APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Bonomy Lord Hodge Lord Osborne	[2011] HCJAC NO. 85 Appeal Nos: XJ524/11 & XJ523/11 OPINION OF THE COURT delivered by LORD BONOMY in NOTE OF APPEAL UNDER SECTION 174(1) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by (FIRST) BARRY RODDEN AND (SECOND) PAUL RODDEN Appellants; against PROCURATOR FISCAL, GLASGOW Respondent: _______

Appellants: M. Scott, Q.C.; John Pryde & Co

Respondent: P. Ferguson, Q.C., A.D.; Crown Agent

1 September 2011

Background

[1] This is an appeal against a decision of the sheriff at Glasgow on 13 March 2011 to repel the appellants' pleas to the competency of the complaint. The sheriff rejected three grounds of challenge. Only one is now insisted upon in this appeal, viz that the complaints are time-barred.

[2] The complaint contains one charge in the following terms:

"between 6 February 2009 and 29 September 2010, both dates inclusive at P&B Contracts Ltd, 98 Townhead, Kirkintilloch and elsewhere you BARRY RODDEN and PAUL RODDEN as Directors of said P&B Contracts Ltd did fail without reasonable excuse to produce to Christy Hopkins a person authorised in writing by the Security Industry Authority any documents or other information required in relation to any matter mentioned in section 2 of the aftermentioned Act; namely

(a) A list of customer sites where said P&B Contracts Ltd supply security for the purposes of or in connection with any contract to a consumer, said list to include site addresses, telephone numbers and if possible contact names,

(b) A list of licensable staff supplied for the purposes of or in connection with any contract to customers, including licence numbers (if appropriate) and dates of birth, said list to include directors, managers, supervisors, and any other personnel engaged by P&B Contracts Ltd to provide a security function;

CONTRARY to the Private Security Industry Act 2001, Section 19(5)(b)."

There was no dispute that on 6 February 2009 a requirement in terms of section 2 of the Private Security Industry Act 2001 ("2001 Act") was made of the appellants indicating that production should be in fourteen days, that is by 20 February 2009. The complaint was not served until 8 December 2010. The dispute between the parties is whether the offence was completed as at 20 February 2009, in which event the complaint is time-barred, or is a continuous offence, which in this case continues to this date, and more particularly continued until at least 29 September 2010 as specified in the complaint, in which event the proceedings are competent.

The Applicable Statutory Provisions

[3] The modern time-bar provisions applicable to this complaint are to be found in the Criminal Procedure (Scotland) Act 1995, section 136, which is in these terms:

"136.-(1) Proceedings under this Part of this Act in respect of any offence to which this section applies shall be commenced-

(a) within six months after the contravention occurred;

(b) in the case of a continuous contravention, within six months after the last date of such contravention,

and it shall be competent in a prosecution of a contravention mentioned in paragraph (b) above to include the entire period during which the contravention occurred.

(2) This section applies to any offence triable only summarily and consisting of the contravention of any enactment, unless the enactment fixes a different time limit.

(3) For the purposes of this section proceedings shall be deemed to be commenced on the date on which a warrant to apprehend or to cite the accused is granted, if the warrant is executed without undue delay."

An offence under section 19(5) of the 2001 Act is an offence which is triable only summarily, as provided by section 19(7), and is therefore one to which the provisions of section 136 apply. The question for this court is whether the offence in the complaints fall within sub-paragraph (a) or sub-paragraph (b).

[4] Section 19(2) and (5) of the 2001 Act are, so far as relevant, as follows:

"(2) A person authorised in writing for the purposes by the Authority may require any person appearing to him to be a regulated person to produce to him any documents or other information relating to any matter connected with -

(a) any licensable conduct which has been or may be engaged in by the person so appearing;

(b) the provision by the person so appearing of any security industry services;

(c) any matters in respect of which conditions are imposed on the person so appearing by virtue of a licence or of an approval granted in accordance with arrangements under section 15.

(5) A person is guilty of an offence if -

(a) ...

(b) He fails, without reasonable excuse, to comply with any requirement imposed by sub-section (2); ..."

The Authority in sub-section (2) is the Security Industry Authority. It was accepted before us that the appellants were regulated persons to whom section 19(2) applied.

The Requirement

[5] On 6 February 2009 identical notices were sent to each appellant in the following terms:

"Dear Mr Rodden

Re: Private Security Industry Act 2001 - Request for information under Section 19(2)

I am conducting checks to ensure your company's compliance with the private Security industry Act 2001. I previously requested this information by fax and letter, dated 07/01/09, however I have not received a response.

Therefore, pursuant to Section 19 (2) of the Private Security Industry Act 2001 (the Act), you are required to provide to the SIA the following information:

·             A list of customer sites where you supply security for the purposes of or in connection with any contract to a consumer. You should include site addresses, telephone numbers and if possible contact names*

·             A list of licensable staff supplied for the purposes of or in connection with any contract to customers, including licence numbers (if appropriate) and dates of birth. This should include directors, managers, supervisors, and any other personnel engaged by P&B Contracts Ltd to provide a security function.*

*It is accepted that the information given will only be accurate at the time of submission and cannot be guaranteed as accurate for any period of time after the submission.

Please either email this information to me at christy.hoOknsCa).the-sa.arg.uk or alternatively fax it for my attention to 0207 025 4101, or post it to me at the address below, by 20/02/09.

You should be aware that it is an offence to fail to comply without reasonable excuse with a requirement under Section 19(2), or to make a statement knowingly or recklessly to the SIA which is false in a material particular. Both these offences are punishable by imprisonment for up to six months or by a fine of £5000 or both. A copy of this letter has been sent to your business address. I enclose a copy of the "SIA Enforcement Policy Code of Practice". This explains our approach to making enquiries and the powers under which we are making the request set out in this latter.

Yours sincerely"

After referring to earlier informal communication by fax and letter, the writer plainly made a requirement in terms of section 19(2) specifying two categories of relevant material to be produced, and then set out an email address, a fax number, and a postal address to which the material could be sent, and requested that it be sent to one of these addresses by 20 February 2009. Section 19(2) does not stipulate any period or deadline for production of the material required.

Submissions for the Appellants

[6] The principal submission of Miss Scott for the appellants was that Parliament could not possibly have intended to give to the prosecution a completely free hand either to prosecute at some indefinite date in the future any failure to comply with such a requirement as an ongoing offence, or to select a convenient date which they might either regard as the last date of a continuous contravention or a convenient point in the course of the continuous contravention to specify as the terminus of the libel. Such a scheme would give rise to an obvious risk of oppressive conduct on the part of the prosecution, and could not be squared with the purpose of section 136 to require prosecution of minor regulatory offences expeditiously. In support of the latter point she referred to the opinion of Lord Rodger of Earlsferry in R v J [2004] UKHL 42, paragraph 56, and in particular his reference to Scottish criminal procedure in relation to which he said:

"Similarly, evidence does not go stale more quickly for statutory than for common law offences and yet the six-month limit in the Criminal Procedure (Scotland) Act 1995 applies only to statutory offences. ... It seems, therefore, that in these cases Parliament takes the rather broader view that, if the offences are worth prosecuting at all at summary level, they are only worth prosecuting if they come to light and can be dealt with soon after they are committed, in accordance with the prescribed time-limit."

[7] On the broader question of determining the terminus a quo for calculation of the six-month period in relation to provisions where no deadlines were prescribed, Miss Scott had been unable to find any direct authority. She found comfort rather than support in A & C McLennan (Blairgowrie) Ltd v MacMillan 1964 JC 1 where it was held that failure to notify the change of ownership of a motor vehicle "forthwith" did not give rise to a continuous offence and that the offence was completed if notification was not made as soon as reasonably possible after a sale. She also relied upon the opinion of the court in PF, Glasgow v Jackson [2010] HCJAC 96 for her submission that the starting point, in the present case the date of making the requirement, is when the first notice or requirement is served, since otherwise the Crown would be able to engineer circumvention of the applicable time-bar by serving a later requirement. However she recognised that the statutory provision being addressed in PF, Glasgow v Jackson (section 172 of the Road Traffic Act 1988) specified the period during which information was to be provided and was not in language which could give rise to an argument that it involved a continuous contravention with the potential for multiple starting points.

[8] Miss Scott illustrated what she submitted was the absurdity of the Crown position in this case (that if the appellants did nothing in response to the requirement they could be prosecuted ad infinitum) by reference to certain features of the case and events affecting the appellants' business. A requirement for the production of material in identical terms to that of 6 February 2009 was made on 2 April 2009. That time it was served personally. Production was requested by 16 April 2009. On 30 April 2009 the business premises were searched by police officers and staff of the Security Industry Authority under a warrant. As a result of the matter which gave rise to the warrant, the Security Industry Authority licences held by the appellants' company had been suspended. As a result of the suspension the first named appellant had resigned as a director of the company. During the search most of the company's books and records had been removed thus disabling the appellants from producing further material. Somewhere along the line they had delivered the list of customer sites referred to at a) of the complaint. That was accepted by the Crown. The complaint when served specified the period of the offence as "between 6 February 2009 and 29 September 2010". The latter date was that on which the Security Industry Authority furnished the Crown with the documentary evidence which enabled them to bring the present prosecution, in particular the requirements and the statements as to the way in which they had been served. The appellants appeared on petition on 24 December 2009 on charges arising from the search. The summary of evidence presented to their representatives included reference to failure to comply under section 19(2). She submitted that that showed that as at 24 December 2009 the Crown were of the view that there had been failure to comply. These were all features that demonstrated that the Crown approach was unworkable in practice. In the submission of counsel, all these circumstances provided support for her contention that the contravention occurred when the appellants allegedly failed to comply with the time limit of 16 February 2009, specified in the requirement of 6 February 2009.

Submissions for the Crown

[9] The Advocate depute relied on the submission made by the procurator fiscal before the sheriff, which the sheriff had accepted. The offence was a continuing offence. Properly interpreted, section 19(2) placed an obligation on the regulated person to provide information to the Security Industry Authority, but did not specify any particular way in which the requirement could be met and did not fix any deadlines. The offence would commence were the requirement not met within a reasonable period, the length of which would depend on circumstances. The fourteen day period specified in the notice had no statutory basis, but appeared to reflect what in the opinion of the Security Industry Authority would be a reasonable period for compliance. While the appellants had been "required" to produce the material stipulated, they had merely been "requested" to produce it by the date specified. In the opinion of the sheriff, and in the submission of the Advocate depute, that was in keeping with the terms of 19(2) and with the concept of a continuous ongoing breach. The cases cited by counsel for the appellants were of limited assistance.

[10] The Advocate depute acknowledged the arbitrary basis on which the terminus a quo for this complaint had been selected as 29 September 2010, but reminded the court that in relation to a continuous offence it was necessary for the Crown to specify dates defining the period to which the prosecution related. He also accepted that the concept of it being open to the Crown to prosecute the appellants ad infinitum was unusual, but submitted that the appellants had it in their own hands to bring the continuous offence to an end by complying or purporting to comply with the requirement, and that they could in any event resort to a plea of oppression to challenge any prosecution that was initiated long after the service of the requirement.

Discussion and Decision

[11] The plain language of section 19(2) and (5) does not tend to suggest that a failure to comply with a requirement under section 19(2) amounts to a continuous contravention. Following, as it does, upon the provisions in section 19(1) authorising representatives of the Security Industry Authority to enter premises owned or occupied by regulated persons, section 19(2) is in terms wide enough to authorise a requirement for production of material in the course of such entry to the premises. It is not stipulated that any requirement must be in writing. The offence of failing to comply with the requirement is subject to the defence of "reasonable excuse", so expressed as to require the Crown to exclude reasonable excuse for any failure to comply. Since the material which a regulated person may be required to produce could be of varying quantities and complexity, reasonable excuse would, in our opinion, include the lack of a reasonable period in which to comply. It seems that the Security Industry Authority agree with that and specified in the requirement a date by which the material should be produced. In light of what we have said about time in association with the notion of "reasonable excuse", it follows that any such period should be a reasonable one. In the event that the period specified is a reasonable one, in our opinion failure to comply arises on the expiry of that deadline. There was in this case a time set for compliance which was prima facie reasonable. The offence of failing to comply was thus completed when that time limit expired. Similarly, where no deadline is specified in a requirement, the offence will be complete when a reasonable time expires without production being made and the defence of reasonable excuse based on time is exhausted. That is consistent with the opinion of the court in PF Glasgow v Jackson and with McLennan v MacMillan. It is also consistent with the obvious utilitarian purpose of section 136 of the 1995 Act, confirmed by Lord Rodger in R v J, to ensure that breaches of statutory regulatory provisions are prosecuted soon after they are committed. The practical implications of the argument advanced by the Crown are, in our view, bizarre and cannot have been intended by Parliament. For these reasons, we shall allow the appeal and remit to the sheriff to dismiss the complaint.