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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 >> Myers, R. v [2013] EWCA Crim 2423 (21 November 2013) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2013/2423.html Cite as: [2013] EWCA Crim 2423

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IN THE COURT OF APPEAL
CRIMINAL DIVISION SITTING AS THE DIVISIONAL COURT

		Royal Courts of Justice Strand London, WC2A 2LL
		21st November 2013

1. MRS JUSTICE NICOLA DAVIES: The court has now reconstituted itself as a Divisional Court of the Queen's Bench Division. We grant permission to apply for judicial review, we dispense with the issue of service of the judicial review claim form, we abridge all times necessary and thereafter hear the claim for judicial review forthwith.
2. This is an application by Mr Myers, the applicant, for leave to appeal against conviction and sentence. On 28 April 2011, in the Crown Court at Sheffield, the applicant pleaded guilty to the offence of causing wasteful employment of police time, contrary to section 5(2) of the Criminal Justice Act 1967 (the CJA 1967). A fine of £2,000 was imposed by His Honour Judge Barber.
3. The history of this matter is tortuous and lengthy. It commenced on 1 November 2010, when a summons was issued against the applicant alleging (i) an offence of perverting the course of justice between 8 May 2010 and 7 October 2010 contrary to common law (ii) an offence of failing to provide the identity of the driver of the vehicle alleged to have been guilty of an offence contrary to section 172 of the Road Traffic Act 1988 (the RTA (1988)).
4. The prosecution's original case was that the applicant had been responsible for a sustained and calculated effort to mislead the police as to the identity of the person driving a vehicle which had been photographed exceeding the speed limit. It was alleged that the applicant failed to notify the police that he was in fact the driver of the vehicle. On 14 February 2011 the applicant was arraigned and pleaded not guilty to the charge of perverting the course of justice. On 4 April 2011 the applicant wrote to the respondent, offering to plead guilty to an offence contrary to section 5(2) of the CJA 1967. The offer was accepted and on 28 April 2011 the case was listed "For Mention".
5. At the hearing the Crown was represented by a lawyer. The applicant had no legal representation. In opening, the Crown's advocate noted that the offence to which the applicant offered to plead guilty was summary only and the 6 month time limit for laying an information in the Magistrates' Court had expired. She invited the judge to sit as a District Judge, pursuant to the powers conferred by section 66 of the Courts Act 2003, the intention being to lay a new information before the court, based upon the section 5(2) offence. The court was informed that "the time limit wouldn't matter" as the section 5(2) offence was "based on the same facts".
6. The information reflected the same dates as the indictment. The applicant was arraigned and the charge was put to him thus:

i. "Is it correct between 8 May 2010 and 7 October 2010 you pursued a course of conduct resulting in wasteful employment of police time contrary to section 5(2) of the Criminal Law Act 1967?"

7. To this the applicant replied: "Yes".
8. The facts were outlined. At 9.30 on the morning of 8 May 2010 a Renault registered to the applicant was recorded by a speed camera on Sheffield Pathway travelling at 48 miles per hour in a 40 mile per hour speed limit zone. On 14 May 2010 a notice of intended prosecution and requirement to provide the driver's details was served upon Mr Myers at his home address. On 4 June 2010 he replied, indicating that the driver was a Jonathan Jones who was the new keeper of the vehicle. Enquiries reveal that on 10 June 2010 DVLA processed a change of owner. The police attempted to find Jonathan Jones at an address identified in the defence statement prepared by the applicant but failed.
9. The police went to the applicant's home on 26 September 2010. They saw a Renault car in the driveway and spoke to the applicant who denied driving the vehicle on 8 May. The applicant told the police that Jonathan Jones was the driver. He had sold the car to Mr Jones but had since bought it back because the Jones family were short of cash. As to the amount of police time relevant to the investigation, it was said to be 20 hours at a cost of £100 per hour.
10. The Crown's advocate informed the judge that the maximum fine was £2,500 and incorrectly stated that 6 months' imprisonment was the default sentence. Costs in the sum of £1200 were also sought.
11. The prosecution offered no evidence on the original indictable offence of perverting the course of justice, as to what became of the section 172 information, the transcript is silent as is the court record.
12. In addressing the court the applicant said that he had sold the vehicle to the person who he believed at the time was Jonathan Jones. However, he now understood that the true name of that person was Leon Hamlyn, who was presently serving a substantial prison sentence for various offences of dishonesty. The applicant admitted that he was not sufficiently candid in the initial police interview but he saw it as the responsibility of the police to track down the man in question. He accepted that he could have guided the police towards the person, as he knew he worked for Barclays Bank and played for the applicant's football team. The applicant did not suggest that he was the driver of the vehicle on 8 May. His admission of the facts of the offence was limited to not providing the police with as many details as he might have done during police interviews.
13. The judge made little by way of enquiry as to the resources of the applicant. The dialogue, as between the judge and the applicant related to the payment of the fine by instalments, it being agreed that there would be four payments at £500. No discount appears to have been given by the judge for the guilty plea entered by the applicant. As to the costs, £1,000 was ordered and the applicant was told that if he did not pay the fine he would serve 6 months' imprisonment in default of any one payment.
14. The certificate of conviction, dated 5 August 2011, records that at the Crown Court at Sheffield on 28 April 2011 Craig Myers was "convicted upon indictment" of one "cause wasteful employment of police" and was sentenced as follows: a fine of £1,985 or in default to serve 6 months' imprisonment; a fine of £15 or in default to serve 6 months' imprisonment and a contribution of £1,000 towards the prosecution costs. Further, the certificate recorded "to pay a total of £3,000 or in default to serve a period of 6 months' imprisonment. Comprising £1,000 prosecution costs, £1,985 fine and £15 victim surcharge."
15. On or about 1 June 2011 the applicant submitted an application to appeal against his conviction to the Court of Appeal (Criminal Division). The application was treated as defective, it being an application to appeal a summary only offence. The applicant was referred to the Administrative Court.
16. On or about 7 June 2011 the applicant resubmitted his application for leave to appeal his conviction to the Court of Appeal (Criminal Division). The Court of Appeal officer were told, erroneously, that the Crown Court judge had accepted a plea to wasting police time as a District Judge, had committed for sentence to the Crown Court and then sentenced as a Crown Court judge. It appeared that the Court of Appeal (Criminal Division) did not have jurisdiction and so the papers were forwarded to the Administrative Court.
17. On 27 June 2011 the papers were returned from the Administrative Court to the Criminal Appeal Office. The application was not accepted in the absence of correct forms. The Criminal Appeal Office wrote to the applicant explaining the position as they understood it to be and suggesting the appeal should be made either to the Crown Court or to the Divisional/Administrative Court.
18. On 23 November 2011 the applicant wrote to the Sheffield Magistrates' Court, having previously spoken to the Administrative Court, enclosing a copy of the Certificate of Conviction supplied by the Sheffield Crown Court.
19. On 1 March 2013 the case was listed as an appeal against conviction and sentence at the Sheffield Crown Court, before His Honour Judge Baker QC (as he then was). At the hearing the applicant gave the same account of events as previously given in April 2011. The applicant told the court that his guilty plea was not in relation to the case as it was presented to the court by the Crown, which he described as "a complete distortion of the facts". The Crown still maintained that Leon Hamlyn did not exist, which the applicant said was hard to dispute as he was serving a lengthy prison sentence. The applicant's acceptance of the lesser charge was upon the basis that had he told the police that the man was in his football team, they would have been able to speed up their enquiries and find him. The applicant had failed to provide the police with further information, which might have been of assistance in their efforts to trace the man.
20. It would appear that by the time of this hearing the applicant had received legal advice. He informed the court that the section 5(2) offence of wasting police time was a summary offence and was placed before the court outside the statutory time limit. He took two other points which are not of relevance for the purposes of these proceedings.
21. In response the representative of the Crown accepted that before the original court was an indictable only offence and not an original information which was amended or altered. Relying upon the authority of R v Scunthorpe Justices ex parte McPhee and Gallagher 162 JP 635, it was suggested that it was open to the court to amend the original charge as the facts arose out of the same set of circumstances. The judge declined to hear the appeal as he stated that the appropriate tribunal was the Court of Appeal (Criminal Division). Once again the matter found its way back to the Court of Appeal.
22. By a letter dated 9 April 2013 from Susan Holdham, a Senior Legal Manager in the Criminal Appeal Office, the applicant was informed that the Court of Appeal (Criminal Division) did not have jurisdiction to deal with appeals against decisions of the Magistrates' Court. As the Certificate of Conviction erroneously refers to the conviction as being "upon indictment", the Crown Court would not deal with the appeal. Ms Holdham stated that the means of taking this forward would be to submit the Grounds of Appeal taking the Certificate of Conviction at face value. Thereafter the court may, upon enquiring into the circumstances of the case and discovering that the original judge had accepted the plea and sentenced as a district judge, be persuaded to reconstitute itself into an Administrative Court. Ms Holdham is to be commended for the detail and clarity of the advice given in her letter.
23. It is now agreed between the parties that the Court of Appeal (Criminal Division) does not have jurisdiction to hear the appeal relating to the summary 5(2) offence. The applicant has a technical right of appeal against sentence to the Crown Court, pursuant to section 108(1)(a) of the Magistrates' Court Act 1980 (the MCA 1980). He has no right of appeal against conviction by reason of his guilty plea.
24. It is accepted on the applicant's behalf that he could apply to the Magistrates' Court to rectify the alleged error pursuant to section 142 of the MCA 1980 but by reason of the lengthy and complex procedural history of this matter, it is submitted that the route would be neither realistic nor appropriate. We agree.
25. The approach which it is contended the court should take following the authority of R v Hardy [2011] EWCA Crim 913, is to reconstitute itself as a Divisional Court of the Queen's Bench Division in order to hear the case. The failure to apply to the Magistrates' Court, pursuant to section 142 should not be a barrier to a claim for judicial review. The Crown have accepted this as an appropriate means of disposing of this matter. That is the basis upon which we have proceeded.
26. The Grounds of Appeal
27. Three grounds are relied upon. Ground 1 being described as "the principal ground". Ground 1: the court had no jurisdiction to try the information because section 127 of the MCA 1980 precludes the laying of an information outside the 6 month time limit. Ground 2: the applicant's admission to an offence pursuant to section 5(2) of the CJA 1967 was invalid and/or should not have been accepted by the court because (a) he was not properly arraigned; and (b) an offence contrary to section 5(2) of the CJA 1967 was not made out in the admitted facts. Ground 3: the sentence imposed on the applicant was wrong in law because (a) the judge failed to have regard to the applicant's means as required by section 164 of the Criminal Justice Act 2003; (b) the judge approached the calculation as a fine as though it was a compensation order and (c) he imposed a sentence outside the normal range for equivalent offences.
28. For the purpose of this application the following statutory provisions and authorities are relevant.
29. Magistrates' Court Act 1980

i. "127 Limitation of time

(2) Except as otherwise expressly provided by any enactment and subject to subsection (2) below, 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."

30. Criminal Justice Act 1988

i. "40(1)

ii. A count charging a person with a summary offence to which this section applies may be included in an indictment if the charge—

iii. (a)is founded on the same facts or evidence as a count charging an indictable offence; or

iv. (b)is part of a series of offences of the same or similar character as an indictable offence which is also charged."

31. Section 40(3) identifies the offences to which section 40 applies. Section 5(2) of the CJA 1967 is not one of the offences specified in section 40(3).
32. The Courts Act 2003

i. "66 Judges having powers of District Judges (Magistrates' Courts)

ii. (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—

iii. (a)criminal causes and matters, and

iv. (b)family proceedings as defined by section 65 of the 1980 Act.

v. (2)The offices are—

vi. (a)Judge of the High Court;

vii. (b)Deputy Judge of the High Court;

viii. (c)Circuit judge;

ix. (d)Deputy Circuit judge;

x. (e)Recorder."

33. In R v Scunthorpe Justices ante it was held information can be amended after the expiry of the 6 months' period, even to allege a different offence or offences, provided that the different offence alleges the same misdoing as the original offence and the amendment can be made in the interests of justice. At 639F Dyson J (as he then was) stated:

i. "(1) The purpose of the six-month time limit imposed by section 127 of the 1980 Act is to ensure that summary offences are charged and tried as soon as reasonably practicable after their alleged commission.

(2) Where an information has been laid within the six-month period it can be amended after the expiry of that period.

(3) An information can be amended after the expiry of the six-month period, even to allege a different offence or different offences provided that:

(i) the different offence or offences allege the 'same misdoing' as the original offence; and

(ii) the amendment can be made in the interests of justice.

ii. These two conditions require a little elucidation. The phrase 'same misdoing' appears in the judgment of McCullough J in Simpson v Roberts. In my view it should not be construed too narrowly. I understand it to mean that the new offence should arise out of the same (or substantially the same) facts as gave rise to the original offence."

34. In R v Ashton & Ors [2006] EWCA Crim 794, one of the defendants O'Reilly was charged on indictment for assault occasioning actual bodily harm. The judge had allowed a prosecution application to amend the indictment by adding a count of intentionally causing harassment or distress, contrary to section 4(a) of the Public Order Act 1986, a summary offence. The defendant pleaded guilty to the summary offence and the original charge was ordered to lie on file. When sentencing the defendant the judge sat as a District Judge, pursuant to section 66 of the Courts Act 2003. It was held there was no power under which the offence, contrary to section 4(a) of the 1986 Act could be added to the indictment. The limited statutory power to include counts of certain summary offences to an indictment, pursuant to section 40 of Criminal Justice Act 1988 (the CJA 1988), did not include the offence contrary to section 4(a) as it was not one of the offences specified in section 40(3). Further, more than 6 months had elapsed since the date of the events giving rise to allegation therefore the proceedings were time barred by section 127 of the MCA 1980. Although the judge had been permitted to sit as a District Judge, pursuant to section 66 of the 2003 Act, a District Judge would not have the power to deal with the defendant in relation to a prosecution of a summary offence brought outside the statutory time limit. Fulford J (as he then was) described the defects being wholly jurisdictional rather than procedural in nature.
35. Ground 1
36. The applicant's case
37. The applicant contends that section 127 of the MCA 1980 is decisive of this case. It does not permit an information to be laid outside the 6 month time limit. The Crown Court had no jurisdiction to hear the case. The R v Scunthorpe Justices ante concerned the amendment of an extant information pursuant to section 123 of the MCA 1980. This case involved the laying of new information, rather than the amendment of an extant information. It might have been possible for the prosecution to seek to amend the section 172 RTA 1988 information but this was not sought. The applicant's case is analogous with that of the defendant O'Reilly in R v Aston ante. In O'Reilly the prosecution had sought to circumvent the prohibition on summary offences being laid out of time by purporting to add a charge contrary to section 4(a) of the Public Order Act 1986 to the indictment, pursuant to section 40 of the CJA 1988. The offence contrary to section 4(a) like the offence contrary to section 5(2) of the CJA 1967 is not listed in section 40(3) of the CJA 1988 thus it was not permitted. This defect is said to be jurisdictional rather than procedural.
38. Further, even if the applicant's interpretation of section 127 of the MCA 1980 is correct, an allegation of perverting the course of justice could not legitimately be amended to one of wasting police time as the misdoing alleged by the charge of perverting the course of justice was an elaborate plot to conceal the guilt of the driving offence which is significantly different from the basis of the plea which the applicant put before the Crown Court on both appeals.
39. The respondent's case
40. It is accepted that a new information was laid in proceedings where the only live offences being a count on the indictment for an indictable only offence and an offence included in a schedule of related summary only offences. Before this court today it was suggested that this could be viewed as an amendment of an original information. It is submitted that R v Scunthorpe Justices ante continues to provide the analytical framework to determine whether the judge sitting as a District Judge had jurisdiction to hear the fresh information. Relying on R v Ashton & Ors, in particular the case of O'Reilly, it is said that before the court was a conviction for a summary only offence laid after the expiration of the 6 month time limit. In considering whether the new summary only charge was time barred by reason of section 127 of the MCA 1980, the court relied on the test set out in R v Scunthorpe Justices, notwithstanding the fact that the amendment was to account on an indictment as opposed to an information. Implicit in the judgment of Fulford J is that section 66 of the Courts Act 2003 would have provided an appropriate procedural vehicle to hear a new summary only information which did not offend against the 6 month time limit. It is said that this was the scenario faced by His Honour Judge Barber on 28 April 2011. In relying upon section 66, the judge employed practical procedural machinery to arrive at a just disposal of the case.
41. Further, the offences of wasting police time and perverting the course of justice fall within the same stable of offences. The factual substance underlying the fresh charge of wasting police time was substantially the same as the gravamen of the indictable offence albeit on a diminished basis. It was originally the prosecution case that the applicant had deliberately deceived the police, therefore the case became one of frustrating police efforts to fully investigate the offences. In principle the amendment of a serious charge to a lesser charge can, as a matter of fact, encompass what is effectively the same misconduct. Reliance is placed on the authority of R v Iqbal [2012] EWCA Crim 766, in particular the words of Gross LJ at [27.3]:

i. "In simple terms, the facts giving rise to the count of common assault constituted the first chapter of the facts originally relied upon for the section 18 count. Put another way, the facts relating to the common assault concerned a more limited part of the greater whole dealt with in the section 18 count. ….."

42. In addition, it is said the new offence was almost entirely consonant with the facts underlying the section 172 RTA 1988 offence which remained extant when the new charge was proffered. Whether viewed as an amendment to the perverting the course of justice charge or to the section 172 RTA charge, or to both, the misdoing was of the same fundamental character in that case against the applicant as an allegation that he deliberately sought to misdirect and frustrate the police before investigating the offences. The amendment was made pursuant to an agreement between the parties to finally dispose of the case, as such it is in the interests of justice. The fact that the new charge exposed the applicant to a much reduced maximum sentence militates in favour of the amendment being in those interests.
43. Conclusion – Ground 1
44. At the hearing on 28 April 2011 the Crown made no application to amend either the indictable offence before the court or the related summary offence pursuant to section 172 of the RTA 1988. The Crown elected to place before the court a new information. It did so knowing that such a course was outside the 6 month time limit specified by section 127 of the MCA 1980. Section 66 of the Courts Act 2003 provided the judge with a power to sit as a District Judge (Magistrates' Court). It did not confer a power to hear the prosecution, based upon an information brought outside the time limits specified by section 127 of the MCA 1980. The wording of section 127 is clear: the court shall not hear any information laid outside the 6 month time limit.
45. There is no provision under which the offence, pursuant to section 5(2) of the CJA 1967 could have been added to the indictment before the court. The power to permit the inclusion of a summary offence to an indictment is identified in section 40 of the CJA 1988. It applies only in limited circumstances, in particular the offence which it has sought to add must be specified within section 40(3). An offence pursuant to section 5(2) of the CJA 1967 does not come within the provisions of section 40 of the CJA 1988.
46. Reliance by the Crown upon the authorities of R v Scunthorpe Justice and R v Iqbal is misconceived. In the former an amendment was sought to an extant information, in the latter the offence to be added to the indictment came within the provisions of section 40 of the Criminal Justice Act 1988. Neither can apply to the facts of this case. The court in R v Ashton & Ors had to grapple with the same jurisdictional issue as this court. We accept the applicant's contention that the case of O'Reilly is analogous to the present case.
47. Before the Crown Court was an extant information, pursuant to section 172 of the RTA 1988. No application was sought to amend that information. In any event, it is doubtful whether any such application could have succeeded given the dissimilarity of the facts as between the section 172 allegation and the case as presented by the applicant.
48. By reason of the above, it is our view that the attempt by the Crown to lay new information was time barred by reason of the provisions of section 127 of the MCA 1980. Further, the particulars of the offence contained in the indictment alleged that the applicant:

i. "... between the 8 May 2010 and the 7 October 2010 with intent to pervert the course of public justice, did a series of acts which had a tendency to pervert the course of public justice in that he falsely completed a Section 172 Notice to avoid prosecution of himself or another, deliberately to deceive the police under caution, registered his Renault Megane, HY56 LXC, to another person when ownership and the keeper of the vehicle had not changed and instructed his accountant to amend his accounting records."

49. The underlining premise upon which this indictment was based was that the applicant was at all relevant times the true owner of the vehicle and was the driver of the same on 8 May 2010. In addressing the court the applicant's position was that there had been a legitimate sale of the vehicle to Jonathan Jones/Leon Hamlyn which eventually lead to a resale back to himself. It was never accepted by the applicant that he had falsely completed the section 172 notice, nor deliberately deceived the police in interview nor falsely registered the car to another person, when in fact he retained ownership of it. The position was made clear by the applicant at both his appearances at the Crown Court. At no time did he accept he had done anything to deceive the police.
50. In our view the misdoing of the applicant is fundamentally different to the misdoing alleged in the original indictable offence, thus no amendment of the indictable offence could have been permitted. Accordingly, we find that the court had no jurisdiction to allow the laying of the new information pursuant to section 5(2) of the Criminal Justice Act 1967. It follows that the conviction must be quashed. By reason of this order it is unnecessary to consider the further grounds of appeal.