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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 >> Tuplin, R. v [2009] EWCA Crim 1572 (29 July 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/1572.html Cite as: [2009] EWCA Crim 1572

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT GREAT GRIMSBY
HIS HONOUR JUDGE MOORE
T20080168

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/07/2009

Lord Justice Rix :

1. This appeal raises the complex and controversial question of the circumstances in which the Crown Court is restricted in its sentencing powers to those of the magistrates' court. It began life as an application for leave to appeal against sentence which was referred to the full court by the registrar of criminal appeals. However, we granted leave to appeal and allowed the appeal at its hearing. The effect was the reduction of the appellant's total sentence from one of ten months to one of eight months. These are our reasons for that decision.
2. Daniel Tuplin, the appellant, was born on 28 April 2008. He was just 19 at the time of his offending, and 20 at the time of sentence. His previous record and the conduct for which he was sentenced are certainly unattractive, although in the instant case of relatively minor criminality. However, his appeal turns not on any assessment of his culpability but on matters of law.
3. His sentence arose out of his unpleasant harassment of a family in his neighbourhood of Barrow on Humber. He got it into his head that because the wife of this household had been targeted as a girl by Ian Huntley, she might become the victim of his own malice. On 22 February 2008 she observed him next to her house with a stepladder. She called the police. He was searched and items from a neighbour's garden shed were found on him. Later the police searched his home and found cannabis resin there. He pleaded guilty to burglary and possession of the controlled drug and on 5 March 2008 received a community order from North Lincolnshire magistrates' court. As a result he became verbally abusive to the woman and her husband, and threatened them and their children.
4. On 29 March 2008 at about 5am the appellant approached their house and threatened to set fire to it and cut their children's throats. He was abusive and sought to goad the husband into a fight. He then kicked their Mitsubishi Shogun and Mercedes car, causing slight damage to each which was estimated to cost respectively £300/400 and £1,000 to repair. The police were called, and on his arrest he was put in the back of a police car. There he verbally abused and spat at a police officer. He denied the offences in interview and blamed the other family.
5. In the event, he was charged with threatening to destroy or damage property, ie the house (under section 2(a) of the Criminal Damage Act 1971), with assault of a constable in the execution of his duty (under section 89(1) of the Police Act 1996), and with "Criminal damage to property valued under £5000", ie to the two cars (under sections 1(1) and 4 of the Criminal Damage Act 1971).
6. In due course the appellant was committed for trial under section 6(2) of the Magistrates' Courts Act 1980 for the offence of threatening to destroy or damage property under section 2(a) of the Criminal Damage Act 1971. That offence led the indictment as count 1. In the event, the prosecution chose to offer no evidence on that count (in circumstances set out below) and a verdict of not guilty was recorded pursuant to section 17 of the Criminal Justice Act 1967.
7. Two further counts were included in the indictment pursuant to section 40(1) and (3) of the Criminal Justice Act 1988 (see below at para 22): viz, count 2, a count of damaging property under section 1(1) of the Criminal Damage Act 1971 (the two cars), and count 3, a count of common assault under section 39 of the Criminal Justice Act 1988 (the spitting at the police officer). It was common ground at the appeal that these two counts were included pursuant to section 40, and the judge, HHJ Moore, purported to direct his sentence on that basis.
8. On 11 August 2008, at a plea and case management hearing, the appellant pleaded guilty to count 3 (common assault) at the Crown Court at Grimsby before HHJ Swanson. On 29 September 2008, the day before trial, at a disclosure hearing, the appellant also pleaded guilty to count 2 (criminal damage), before Judge Moore. Lastly, on 30 September, the day of trial, a new count, count 4, of affray under section 3(1) of the Public Order Act 1986 was added by agreement and the appellant pleaded guilty to the alternative lesser offence of using threatening, abusive or insulting words or behaviour with intent contrary to section 4 of the 1986 Act. That was done by virtue of section 7(3) of the 1986 Act (see below at para 30). That was in respect of the threats to the family. The Crown and the judge accepted that the threats were not meant seriously and were made in the heat of the moment. The pleas of 29/30 September were acceptable to the Crown and had been prompted by a letter to the defence dated 26 September.
9. In the circumstances, the judge had before him three offences on indictment which were or were treated as being summary only: an offence of criminal damage (count 2) in an amount below £5,000, an either way offence but one for which the maximum sentence on summary disposal in the magistrates' court would have been 3 months (sections 22(1) and (2) and 33(1) of the Magistrates' Courts Act 1980, see also Schedule 2 to that Act); an offence of common assault (count 3), a summary offence with a maximum sentence of six months; and an offence of threatening words or behaviour with intent (as an alternative to count 4), also a summary offence with a maximum sentence of 6 months.
10. On 17 October 2008 Judge Moore sentenced the appellant to terms of detention in a young offender institution as follows. On count 2 (criminal damage), 2 months; on count 3 (common assault), 3 months consecutive; on count 4 (disorderly behaviour with intent), 3 months consecutive: a total of 8 months detention (the "basic sentence"). In addition, the judge revoked the community order which had been imposed by the magistrates' court on 5 March 2008 and resentenced the appellant in respect of the two offences committed on 22 February 2008 as follows: for the burglary, 2 months' detention consecutive, and for the possession of the cannabis resin, no separate penalty (the "additional sentence"). The total sentence was therefore one of 10 months detention. No complaint is made about the additional sentence. We are concerned only with the basic sentence of 8 months.
11. Although the appellant in fact pleaded guilty under count 4 to the alternative lesser offence of threatening words or behaviour with intent contrary to section 4 of the Public Order Act 1986, the appeal before us was conducted throughout on the basis that the alternative offence to which the appellant had pleaded guilty was section 4A of the same Act, a very similar offence of using disorderly behaviour with intent. We were told that this was done by virtue of section 6(1)(b) of the Criminal Law Act 1967 (see below at para 29). This error was common ground at the appeal. However the error arose, it found its way into the summary prepared by the Criminal Appeals Office for the court and agreed by the parties. The error came to light as a result of further enquiries which we have caused to be made in the course of writing this judgment (and which have delayed it). We are grateful to the Criminal Appeals Office for obtaining for us a transcript of the "Discussion regarding amendment of indictment to add count 4 and arraignment on that count" dated 30 September 2008. It is quite plain from that transcript that on count 4, when it was added, the appellant pleaded not guilty to affray "but guilty to section 4".
12. We will come below to the consequences of a conviction pursuant to section 4 rather than section 4A of the Public Order Act 1986. In the meantime, however, we continue this judgment on the basis argued at the appeal, which was that the count 4 conviction was pursuant to section 4A.
13. It was submitted by Mr Edward Bindloss on behalf of the appellant that the Crown Court was limited in respect of the three counts concerned to a maximum combined sentence of 6 months, on the basis that the Crown Court was limited to the sentencing powers of a magistrates' court and a magistrates court could not have sentenced these three offences to more than 6 months: see section 133(1) of the Magistrates' Courts Act 1980 (at para 21 below). The latter point, as to the powers of a magistrates' court under section 133(1), was not in dispute.
14. On behalf of the Crown, however, Mr Ian Groom submitted that at the Crown Court the judge was not so limited. He had two major arguments. The first was that the sentence on count 4 stood apart. This was not included in the indictment under section 40 of the Magistrates' Courts Act 1980, but only came on the scene, pursuant to section 6(1) of the Criminal Law Act 1967, as a result of the amendment to include count 4. There was nothing about a plea of guilty in such circumstances which limited the Crown Court to the maximum sentence available to the magistrates' court under section 133(1). It followed that there was nothing to stop Judge Moore adding his 3 months in respect of count 4 on top of the 5 months in respect of counts 2 and 3 combined even if those two offences, having been included in the indictment pursuant to section 40 of the Criminal Justice Act 1988, had themselves to be sentenced within the six months maximum provided by section 133(1).
15. Mr Groom's second argument was that an either way offence of criminal damage (count 2) did not cease to be an either way offence when included in an indictment pursuant to section 40 unless and until the magistrates' court had concluded that it appeared to them that the damage concerned was to be valued at less than £5,000 (see section 22(2) of the Magistrates' Courts Act 1980 at para 19 below), and there was no evidence that the magistrates in this case had turned their minds to that question: see R v. Alden [2002] EWCA Crim 421, [2002] 2 Cr App R (S) 74. Mr Groom also appeared to challenge whether count 2 had been included in the indictment pursuant to section 40. Therefore count 2 on the indictment remained an either way offence in the Crown Court and so in theory Judge Moore was operating on a maximum sentence of 10 years, even if in practice he might be inclined (as he was) to sentence within the 3 months' sentence available to a magistrates' court. Even so, Judge Moore was not bound to sentence count 2 within the six months' total to which a magistrates' court would be limited by section 133(1). In sum, the judge was entitled to sentence the three counts concerned as he had done, irrespective of the 6 months' limit which would have applied in the magistrates' court.
16. Before the judge Mr Bindloss had submitted to the judge that he was bound, since he was concerned with three summary offences (the criminal damage offence being treated under section 40(2) as if it were a summary offence), to sentence within the six months available to a magistrates' court. This argument was renewed to the judge at a "slip rule" application made to him on 31 November 2008. The judge gave a ruling rejecting that submission, and we have that ruling before us. The judge accepted that counts 2 and 3 were before him pursuant to section 40 of the Criminal Justice Act 1988 and the alternative to count 4 pursuant to "the different statutory power which permits the defendant to plead to such counts as a jury could bring in". That appears to be a reference to the language of section 6(1)(b) of the Criminal Law Act 1967. He concluded that he was therefore limited to the individual maxima to which the magistrates' court would have been subject, viz 3 months in the case of criminal damage of less than £5,000. However, he rejected the idea that section 40(2) (or anything else) introduced the further limitation of section 133(1). He said:

"It is important to distinguish between those words in section 40(2), which I have already highlighted [viz, "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", see below] and the other powers of the Magistrates' Courts Act. They are provided by a specific statute which has no application whatsoever to the Crown Court on indictment. The powers of the Crown Court on indictment are set down by a totally different statutory regime. If Parliament had intended one to influence the other it would have said so. In the absence of it saying so it cannot be the case that a conclusion which would be both artificial and contrary to justice, in my view, should be imported."

17. On this appeal, Mr Bindloss submits that the judge was wrong. Section 40(2) does import the sentencing regime of the magistrates' court into the Crown Court. Moreover, the same is true under the section 6 regime of the Criminal Law Act 1967. For his part, as will appear, Mr Groom came eventually very close to conceding the appeal.

The statutory provisions

18. The following provisions are relevant for present purposes to the sentencing regime of the magistrates' courts.

(1) The Magistrates' Courts Act 1980

19. Section 22 provides:

22. (1) If the offence charged by the information is one of those mentioned in the first column of Schedule 2 to this Act (in this section referred to as "scheduled offences") then,…the court shall, before proceeding in accordance with section 19 above, consider whether, having regard to any representations made by the prosecutor or the accused, the value involved (as defined in subsection (10) below) appears to the court to exceed the relevant sum.

For the purposes of this section the relevant sum is £5,000.

(2) If, where subsection (1) above applies, it appears to the court clear that, for the offence charged, the value involved does not exceed the relevant sum, the court shall proceed as if the offence were triable only summarily, and sections 19 to 21 shall not apply.

(3) If, where subsection (1) above applies, it appears to the court clear that, for the offence charged, the value exceeds the relevant sum, the court shall thereupon proceed in accordance with section 19 above in the ordinary way without further regard to the provisions of this section."

Schedule 2, paragraph 1 refers to section 1 of the Criminal Damage Act 1971. Section 19 and following set out the procedure whereby a defendant is offered the option of electing for summary trial in the magistrates' court or jury trial in the Crown Court. However, under section 22(2) the justices may be compelled ("shall proceed as if the offence were triable only summarily") to deal with a case of low value simple criminal damage summarily.

20. Section 32(1) provides that on summary conviction of any of the offences triable either way listed within Schedule 1 of the Act (which includes section 1(1) of the Criminal Damage Act 1971) the magistrates court is limited to a term of 6 months. Section 33, however, goes on to provide that where there is a summary conviction pursuant to section 22(2), then the maximum sentence available is reduced to 3 months. Therefore, if it appears to the magistrates that the damage is below £5,000, the maximum sentence is 3 months.
21. Section 133(1) then provides that the maximum in the magistrates' court for a series of consecutive sentences is six months:

"…a magistrates' court imposing imprisonment or detention in a young offender institution on any person may order that the term of imprisonment or detention in a young offender institution shall commence on the expiry of any other term of imprisonment or detention in a young offender institution imposed by that or any other court; but where a magistrates' court imposes two or more terms of imprisonment or detention in a young offender institution to run consecutively the aggregate of such terms shall not, subject to the provisions of this section, exceed 6 months."

(2) Criminal Justice Act 1988, section 40

22. This section is central to this appeal and provides as follows:

"40. (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 to the Crime and Disorder Act 1988 (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;…

(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 only summarily by virtue of section 22(2) of that Act; and

(e) any summary offence specified under subsection (4) below."

23. Thus section 40 appears to provide that where any summary offence to which the section applies, which, by reason of subsection (3)(d) encompasses an offence triable either way which would have been triable only summarily by virtue of section 22(2) of the Magistrates' Courts Act 1980, is included in an indictment, it can only be sentenced in a manner in which a magistrates' court could have dealt with it.
24. It might also be observed that where a magistrates' court commits a defendant for trial at the Crown Court on an either-way offence, it may also commit him for trial on a summary offence with which he is charged, provided it is punishable by imprisonment or disqualification from driving and "arises out of circumstances which appear to the court to be the same as or connected with" the circumstances of the either-way offence (section 41 of the 1980 Act). In such a case too, the Crown Court "may deal with him only in a manner in which a magistrates' court could have dealt with him", whether he pleads guilty before or is tried by the Crown Court (section 41(7) and (8)). That, however, is not this case.

(3) Crime and Disorder Act 1988

25. Section 40(1) cited above refers to the alternative procedure where a summary offence is sent to the Crown Court under section 51 of the Crime and Disorder Act 1988. That currently provides as follows:

"51. (1) Where an adult appears or is brought before a magistrates' court ("the court") charged with an offence triable only on indictment ("the indictable-only offence"), the court shall send him forthwith to the Crown Court for trial –

(a) for that offence, and

(b) for any either-way or summary offence with which he is charged which fulfils the requisite conditions (as set out in subsection (11) below)…

(11) An offence fulfils the requisite conditions if –

(a) it appears to the court to be related to the indictable-only offence; and

(b) in the case of a summary offence, it is punishable with imprisonment or involves obligatory or discretionary disqualification from driving."

26. Section 52(6) states that Schedule 3 to the 1998 Act makes further provision in relation to persons sent for trial to the Crown Court under section 51. Schedule 3 is headed "Procedure where Persons are Sent for Trial under Section 51". Paragraph 6 of Schedule 3 deals with summary offences and states by sub-para (4) –

"(4) If the person pleads guilty, the Crown Court shall convict him, but may deal with him in respect of the summary offence only in a manner in which a magistrates' court could have dealt with him."

That is the same wording as section 40(2) of the Criminal Justice Act 1988.

27. Other paragraphs of Schedule 3 provide inter alia for what is to happen where in the Crown Court on a sending under section 51 no indictable-only offence remains. In such a case the Crown Court has to find the suitable mode of trial for any either-way offence still on the indictment. There are similar provisions to those to be found in sections 19ff of the Magistrates' Courts Act 1980. However, separately from that, it is paragraph 14 of the Schedule which reflects section 22 of the 1980 Act in dealing with either-way offences such as section 1 of the Criminal Damage Act 1971 (and other such offences within Schedule 2 to the 1980 Act) where the value involved is relevant to the mode of trial. Thus paragraph 14 is headed "Procedure for determining whether offences of criminal damage etc. are summary offences" and provides in relevant part as follows:

"14. (1) This paragraph applies where the Crown Court has to determine, for the purposes of this Schedule, whether an offence which is listed in the first column of Schedule 2 to the 1980 Act (offences for which the value involved is relevant to the mode of trial) is a summary offence…

(3) If it appears clear to the court that the value involved does not exceed the relevant sum, it shall treat the offence as a summary offence.

(4) If it appears clear to the court that the value involved exceeds the relevant sum, the court shall treat the offence as an indictable offence…

Thus, where the Crown Court under paragraph 14 of Schedule 3 to the 1998 Act treats a count of low value criminal damage as a summary offence, paragraph 6(4) of the same Schedule 3 requires the Crown Court to sentence that matter "only in a manner in which a magistrates' court could have dealt with him".

28. Thus, whether what clearly appears to the relevant court to be a low value criminal damage count appears on an indictment pursuant to section 40(2) of the 1988 Act or pursuant to a section 51 sending under the 1998 Act, in either case the Crown Court can deal with it on sentence only in a manner in which a magistrates' court could have dealt with it. That is not surprising, because it has ceased to have the quality of an either-way offence and has come to be treated as a summary offence.

(4) Criminal Law Act 1967, section 6

29. This statute is relevant to the situation which arose in relation to count 4 on the indictment in the present case. Section 6 provides as follows:

"6. (1) Where a person is arraigned on an indictment –

…

(b) he may plead not guilty to the offence specifically charged in the indictment but guilty of another offence of which he might be found guilty on that indictment…"

It was common ground that section 6(1)(b) applies to and covers the appellant's plea of guilty to disorderly behaviour with intent under section 4A of the Public Order Act 1986 as an alternative to the offence of affray that came to be charged under count 4. There is no specific provision, however, as to how in such an event a summary offence such as disorderly behaviour with intent is to be sentenced by a Crown Court (save of course that under section 4A(5) of the 1986 Act itself a maximum sentence of only six months imprisonment is permitted).

30. There is, however, provision about what is to happen if a jury convicts a defendant of an alternative summary offence. That is in subsections (3)ff of section 6:

"(3) Where, on a person's trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence of which he could be found guilty on an indictment specifically charging that other offence.

(3A) For the purposes of subsection (3) above an offence falls within the jurisdiction of the court of trial if it is an offence to which section 40 of the Criminal Justice Act 1988 applies (power to join in indictment count for common assault etc.), even if a count charging the offence is not included in the indictment.

(3B) A person convicted of an offence by virtue of subsection (3A) may only be dealt with for it in a manner in which a magistrates' court could have dealt with him."

31. However, it was also common ground that subsection (3) does not apply in this case because the offence of disorderly behaviour with intent is not within section 40. That is the basis of the point made by Mr Groom to the effect that count 4 stands apart from any requirement of the Crown Court to treat the summary offence of disorderly behaviour with intent as a magistrates' court would have had to deal with it. In any event, section 6(3) is dealing only with the situation of conviction by the jury, not with pleas of guilty. And so, submitted Mr Groom, the count 4 offence did not fall within the limitations of section 133(1) of the Magistrates' Courts Act 1980. However, in R v. Jones [2007] EWCA Crim 1906, [2008] 1 Cr App R (S) 44 this court was similarly faced with a plea to an alternative summary offence, rather than a jury conviction. There, the appellant pleaded guilty to two counts of common assault which were on the indictment by virtue of section 40 and in addition pleaded guilty (pursuant to section 6(1)(b) of the 1967 Act) to a third offence of common assault as an alternative to a charge on the indictment of causing actual bodily harm. The sentencing judge handed down consecutive sentences totalling 9 months, with 4 months for the alternative plea. It was held that, by virtue of the provisions of section 6(3B), the total sentence was unlawful and it was limited to 6 months in total. This court therefore made no distinction between a case within section 6(1)(b) (plea of guilty) and a case within section 6(3) and (3A) (conviction by a jury) for the purposes of the application of section 6(3B), even though, on the latter's own terms, it is limited to a conviction within subsection (3A).
32. There are, however, specific provisions about certain Public Order Act offences which also have to be taken into account.

(5) Public Order Act 1986, section 7

33. Section 7 supplements the general provisions of section 6(3) of the Criminal Law Act 1967, as follows:

"7….(3) If on the trial on indictment of a person charged with violent disorder or affray the jury find him not guilty of the offence charged, they may (without prejudice to section 6(3) of the Criminal Law Act 1967) find him guilty of an offence under section 4.

(4) The Crown Court has the same powers and duties in relation to a person who is by virtue of subsection (3) convicted before it of an offence under section 4 as a magistrates' court would have on convicting him of the offence."

34. So, if the appellant had stood trial on count 4 and had been convicted by the jury of the alternative offence under section 4 (which is very similar to that under section 4A), the Crown Court would have been limited to the sentencing powers of a magistrates' court in respect of that conviction. A magistrates' court would have been subject to the limitations of section 133(1) of the 1980 Act. In the present case the appellant pleaded guilty (as was mistakenly assumed at the appeal) to the alternative offence within section 4A, which was inserted into the 1986 Act by the Criminal Justice and Public Order Act 1994. On the express terms of section 7(3) and (4) therefore the present case (on that mistaken basis) did not fall within it for two reasons: (i) it concerned section 4A not section 4; and (ii) it concerned a plea of guilty and not a jury conviction. It seems odd that when section 4A was added in 1994, section 7 was not also amended to embrace section 4A, and that may well have been an oversight.
35. In the light of these provisions Mr Bindloss submitted that it was highly anomalous that there was provision dealing with the sentencing consequences of a jury conviction on an alternative verdict on a summary offence, but not with the sentencing consequences where there was a plea of guilty on an alternative offence to the one charged. This anomaly is again reflected in the provisions of section 6 of the 1967 Act. Mr Bindloss submitted that the greater (the situation where a jury convicts after a trial) must include the lesser (the situation where the defendant pleads guilty). Mr Groom recognised the force of that submission. In this connection, neither counsel drew any distinction between section 4 and section 4A of the 1986 Act.
36. It is now clear, however, that the appellant in fact pleaded guilty on count 4 to a section 4 offence, not a section 4A offence. Therefore we are concerned with section 7(3) of the 1986 Act, and not with section 6(3)/(3A) of the 1967 Act. And so, subject to the point that on its express terms section 7(3)/(4) is dealing only with a conviction by a jury and not with a plea of guilty, and subject also to the possibility that it is the combination of section 6(1)(b) of the 1967 Act and of section 7(3) of the 1986 Act that permits the plea of guilty where the jury could have convicted, we are not troubled with the ramifications of section 6. However, we should state our view that if (as turns out not to have been the case) the appellant had pleaded guilty to a section 4A offence, that conviction would have been unlawful because section 6 does not cover such an offence: it is not "within the jurisdiction of the court of trial" within the meaning of section 6(3) (3A), and nothing else makes good that lack of jurisdiction (such as, in the case of section 4, section 7(3) of the 1986 Act).
37. Therefore, on the basis of a section 4A offence which was common ground at the appeal hearing, we would have had to allow not only the sentence appeal in respect of count 4 but also (at any rate in theory) an appeal against conviction as well. That would have reduced the basic sentence to 5 months (on the assumption that the conviction itself was quashed), from 8 months (see para 10 above).

Jurisprudence

38. There are a number of cases which deal with the special case of the either-way offence of criminal damage and the situation where it may have to be treated as a summary offence because clearly of a value below £5,000.
39. In R v. Walker [1996] 1 Cr App R (S) 447 the defendant was committed to the Crown Court for trial on charges of burglary and affray, but a count of section 1(1) criminal damage arising out of the same facts was included in the indictment under section 40 of the 1988 Act. The evidence was that the criminal damage concerned would cost between £2,000/£3,000 to repair, ie below £5,000. In the end, all other counts were dealt with by acquittals or otherwise and the court was left to sentence only the count of criminal damage. The defendant received a 9 month sentence and appealed on the basis that the maximum sentence which would have been available to the magistrates, and thus was available to the Crown Court under section 40(2), was one of 3 months only. The appeal succeeded, and the 9 months sentence was held to be unlawful. That is a directly relevant authority on the effect of section 40(2), where it applies. It does not explicitly contradict the sentences in the present case, for Judge Moore kept within the 3 months limit. However, it directly supports his view that he was in any event limited to 3 months. On that basis, it is not disputed by the Crown on this appeal that section 133(1), as well as section 22(2) would apply, to limit the Crown Court to a total of 6 months, so far at any rate as the section 40 offences (counts 2 and 3) are concerned.
40. In R v. Fennell [2000] 2 Cr App R 318 this court (in the judgment of Rose LJ) decided that Burt (1996) 161 JP 77 had been decided per incuriam and that the relevant provisions of sections 22 and 40 were related only to mode of trial. The defendant stood trial on charges of racially aggravated assault occasioning actual bodily harm and racially aggravated criminal damage. The jury were permitted under section 6(3) of the Criminal Law Act 1967 to return alternative verdicts of guilty on simple actual bodily harm and simple criminal damage. He was sentenced to 8 months imprisonment on the verdict of actual bodily harm and a concurrent 1 month on the verdict of criminal damage. The appeal was against conviction, on the ground that the judge had no power to permit an alternative verdict of simple criminal damage. The issue was therefore one of jurisdiction. It was not a section 40 case. There never had been a count of simple criminal damage on the indictment. The submission was that section 22, perhaps because the damage in question was below £5,000 (for the amount had been identified in the indictment as about £1,500) but the argument was also put a number of times more broadly to apply to simple criminal damage as a whole, meant that the offence could only be tried summarily and thus was not open to the jury without a further alternative count being added to the indictment. The court rejected that submission. Simple criminal damage remained an either-way offence. All that section 22 did was to direct magistrates –

"to proceed on a basis which assumes that criminal damage can be tried on indictment: for, when considering the appropriate mode of trial, if the damage is less than £5,000, they are to proceed "as if" the offence was triable only summarily."

The appeal on conviction was therefore dismissed. There were also submissions about sentence, but none which are relevant to the current appeal.

41. In R v. Alden [2002] 2 Cr App R (S) 74 this court revisited Fennell in the context of an appeal against sentence, not conviction. Alden concerned a defendant who pleaded guilty to an offence of common assault and to a lesser alternative of harassment with intent under section 4A of the Public Order Act 1986 (the offence with which we had mistakenly thought we were concerned in the present case in respect of count 4). The indictment was then amended to include new counts of criminal damage and of assault occasioning actual bodily harm, to which the defendant also pleaded guilty. The common assault occurred on one occasion, and the ABH and criminal damage on another. The criminal damage was again due to the kicking of a car and did not exceed about £1,000 in value. The defendant had been sentenced as follows: on the ABH, to 10 months detention in a young offender institution; 3½ months consecutive on the public order offence (a summary only offence, with a maximum term of 6 months); 2½ months consecutive on the criminal damage; and 2 months consecutive on the common assault: a total of 18 months. The issue was whether the three shorter sentences, totalling 8 months, represented summary offences –

"so that the Crown Court's powers of sentencing were limited to those of the justices; that is to say, a total of only six months…" (at para 3).

So it was common ground, and accepted by the court, that section 133 (1)'s limit of six months would have been applicable if all three offences had been summary offences.

42. Since there was no dispute that the public order offence and the common assault were summary offences (and the sentence for them totalled 5½ months, ie within the six months limit), -

"The critical question is whether or not the criminal damage offence, in relation to which, as we have said, a sentence of two-and-a-half months was imposed, was a summary offence, or an either-way offence at the time the Crown Court dealt with the matter. This in turn depends on whether a decision of this Court, differently constituted, in Fennell…was correctly decided. It was conceded…that if this Court concludes that Fennell was correctly decided, that is fatal to the legal aspect of this appeal" (at para 6).

43. It will be recalled that Alden was not a case of criminal damage being included in the indictment under section 40. The offence was added by amendment at trial. It had never been anywhere near the magistrates' court. It will also be recalled that in Fennell too there had been no question of the criminal damage being included in the indictment under section 40. There too it had first arisen at trial as an alternative offence, on the conviction of a jury.
44. In these circumstances Rose LJ proceeded to reason the matter as follows:

"24. Mr Hall [counsel for the appellant] draws attention to certain anomalies which will follow, as Dr Thomas [counsel acting as amicus curiae] concedes they will, if the Fennell interpretation is right. For example, a case of criminal damage, coming by way of information before the justices, would give rise in an appropriate case, to a maximum sentence of only three months. Whereas, if there were no information before the justices and the matter came before the Crown Court by way of amendment to the indictment, as it did in the present case, for the same offence, the Crown Court would have the power to sentence up to 10 years…

25….The submission made by Dr Thomas, is that section 40 is not a freestanding provision which reclassifies criminal damage: it is a procedural provision which follows on the categorisation process by justices, provided for by section 22 of the Magistrates' Courts Act. The Crown Court's sentencing powers are limited if, but only if, the magistrates have categorised the criminal damage offence as relating to damage of low value. But if the magistrates have not so categorised the criminal damage offence, the Crown Court's powers are the same as they would be in relation to any other either way offence…

30….In our judgment…Fennell was rightly decided. Criminal damage is an either way offence, punishable on conviction, on indictment, with 10 years' imprisonment, irrespective of the value of the damage caused. It is not necessary to allege the value of the damage in an indictment, or to prove the value of the damage.

31. If an offender appears for sentence before the Crown Court, for criminal damage otherwise than under a particular provision specifically restricting the sentencing power of the Crown Court, then the maximum sentence available is 10 years. If a defendant appears before a magistrates' court charged with an offence of criminal damage, the court must proceed under section 22 of the Magistrates' Courts Act 1980, to determine the apparent value of the damage. If that apparent value is less than £5,000, it must proceed as if the offence were a summary offence. After such a determination, an offence treated as a summary offence is subject to the maximum sentence of three months' imprisonment, whether the offender is sentenced by the magistrates, or, ultimately, sentenced by the Crown Court because the offence has come before the Crown Court on committal by the magistrates, under section 40, or otherwise…

33. In the present case, as it seems to us, following from the conclusions which we have reached, the sentence of two-and-a-half months imposed for the criminal damage, not only is not capable of being criticised in itself, but is not capable of being criticised in conjunction with the sentences passed for the two summary offences. The criminal damage offence was not a summary offence requiring a capping of the Crown Court sentencing powers to the six months permissible to justices had they been dealing with three summary offences."

45. In the present case, however, the criminal damage offence had appeared before the justices, and was moreover, as Judge Moore understood the matter, included on the indictment pursuant to section 40. That was presumably on the basis provided for in section 40, namely that the offence "would otherwise be triable only summarily by virtue of section 22(2)…" (section 40(3)(d)). In those circumstances, it would seem that Alden is authority for the result contended for before Judge Moore, but rejected by him, that he was restricted to a total of six months for the criminal damage, the common assault and the alternative plea to section 3 of the Public Order Act 1986. That was exactly the position that this court in Alden said would have prevailed if the criminal damage count had reached the Crown Court under section 40 as an offence which had been categorised by the magistrates as if it were a summary offence (see para 3 of Alden, cited at para 41 above).
46. Finally, in Gwynn [2002] EWCA Crim 2951, [2003] 2 Cr App R (S) 41, the defendant had been sent for trial under section 51 of the Crime and Disorder Act 1998. There were six charges, all arising out of the same incident, to which the defendant pleaded guilty: one charge of theft, four of criminal damage, and one of having an offensive weapon. The criminal damage offences had concerned damage to four cars in a single lay-by, caused with a metal bar. The damage totalled some £2,200. The defendant was sentenced to 6 months for the theft, to 3 months for each of the four criminal damage offences, and to 3 months for the offensive weapon: all consecutively to one another except that one of the counts of criminal damage was made concurrent: a total of 18 months imprisonment. The offences of theft and having an offensive weapon were not summary offences: but the submission was that the four offences of criminal damage were to be treated as if they were summary offences, because of their low value and the provisions of paragraph 14 of Schedule 3 to the 1998 Act (see cited above): with the result that they were limited to a total of 6 months rather than the 9 months they received. The court accepted that submission. Andrew Smith J referred to para 22 of Alden where the case of a sending under section 51 of a low value criminal damage charge had been considered and continued:

"13. As is apparent from Alden, the question whether there was a six months limit on the total permissible sentence depends on whether or not the consecutive sentences are passed for offences that are either actually summary or to be treated as if summary. In Alden the criminal damage charge was introduced to the indictment by amendment, and so neither s. 22 of the MCA nor Sch. 3 to the Crime and Disorder Act 1998 came into play. The position here is different. Having accepted that it was clear that the damage was less than the relevant sum, the court should have proceeded as if the offence was a summary one, and recognised that its powers for sentencing the criminal damage offences were limited to six months' imprisonment in total."

47. Gwynn therefore is a second authority which recognises that where summary offences or offences which must be treated as though they are summary offences are concerned, the Crown Court is limited to the magistrates' total sentencing powers of 6 months.

Discussion and conclusion

48. In the present case, Mr Groom at the hearing seemed to be submitting on behalf of the Crown: (1) that it was not clear that counts 2 and 3 had been charged or therefore considered at the magistrates' court, and that therefore they had been added later by amendment, so that this was an Alden type case; (2) that even if the criminal damage count had been included in the indictment pursuant to section 40, it was still necessary to show that the justices had considered the amount of damage in question and that it had appeared to them to be clear that the damage concerned was less than £5,000, but that there was no evidence that they had so categorised the offence; and (3) that there was no provision which limited the Crown Court to include the sentence on the public order offence within the total of six months applicable under section 133(1).
49. These submissions appeared to us at the hearing to be unlikely to be well directed, but we were unable at that stage to be sure of our ground. Moreover, we lacked the schedule to the committal certificate, and requested the Crown to obtain it. We therefore considered it necessary to reserve our reasoned judgment. Our difficulty, however, was that the appellant had already served all but a few days of an eight months' sentence: with the result that before very long he would have served the whole of his sentence, even if, as seemed likely to us, his appeal should succeed. In those circumstances, we determined to allow his appeal and reduce his total sentence to one of eight months. We did so on the basis that the sentences on counts 2, 3 and 4 should remain consecutive sentences, but should each be reduced to 2 months, giving a total of six months in respect of the basic sentence (plus the 2 months additional sentence in respect of the offences committed on 22 February 2008). We thought that that would reflect the justice of the matter, even if it were to turn out on reflection that the judge was not limited to the six months maximum set by section 133(1). He had after all directed himself that he was bound by a maximum of 3 months for the criminal damage count, which meant that he was considering that the criminal damage count did have to be treated as though it was a summary offence and not an either-way offence – for on the latter basis he would not have been limited to three months but only (in theory) to ten years. On the basis, however, that he was dealing with a section 40 offence to which a maximum sentence of 3 months applied, he was wrong to have considered that he was not also bound by section 133(1)'s 6 months in total rule. In particular, if we were to consider on reflection that the judge was bound by the 6 months' limit, as seemed likely, it would have been unjust to the appellant that his successful appeal would have been practically ineffective. If, on the other hand, we were on reflection to consider that the judge was entitled to impose the sentence that he did, the only consequence would have been that, while the appellant would have been fortunate to escape the longer sentence of ten months in total, no injustice would have been done.
50. After the hearing Mr Groom supplied us with two further notes. He was unable to obtain a copy of the committal certificate with its schedule. But he was able to establish that the original charges included charges of criminal damage (stated to be "to property valued under £5,000") and of assaulting an officer, which became counts 2 and 3 (the latter translated into common assault) respectively. He also expressed reservations about Alden, which as we understand them proceed upon the basis that the criminal damage count in that case was added by subsequent amendment under section 40(2). In that case, he submitted, prosecuting counsel there must have impliedly represented that the offence was one "which would otherwise be triable only summarily by virtue of section 22(2)" (see section 40(3)(d)); and the defendant must have relied on that representation when he entered his plea.
51. However, we do not so read Alden. As stated above, Alden was a case where the criminal damage count was added by amendment as an either-way count without any prior consideration before the magistrates' court. It was entirely new on the scene at the Crown Court. As such, it could not have been added under section 40: for section 40(1) requires it to have been either inquired into at the magistrates' court or to have been made the subject of a section 51 sending; and of course section 40(3)(b) requires it, on Alden's reasoning, to have been categorised by the magistrates' court as clearly involving damage of less than £5,000 and thus triable only summarily under section 22(2). Therefore, by the Alden court's own definition, the amendment to add criminal damage could not have been pursuant to section 40. Indeed, as we understand the matter, there is no need of section 40 to include an either-way count of criminal damage on an indictment by way of amendment. Section 40 is needed to include a summary offence in an indictment, or an either-way offence which needs to be treated "as if the offence were triable only summarily". That is why the section begins: "(1) A count charging a person with a summary offence to which this section applies…" (emphasis added).
52. However, in the present case, it was common ground at the Crown Court before Judge Moore that the counts of criminal damage and common assault had been included under section 40. The judge so stated the matter more than once. As he said in giving his ruling on the "slip rule" application:

"These matters were on the indictment pursuant to a combination of section 40 of the Criminal Justice Act 1988 [sc counts 2 and 3] and the different statutory power which permits the defendant to plead to such counts as a jury could bring in and one of the pleas that was entered here was indeed such an alternative. Accordingly, we ended up with three matters, the sentence for which was limited to the powers of the Magistrates' Court."

53. Judge Moore was there recognising that the criminal damage count had been included under section 40 (it was not added by amendment as in Alden but had been on the original indictment) as an offence which had to be treated as if it were a summary offence under section 22(2). It was for that reason also that he considered himself bound by a maximum for that count of 3 months, which would not otherwise have applied. As he said:

"Thus, in relation to our three offences, the maximum were three months [the criminal damage], six months [the common assault] and six months [the disorderly behaviour] respectively…"

54. In these circumstances, this case is not within Alden but within Walker (which was not mentioned in Alden). However, Alden itself recognises that, where section 40 is in play, the Crown Court is limited to the powers of the magistrates' courts including the applicable limitation within section 133(1). In our judgment, it cannot be appropriate in such circumstances to speculate, in the absence of sure knowledge of what went on at the magistrates' court, as to whether there had been a formal appearing to the justices under section 22(2) that it was clear that the damage was under £5,000. Indeed, Mr Groom's submission about Alden would apply to this very case: it being common ground before Judge Moore that the count of criminal damage was before the Crown Court under section 40, it could not be right that the appellant, after pleading guilty on that basis, could be at peril of a sentence of more than 3 months (up to a theoretical maximum of 10 years) or of a total sentence for the relevant offences of more than 6 months. In any event, the natural inference in this case is that, given the nature of the charge (of damage below £5,000) and of the evidence (concerning damage in the order of about £1,400 at most), it must have appeared clear to the justices that the damage was lower than £5,000.
55. We therefore need not consider, even if it were appropriate for us to do so, whether Alden is correctly decided, despite Mr Groom's reservations, and indeed the reservations of the learned editors of Archbold 2009: see at paras 1-75aj, 23-44. We have not heard detailed submissions as to Mr Groom's reservations, nor as to Archbold's criticisms. We consider ourselves bound by Walker, Alden and Gwynn respectively: the first is a section 40 case, and of particular relevance for us; the second is not a section 40 case, but supports this appeal on the hypothesis that section 40 applied; and the third confirms that approach in the alternative case of a section 51 sending.
56. It also follows that the summary section 4 public order offence under count 4 falls within the six months in total rule. Mr Groom's submission (dealing with what he thought was a section 4A offence) was nevertheless to the contrary: but that submission is itself contrary to Alden on the hypothesis that the criminal damage count in that case had fallen within section 40 and was therefore subject to the magistrates' courts' powers. For these purposes the facts of Alden were very pertinent, for there too, as was thought to be the position in the present case, the defendant pleaded guilty to a summary public order offence under section 4A of the 1986 Act as an alternative to an indictable public order offence on the indictment. Rose LJ saw no difficulty in regarding the Crown Court as bound to treat that summary offence as falling within the limitations of section 133(1).
57. Moreover, despite the limitations of section 6(3A) and (3B) of the Criminal Law Act 1967, this court in Jones applied subsection (3B) to the case of a plea of guilty (see at para 31 above). Similarly, in R v. Armour [2007] EWCA Crim 3294, a plea of guilty to an offence under section 4 of the Public Order Act 1986 was regarded by this court as falling within section 7(4) of that Act, even though on its terms that is dealing with conviction by a jury: a total sentence of more than 6 months was held unlawful.
58. In every other circumstance we have considered, statute has emphasised that the Crown Court's sentencing powers for summary offences are limited to those of a magistrates' court. Alden demonstrates an exception for the very reason that the offence there was neither a summary offence nor one that had to be treated as if it were a summary offence, but on the contrary was an either-way offence. There are perhaps some mysteries here, but this court has consistently treated summary offences in the Crown Court as falling within the general limitations of section 133(1). We would therefore regard the section 4 offence here as falling within those limitations.

Conclusion

59. We therefore confirm, for these reasons, our decision to grant leave to appeal and to allow the appeal, in the manner stated at the hearing of it: namely, that the total sentence is reduced to one of 8 months detention, from 10 months detention; and the individual sentences on counts 2, 3 and 4 respectively are 2 months (as before) for the criminal damage, 2 months consecutive for the common assault (reduced from 3 months), and 2 months consecutive for the threatening words or behaviour with intent (reduced from 3 months). The additional sentence of 2 months remains unaffected, so that the total sentence becomes one of 8 months detention.