AB & Ors v REGINA

Factual and Procedural Background

The Appellants are awaiting trial on charges of conspiracy to defraud and perverting the course of public justice related to alleged fraudulent claims submitted to the Legal Aid Agency ("the LAA") by a solicitors' practice in London ("the practice"). The prosecution was brought by Thurrock Council ("the Council"), following an investigation by its Fraud Investigation Department ("the FID") on behalf of the LAA. The Appellants challenged the Council's power to prosecute under section 222 of the Local Government Act 1972 ("s.222"), contending the prosecution should have been conducted by the Crown Prosecution Service ("the CPS"). The Crown Court Judge ruled the prosecution was validly brought under s.222. The Appellants appealed this interlocutory ruling.

The case involves complex arrangements between the Council and the LAA, including investigative and prosecutorial cooperation, with the Council acting as prosecutor despite the national scope and serious nature of the alleged fraud. The Director of Public Prosecutions ("the DPP") later took over the conduct of the prosecution.

Legal Issues Presented

1. Whether the court can review or "look behind" the Council's decision to prosecute under s.222.
2. If reviewable, whether the Council's decision to prosecute was so unreasonable as to warrant interference by the court.
3. Whether the Council has a self-standing common law right to prosecute independent of s.222.

Arguments of the Parties

Appellants' Arguments

• The Council’s power to prosecute was limited to the interests of its inhabitants, and the prosecution had no sufficient link to the Council’s area.
• The Council’s decision was commercially motivated, outsourcing prosecutorial services to any organisation willing to pay, which is impermissible under s.222.
• The proper prosecuting authority was the CPS, not the Council.
• The Council failed to distinguish between investigation and prosecution powers.
• Practical difficulties arise from the Council prosecuting, including lack of access to digital case systems and disclosure issues.
• The Council does not have an unfettered common law right to prosecute; s.222 is not merely declaratory.

Council's Arguments

• s.222 is declaratory of a local authority’s existing common law right to prosecute and defend criminal proceedings.
• The Council’s decision was based on expediency and the promotion or protection of the interests of the inhabitants of Thurrock, including protecting the legal aid system and sustaining the FID.
• Local authorities have wide powers to prosecute, including taking into account broad policy and financial considerations.
• The Council is well equipped to prosecute serious criminal cases and the continuity of investigation and prosecution is advantageous.
• The legislative history supports the Council’s assertion of a common law right to prosecute, with s.222 merely restating this power.
• The Council rejected the suggestion that the LAA was the actual prosecutor, confirming the Council acted as prosecutor.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged that the Council’s power under s.222 to prosecute is broad and that judicial interference should be limited and reserved for cases where the decision is unreasonable. Precedents establish that the court must respect the local authority’s discretion to determine what is expedient for the interests of its inhabitants.

However, the court found that the Council’s decision to prosecute in this case fell outside the ambit of s.222. The prosecution related to alleged fraud against the LAA, a national body, with no sufficient direct or indirect link to the interests of the inhabitants of Thurrock beyond a tenuous commercial benefit to the Council’s FID. The Council’s motivation was at least partly financial, aiming to sustain the FID through paid investigative and prosecutorial services, effectively operating a commercial enterprise.

The court rejected the Council’s submission that it had an unfettered common law right to prosecute, holding that local authorities are statutory bodies with powers strictly derived from statute. The legislative history and statutory framework indicate that s.222 confers specific powers to prosecute, not merely declaratory of a common law right.

The court also rejected the argument that the LAA was the true prosecutor, confirming the Council was the prosecuting authority as a matter of fact and law.

Concerns were expressed about the propriety and public interest implications of a local authority prosecuting a serious national fraud case unrelated to its area, emphasizing that such prosecutions should be conducted by the national prosecuting authority, the CPS, under the DPP’s oversight.

Following these findings, the DPP took over the conduct of the prosecution, and the court declared the Council had no power to prosecute under s.222.

Holding and Implications

The court’s final decision was to DECLARE that the Council had no power to prosecute the case under section 222 of the Local Government Act 1972.

The prosecution was ordered to continue under the conduct of the Director of Public Prosecutions, who exercised statutory powers to take over the prosecution. As a result, the court did not consider whether a stay for abuse of process was appropriate.

This ruling directly affects the parties by invalidating the Council’s authority to prosecute and transferring prosecutorial responsibility to the DPP. The court did not establish new precedent beyond clarifying the limits of s.222 and rejecting a common law prosecutorial right for local authorities. The decision underscores the importance of national prosecuting authorities handling serious, nationally significant fraud cases and cautions against local authorities pursuing prosecutions for commercial gain unrelated to their statutory remit.