Ashton & Ors, R. v [2006] EWCA Crim 794 (05 April 2006)

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England and Wales Court of Appeal (Criminal Division) Decisions

You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Ashton & Ors, R. v [2006] EWCA Crim 794 (05 April 2006)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2006/794.html
Cite as: [2007] 1 WLR 181, [2007] WLR 181, [2006] EWCA Crim 794

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		Neutral Citation Number: [2006] EWCA Crim 794
		Case No: 2005061 83, 200506570, 200505830

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT SITTING AT HULL (HHJ THORNE QC)
ON APPEAL FROM THE CROWN COURT SITTING AT BLACKFRIARS (HHJ PONTIUS)
ON APPEAL FROM THE CROWN COURT SITTING AT PETERBOROUGH (HHJ COLEMAN)

Royal Courts of Justice
Strand, London, WC2A 2LL

5 April 2006

B e f o r e :

LORD JUSTICE ROSE
VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
MR JUSTICE PENRY-DAVEY
and
MR JUSTICE FULFORD
____________________

	Regina	Respondent
	- and -
	(1) John Ashton (2) Omar Draz (3) Darren O'Reilly	Applicants

____________________

Mr David Perry and Mr Christopher Coltart (instructed by CPS London) for the Respondent
Mr J B Gateshill (instructed by John Robinson & Co) for the First Applicant
Mr Benjamin Squirrel1 (instructed by Farrell Matthews & Weir Solicitors) for the Second Applicant
Mr Rupert Hallowes (instructed by Powell Spencer & Partners) for the Third Applicant

Hearing dates : 28 March 2006
____________________

HTML VERSION OF JUDGMENT
____________________

Mr Justice Fulford:

Introduction

These three applications for leave to appeal have been referred to the Full Court by the Registrar because they raise linked issues as to the consequences in law when there has been irregularity in the way in which an accused comes to be convicted and/or sentenced at the Crown Court.

In two of these cases (Ashton and Draz), judges of the Crown Court exercised the powers of a District Judge (as a judge of the magistrates’ court) in order to overcome certain procedural failures or alleged procedural failures which had occurred in magistrates’ court proceedings when the applicants were either sent or committed to the Crown Court. In the case of O’Reilly, a judge of the Crown Court used the powers of a District Judge to deal with the defendant on a summary only offence (outside the six-month time limit).

Although a more comprehensive summary of the relevant facts of each case is set out below, the following provides an introductory outline to the circumstances of the three applications:

Darren O’Reilly

(i) In this case the indictment at the Crown Court was amended so as to include an allegation of a summary only offence. Furthermore, this occurred outside the six-month period within which proceedings must be instituted.

John Ashton

(ii) For this applicant, the proceedings for the offences with which he was charged can only be instituted by or with the consent of the Director of Public Prosecutions. In the Crown Court the prosecution advocate stated (incorrectly) that the required consent had not been obtained when the proceedings were instituted, and the judge was invited to act as a District Judge under section 66 of the Courts Act 2003 [29 below] in order to regularise the proceedings (the required consent having by then been obtained). The judge, relying on that provision, sat as a District Judge to determine mode of trial; the applicant pleaded guilty; and the judge committed him to the Crown Court for sentence. Thereafter, sifting as a judge of the Crown Court, he passed sentence on the applicant. We note that the prosecution and the defence both agreed to this course.

Omar Draz

(iii) This applicant was wrongly sent to the Crown Court for trial under section 51 of the Crime and Disorder Act 1998 [31]: he should have been committed to the Crown Court. The error was noticed when he first appeared in the Crown Court. The judge then dealt with him in accordance with the procedure set out in paragraph 7 of Schedule 3 of the Crime and Disorder Act 1998 [33] (the mode of trial procedure). Additionally, the judge concluded that it was not necessary for an indictment to be preferred. The applicant thereafter pleaded guilty to two charges which could and would have been included in an indictment (had one been preferred) and he was sentenced for those offences. We note again that the prosecution and the defence both agreed to this course.

The Central Issue of Principle

The outcome of each of these cases essentially depends on the proper application of the principle or principles to be derived from the decision of the House of Lords in R v Soneji [2005] 3 WLR 303; [2005] UKHL 49, together with the earlier decision of this court in R v Sekhon and others [2003] 1 WLR 1655; [2002] EWCA Crim 2954. Indeed, these three applications demonstrate how far-reaching the effect of those authorities is likely to be whenever there is a breakdown in the procedures whereby a defendant’s case progresses through the courts (as opposed to the markedly different situation when a court acts without jurisdiction). In our judgment it is now wholly clear that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised (“a procedural failure”), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue.

On the other hand, if a court acts without jurisdiction - if, for instance, a magistrates’ court purports to try a defendant on a charge of homicide - then the proceedings will usually be invalid.

In R v Sekhon in the context of confiscation proceedings, this court held that “the purpose of rules of procedure is not usually to give or take away a court’s jurisdiction”; rather, procedural requirements “provide a convenient and just machinery enabling the court to exercise its jurisdiction” (paragraph 21 (v)). Furthermore, “(t)he procedural provisions can be, but usually are not, conditions that have to be fulfilled to give the court jurisdiction. More usually procedural provisions do no more than (a) enable the court if they are not complied with to make orders to require something to be done if it has not been done in accordance with the statutory provisions or (b) in the same circumstances to dismiss the proceedings” (paragraph 21 (vi)). Moreover, “substantive provisions giving the court its jurisdiction are not to be automatically defeated in the ordinary way by non-compliance with procedural requirements unless this is necessary to achieve the statutory purpose” (paragraph 21 (ix)).

At paragraph 29 of the judgment, Lord Woolf C.J. stated:

“We would expect a procedural failure only to result in a lack of jurisdiction if this was necessary to ensure that the criminal justice system served the interests of justice and thus the public or where there was at least a real possibility of the defendant suffering prejudice as a consequence of a procedural failure.”

In R v Soneji the House of Lords held that a procedural failure in the sentencing process which led to the making of a confiscation order would not have been intended by Parliament to invalidate the order. Of particular importance to the issues we are considering, Lord Steyn approved the approach of the Australian High Court in Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355, in which it had been said:

“... a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.” (paragraph 21)

“Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead, as held in Attorney General ‘s Reference (No 3 of 1999), the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity.”

“Thirdly, counsel for the accused relied on an alleged injustice caused to the accused by the delay of the confiscation procedures. In my view this argument was overstated. The prejudice to the two accused was not significant. It is also decisively outweighed by the countervailing public interest in not allowing a convicted offender to escape confiscation for what were no more than bona fide errors in the judicial process.”

In our view Mr Perry, for the respondent, is correct, therefore, in arguing that the prevailing approach to litigation is to avoid determining cases on technicalities (when they do not result in real prejudice and injustice) but instead to ensure that they are decided fairly on their merits. This approach is reflected in the Criminal Procedure Rules and, in particular, the overriding objective. Accordingly, as indicated above at [4], absent a clear indication that Parliament intended jurisdiction automatically to be removed following procedural failure, the decision of the court should be based on a wide assessment of the interests of justice, with particular focus on whether there was a real possibility that the prosecution or the defendant may suffer prejudice. If that risk is present, the court should then decide whether it is just to permit the proceedings to continue.

The legislative provisions relevant to these applications Consent to Prosecution

Section 1(7) of the Prosecution of Offences Act 1985 (‘the 1985 Act’) provides that any consent to prosecution given by a Crown Prosecutor shall be treated as having been given by the Director.

The Magistrates’ Courts

11. The jurisdiction of a Magistrates’ Court to deal with criminal charges is provided by section 2 of the Magistrates’ Courts Act 1980 (‘the 1980 Act’) which provides, inter alia, as follows:

“(1) A magistrates’ court has jurisdiction to try any summary offence.
(2) A magistrates’ court has jurisdiction as examining justices over any offence committed by a person who appears or is brought before the court.
(3) Subject to:
(a) sections 18 to 22 below, and
(b) any other enactment (wherever contained) relating to the mode of trial of offences triable either way,
a magistrates’ court has jurisdiction to try summarily any offence which is triable either way.
(4) A magistrates’ court has jurisdiction, in the exercise of its powers under section 24, to try summarily an indictable offence.
(5) This section does not affect any jurisdiction over offences conferred on a magistrates’ court by any enactment not contained in this Act.”

The expressions “indictable offence”, “summary offence” and “offence triable either way” are defined in the Interpretation Act 1978 (section 5 and schedule 1):
“indictable offence” means an offence which, if committed by an adult, is triable on indictment, whether it is exclusively so triable or triable either way;

“summary offence” means an offence which, if committed by an adult, is triable only summarily.

“offence triable either way” means an offence, [other than an offence triable on indictment only by virtue of Part V of the Criminal Justice Act 1988] which, if committed by an adult, is triable either on indictment or summarily;
“Magistrates’ Court” is defined in section 148(1) of the 1980 Act:

“In this Act the expression “magistrates’ court” means any justice or justices of the peace acting under any enactment or by virtue of his or their commission or under the common law.”

Committal for Sentence

Section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 contains the general power to commit an offender summarily convicted of an offence triable either way to the Crown Court for sentence.

Section 3 provides as follows:
(1) Subject to subsection (4) below, this section applies where on the summary trial of an offence triable either way a person aged 18 or over is convicted of the offence.
(2) If the court is of the opinion-
(a) that the offence or the combination of the offence and one or more offences associated with it was so serious that greater punishment should be inflicted for the offence than the court has power to impose, or,
(b) in the case of a violent or sexual offence, that a custodial sentence for a term longer than the court has power to impose is necessary to protect the public from serious harm from him, the court may commit the offender in custody or on bail to the Crown Court for sentence in accordance with section 5(1) below.
(3) Where the court commits a person under subsection (2) above, section 6 below (which enables a magistrates’ court, where it commits a person under this section in respect of an offence, also to commit him to the Crown Court to be dealt with in respect of certain other offences) shall apply accordingly.

Thus before resorting to section 3, the magistrates’ court, in the case of an either-way offence, is required to determine mode of trial. Furthermore, where a person who has attained the age of 18 appears or is brought before a magistrates’ court on an information charging him with an offence triable either way the court proceeds in accordance with section 17A of the Magistrates’ Courts Act 1980 [17]. (For these purposes, an information alleging that a person has committed an offence is laid before a magistrate in order to obtain from him either a summons or warrant for arrest. In addition, a charge preferred against a suspect at a police station is treated as an information for the purposes of any subsequent proceedings against that person in a magistrates’ court.)

Section 17A provides:
(1) This section shall have effect where a person who has attained the age of 18 years appears or is brought before a magistrates’ court on an information charging him with an offence triable either way.
(2) Everything that the court is required to do under the following provisions of this section must be done with the accused present in court.
(3) The court shall cause the charge to be written down, if this has not already been done, and to be read to the accused.
(4) The court shall then explain to the accused in ordinary language that he may indicate whether (if the offence were to proceed to trial) he would plead guilty or not guilty, and that if he indicates that he would plead guilty-- (
a) the court must proceed as mentioned in subsection (6) below, and
(b) he may be committed for sentence to the Crown Court under [section 3 of the Powers of Criminal Courts (Sentencing) Act 2000] if the court is of such opinion as is mentioned in subsection (2) of that section.
(5) The court shall then ask the accused whether (f the offence were to proceed to trial) he would plead guilty or not guilty.
(6) If the accused indicates that he would plead guilty the court shall proceed as if--
(a) the proceedings constituted from the beginning the summary trial of the information; and
(b) section 9(1) above was complied with and he pleaded guilty under it.
(7) If the accused indicates that he would plead not guilty section 18(1) below shall apply.
(8) If the accused in fact fails to indicate how he would plead, for the purposes of this section and section 18(1) below he shall be taken to indicate that he would plead not guilty.
(9) Subject to subsection (6) above, the following shall not for any purpose be taken to constitute the taking of a plea--
(a) asking the accused under this section whether (if the offence were to proceed to trial) he would plead guilty or not guilty;
(b) an indication by the accused under this section of how he would plead. District Judges (Magistrates’ Courts)

The appointment, removal and remuneration etc. of District Judges (Magistrates’ Courts) is governed by the Courts Act 2003 (sections 22 to 26).

Section 25(1) of the Courts Act 2003 provides:
“A District Judge (Magistrates’ Courts) is by virtue of his office a justice of the peace for England and Wales.”

Section 26 of the Courts Act 2003 provides:
“(1) Nothing in the 1980 Act-
(a) requiring a magistrates’ court to be composed of two or more justices, or
(b) limiting the powers of a magistrates’ court when composed of a single justice, applies to a District Judge (Magistrates’ Courts).
(2) A District Judge (Magistrates’ Courts) may-
(a) do any act, and
(b) exercise alone any jurisdiction, which can be done or exercised by two justices, apart from granting or transferring a licence.
(3) Any enactment making provision ancillary to the jurisdiction exercisable by two justices of the peace also applies to the jurisdiction of a District Judge (Magistrates’ Courts), unless the provision relates to granting or transferring a licence. …”

The Crown Court

The Crown Court was originally created by the Courts Act 1971. The legislation governing the Crown Court is now largely contained in the Supreme Court Act 1981 (‘the 1981 Act’).

Section 46 of the 1981 Act provides:
“(1) All proceedings on indictment shall be brought before the Crown Court.
(2) The jurisdiction of the Crown Court with respect to proceedings on indictment shall include jurisdiction in proceedings on indictment for offences wherever committed, and in particular proceedings on indictment within the jurisdiction of the Admiralty of England. “

Summary Offences

Summary offences are those offences which are triable only summarily (before a Magistrates’ Court).

There is a limited statutory power to include counts for certain summary offences in an indictment. The power is contained in section 40 of the Criminal Justice Act 1988 which (as amended) provides as follows:
“(1) A count charging a person with a summary offence to which this section applies may be included in an indictment if the charge -
(a) is founded on the same facts or evidence as a count charging an indictable offence; or
(b) is part of a series of offences of the same or similar character as an indictable offence which is also charged,
but only if (in either case) the facts or evidence relating to the offence were disclosed to a magistrates’ court inquiring into the offence as examining justices or are disclosed by material which, in pursuance of regulations made under paragraph 1 of Schedule 3 of the Crime and Disorder Act 1998 (procedure where person sent for trial under section 51, has been served on the person charged).
(2) Where a count charging an offence to which this section applies is included in an indictment, the offence shall be tried in the same manner as if it were an indictable offence; but the Crown Court may only deal with the offender in respect of it in a manner in which a magistrates’ court could have dealt with him. (3) The offences to which this section applies are-
(a) common assault;
(aa) an offence under section 90(1) of the Criminal Justice Act 1991 (assaulting a prison custody officer);
(ab) an offence under section 13(1) of the Criminal Justice and Public Order Act 1994 (assaulting a secure training centre custody officer);
(b) an offence under section 12(1) of the Theft Act 1968 (taking a motor vehicle or other conveyance without authority etc.);
(c) an offence under section 103(1)(b) of the Road Traffic Act 1988 (driving a motor vehicle while disqualified);
(d) an offence mentioned in the first column of Schedule 2 to the Magistrates’ Courts Act 1980 (criminal damage etc.) which would otherwise be triable summarily only by virtue of section 22(2) of that Act; and
(e) any summary offence specified under subsection (4) below.
(3)The Secretary of State may by order made by statutory instrument specify for the purposes of this section any summary offence which is punishable with imprisonment or involves obligatory or discretionary disqualification from driving.
[…].

In addition to power to include certain summary offences in an indictment, there is also a power to send a summary offence to the Crown Court for a plea to be taken. This power is contained in section 41 of the Criminal Justice Act 1988, which in its current form provides as follows:
“(1) Where a magistrates’ court commits a person to the Crown Court for trial on indictment for an offence triable either way or a number of such offences, it may also commit him for trial for any summary offence with which he is charged and which-
(a) is punishable with imprisonment or involves obligatory or discretionary disqualification from driving; and
(b) arises out of circumstances which appear to the court to be the same as or connected with those giving rise to the offence, or one of the offences, triable either way, whether or not evidence relating to that summary offence appears on the depositions or written statements in the case; and the trial of the information charging the summary offence shall then be treated as if the magistrates’ court had adjourned it under section 10 of the Magistrates’ Courts Act 1980 and had not fixed the time and place for its resumption.
(2) Where a magistrates’ court commits a person to the Crown Court for trial on indictment for a number of offences triable either way and exercises the power conferred by subsection (1) above in respect of a summary offence, the magistrates’ court shall give the Crown Court and the person who is committed for trial a notice stating which of the offences triable either way appears to the court to arise out of circumstances which are the same as or connected with those giving rise to the summary offence.
(3) A magistrates’ court’s decision to exercise the power conferred by subsection (1) above shall not be subject to appeal or liable to be questioned in any court.
(4) The committal of a person under this section in respect of an offence to which section 40 above applies shall not preclude the exercise in relation to the offence of the power conferred by that section; but where he is tried on indictment for such an offence, the functions of the Crown Court under this section in relation to the offence shall cease.
(5) If he is convicted on the indictment, the Crown Court shall consider whether the conditions specified in subsection (1) above were satisfied.
(6) If it considers that they were satisfied, it shall state to him the substance of the summary offence and ask him whether he pleads guilty or not guilty.
(7) If he pleads guilty, the Crown Court may try him for the offence, but may deal with him only in a manner in which a magistrates’ court could have dealt with him.
(8) If he does not plead guilty, the Crown Court may try him for the offence, but may deal with him only in a manner in which a magistrates’ court could have dealt with him
….

We note that, prior to its amendment by section 109(1) and schedule 8 paragraph 303(1) and (2) of the Courts Act 2003, section 41(8) provided as follows:
“(8) If he does not plead guilty, the powers of the Crown Court shall cease in respect of the offence except as provided by subsection (9) below.”
The amendment to subsection (8) came into effect on 1 April 2005.

Section 41 will be repealed when the provisions contained in the Criminal Justice Act 2003 (sections 41 and 332, Schedule 3 Part 2, paragraph 60 (1) and (8) and Schedule 37, part 4), come into effect.

Time Limits

Section 127 of the Magistrates’ Courts Act 1980 provides:
“(1) ... a magistrates’ court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose.”

Section 66 of the Courts Act 2003

Section 66 of the 2003 Act provides as follows:
“(1) Every holder of a judicial office specified in subsection (2) has the powers of a justice of the peace who is a District Judge (Magistrates’ Courts) in relation to-
(a) criminal causes and matters, and
(b) (not relevant) Section 66 of the Courts Act 2003
(2) The offices are-
(a) judge of the High Court;
(b) deputy judge of the High Court;
(c) Circuit judge;
(d) deputy Circuit judge;
(e) recorder.

The explanatory notes to section 66 state:
“Under this section a Crown Court judge will be able to make orders and to sentence in relation to cases normally reserved to magistrates’ courts when disposing of related cases in the Crown Court.

As part of implementing the policy of greater flexibility in judicial deployment, this section provides that High Court judges, Circuit judges and Recorders should be able to sit as magistrates when exercising their criminal and family jurisdiction. The same is to apply to deputy High Court judges and deputy Circuit judges. It is not expected that extensive use would be made of the provision, but it would be possible for a Circuit judge in the Crown Court to deal with a summary offence without the case having to go back to a magistrates’ court. At present, certain summary offences can be included in an indictment. If the person is convicted on the indictment, the Crown Court may sentence him if he pleads guilty to the summary offence, but if he pleads not guilty the powers of the Crown Court cease. It is intended in such cases that the judge of the Crown Court should be able to deal with the summary offences then and there as a magistrate. He would follow magistrates’ courts’ procedure.”

The effect of section 51 of the Crime and Disorder Act 1998 (‘the 1998 Act’), which came into force on 15 January 2000, was to abolish committal proceedings in the case of an adult defendant who appears before a magistrates’ court charged with an offence which is triable only on indictment. In such a case the defendant is to be “sent forthwith to the Crown Court for trial”.

Where the accused still faces an allegation of an either way offence, the Crown Court conducts a mode of trial procedure which preserves the accused’s option to be tried summarily only where he consents and also preserves the court’s discretion to rule that the case is too serious for summary trial. The procedure may be summarised as follows. First, the accused is asked to indicate whether he intends to plead guilty or not guilty (schedule 3, paragraph 7(5)). If he indicates a guilty plea, the Crown Court proceeds to the sentencing stage for that offence (paragraph 7(6)). If he indicates a not guilty plea, the court decides whether the case is more suitable for summary trial or for trial on indictment (paragraph 7(7)). Before deciding whether the case is more suitable for summary trial or for trial on indictment the court hears representations from the prosecution and the accused as to whether summary trial or trial on indictment would be more suitable (paragraph 9(2)). If the Crown Court considers that an offence is more suitable for summary trial the accused is given the choice of trial on indictment or summary trial. If the Crown Court considers that the offence is more suitable for trial on indictment the accused is informed that this is so (paragraph 10).

The text of the relevant part of Schedule 3 to the Act, is as follows:
7.
(1) Subject to paragraph 13 below, this paragraph applies where-
(a) a person has been sent for trial under section 51... of this Act but has not been arraigned; and
(b) the person is charged on an indictment which (following amendment of the indictment, or as a result of an application under paragraph 2 above, or for any other reason) includes no offence that is triable only on indictment.
(2) Everything that the Crown Court is required to do under the following provisions of this paragraph must be done with the accused present in court.
(3) The court shall cause to be read to the accused each count of the indictment that charges an offence triable either way.
(4) The court shall then explain to the accused in ordinary language that, in relation to each of those offences, he may indicate whether (if it were to proceed to trial) he would plead guilty or not guilty, and that if he indicates that he would plead guilty the court must proceed as mentioned in sub paragraph (6) below.
(5) The court shall then ask the accused whether (if the offence in question were to proceed to trial) he would plead guilty or not guilty.
(6) If the accused indicates that he would plead guilty the court shall proceed as if he had been arraigned on the count in question and had pleaded guilty.
(7) If the accused indicates that he would plead not guilty, or fails to indicate how he would plead, the court shall consider whether the offence is more suitable for summary trial or for trial on indictment.
(8) Subject to sub paragraph (6) above, the following shall not for any purpose be taken to constitute the taking of a plea-
(a) asking the accused under this paragraph whether (f the offence were to proceed to trial) he would plead guilty or not guilty;
(b) an indication by the accused under this paragraph of how he would plead.

8.
(1) Subject to paragraph 13 below, this paragraph applies in a case where-
(a) a person has been sent for trial under section 51 of this Act but has not been arraigned;
(b) he is charged on an indictment which (following amendment of the indictment, or as a result of an application under paragraph 2 above, or for any other reason) includes no offence that is triable only on indictment;
(c) he is represented by a legal representative;
(d) the Crown Court considers that by reason of his disorderly conduct before the court it is not practicable for proceedings under paragraph 7 above to be conducted in his presence; and
(e) the court considers that it should proceed in his absence.

(2) In such a case-
(a) the court shall cause to be read to the representative each count of the indictment that charges an offence triable either way;
(b) the court shall ask the representative whether (if the offence in question were to proceed to trial) the accused would plead guilty or not guilty;
(c) if the representative indicates that the accused would plead guilty the court shall proceed as if the accused had been arraigned on the count in question and had pleaded guilty;
(d) if the representative indicates that the accused would plead not guilty, or fails to indicate how the accused would plead, the court shall consider whether the offence is more suitable for summary trial or for trial on indictment.
Subject to sub paragraph (2)(c) above, the following shall not for any purpose be taken to constitute the taking of a plea-
(a) asking the representative under this section whether (if the offence were to proceed to trial) the accused would plead guilty or not guilty;
(b) an indication by the representative under this paragraph of how the accused would plead.
9.
(1) This paragraph applies where the Crown Court is required by paragraph 7(7) or 8(2)(d) above to consider the question whether an offence is more suitable for summary trial or for trial on indictment.
(2) Before considering the question, the court shall afford first the prosecutor and then the accused an opportunity to make representations as to which mode of trial would be more suitable.
(3) In considering the question, the court shall have regard to-
(a) any representations made by the prosecutor or the accused;
(b) the nature of the case;
(c) whether the circumstances make the offence one of a serious character;
(d) whether the punishment which a magistrates’ court would have power to impose for it would be adequate; and (
e) any other circumstances which appear to the court to make it more suitable for the offence to be dealt tried in one way rather than the other.
10.
(1) This paragraph applies (unless excluded by paragraph 15 below) where the Crown Court considers that an offence is more suitable for summary trial. (2) The court shall explain to the accused in ordinary language-
(a) that it appears to the court more suitable for him to be tried summarily for the offence, and that he can either consent to be so tried or, of he wishes, be tried by a jury; and
(b) that if he is tried summarily and is convicted by the magistrates’ court, he may be committed for sentence to the Crown Court under [section 3 of the Powers of Criminal Courts(Sentencing) Act 2000] if the convicting court is of such opinion as is mentioned in subsection (2) of that section.
(3) After explaining to the accused as provided by sub paragraph (2) above the court shall ask him whether he wishes to be tried summarily or by a jury, and-
(a) if he indicates that he wishes to be tried summarily, shall remit him for trial to a magistrates’ court acting for the place where he was sent to the Crown Court for trial;
(b) if he does not give such an indication, shall retain its functions in relation to the offence and proceed accordingly.
11.
If the Crown Court considers that an offence is more suitable for trial on indictment, the court- (a) shall tell the accused that it has decided that it is more suitable for him to be tried for the offence by a jury; and (b) shall retain its functions in relation to the offence and proceed accordingly.

(We note that amendments to these provisions have been made by the Criminal Justice Act 2003 Schedule 3 paragraph 20, but these amendments are not yet in force.)

Section 111 of the Powers of Criminal Courts (Sentencing) Act 2000

Section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 provides as follows:
(1) This section applies where-
(a) a person is convicted of a domestic burglary committed after 30th November 1999;

(2) The court shall impose an appropriate custodial sentence for a term of at least three years except where the court is of the opinion that there are particular circumstances which-
(a) relate to any of the offences or to the offender; and

(b) would make it unjust to do so in all the circumstances.

(a) a person is charged with a domestic burglary which, apart from this subsection, would be triable either way, and
(b) the circumstances are such that, if he were convicted of the burglary, he could be sentenced for it under subsection (2) above,

(5) In this section “domestic burglary” means a burglary committed in respect of a building or part of a building which is a dwelling.

(6) In this section “an appropriate custodial sentence” means-
(a) in relation to a person who is 21 or over when convicted of the offence mentioned in subsection (1)(a) above, a sentence of imprisonment;
(b) in relation to a person who is under 21 at that time, a sentence of detention in a young offender institution.

We note that the key considerations for the purposes of section 111 are the dates on which the qualifying offences were committed and the dates on which the defendant was convicted.

The cases in detail
Darren O’Reilly

The background circumstances to O’Reilly’s conviction and sentence can be described shortly. On 6 December 2004, the complainant, Brenna Baxter, was assaulted whilst she walked her dog in the River Lane area of Great Paxton, St Neots in Cambridgeshire. On 7 January 2005, the applicant (aged 37) and his wife, Catherine O’Reilly, were arrested in connection with this assault and on 14 January 2005, they were charged with an offence of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861 (an offence which is “triable either way”).

On 2 March 2005, the applicant appeared before Huntingdonshire Magistrates’ Court and was committed to the Crown Court for trial under section 6 of the Magistrates’ Courts Act 1980.

He appeared before Judge Curl at King’s Lynn Crown Court on 10 June 2005. The indictment as originally drafted contained a single count of assault occasioning actual bodily harm. The prosecution applied to amend the indictment by adding a second count alleging an offence contrary to section 4A of the Public Order Act 1986 (of intentionally causing harassment, alarm or distress). This application was granted without opposition from the defence. Thereon, he pleaded guilty to that offence, and the count alleging actual bodily harm was ordered to lie on the file, marked not to be proceeded with without leave of the Crown Court or of the Court of Appeal. Sentence was adjourned until 3 August 2005, when the applicant appeared before Judge Coleman sitting in the Crown Court at Peterborough. During the course of that hearing counsel for the applicant raised the issue that as a summary only offence the court had no jurisdiction over it (see s. 4A(5) of that Act). The judge decided that section 66 of the Courts Act 2003 (which permits any judge who is sitting in the Crown Court to exercise the powers of a District Judge (Magistrates’ Court)) enabled him to deal with the applicant [29]. On 24 August 2005, the applicant was sentenced by the judge to a community rehabilitation order for a period of 18 months.

It is critical to note that section 127 of the Magistrates’ Courts Act 1980 provides that a magistrates’ court shall not try an information for a summary offence unless it was laid within six months of the offence [28]. Although Mr Hallowes on behalf of the applicant at one point sought to persuade us that the count in the indictment of assault occasioning actual bodily harm was susceptible to a radical amendment so as to reformulate it as an offence under section 4A (in an attempt to avoid the limitation difficulty), in our view such a step would be inappropriate. A count alleging an either way offence of actual bodily harm under the Offences against the Person Act is not readily susceptible to amendment so as to become a summary only offence under the Public Order Act. In these circumstances, the proper approach to an amendment of the indictment was to add a new count out of time. The authorities cited by Mr Hallowes (R v Scunthorpe Justices ex parte McPhee and Gallagher (1998) 162 JP 635 and R (DPP) v Everest (2005) 169 JP 345) which relate in any event to amendments to an information do not support his argument that a count in an indictment can be reformulated in the way he suggested, not least because the two offences we are considering do not allege the same “misdoing”: they are essentially different offences.

Accordingly, there is no power which could permit the inclusion of the offence contrary to section 4A in an indictment under section 40 of the Criminal Justice Act 1988 because it is not one of the offences specified in section 40 (3) and it follows that there was no power to include it in the indictment [24]. Additionally, this offence was not committed to the Crown Court under section 41 of the Criminal Justice Act 1988 [25] and when the prosecution first sought to amend the indictment so as to include the section 4A count on 10 June 2005, more than six months had elapsed since the date of the events giving rise to the allegation (6 December 2004), and therefore the proceedings for the offence were time barred (see section 127 of the Magistrates’ Courts Act 1980 [28]). Although the judge correctly identified section 66 of the Courts Act 2003 as enabling any judge who is sitting in the Crown Court to exercise the powers of a District Judge (Magistrates’ Court), a District Judge would not have had power to deal with the applicant in relation to a prosecution for a summary offence brought outside the statutory time-limit. We observe that the breach of the time limits imposed by section 127 was not brought to the attention of the judge in the court below.

Furthermore, as a summary only offence, the offence charged under section 4A would not have been available as an alternative verdict under section 6(3) of the Criminal Law Act 1967 (a provision which provides that a jury may return a verdict if the allegation in the indictment amounts to or includes an allegation of another offence falling within the jurisdiction of the court of trial) because, as a summary only offence it was not within the jurisdiction of the Crown Court.

In our view, the defects in this case are clearly (and wholly) jurisdictional rather than procedural in nature, given that the court had no power to deal with the applicant. The respondent did not oppose O’Reilly’s application for leave to appeal against conviction, which, in the circumstances we granted. In our judgment the judge acted in excess of his powers by allowing the addition of the new count and it is incorrect to describe what occurred in the court below as a nullity (see the opinion of Lord Scarman in R v Cain 1985 AC p. 46 at p. 55 D). Therefore, given the appellant (as he became) entered a guilty plea to a single count that should not have been included in the indictment, the correct result is to quash that conviction under sections 1 and 2 of the Criminal Appeal Act 1968.

However, the Crown seeks our leave to proceed to trial on the allegation of assault occasioning actual bodily harm which was ordered to lie on the file. Mr Perry identified five matters in support of this course: first, even absent the appellant’s plea to the section 4A offence, there is a clear prima facie case against him; second, whether or not the appellant’s plea to the summary only offence is introduced is a matter of admissibility for the trial judge to determine; third, it is not in the interests of justice for an allegation of this kind to go untried, particularly given that his co-accused had been sentenced for this offence; fourth, the appellant consented to the assault charge being left on the file; and, fifth, even if the applicant has served a part of a community rehabilitation order, that will be taken into account on sentence, should he be convicted. Mr Hallowes, on the other hand, submitted to us that he is prejudiced by his plea: indeed he put it as strongly as suggesting it means “he no longer has a leg to stand on”. Furthermore, the Crown never suggested that he used violence (as opposed to using inflammatory words) and that he has completed some 7 months of his community punishment order. In our judgment this was a serious incident which it is in the public interest to bring to trial. We do not accept that the appellant has been fatally prejudiced by his plea to the section 4A offence because the trial judge, when entertaining any application to admit the evidence of his earlier plea, will ensure that the trial is conducted fairly. Moreover, any sentence following conviction would inevitably take into account the part of the community penalty already served by the appellant. We therefore consider it right that the prosecution should be able to proceed with the charge of assault occasioning actual bodily harm. Although the parties suggested that we should achieve that result by awarding a writ of venire de novo, it seems to us, given that the charge of assault was left on the file not to be proceeded with without the leave of this court or the court below, that all we need do at this stage is to give our leave for the prosecution to proceed on that count.

John Ashton

On 7 October 2005, the applicant (aged 41) appeared at Bridlington Magistrates’ Court and pleaded guilty to two offences. The first offence was of making an indecent photograph or pseudo-photograph of a child (that is a person under the age of 18), contrary to section 1(1)(a) of the Protection of Children Act 1978 (‘the 1978 Act’). The second offence was one of having an indecent photograph of a child contrary to section 160 of the Criminal Justice Act 1988 (‘the 1988 Act’).

Offences contrary to section 1 of the 1978 Act are triable either way and carry a maximum penalty of 10 years’ imprisonment on indictment (if the offence was committed on or after 11 January 2001). On summary conviction the offence carries a maximum penalty of six months’ imprisonment and a fine of £5000. In the case of an offence committed before 11 January 2001 the offence is punishable with a maximum penalty of three years’ imprisonment. (The increased penalty was implemented by the Criminal Justice and Courts Services Act 2000, section 41(1).)

Offences contrary to section 160 of the 1988 Act are also triable either way and carry a maximum penalty of five years’ imprisonment on indictment (if the offence was committed on or after 11 January 2001). On summary conviction the offence carries a maximum penalty of six months’ imprisonment and a fine of £5000. In the case of an offence committed before 11 January 2001, the offence is triable only summarily. (The increased penalty was implemented by the Criminal Justice and Courts Services Act 2000, section 41(3) (a).)

By reason of section 1(3) of the 1978 Act and section 160(4) of the 1988 Act, proceedings for any such offences may only be instituted “by or with the consent of the Director of Public Prosecutions”.

Following his plea of guilty, the applicant was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 (the general power to commit for sentence adult offenders summarily convicted of an offence triable either way).

On 31 October 2005 he appeared at the Crown Court sitting at Hull before Judge Thom QC. The prosecution advocate erroneously submitted to the judge that the proceedings had not been instituted “by or with the consent of the Director of Public Prosecutions” and in consequence invited the judge to sit as a District Judge (Magistrates’ Courts) using the power contained in section 66 of the Courts Act 2003 [29]. It appears that the object of proceeding in this way was to ensure that any previous irregularity was put right as the necessary consent was by then available.

The judge acceded to the prosecution request and acting as a district judge he proceeded to determine mode of trial (under section 17A of the Magistrates’ Courts Act 1980 [17]). The applicant indicated that if the offences were to proceed to trial he would plead guilty. Thereafter, acting in accordance with section 17A (4), the judge committed the applicant to the Crown Court for sentence.

The judge then sentenced the applicant to a total sentence of 18 months’ imprisonment (the sentence consisting of 18 months’ imprisonment in respect of the offence contrary to the 1978 Act and 8 months’ imprisonment concurrent for the offence contrary to the 1988 Act). He was also made the subject of a forfeiture order and an order under section 104 of the Sexual Offences Act 2003 (a sexual offences prevention order).

Dealing first with the grant of consent, by reason of section 1(7) of the Prosecution of Offences Act 1985, the consent of the Director of Public Prosecutions to a prosecution may be given on his behalf by a Crown Prosecutor [10]. Contrary to the submissions of the prosecution advocate in the court below, the offences were originally instituted by or with the consent of the Director of Public Prosecutions (because the decision to charge was made by a Crown Prosecutor and by reason of section 1(7) the proceedings against him were instituted by or with the consent of the Director). In the result the applicant’s initial committal for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 was valid and of good legal effect. However, given the judge followed the course set out above, we have reviewed the legality or otherwise of the steps that were taken.

In this regard, we need to consider, first, whether the judge, having committed the applicant for sentence, could proceed thereafter to act as sentencing judge. In R v Bullock [1964] 1 QB 481, the Court of Criminal Appeal held that quarter sessions had no jurisdiction to commit an offender to themselves for sentence. The appellant was granted leave to move for an order of certiorari to quash the decision of the quarter sessions and the Court of Criminal Appeal then sat as a Divisional Court to hear the motion. The legislation under consideration was section 31 of the Summary Jurisdiction Act 1879 (as amended) which provided that “quarter sessions may by their order... vary the decision of the court of summary jurisdiction or may make such other order in the matter as they think just and by such order exercise any power which the court of summary jurisdiction might have exercised.” The appellant had been sentenced to 3 months’ imprisonment at Marlborough Street Magistrates’ Court. He appealed to the County of London Sessions and having dismissed his appeal against conviction the quarter session purported to exercise the powers of committal which the magistrate would have had. They then sentenced the appellant to 12 months’ imprisonment. In the course of his judgment, Lord Parker C.J. stated (at page 486):
“It immediately strikes one as highly artificial that a court can commit a person for sentence to itself the essence of committing being a committal by one court to another, from a court of lower jurisdiction to a court of higher jurisdiction. It is also to be observed that if the course taken by the London Sessions is right, Parliament has here provided in effect a double appeal on sentence.”

As Mr Perry observes, the decision in Bullock concerned the construction of the legislation then in force (the Summary Jurisdiction Act 1879) and crucial to the reasoning of the Court of Criminal Appeal was the anomaly that would arise in relation to a “double appeal” (one from the magistrates’ court to quarter sessions and one from quarter sessions to the Court of Criminal Appeal). However, unlike the position under the Summary Jurisdiction Act 1879, the clear purpose of section 66 of the Courts Act 2003 [29] is to enable Crown Court judges to sit as magistrates when exercising their criminal jurisdiction. When a Crown Court judge exercises his powers under section 66, he is acting as a District Judge; he is not varying the decision of a court of summary jurisdiction; and, therefore, for those purposes he is not discharging the functions of a Crown Court judge at all.

Furthermore, there is no statutory prohibition on a Crown Court judge who exercised his powers under section 66 of the Courts Act 2003 to commit an offender for sentence from sitting as the sentencing court. There is also, in this case, no fairness-based reason for imposing such a prohibition, not least because the applicant supported the course that the court adopted. We are wholly satisfied that although it was legally unnecessary, the judge was entitled to exercise the powers granted to him by section 66 of the Courts Act 2003 in order (a) to determine mode of trial and (b) to commit the applicant for sentence. Thereafter, as we have observed, there was no legal impediment (and including one founded on fairness) to prevent the judge from passing sentence. Therefore, we do not consider the decision in Bullock has any application to the present issue.

We stress that in most instances when there has been a procedural failure of this kind, it will be unnecessary for a Circuit Judge, using section 66, to carry out a process of rectification by exercising the powers of a District Judge. Instead, he should approach the matter in the way we have set out at [4] above, which normally will obviate the need to go through the procedural steps such as were followed in this case.

Finally for Ashton, we turn to his application for leave to appeal against sentence. On his behalf it is submitted that as a 40 year old man of previous good character, who pleaded guilty at the first available opportunity (having decided not to pursue any technical arguments as to the legality of the proceedings), his overall sentence of 18 months was both manifestly excessive and wrong in principle. We are urged to take in account that notwithstanding the very large number of indecent images of children recovered (5,177), only a “relatively few” were in the two most serious categories (71 at level four and 14 at level 5). Furthermore, we are told that following the applicant’s conviction and disgrace, his father committed suicide. Whilst we accept that for the applicant this was undoubtedly a long sentence, the case involved a very large amount of child-related indecent material and the 85 most serious images was a significant number, given their subject-matter; therefore, we are not persuaded that the judge should have sentenced the applicant to a lesser sentence within the bracket of 12 months to 3 years that this court in R v Oliver [2003] 1 Cr App R 463 identified as being relevant to cases at this level of gravity.

Omar Draz

Omar Draz (aged 19) appeared on 21 September 2005 at West London Magistrates’ Court and admitted a breach of a community punishment and rehabilitation order which had been imposed by the Crown Court sitting at Blackfriars on 15 June 2004 (following his conviction for an offence of burglary).

On the same date, the applicant was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 (the general power to commit an adult offender to the Crown Court for sentence).

About three weeks later, on 14 October 2005, he again appeared at West London Magistrates’ Court. On this occasion he was charged with a number of offences including an offence of burglary of a dwelling contrary to section 9 of the Theft Act 1968. The other offences were taking a motor vehicle without consent, using a vehicle without insurance and driving otherwise than in accordance with a licence. He was sent erroneously to the Crown Court for trial under section 51 of the Crime and Disorder Act 1998 [31]. This error occurred because the magistrates wrongly believed that the applicant was facing conviction for a third dwelling house burglary and that section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 therefore applied in this case [34]. (Section 111 places on the Crown Court a duty to impose a custodial sentence of at least three years on a person who is convicted of a domestic burglary and who has previously been convicted on two separate occasions. Where section 111 applies, burglary, which is ordinarily an offence triable either way, becomes an offence triable only on indictment (section 111(4)).)

On 21 October 2005, when the applicant first appeared before Judge Pontius at the Crown Court, the error made by the magistrates’ court was recognised by the parties and the applicant made it clear that he wanted his case nonetheless to proceed. In the circumstances, the judge followed the procedure set out in paragraph 7 of Schedule 3 to the Crime and Disorder Act 1998 [33] to determine mode of trial and the applicant pleaded guilty to the offence of burglary and to the offence of taking and driving away a motor vehicle. Thereafter, the judge concluded that it was unnecessary, when following the procedure under paragraph 7 of schedule 3, for an indictment to be preferred and given the circumstances of this case, the parties agreed with this decision.

On 11 November 2005, in the Crown Court sitting at Blackfriars the applicant was sentenced by Judge Pontius as follows:
(i) For the breach of the community punishment and rehabilitation order (imposed by the Crown Court on 15 June 2004 following the Applicant’s conviction for an offence of burglary), the order was revoked and the appellant was sentenced to 2 years’ detention in a young offender institution.
(ii) For the offences of burglary, taking a motor vehicle without consent, using a vehicle with no insurance and driving otherwise than in accordance with a licence, the appellant was sentenced to a total term of 3 years’ detention in a young offender institution. He was disqualified from driving for a period of 2 years.
(iii) A community rehabilitation order imposed on 11 November 2004 (for an offence of theft) at West London Magistrates’ Court was revoked.
(iv) For the breach of a 12 month conditional discharge, imposed on 5 May 2005 at West London Magistrates’ Court, the appellant was sentenced to 9 months’ detention in a young offender institution consecutive to the other sentences and the conditional discharge was revoked.

The total sentence, therefore, was 3 years and 9 months’ detention in a young offender institution.

On 21 November 2005, the applicant again appeared in the Crown Court at Blackfriars and the sentence was varied to a total sentence of 3 years and 3 months’ detention in a young offender institution. (This variation occurred when it was realised that the applicant had been unlawfully sentenced for the offence of taking a motor vehicle without consent and for the breach of the conditional discharge.) 65. Against that background, it is clear that three issues fall to be determined in the case of this applicant. First, what are the consequences (if any) of the erroneous use of the procedure under section 51 of the Crime and Disorder Act 1998? Second, was the judge correct to conclude, when following the procedure under paragraph 7 of schedule 3 to the Crime and Disorder Act 1998, that it was unnecessary for an indictment to be preferred? Third, if an indictment should have been preferred, is the absence of a signed indictment fatal to the validity of the proceedings? 66. Mr Perry submits (correctly in our view) that the underlying purpose of section 51 of the Crime and Disorder Act 1998 was to reduce delay in the criminal justice system and that there are no indications that Parliament, in securing that result, intended that an erroneous use of the “sending procedure” (as opposed to committing the applicant for trial) should affect the validity of any subsequent proceedings. He accepts that the procedure envisaged by paragraph 7 of schedule 3 is premised on the existence of an indictment, but he argues the absence of an indictment, of itself and without more, does not affect the validity of the proceedings because this would not accord with the intention of Parliament and no prejudice was caused to the applicant such as to make it unjust for the convictions to stand.

He has drawn our attention to a number of earlier decisions that are of clear relevance to this issue. In R v Haye [2002] EWCA Crim 2476 this court held that a failure to follow the procedure set out in paragraph 7 will render any subsequent proceedings a nullity. In that case the accused, who was charged with robbery, was sent for trial under section 51. In the Crown Court the prosecution decided not to proceed with the robbery charge and replaced it with a charge of theft (an either way offence). The accused initially pleaded not guilty but, subsequently, was re-arraigned and pleaded guilty. On an appeal against conviction it was argued that because the procedure under paragraph 7 of schedule 3 had not been followed the proceedings were a nullity. The appeal was allowed on the basis of those submission, and the court followed a series of decisions in which the High Court held that any failure to comply with the statutory procedure laid down for determining mode of trial will have the consequence that any subsequent hearing will be regarded as ultra vires: R v Cockshott [1898] 1 QB 582, R v Kent Justices, ex parte Machin (1952) 36 Cr App R 23, R v Horseferry Road Magistrates’ Court ex parte Constable [1981] Crim L R 504.

In the course of giving the judgment of the Court of Appeal, Lord Justice Potter set out that (at paragraph 14):
“In R v Horseferry Rd Magistrates Court ex parte Constable [1981] Crim LR 504, the decision of magistrates to proceed summarily was quashed even thought the defendant had consented to summary trial, because he had not been given the opportunity to make representations as to mode of trial or told that he had the right to make them as provided for by s.20 and s.21(2) of the Criminal Law Act 1977. Thus it appears that the Divisional Court has consistently taken the view that, since the jurisdiction of Magistrates’ Courts to try offences triable either way derives solely from statute, any failure to comply with the statutory procedure laid down for determining mode of trial will have the consequence that if the magistrates proceed to trial, the hearing will be regarded as ultra vires and liable to be quashed, even where the magistrates have purported to attain the consent of the accused and even if he is legally represented: see the Kent Justices case supra “
At paragraph 17, Lord Justice Potter stated:
“Nonetheless, before us, [counsel for the Crown] conceded that the argument of [counsel for the Appellant] appeared to be correct and he did not oppose the appeal. In our view he was right so to concede. Paragraphs 7-13 of Schedule 3 reflect the provisions regulating the procedures required in the Magistrates’ Court in respect of an offence triable either way under s.1 7A-s.20 of the Magistrates’ Court Act 1980 (cf paras 7(2)-(7) of the Schedule and s. 1 7A(2)-(8) and s.18(1) and (2) of the Act; para 9 and s.19; para 10 and s.20). S.17A of the 1980 Act (together with s.1 7B and s.1 7C) were inserted into the Act by s.49(1) and (2) of the Criminal Procedure and Investigations Act 1996 and s.18(1) was amended accordingly by s.49(3) of the 1996 Act. However, the essential structure and provisions of the 1980 Act in relation to the decision as to suitability for summary trial or trial on indictment, and the necessity to inform the defendant of his rights and to receive representations as provided for in s.18-s.20 are of much older statutory provenance and form the basis of the series of decisions of the Divisional Court to which we have referred.”

Although in the instant case the judge followed the procedure in paragraph 7, these authorities are clearly important as regards the approach to be adopted when there has been a material procedural failure. However, that said, each of those cases predate the decisions of the House of Lords in Soneji and this court in Sekhon, and we are confident that if Haye was decided now the result would have been the other way. We are keenly aware of the extent to which this constitutes a significant departure from the way in which these issues have been dealt with and decided in the past, but we have no doubt that a new test and a new approach are now to be applied.

Against that background, it is our conclusion that the erroneous use of the procedure under section 51 of the Crime and Disorder Act 1998 in this case did not deprive the Crown Court of its ability to deal with the applicant (who was sent forthwith for trial). Parliament, in our view, did not intend that result and no prejudice or consequential injustice has been identified.

Although the correct procedure should carefully be followed, if an accused is erroneously sent to the Crown Court in respect of an offence triable either way, it will often be the case that he will not be prejudiced, particularly given the presence of a number of safeguards, namely:
(i) Paragraph 7 of Schedule 3 (viz. the mode of trial procedure which enables the Crown Court to direct that the accused should be tried summarily);
(ii) The right of the accused to seek to dismiss the charge; and
(iii) The ability of the Court of Appeal to quash any conviction or sentence in any case where there has been an unsafe conviction.

We accept Mr Perry’s submission that the facts of this case provide a good illustration of how an inflexible invalidity-rule is contrary to the interests of the accused and the prosecution, as well as running contrary to the public interest in the fair administration of criminal justice. It is clear the applicant wished for a speedy resolution of his case; the prosecution were ready to proceed; and the course adopted caused no identifiable injustice: to the contrary, it enabled the case (for the benefit of everyone directly involved and the public) to proceed without any material delay.

As regards the need for an indictment section 2(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933 provides:
“Subject to the provisions of this section, a bill of indictment charging any person with an indictable offence may be preferred by any person before [the Crown Court], and where a bill of indictment has been so preferred the proper officer of the court shall, if he is satisfied that the requirements of the next following subsection have been complied with, sign the bill, and it shall thereupon become an indictment and be proceeded with accordingly:
“Provided that if the judge of the court is satisfied that the said requirements have been complied with, he may, on the application of the prosecutor or of his own motion, direct the proper officer to sign the bill and the bill shall be signed accordingly.”

As Mr Perry has helpfully reminded us, there are several authorities which suggest that the absence of a valid indictment renders any subsequent trial a “nullity”: R v Thompson and Clein [1978] 1 WLR 1425; R v Cairns (1983) 87 Cr App R 287; R v Morais (1988) 87 Cr App R 9; R v Newland [1988] QB 402.

In R v Morais, the Court of Appeal quashed the appellant’s conviction for supplying drugs and ordered a retrial on the basis that the indictment had not been signed by the officer of the Crown Court. In that case the court concluded that the proper officer’s signature was not “a comparatively meaningless formality” but a “necessary condition precedent to the existence of a proper indictment” (p. 14) and that in the absence of a proper indictment the trial was a nullity.

The decision in Morais was distinguished in R v Jackson [1997] 2 Cr App R 497. The judge directed the proper officer to sign two indictments but she failed to do so. This court held that the proper officer’s signature was a “meaningless” clerical “formality” and she was deemed to have signed it. In R v Laming (1989) 90 Cr App R 450, the appropriate officer of the Crown Court signed the indictment on the front page rather than after the last count as required by the Indictment Rules 1971. On those facts, the court on appeal determined that the indictment was valid.

As Mr Perry has submitted, it appears, therefore, that even before the decisions in Soneji and Sekhon not every defect in an indictment would necessarily render it invalid, although the earlier authorities consistently made it clear that the absence of a valid indictment had the effect of rendering the trial proceedings of no legal effect. That conclusion was reached because the primary focus of the court in each of the cases was on whether the breach was of a ‘mandatory’ statutory provision. As we have set out above, the sea-change wrought by the decisions in Soneji and Sekhon is that the court should concentrate in future on, first, the intention of Parliament (viz. was it intended that a procedural failure should render the proceedings invalid) and, second, the interests of justice and particularly whether the procedural failure caused any prejudice to any of the parties, such as to make it unjust to proceed further.

Here, the judge and the parties proceeded on the basis that the charges before the court identified the criminality alleged by the prosecution and it was accepted there was no prejudice to the applicant in this particular case when the court dealt with him absent an indictment. We stress that usually a bill of indictment should be preferred and signed and our decision in this case should not be taken as any kind of encouragement to relax that important requirement: an indictment provides a critical safeguard in that it describes the charges an accused faces with clarity and finality. However, applying the test we have described above, there are no indications that Parliament intended that proceedings would be rendered automatically invalid because an indictment had not been preferred or signed, and given no prejudice or consequential injustice have been identified, we see no reason to quash these convictions.

Finally for Draz, we turn to his application for leave to appeal against sentence. We are reminded that he is only 19 years of age and he has not previously served a custodial sentence (although he has a number of previous convictions). We are reminded that he did not raise any technical objections to - indeed cooperated fully with - the procedure that was adopted, and in the result pleaded guilty at the first available opportunity. We have carefully borne in mind what appear to be the “root causes” of his offending over the last three years, namely that he was forced to leave the family home some years ago and subsequently he drifted into a life of drug-taking and crime. Furthermore, he does appear to have made some real efforts to break away from this way of life which he recognises is causing him so much harm. However, in our view given the extent of the offending that the court had to deal with, the breaches of the earlier court orders and the period of time over which this applicant has been committing offences of some seriousness, it is unarguable that a total sentence of 3 years 3 months in a Young Offender Institution is manifestly excessive or wrong in principle.

Record of Proceedings

One practical difficulty created by the use of section 66 of the Courts Act 2003 concerns the recording of decisions made by Crown Court judges exercising their powers as District Judges (Magistrates’ Courts).

Rule 6.1(1) of the Criminal Procedure Rules provides as follows:
“A magistrates’ court officer shall keep a register in which there shall be entered
(a) a minute or memorandum of every adjudication of the court; and
(b) a minute or memorandum of every other proceeding or thing required by these Rules or any other enactment to be so entered.”

The practical difficulty is that when this procedure is used no magistrates’ court officer will be available to make the entry in the register. Indeed this problem arises whenever the Crown Court deals with an offender for a summary offence (for example under section 41 of the 1988 Act). However, in our view, the problem is readily solved by the court associate entering any adjudication (or other relevant matter) in the Crown Court’s records; this will ensure the purpose of the rules is complied with, namely that there should be an accurate and accessible record of any decision or other important feature of the proceedings.

Waiver and Acquiescence

As a part of his submissions, Mr Perry raised the question of whether, in appropriate circumstances, defendants may be taken to have waived their right to rely on any procedural irregularity. Whilst he accepted that a waiver cannot operate to confer jurisdiction, he argued that the doctrine of waiver is a live issue when the court is considering procedural failure.

As Mr Perry highlighted, waiver was considered by the Judicial Committee of the Privy Council in Millar v Dickson [2002] 1 WLR 1615 (the case that concerned the position of temporary sheriffs in Scotland). In the course of his opinion, Lord Bingham of Cornhill said (at paragraph 31):
“In most litigious situations the expression “waiver” is used to describe a voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise. In the context of entitlement to a fair hearing by an independent and impartial tribunal, such is in my opinion the meaning to be given to the expression. That the waiver must be voluntary is shown by Deweer v Belgium (1980) 2 EHRR 439, where the applicant’s failure to insist on his right to a fair trial was held not to amount to a valid waiver because it was tainted by constraint (paragraph 54, page 465). In Pfeifer and Plankl v Austria (1992) 14 EHRR 692 there was held to be no waiver where a layman had not been in a position to appreciate completely the implication of a question he had been asked (paragraph 38, page 713). In any event, it cannot meaningfully be said that a party has voluntarily elected not to claim a right or raise an objection if he is unaware that it is open to him to make the claim or raise the objection. It is apparent from passages already cited from cases decided by the European Court of Human Rights that a waiver, to be effective, must be unequivocal, which I take to mean clear and unqualified.”

In Ruddy and Others v Procurator Fiscal (2006) UKPC D2 the Judicial Committee of the Privy Council considered whether the appellants were barred from seeking a suspension of their convictions and sentences on the basis that they had acquiesced in the prosecutor’s act which led to the orders being pronounced against them, albeit that the prosecutor had acted incompatibly with the appellants’ rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms. In dismissing the appeals the Board found that the acts of which the appellants made complaint were not incurable and that the appellants had not sought at the time to object to the procedural defects. This failure to object was the basis for the finding that the appellants had acquiesced in the prosecutor’s actions.

In the course of his opinion Lord Hope of Craighead considered the principles of waiver and acquiescence in the context of criminal proceedings; he stated (at paragraph 8):
“Criminal prosecutions are conducted in the public interest. The factors that have guided judges as to how the principles should be applied in criminal cases are appropriate to that context. As the Lord Advocate pointed out in his submissions to the Board in this case, these factors are heavily influenced by considerations of public policy. The considerations operate at large, embracing the need to protect the accused against injustice on the one hand and the need to uphold public confidence in the rule of law on the other. Public policy demands that the accused must be afforded a remedy against injustice. But it also requires the court to balance the rights of the accused against the public interest.”

We have not found it necessary determine the extent to which, if at all, this free-standing “doctrine” provides a further route by which the respondent can successfully seek to uphold the convictions of Ashton and Draz. As we have described above, in deciding whether a defendant has suffered prejudice, an important consideration is whether or not he agreed to the course adopted. It seems to us, bearing in mind the approach that should be followed whenever procedural failure is identified [4], in most cases the (informed) acquiescence of the accused will be a significant relevant factor when assessing the twin issues of prejudice and whether or not it is just for the proceedings to continue. Once those matters have been resolved, in our view it will usually be otiose for the court to go onto consider whether, as a free-standing issue, the acquiescence of the accused should prevent him from objecting to a procedural failure. However, it has been unnecessary for us to determine this issue finally, given that we accepted the respondent’s suggested disposal of these applications on other bases.

Conclusions

It was for these reasons that on 28 March 2005:
- The appeal in O’Reilly’s case was allowed, his conviction was quashed and we gave leave to the Crown to proceed in the court below on the count of assault occasioning actual bodily harm; and

- The applications in Ashton and Draz were refused.

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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Ashton & Ors, R. v [2006] EWCA Crim 794 (05 April 2006) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2006/794.html Cite as: [2007] 1 WLR 181, [2007] WLR 181, [2006] EWCA Crim 794

		Royal Courts of Justice Strand, London, WC2A 2LL
		5 April 2006