| LICENSING — Private security industry — Security Industry Authority — Statute creating Security Industry Authority and establishing licensing, inspection and monitoring functions but failing to provide express power to prosecute in respect of offences under statute — Whether power to prosecute implied in statute — Private Security Industry Act 2001, s 1(3)
R (Securiplan plc) v Security Industry Authority [2008] EWHC 1762 (Admin); [2008] WLR (D) 271
QBD: Maurice Kay LJ and Blake J: 25 July 2008
Despite the absence of any express powers under the Private Security Industry Act 2001, the Security Industry Authority, the body established under the 2001 Act to carry out licensing, monitoring and inspection functions, had power to prosecute alleged offences under that Act.
The Divisional Court of the Queen’s Bench Division so held when refusing the application of the claimants, Securiplan plc, Philip Ullmann, Sabrewatch Ltd and Luke Lucas, for permission to proceed with a claim for judicial review of a decision by the defendant, the Security Industry Authority, to prosecute them for alleged offences under the Private Security Industry Act 2001.
The case had proceeded to the Crown Court at Southwark where the claimants argued that the Security Industry Authority did not have authority to prosecute them because its capacity as a statutory corporation was limited by the enabling statute and that was silent on the question of power to prosecute. Judge Rivlin QC had rejected that contention and the claimants then brought their claim for judicial review.
MAURICE KAY LJ said that had the challenge to the decision of the Security Industry Authority to prosecute been made promptly permission would have been granted. Because, however, the challenge to the decision was taken after the Crown Court judge had given a ruling on the matter the issue was one concerning the Crown Court’s “jurisdiction in matters relating to trial on indictment” within the meaning of s 29(3) of the 1981 Act and the High Court did not have jurisdiction to hear the case. Having heard argument, however, authorisation was given for the reporting of the case and reliance upon it, even though permission had been refused. On the substantive issue and construing s 1 of the 2001 Act in the context of the 2001 Act as a whole and having regard to the purpose of the 2001 Act which was “the regulation of the private security industry” the prosecution for alleged offences under the 2001 Act was “calculated to facilitate, or [was] incidental or conducive to, the carrying out of the functions relating to licensing” within the meaning of s 1(3) of the 2001 Act. To the extent that it was an offence to engage in licensable conduct except under and in accordance with a licence (s 3(1)) or to use an unlicensed operative (s 5(1)), the “functions relating to licensing” were facilitated by resort to the threat and the reality of prosecution. In the same way, prosecution was conducive to the carrying out of the licensing function because fear of prosecution would deter unlicensed activity. Similarly the power to prosecute was also calculated to facilitate and was conducive to the carrying out of the function prescribed by s 1 (2)(d), namely the function “to ensure the carrying out of inspections”. For the above reasons the Security Industry Authority therefore had power to prosecute under the 2001 Act.
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