EHJ March 2004, pages 84-85
Last month, a major meat crime case in west Wales collapsed on a technicality. Julie Barratt explains here the pitfalls around failing to bring a case to court within prescribed time limits

Time, they say, is of the essence, and never more so when bringing legal proceedings. Every EHP knows that there is a time limit attaching to legal proceedings and that failing to commence the case within the prescribed time will be fatal to the action. The general rule is that offences that are triable only in a magistrates court must be commenced within six months of being discovered. Cases triable either way or on indictment must be commenced within one year of being discovered. In some cases, commencement dates are prescribed within the legislation, to take account of the fact that covert illegal action may not be discovered for a significant period. The Food Safety Act 1990 is a case in point - commencement must be either three years from the commission of the offence or within one year of its discovery by the prosecutor, whichever is shorter.

On the face of it, it seems simple enough - discover the offence, work out the date when the case must commence and get cracking. As ever with law it is not so simple. Two issues arise, one of which has recently engaged the courts.

The first issue is what constitutes commencement? When is a case considered to be started? Old law covers this point - the date a case is commenced is the date on which the information making the allegation is laid2. For all practical purposes as far as EHPs are concerned, this is the date on which the informations arrive at the magistrates court. Where they are taken and delivered by hand, that date is clear. Where they are sent by post, it may not be so clear as rules regarding when delivery is assumed to have taken place apply. Similarly it is now established that, where informations are laid by electronic mail, they are considered laid when sent, not on being received 3. Although critical the commencement date is fairly easily identified and steps can be taken to ensure that it is not missed.

The second point, discovery, is not so easy. Prima facie it seems like a simple point - the time by which proceedings must be commenced starts to run from the date of discovery of the offence. When is an offence discovered? In some cases it will be very clear - when an EHP walks into premises and finds a flagrant breach of the Health and Safety at Work Act 1974 staring him or her in the face, they clearly "discover" the offence, and the clock starts to run. Further, if that EHP decides not to commence proceedings but to serve a notice requiring remediation, it is not until they revisit at the end of the compliance period and discover that the requirements of the improvement notice have not been satisfied, that time begins to run on an allegation of noncompliance. In both cases, the date of discovery is clear and can be pinpointed. It is the date of the initial visit, or the date of the inspection to ascertain compliance.

Cases do not always present themselves as the one above. Sometimes more stealth is needed - intelligence is received that may mean that surveillance is undertaken, warrants are sought and obtained and a sting is then carried out. In such cases, when is the offence "discovered"? Take as an example an illicit counterfeiting process. The local authority concerned receives intelligence that it feels is worth following up. During surveillance, it finds the intelligence has some weight. It applies for a warrant, which is granted, and carries out a raid, catching the counterfeiters bang to rights. In such a scenario one would think that the date of discovery is the date on which the warrant is executed and the whole panorama of the offence is laid out before the eyes of the investigating officers as the door is kicked in. But this is not the case.

The "discovery" point is precisely what engaged the court in the case of Tesco Stores Ltd v Harrow LBC4. In that case, Newman J decided on the Shorter English dictionary definition of discover - "to acquire knowledge or sight by effort or chance". The judge said: "Discovering the offence should be taken to mean discovering grounds sufficient to found a reasonable belief that an offence has been committed." The date of discovery of the offence is not the date the raid was carried out - that date is part of the investigation of the reasonable belief. Rather, it is the date the local authority had sufficient grounds to believe that an offence had been committed. On the date of the raid, the local authority knew beyond any doubt that an offence had been committed, but the salient question is, on what date did they have reasonable grounds to believe that an offence was being committed?

The phrase "have reasonable belief that an offence is being committed" is familiar to EHPs. An officer seeking to execute a warrant must have reasonable belief that an offence is being committed on the premises or the land to which the warrant relates. The reasonableness of his or her view will have to be robust enough to convince the magistrate granting the warrant. Is the date the warrant is granted the date of discovery from which time begins to run? It is certain that, on that date, the magistrate granting the warrant agrees with the view of the EHP seeking it that there are reasonable grounds for believing that an offence has been or is being committed.

But the question is how long has the EHP had that information? In most cases, a warrant is sought as a priority. But a warrant may not be sought for a couple of weeks to allow the authority to marshal its troops, or an officer in the case may be on leave or sick.

If the facts known on day one are the same as those known on day 14, when the warrant is obtained, the date of discovery is day one - the date the facts led to reasonable belief, not the date on which the magistrate shared the same view as the officer in the case.

Referring back to the health and safety scenario - suppose a technical assistant revisited premises that had already been served a notice and noted a failure to comply. On returning to the office he or she passes a message to that effect to the originating EHP, who notes the information as a file note but does not react. Some months later, the EHP goes back to the premises and finds the noncompliance to be ongoing and decides to commence legal proceedings. The date of discovery is not the date of the EHP's revisit. It is the date of the technical officer's visit because it is on that date that there were reasonable grounds to believe that an offence had been committed.

The date of discovery is also an issue when informal extensions to compliance periods are granted. If an EHP finds there has only been partial compliance with a notice, he or she may give the owner another couple of weeks to complete the works. If the work is still outstanding at the end of the extended period, the EHP may decide to instigate proceedings alleging noncompliance with the notice requirements. The date of discovery of the offence in such cases is the date of the first inspection when the informal extension of time was given - on that date the EHP had reasonable grounds to believe that an offence had been committed. It is then that the litigation clock starts ticking, despite the attempt to resolve the issue in a nonconfrontational manner.

Having considered the date of commencement and the date of discovery, one final issue remains - how reasonable does reasonable belief have to be? Is it possible to blindly ignore the obvious so as to push back the date of discovery? The short answer is no. Reasonable belief is that attributed to a reasonable man with reasonable judgement, not the judgement of a real person doing their best not to see the glaringly obvious. Where there is dispute as to what is and is not reasonable, the judge will be asked to arbitrate. It is for the judge to decide if, on the facts as known at a particular point in time, a prosecutor had reasonable grounds for believing that an offence had been committed.

The Tesco case5 clarifies the position in respect of discovery of an offence - it is the date when an investigating officer has reasonable grounds to believe that an offence has been, or is being committed. Accurately working out this date is critical because there is no judicial discretion to hear a case commenced out of time - it must be dismissed regardless of the heinousness of the offence alleged or the amount of evidence presented in the case. In litigation, as in so much else, time is of the essence.

1 Food Safety Act 1990 s34

2 Beardsley v Giddings (1904) 1KBD847

3 R v Pontypridd juvenile court (unrep)

4 and 5 Tesco Stores Ltd v LB Harrow 2003 EWHC 2919