 125 of the Act, something which the learned judge addressed, the relevant definition from the section reading as follows: 
"'postal operator' means a person who provides the service of conveying postal packets from one place to another by post or any of the incidental services of receiving, collecting, sorting and delivering such packets."
12.	This definition really led to the decision by the judge.  He said, in effect, that a "postal operator" means the undertaker of the service; that is to say the business, not the postman.  That is almost certainly correct since it arises from the natural meaning of the language and would also be consistent with the provisions, for example, of section 7A, which sets out the obligations of the postal operator when providing all or part of a universal postal service.
13.	However, the next step the judge took was to conclude that the offence under section 83 could only be committed by "a postal operator", whereas the phrase in the Act is "a person who is engaged in the business of a postal operator".
14.	Both the legislative history outlined and common sense means, in my judgment, that this is intended to address the employee or agent of a postal operator, rather than the postal operator himself or herself, or (more likely) a corporation.
15.	That is underpinned by section 83(1)(b): the offences committed by intentionally opening a mailbag.  It is absolutely inconceivable that Parliament could have intended that a corporation could carry out an offence of intentionally opening a mailbag.  That is clearly something intended to be covered at the hands of an individual.
16.	The definition of "postal operator" changed in the summer of 2011, after the commission of these offences, with the commencement of the Postal Services Act 2011.  But this change, although adverted to by the judge on the second occasion when he considered the case and in his statement of case, actually makes little difference, if any, in my judgment to the interpretation of section 83(1) of the Act.
17.	Therefore, for those reasons, this appeal is allowed, the pleas of guilty were properly entered, the convictions stand, and the respondent must therefore be returned to the Crown Court for sentence.
18.	 
19.	LORD JUSTICE MOSES:  I agree.
20.	The appellants in this matter, the Royal Mail Group, have dealt with the startling decision of the judge with customary and understandable courtesy.  All that has been achieved, to rectify the position to that which was plainly intended in the statute, is to have the advantage of the learning of my Lord as to the history of the sections.
21.	Yes.
22.	MR CHAPLIN:  My Lord, I had intended to extend my gratitude to his Lordship for the historical canter.
23.	LORD JUSTICE MOSES:  After you have sucked up to him, what is it you want?
24.	MR CHAPLIN:  I was going to inform your Lordships that the case is next listed at Leicester Magistrates' Court I believe on 2 March, and in the light of the ruling of your Lordships it would seem appropriate for them effectively to send the matter back to the Crown Court.
25.	LORD JUSTICE MOSES:  It can't go directly back to the Crown Court, can it?  It seems an awful waste of time and money.
26.	MR JUSTICE IRWIN:  What is the point of a hearing in the Magistrates' Court?
27.	MR CHAPLIN:  Well, at the moment they're acting on the basis of the learned judge's direction that it go back to them, because it was only a summary ‑‑ 
28.	LORD JUSTICE MOSES:  Yes, I see. 
29.	MR CHAPLIN:  So, as it were, it's not in the Crown Court.
30.	LORD JUSTICE MOSES:  But they could do all that in writing without any appearances, couldn't they?
31.	MR CHAPLIN:  We will do exactly what we can to ensure that that is the route taken.
32.	LORD JUSTICE MOSES:  That's the sensible thing.  The thought of somebody from Royal Mail having to turn up and for the defendant to have to turn up seems a terrible waste of their time and everybody else's.
33.	MR JUSTICE IRWIN:  It seems to me that that could easily be done by the judge rescinding the direction which followed from his erroneous judgment.  He can perfectly well, on written application, rescind the direction that the matter go back to the magistrates and in fact order that it come back before the Crown Court.
34.	MR CHAPLIN:  I am grateful.
35.	LORD JUSTICE MOSES:  Yes, that's the way, I think.  I am grateful.  Thank you very much indeed.