Conservators – Byelaw – Prosecution – Delegation – Appellant river manager prosecuting respondent punt operators regarding breach of byelaws – District judge staying prosecutions as unlawful delegation of conservators’ powers – Appellant appealing – Whether conservators being entitled to delegate power of prosecution – Whether conservators showing oversight and review of prosecutorial function – Appeal allowed
The appellant was the river manager for the Conservators of the River Cam who were established in 1702 and had jurisdiction to make byelaws over the River Cam. The appellant, acting on instructions, brought prosecutions against the operators of punts on the river for various breaches of the byelaws, in particular, keeping an unregistered punt on the river, navigating an unregistered punt and failing to operate from a recognised punt station. The prosecutions were stayed by the district judge as an unlawful delegation of power by the conservators to their officers.
The appellant appealed by way of case stated. The questions stated by the district judge for the opinion of the court were: (I) whether he had been correct to find that the conservators were not entitled to delegate completely the function of bringing prosecutions to enforce byelaws to an employee; and (ii) whether he was entitled, on the agreed facts, to find that the conservators had not shown that they exercised oversight and review of their officer’s prosecutorial function.
Held: The appeal was allowed.
(1) The starting point was that powers conferred by statute had to be exercised by the person or authority on whom they were conferred, even where that caused administrative inconvenience, except in cases where it might be reasonably inferred that the power was intended to be delegable. One could only assess how strict that principle was by examining the approach of the courts to the question whether statutory provisions impliedly authorise delegation. That was likely to vary according to the context and the nature of the power. There was a strong presumption against interpreting a grant of legislative power as empowering delegation. There was also a tendency to adopt a more restrictive approach to implied authority to delegate in the cases of the proceedings of courts and cases involving other judicial and disciplinary powers. A strict approach was also likely if the power was conferred on the holder of a public office because of the personal qualifications and experience that those who held the office could be expected to have.
(2) In the present case, the conservators were statutory officers at the apex of a hierarchical organisation consisting of other office-holders, referred to in the governing statutes and byelaws. They were either elected members of the relevant local government areas or senior members of the University of Cambridge. On examining the River Cam Navigation Act 1851 and the River Cam Conservancy Act 1922, while some of the functions referred to were specifically required to be carried out by named office-holders, in respect of other functions there was no such limitation, or the reference was only to the conservators. A distinction had to be made between the determination of policy on such matters and the operational execution of such policy. Notwithstanding the difficulties at the margin of locating the boundaries of those categories, the conservators were not impliedly authorised to delegate broad policy on such matters. They could, however, delegate the implementation of such policies to officers who would have some discretion as to how, operationally, to execute the policy in question.
(3) However, there was no distinction between those powers and the power to prosecute. The function of enforcing the many byelaws issued by the conservators and prosecuting those against whom there was evidence that they have breached them was undoubtedly an onerous and operational task. Decisions might need to be taken quickly. The conservators met quarterly and there were obvious practical difficulties of a body comprised of individuals which represented other bodies which only met quarterly conducting criminal prosecutions on a day-to-day basis. Although the decision to prosecute was a serious one, some delegation to the most senior officer was inevitable. Accordingly, the presumption of an implied power to delegate, which it was accepted applied in relation to certain of the conservators’ functions, also applied to the institution of prosecutions. It was for the conservators to set the general policy regarding prosecutions but, as far as individual prosecutions within such general policy were concerned, there was power in their senior officer, the river manager, to make the operational decisions. In reaching that conclusion, the court had taken account of the fact that the decision to institute a prosecution was not determinative of the rights and entitlements of those affected. The court had control in the sense of deciding whether to issue the summons and then in hearing the case. Furthermore, to require the conservators to act as a body in the case of each individual prosecution was not practical since they conducted their business at quarterly meetings.
(4) In the circumstances, the appeal would be allowed and the case remitted to the Magistrates’ Court for the prosecutions to proceed.
Christopher Knight (instructed by Hewitsons LLP) appeared for the appellant; Simon Butler (instructed by Direct Access) appeared for the respondents.
Eileen O’Grady, barrister
