Background
Joann Jinks was a member of the West Mercia Police. In mid-2022, she was charged with three counts of sending a grossly offensive message by a public network, contrary to section 127 of Communications Act 2003. It was alleged that, in June 2020, she had sent racist images to her co-defendant and fellow police officer, Mr James Watt.
On 18 May 2021, the Independent Office of Police Conduct (“IOPC”) referred the case to the Crown Prosecution Service (“CPS”). On 14 June 2021 a Senior Crown Prosecutor (“the First Prosecutor”) reviewed the file and concluded that there was insufficient evidence to bring proceedings. That decision was challenged by the IOPC and the matter was referred to the CPS for reconsideration. On 18 October 2021, another Senior Crown Prosecutor (“the Second Prosecutor”) considered the same material and concluded there was sufficient evidence to institute proceedings and that it was in the public interest to do so. Charging authority was granted on 25 March 2022 and postal requisitions were sent on 31 March 2022.
When Ms Jinks appeared in the Birmingham Magistrates’ Court on 13 May 2022, she argued that the charges had been laid out of time. Deputy Chief Magistrate Tan Ikram agreed and dismissed the charges. The DPP appealed the decision.
Section 127 – Communications Act 2003
Under section 127 of the Communications Act 2003, a person is guilty of an offence if they:
(a) send by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) cause any such message or matter to be so sent.
A person guilty of an offence under section 127 shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine. Section 127(5) provides:
(5) An information or complaint relating to an offence under this section may be tried by a magistrates’ court in England and Wales or Northern Ireland if it is laid or made —
(a) before the end of the period of 3 years beginning with the day on which the offence was committed, and
(b) before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings.
Section 127(5) is not an isolated or unfamiliar provision. Indeed, there are numerous examples in both primary and secondary legislation of similarly worded provisions (see: Road Traffic Offenders Act 1998, s 6; Animal Welfare Act 2006, s 31; Welfare of Animals at the Time of Killing (England) Regulations 2015, reg 41).
These provisions provide an exception to the general rule that summary proceedings should commence within six months of the commission of the offence. Instead, in cases involving these provisions, the prosecutor’s knowledge triggers a separate, later time limit.
The Court in this case observed that, although there are minor differences across these various provisions, they are immaterial, and a consistent approach should be adopted (at [21). As the relevant authorities failed to provide a conclusive answer, the Court took the opportunity to identify the proper approach.
The parties’ competing contentions
The parties had squarely competing interpretations of section 127(5).
The DPP argued that the Court should adopt a literal interpretation of section 127(5). In June 2021, the First Prosecutor reviewed the evidence and concluded that it was insufficient to justify proceedings. When the Second Prosecutor considered the matter afresh four months later, he was a different “prosecutor” for the purposes of section 127(5) (at [16]).
Ms Jinks argued that the relevant date for starting the notional clock ought not be the date that a prosecutor decides to prosecute; if it were, they could simply delay reaching a decision for as long as they pleased. The relevant date is when an authorised individual received and considered the evidence, such that knowledge of its contents was imparted to the CPS as an organisation. This accords with the well-established canon of statutory interpretation that any ambiguity should be resolved in favour of the accused (at [17]).
Decision
The Court commented that, whilst there appeared some force in the DPP’s interpretation of section 127(5), it was both inconsistent with authority and unsound on policy grounds (at [28]).
In Morgans v DPP [1998] 1 WLR 968, Kennedy LJ commented that the prosecutor does not have to form their opinion for time to run, otherwise they could prevent time running simply by not applying their mind to the case (at [983D-F). This approach was followed in Chesterfield Poultry Ltd v Sheffield Magistrates’ Court [2019] EWHC 2953 (Admin), in which Males LJ held that (at [36] and [60]):
“the relevant date is the date on which the prosecutor has evidence which is sufficient in his opinion to warrant the proceedings, even if he or she has not yet formed that opinion.
…
“The date on which the relevant evidence came to her knowledge is not, however, to be equated with the date on which the relevant evidence was placed on her desk or delivered to her inbox. Rather it is the date on or by which it has been considered so that knowledge of the content has been imparted.”
Drawing the strands of authority together, the Court held that the relevant date for the purposes of an extended limitation provision – such as section 127(5) – is the date on which the material evidence (i.e. evidence which fulfils the full code test) is first considered by an authorised person, so that knowledge of its content is imparted (at [38]). As soon as an authorised person acquires such knowledge, the clock starts running.
For the avoidance of doubt, the Court confirmed that in cases where different evidence is placed before a second prosecutor because further inquiries have been made, time would not run from the date of the first prosecutor’s acquisition of knowledge (at [40]).
Conclusion
Hundreds of individuals are charged under section 127 of the Communication Act 2003 each year. Many more are charged under provisions which similarly extend the usual 6 month limitation period.
Accordingly, prosecutors – including private prosecutors – should be aware of this decision and its implications. Time starts on the date the evidence is first considered by an authorised person. From that date onwards, the clock is running.
Judgment link here – DPP v Jinks [2024] EWHC 3341
