Evan Wright - instructing Jason Pitter QC - represented a defendant charged with sending obscene and offensive messages by WhatsApp. The charges were contrary to s.127(1) Communications Act 2003.

Evan Wright - instructing Jason Pitter QC - represented a defendant charged with sending obscene and offensive messages by WhatsApp. The charges were contrary to s.127(1) Communications Act 2003.

S.127(5) Communications Act 2003 provides “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.

S.127(7) provides that a certificate of a prosecutor as to the date on which evidence described in subsection (5)(b) came to his or her knowledge is conclusive evidence of that fact.

The case revolved around whether the court could go behind the face of the S.127(7) certificate to enquire as to the accuracy of the date used to calculate the end of the 6 month period. In other words, the defence relied upon the factual matrix in an agreed chronology suggesting that the evidence came to the knowledge of the prosecutor at a much earlier stage; meaning that the certificate could be ‘plainly wrong’. The defence therefore asked the court to hear evidence and reach a determination on which date should be preferred for the purposes of S127(5)(b).

The District Judge decided that the court could make this enquiry. The prosecuting lawyer was called to give evidence and was cross-examined. The judge determined that the case formed exactly the scenario foreseen by Males LJ, in Chesterfield Poultry Ltd v Sheffield Magistrates’ Court [2019] EWHC (Admin) in which “if…the responsible individual…were to review the file so as to have knowledge of all the relevant evidence, but only made a decision about prosecution at a later date…the date when the file was reviewed would be the date when the evidence came to the prosecutor’s knowledge”.

The judge decided that all of the evidence was available in May 2019. Even allowing for the number of potential charges and defendants and the resulting complexity, there was ample time for a decision to have been made within the statutory limits, months before the date on the certificate in November 2019. The judge found that the certificate was ‘plainly wrong’ and the prosecution was therefore out of time. The proceedings were dismissed. Serving a detailed defence case statement and actively pursuing multiple disclosure applications was critical in establishing whether the certificate might be wrong. In complex summary only enquiries where charges are laid or summonses are issued in cases of this type at a point more than six months after the investigation comes to the suspect’s attention, it is worth investigating whether the date on the S.127(7) certificate might be wrong. In the vast majority of cases it will be correct, but in this particular case, the investigation was worthwhile. Even if the prosecution had succeeded, the defence argued privacy and threshold issues on the facts. However, the decision in relation to the certificate meant that there was no need for the factual argument.