England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM KINGSTON CROWN COURT
MR JUSTICE SAUNDERS
T20080458 & T20087344

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/04/2009

Lord Justice Thomas :

The factual background

1. On 25 July 2006 a rally took place in Hyde Park; complaints were made that banners and images depicting the leader of the LTTE (popularly known as the "Tamil Tigers") were displayed. The LTTE had become a proscribed organisation in March 2001. The appellant was discovered to have been involved in the organisation of the rally. On 21 June 2007 he was arrested and his house searched. On 22 June 2007 the Crown applied successfully for a further seven days detention; during that period of detention a significant amount of material in respect of the case against him was disclosed. On 27 June 2007 he was charged with assisting or arranging a meeting to support a proscribed organisation, namely the LTTE, contrary to s.12 of the Terrorism Act 2000. It is an "either way offence", triable in the Magistrates' Court or the Crown Court. Accordingly a plea before venue hearing took place at the City of Westminster Magistrates' Court under s.17A of the Magistrates' Courts Act 1980 on 28 June 2007. A further amount of advance information was served prior to the hearing. There is a dispute between the parties as to whether the appellant indicated a not guilty plea; it was agreed before the judge that that issue did not need to be resolved. He was released on bail.
2. S.117 of the Terrorism Act 2000 requires consent to prosecution in the case of most offences under the Act, including those under s.12. S.117(2) and (2A) provide:

"(2) Proceedings for an offence to which this section applies –

(a) shall not be instituted in England and Wales without the consent of the Director of Public Prosecutions.

………..

(2A) But if it appears to the Director of Public Prosecutions or ….. that an offence to which this section applies has been committed for a purpose wholly or partly connected with the affairs of a country other than the United Kingdom, his consent for the purposes of this section may be given only with the permission –

(a) in the case of the Director of Public Prosecutions, of the Attorney General

………."

In other words, the D.P.P. could not give his consent to prosecute the offence with which the appellant was charged without the permission of the Attorney General. The permission of the Attorney General was given on 3 August 2007. On 9 August 2007 the appellant was committed for trial at the Central Criminal Court. On 24 August 2007 a preliminary hearing took place at the Central Criminal Court. The trial is due to take place on 1 June 2009.

The issue

3. The appellant subsequently, on 13 January 2009, contended that as the plea before venue hearing took place before the permission of the Attorney General was given, the proceedings had not been properly instituted and were a nullity. It was contended on behalf of the Crown that in the light of s.25(2) of the Prosecution of Offences Act 1985 and decisions of this Court on that section and its predecessor, the permission of the Attorney General had been given at a proper time and the validity of the proceedings was not affected. Section 25 provides as follows:

"(1) This section applies to any enactment which prohibits the institution or carrying on of proceedings for any offence except –

(a) with the consent (however expressed) – of a Law Officer of the Crown or the Director;

(b) ……

and so applies whether or not there are other exceptions to the prohibition (and in particular whether or not the consent is an alternative to the consent of any other authority or person).

(2) An enactment to which this section applies –

(a) shall not prevent the arrest without warrant, or the issue or execution of a warrant for the arrest, of a person for any offence, or the remand in custody or on bail of a person charged with any offence; and

(b) shall be subject to any enactment concerning the apprehension or detention of children or young persons."

The decision of the trial judge

4. The issue came on for argument before Saunders J on 22 January 2009 at a preparatory hearing. In a judgment given on 26 January 2009 he held in the light of the decisions in R v Elliott (1985) 81 Cr. App. R. 115, R v Whale and Lockton [1991] Crim. L.R. 692 and R v Bull (1994) 99 Cr. App. R. 193 that the plea before venue hearing was a procedural step which could be taken before the permission of the Attorney General was obtained and the consent of the Director given. He concluded at paragraph 16 of his judgment:

"On the authorities which bind me, I am satisfied that the ambit of s.25 extends to procedural steps which do not involve the defendant answering the charge. Further, as an alternative basis, I do not accept that merely because mode of trial is dealt with and the opportunity to indicate a plea is given that that takes the hearing out of the category of a remand hearing and therefore outside the wording of s.25. Where a defendant indicates a not guilty plea or gives no indication of plea, that does not involve answering the charge in the terms of the authorities. He does answer the charge if he pleads guilty. The plea before venue procedure is a request to provide an indication to the Court which need not be complied with, and has no status unless it is a guilty plea. Is it significantly different from the Defence solicitor writing to the Court to indicate that there will be a plea of not guilty or that they are not ready to enter a plea? It is an anomaly that a different legal situation follows whether the plea is guilty or not guilty but that is caused by the wording of s.17A and I suspect that the terms of s.25 were not considered when that section was drafted."

The three earlier decisions

5. It is convenient first to refer to the three cases. All were before the plea before venue procedure was introduced

i) Elliott was charged with an offence under the Explosives Substances Act 1883 in respect of which it was provided by s.63 of the Administration of Justice Act 1982 that proceedings should not be instituted without the consent of the Attorney General. Elliott was charged on 22 April 1983 and consent was not given until 14 June 1983. It was contended on behalf of Elliott that the proceedings were instituted when he was charged and, as consent was not given, the proceedings were void. On the basis of the predecessor sub-section to s.25(2) (s.6(2) of the Prosecution of Offences Act 1979) which was in materially identical terms, the Crown contended that because the sub-section provided that it did not prevent "the remand in custody or on bail of a person charged with any offence", it was plainly envisaged that the absent of consent did not prevent the charging of a person. Stephen Brown LJ giving the judgment of the court concluded:

"In this case, the Court has considered with care the submissions made succinctly and interestingly by Mr Milford [counsel for Elliott] but it has come to the conclusion that section 63 of the Administration of Justice Act 1982 should be interpreted as meaning that instituting proceedings relates to the time when a person comes to court to answer the charge. Accordingly the provision that proceedings for a crime will not be instituted "except by or with the consent of the Attorney-General" must mean the time when he attends at the Magistrates' court to answer the charge. To hold otherwise would be to overlook and to ignore the provisions of section 6 of the Prosecution of Offences Act 1979."

ii) In Whale and Lockton, the defendants were arrested on 21 February 1989. They were charged on 25 February 1989 with offences under s.4 of the Explosives Substances Act 1883. S.7 of that Act (as substituted by s.63 of the Administration of Justice Act 1982) provided that proceedings should not be instituted without the consent of the Attorney General. On 9 March 1989, Whale applied for bail at the Magistrates' Court. He was remanded on bail on 10 March 1989 and the case was adjourned to 23 March 1989, as the consent of the Attorney General had not yet been given. On 23 March 1989, Lockton was further remanded in custody for 7 days and Whale remanded on bail until 20 April 1989. The consent of the Attorney General was given on 29 March 1989 and Lockton remanded for a further 7 days on 30 March 1989. He was periodically remanded thereafter until the committal proceedings came on for hearing on 11 May 1989. Whale and Lockton contended that consent should have been obtained before the first court hearing. It was also argued that, as a committal hearing was fixed for 23 March 1989, the process of seeking to vacate that date was part of the proceedings which therefore must have been instituted before the consent of the Attorney General was given. The court, in holding that the argument failed, referred to Elliott and continued:

"One may be assisted by the court's description for purposes of that case [Elliott] of the stage at which proceedings were to be regarded as having been instituted. It was said that proceedings are instituted at the time when a person comes to court "to answer the charge". In our judgment, that reference was to the stage at which the case proceeded beyond the formalities of the charging of the offender and such ensuing remands as in fact occurred.

The proceedings in the present case under s.4 of the [Explosives Substances] Act 1883 were not instituted until following remands in custody or on bail they were arraigned on 11 May 1989 for purposes of committal proceedings. By force of s.25(2) of the 1985 Act, the remands were expressly excepted from the effect of the 1883 Act as amended. Those remands were expressly regarded as having finally become spent when the appellants appeared on 11 May for the purposes of committal proceedings. It was then that, in the language of Stephen Brown LJ, they came to court to answer the charge. Only then, in our judgment, were the proceedings effectively instituted against them."

iii) In the third of the cases, Bull, the defendant Bull was arrested on 7 March 1990 and the relevant charges under s.38 of the Health and Safety at Work Act were served on Bull on 11 April 1990. That Act required that proceedings under the Act be instituted by an inspector or with the consent of the Director of Public Prosecutions. Bull was remanded on bail to appear at the Magistrates Court and successive remands occurred. On 30 July 1990, Bull was remanded to appear for an old style committal on 5 November 1990. The consent of the Director of Public Prosecutions was given on 26 October 1990. The committal hearing took place on 5 November 1990 when he was committed for trial. It was contended by Bull that proceedings had been instituted without the consent of the Attorney General. The Crown argued that the proceedings had been instituted by an inspector. That argument failed before the judge. The Crown also relied on the provisions of s.25(2). That argument succeeded before the trial judge and in this court. After court reviewing Elliott and Whale and Lockton, this court stated:

"We analyse the position in the present case as follows:

(1) When considering the question whether proceedings have been instituted by a specified person or by or with the consent of a specified person, it is essential to have regard to the particular procedure adopted in the given case. Criminal proceedings in the magistrates court are started either by arrest, charge and production in court, or by the laying of an information followed by summons or warrant (see Stones's Justices Manual (1993, vol. 1. 1-420). Thus the present case (where the former procedure was adopted) should be compared with the case of Ensign Ordnance Limited where a summons dated May 25, 1990, was issued (the indictment originally charged the appellant and Ensign Ordnance Limited but the company was removed from the indictment).

(2) Section 25 of the 1985 Act applies to all enactments which prohibit the institution or carrying on of proceedings for any offence except:

(a) with the consent of a Law Officer of the Crown or the Director of Public Prosecutions; or

(b) where the proceedings are instituted or carried on by or on behalf of a Law Officer of the Crown or the Director.

Section 38 of the 1974 Act is such an enactment.

(3) The effect of section 25(2) of the 1985 Act is that certain procedural steps can take place prior to the time when the required consent is obtained. These comprise "the arrest without warrant, or the issue or execution of a warrant for the arrest, of a person for any offence, or the remand in custody or on bail of a person charged with any offence". Thus section 25(2) of the 1985 Act permitted the remands of the appellant on bail (following charge) in the present case before the required consent was obtained.

(4) The decision of the trial judge was correct and consistent with the result arrived at in Elliott and Whale and Lockton."

The effect of the decisions in Elliott and Whale and Lockton

(i) The Contention of the Crown

6. Although the plea before venue hearing was not one of the processes set out in s.25(2) of the Prosecution of Offences Act 1985, it was contended that the wording of s.25 and the decisions in Elliott, Whale and Lockton and Bull (by which we are bound) compel us, or at least enable us, to decide that a plea before venue hearing can take place before permission is given without in any way contravening the statutory provision under s.117(2) of the Terrorism Act requiring the permission of the Attorney General.
7. In Elliott this court held that the provision requiring the consent of the Attorney General before instituting proceedings, should in the light of the predecessor section to s.25(2), be read as meaning that instituting proceedings relates to the time at which the person comes to court to answer the charge. In Whale and Lockton, this court interpreted this as a reference to the stage at which the case proceeded beyond the formalities of charging the offender and the ensuing remands.
8. The issue for the court, the Crown argued, was therefore whether at the plea before venue hearing the appellant came to court to answer the charge or the case proceeded beyond the formalities of charging the offender and the ensuing remands.

(ii) The plea before venue procedure

9. The plea before venue procedure applicable to the either way offence with which the appellant was charged, is set out in section 17A of the Magistrates' Courts Act 1980 which was inserted into that Act by the Criminal Procedure and Investigations Act 1996. This provision (as amended) which came into force on 4 July 1996 sets out a clear statutory code as to what is to happen at the hearing::

(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 below 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 (if 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."

10. Sections 17B-23 make further detailed provisions in respect of the plea before venue procedure. S.17C provides:

"A magistrates' court proceeding under section 17A or 17B above may adjourn the proceedings at any time, and on doing so on any occasion when the accused is present may remand the accused, and shall remand him if –

(a) on the occasion on which he first appeared, or was brought, before the court to answer to the information he was in custody or, having been released on bail, surrendered to the custody of the court; or

(b) he has been remanded at any time in the course of proceedings on the information;

and where the court remands the accused, the time fixed for the resumption of proceedings shall be that at which he is required to appear or be brought before the court in pursuance of the remand or would be required to be brought before the court but for section 128(3A) below."

11. It was contended on behalf of the Crown that the language and purpose of the statutory provisions for the plea before venue hearing does not involve the defendant coming to court to answer or meet the charge. The procedure for making a plea is permissive and not mandatory. The defendant can give an indication of plea, but is not required to do so. The purpose is to enable appropriate allocation as between the Crown and Magistrates Courts. There is no consideration of the strength of the evidence. The defendant only answers the charges when he appears for committal proceedings.

(iii) Our conclusion

12. We accept of course that the defendant is not obliged to indicate a plea, but it is a purpose of the plea before venue hearing to give a defendant who intends to plead guilty the opportunity of doing so at the earliest time. If an indication of a guilty plea is given, then under s.17(6) the indication is treated as if it had been a plea of guilty at a summary trial, with the court being able to sentence the defendant or to commit him for sentence. In Rafferty [1999] 1 Cr App R 235 this court considered the position of a defendant who pleaded guilty to an either way offence at the plea before venue hearing. The court stated at 237:

"In our view it is no longer appropriate for counsel to say, as is common at the Crown Court, that a defendant, who could have pleaded guilty at the plea before venue, has pleaded at the earliest opportunity if he only pleads to the indictment at the Crown Court. A defendant delaying his plea until that stage should not, unless there is a proper reason put before the Crown Court which satisfactorily explains the delay in making the plea, be entitled to the larger discount which has hitherto usually been given for making a plea at that stage in the Crown Court. The discount for plea made at the Crown Court should, in the absence of good cause being shown as to why it was delayed until the Crown Court, be less than if it had been made at the plea before venue, and therefore less than that which he has hitherto received."

13. In our view, a plea before venue hearing is a hearing with quite a different purpose to a remand hearing, as in a plea before venue hearing the defendant is expressly asked to indicate his plea. Using or failing to use that opportunity can have real consequences. Though he does not have to give an indication, any guilty plea made subsequent to that hearing may not be regarded as given at the first available opportunity. If he indicates a plea of guilty, then that is treated as a plea of guilty.
14. Under the law as it was at the time that Elliott and Whale and Lockton were decided, remands on bail and in custody were those parts of the proceedings that took place before the defendant was required to answer the charge; the decisions in those cases do not therefore add to the wording of s.25(2) which expressly refers to remands and charging. But assuming that the two decisions are to be taken as deciding that the statutory provisions are to be interpreted as meaning that proceedings are not instituted until the time at which a person comes to court to answer the charge, the plea before venue procedure is a procedure when the defendant comes to court, the charge is read to him and he can answer the charge by indicating his plea. If a defendant indicates that he wishes to plead guilty, then, as we have stated, the provision in s.17A (6) requires that indication to be treated as a guilty plea.
15. It seems to us that the defendant does, in the sense used in Elliott, come to answer the charge. Moreover, the statutory procedure set out in s.17A makes it clear that the case had proceeded beyond the formalities of charge and ensuing remands. It was suggested to us that in the event that a defendant charged under the Terrorism Act with an either way offence indicated a plea of guilty at the plea before venue hearing and the permission of the Attorney General had not been given, then it would be necessary to adjourn matters until the consent was forthcoming. However it is difficult to see in the light of s.17A(6), how it could be argued that the effect of the indication of the plea was that the hearing that day did not constitute the trial of the information which began at the time at which the hearing started. The trial of the information is the main part of the proceedings against a defendant and as the effect of an indication of a guilty plea is that "the proceedings constituted from the beginning of the summary trial of the information," an application for an adjournment to seek the permission of the Attorney General would plainly be too late, as the summary trial is deemed to have started.

The analysis of the statutory language: the approach in Bull

16. However, we do not consider it correct to apply the literal phraseology used in the judgments in Elliott and Whale and Lockton, as if the phraseology were a statutory provision. There is in Bull a clear analysis of the proper approach which seeks to apply the statutory language. Applying that analysis to the issue before us, there are two questions.

i) When were the proceedings instituted?

ii) If the permission of the Attorney General was not given before the proceedings were instituted, was the plea before venue hearing within the scope of s.25(2)?

(i) When were proceedings instituted?

17. The appellant was charged by the police on 27 June 2007 and brought before the Court on 28 June 2007. The charge would have been entered onto the Court record on 28 June 2007.
18. S.15(2) of the Prosecution of Offences Act 1985 provides that

"for the purposes of this Part, proceedings in relation to an offence are instituted … (c) where a person is charged with the offence after being taken into custody without a warrant, when he is informed of the particulars of charge."

The judge took the view that this provision was not directly relevant as the subsection was by its express terms relevant only to Part 1 of the Prosecution of Offences Act and s.25(2) is not in Part 1. It was also argued by the Crown that the phrase "the institution or carrying on of proceedings" in s.25(1) must have a wider meaning than the ordinary meaning of the institution of proceedings and signify something of substance happening in respect of the charge. We can see no warrant in the language for so concluding.

19. The word "institute" is commonly used to mean commence; that is its ordinary meaning and there is ample authority to support that view. However, as Saville LJ observed in DPP v Cottier [1996] 2 Cr App R 410 at 416, the answer to the question when proceedings are begun or instituted depends on the context in which the words are used and the purpose of the provision. There are many authorities including Price v Humphries [1958] 2 All ER 725, R v Brentwood Justices [1979] RTR 155 and Rockall v DEFRA [2007] EWCA 614 Admin but counsel could find none that were directly in point. In the context of the Terrorism Act 2000 it could well be that in the light of s.15(1) of the Prosecution of Offences Act 1985 and the ordinary meaning of the term institute, that proceedings were instituted when the appellant was charged. However, there can be no reason for contending, as a matter of language and context, that the time at which proceedings were instituted in respect of the appellant for the offence under the Terrorism Act 2000 was any later than the time at which the appellant was brought to court following the charging and when the charge was entered onto the court register. In any sense of the word, the proceedings must have been instituted when the charge was entered into the court register. Even if that were not correct, it would be impossible to contend that the statutory provisions in s.17A which set out detailed steps the court was to take during the course of a plea before venue hearing were not steps taken after proceedings had been instituted; the terms and effect of s.17(6) are, as we have set out, clear. S.17C also underlines the conclusion that proceedings have been instituted by the time of a plea before venue hearing, as the section refers to the adjourning and resumption of proceedings.
20. It follows, therefore, that the proceedings against the appellant were instituted before the Attorney General's permission was given to enable the Director to consent.

(ii) Was the plea before venue hearing within the scope of s.25(2)?

21. We therefore turn to the second question. The language of s.25 is clear. The purpose is to enable the arrest, charging and remand in custody or bail of a person against whom proceedings may have been commenced without the consent of the Attorney General or Director; it covers action that needs to be taken to apprehend the offender and detain him if there is not time to obtain permission. It does not in our judgment permit anything more to be done. Applying the analysis from Bull, it is clear that the decisions in Elliott and Whale and Lockton would have been the same.
22. If by reason of a wider reading of s.25(1) as contended by the Crown, something of substance was required to happen in the proceedings, a plea before venue is for the reasons we have already set out a hearing of substance.

Conclusion

23. The appeal is allowed as the permission of the Attorney General was not obtained before proceedings were instituted. We do not need to decide what consequences our decision has on proceedings begun without consent. In the present case, the Crown Court can reconstitute itself as a Magistrates' Court and hold a new plea before venue hearing. If the issue arises in other proceedings, it is desirable that the consequences be argued in a case where the decision on the issue will have practical significance.