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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 >> Canatar, R. v [2025] EWCA Crim 611 (31 January 2025)
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Cite as: [2025] EWCA Crim 611

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Neutral Citation Number: [2025] EWCA Crim 611
Case No 202302621

IN THE COURT OF APPEAL
CRIMINAL DIVISION

ON APPEAL FROM THE CROWN COURT AT WOOLWICH
(MR RECORDER SMITH) [T20230256]
[2025] EWCA Crim 297

Royal Courts of Justice
Strand, London
WC2A 2LL
31 January 2025

B e f o r e :

LORD JUSTICE LEWIS
MR JUSTICE ANDREW BAKER
MRS JUSTICE YIP DBE

____________________

REX
- v -
YASHAR LEON CANATAR

____________________

Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk
(Official Shorthand Writers to the Court)

____________________

HTML VERSION OF JUDGMENT (APPROVED)
____________________

Crown Copyright ©

    LORD JUSTICE LEWIS:

    Introduction

  1. This case raises again the question of the use of powers by the Crown Court to act as a District Judge in the Magistrates' Court pursuant to section 66 of the Courts Act 2003 in order to correct perceived failings in the way in which offences were initially charged. Similar problems were considered in detail by this court in R v Gould [2021] EWCA Crim 447, [2021] 2 Cr App R 7.
  2. On 6 July 2023, in the Crown Court at Woolwich, the applicant was sentenced by Mr Recorder Stephen Smith as follows. First, in respect of two offences which had been sent to the Crown Court for trial in circumstances described more fully below, and bearing the reference T20230256, he was sentenced to two years and there months' imprisonment for an offence of possession of a Class A drug (cocaine) with intent to supply to others. He was also sentenced to seven months' imprisonment for assault of an emergency worker, that sentence to be served consecutively. In addition, he was sentenced for three offences in respect of which he had been committed for sentence by the Magistrates' Court under the reference number S20220201. These were, first, four months' imprisonment for possession of a Class B drug (cannabis); secondly, nine months' imprisonment for possession of a Class A drug (crack cocaine), to be served concurrently; and thirdly, 12 months' imprisonment for an offence of dangerous driving, to be served consecutively. He was also disqualified from driving for 23 months. The total custodial sentence, therefore, was one of three years and ten months' imprisonment.
  3. The applicant was not sentenced for possession of a Class A drug (cocaine), for which he had also been committed by the Magistrates' Court for sentence under reference S20220201. The circumstances and the reasons for not sentencing him for simple possession, but instead convicting and sentencing him for possession with intent, give rise to the issues before this court.
  4. The applicant sought leave to appeal against his sentence. The Registrar was concerned with the way in which charges on indictment T20230256 had been sent to the Crown Court. Those charges had initially been presented to the Crown Court. The judge had then sat to exercise powers as a District Judge in the Magistrates' Court and he sent the two offences to the Crown Court for trial. As a result, the applicant also seeks an extension of time in which to apply for leave to appeal against his convictions for possession of cocaine with intent to supply and assault of an emergency worker. His applications have been referred to the full court by the Registrar.
  5. We grant the extension of time sought and we grant the application for leave to appeal against both conviction and sentence.
  6. The Background

  7. The underlying facts are straightforward. On 12 March 2021, at around 5.40 pm, the appellant (as he now is) was driving a BMW motor vehicle in Woolwich. Police officers in another vehicle indicated to him to stop, but he did not do so. Instead, he drove off. There followed a high speed chase through residential roads. The chase took place over a period of around ten minutes at speeds of up to 58 miles an hour.
  8. The appellant hit a bus stop and he was forced to come to a halt. Police officers surrounded the vehicle and the appellant got out of it. He picked up a metal bar from a nearby front garden and brandished it at Polic Constable Carr, who was scared and fell over. A police officer then attempted to taser the appellant, but this was to no effect. The appellant then jumped into the driver's seat of a police car and attempted to drive away. One of the officers dragged him out of that vehicle before he could make his escape.
  9. The appellant continued to resist arrest and was chased into nearby front gardens, where he took hold of a rock and an empty container. However, he was then tasered again and he fell to the ground. Police officers then handcuffed him and arrested him.
  10. After he had been detained, the appellant's vehicle was searched. A package was found in a compartment under the driver's seat. The package was examined and found to contain one clear package of cannabis of 3.31 grams, five plastic packages containing a total of 11 grams of cannabis, and one clear plastic package containing 13 wraps of cocaine. In the passenger footwell, a cigarette packet was found which contained a crack pipe and a single wrap of crack cocaine. The approximate street value of the cocaine found was £400. £300 in cash was also found. Two mobile phones were found: a Nokia "burner" phone and an iPhone. The content of the Nokia phone was ultimately downloaded and text messages relating to the supply of drugs were found.
  11. The procedural history is complex, but the material parts are as follows. The appellant was charged with and, on 23 June 2022, pleaded guilty in the Bromley Magistrates' Court to the following offences:
  12. (1) Possession of a Class A drug (cocaine);

    (2) Possession of a Class B drug (cannabis);

    (3) Possession of a Class A drug (crack cocaine); and

    (4) Dangerous driving.

  13. The drug offences, it should be noted, were offences of possession only, not of possession with intent to supply to others. The Magistrates' Court convicted the appellant of the four offences. They committed him to the Crown Court for sentence, pursuant to section 14 of the Sentencing Act 2000. That section applies where a person is convicted on summary trial in the Magistrates' Court of an offence or offences (as the appellant had been), and the court is of the opinion that the offence, or the combination of offences, was so serious that the Crown Court should deal with the offender. That committal had the reference number S20220201.
  14. On 14 July 2022, the matter came before His Honour Judge Miller in the Crown Court at Woolwich. The appellant attended on that occasion. He was not represented as, at that date, members of the Bar were not accepting instructions due to a dispute about the fees payable. The case was adjourned. It appears that at that hearing both His Honour Judge Miller and the prosecution considered that the charges that had been brought, and to which the appellant had pleaded guilty, did not adequately represent the seriousness of the offending.
  15. On about 25 July 2022, it appears that the prosecution indicated an intention to bring charges of possession of a Class A drug with intent to supply others, and assault of an emergency worker, namely PC Carr. Various hearings were held to give procedural directions for the filing of skeleton arguments by the prosecution and defence. Those skeleton arguments were ultimately filed.
  16. On 17 October 2022, the matter came before His Honour Judge Mann in the Crown Court at Woolwich. The appellant had not attended court and so was not present. His Honour Judge Mann considered whether it would be an abuse of process to proceed with the two charges as they arose out of substantially the same facts as gave rise to the offences in respect of which the appellant had already pleaded guilty and been convicted in the Magistrates' Court. He referred to the decision of this court in R v Antoine [2014] EWCA Crim 1971, [2015] 1 Cr App R 8. It seems that no reference was made to later case law such as R v Wangige [2020] EWCA Crim 1319, [2021] 1 Cr App R 6, which had considered Antoine. The skeleton arguments of the prosecution and the defence made no reference to either Antoine or Wangige, although they did refer to another case, R v Dwyer [2012] EWCA Crim 10. Judge Mann summarised his recollection of Antoine and invited the solicitor advocate representing the appellant to distinguish it. The solicitor advocate said that, given what she had just heard of the case, she would have difficulty in seeking to distinguish it. Judge Mann therefore decided that it would not be in an abuse of process to deal with the two new charges.
  17. In order to be able to proceed with the two new charges, Judge Mann first decided to exercise his power to sit as a District Judge in the Magistrates' Court, in accordance with section 66 of the Courts Act 2003. That section provides, so far as material:
  18. "(1) Every holder of a judicial office specified in subsection (2) has the powers of a justice of the peace who is a District Judge (Magistrates' Courts) in relation to —
    (a) criminal causes and matters.
    (2) The offices are —
    …
    (c) Circuit judge;
    (d) deputy Circuit judge;
    (e) recorder.
    …"
  19. His Honour Judge Mann then considered, in the absence of the appellant, whether the charges should be deal with in the Magistrates' Court or in the Crown Court. Section 17A of the Magistrates' Court Act 1980 ("the 1980 Act") provides, so far as material:
  20. "17A Initial procedure: accused to indicate intention as to plea.
    (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 14 … of the Sentencing Code …
    (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."
  21. His Honour Judge Mann did not comply with the provisions of section 17A of the 1980 Act. The appellant was not present in court. The judge did not explain to the appellant that he could indicate whether he would plead guilty or not guilty, and he therefore did not ask him whether he would plead guilty. Instead, the judge decided to proceed in the appellant's absence and to send the two charges to be tried in the Crown Court, exercising his powers under section 51 of the Crime and Disorder Act 1998. Having sent the charges to the Crown Court, His Honour Judge Mann, now exercising his powers as a Crown Court Judge, directed that not guilty pleas be entered on the appellant's behalf. The two charges were then listed under the reference T20230256.
  22. The case was listed for trial of the two charges (possession of cocaine with intent to supply and assault of an emergency worker) on 9 May 2023 at the Central Criminal Court. The appellant was not present as he had been arrested in respect of other matters on 8 May 2023. A bench warrant was issued. He was produced for trial on 10 May 2023. After a conference with counsel, he indicated that he would plead guilty on a basis of plea. In relation to the charge of possession of cocaine with intent to supply to others, the basis of plea said that he had been heavily reliant on drugs; that the drugs were in his possession; that some were for his own use and that the rest would have been sold to fund his drug habit. In relation to the assault of an emergency worker, the appellant said that because of his mental health and the fact that he was under the influence of cocaine, he believed that he was under attack from the police officers; but he accepted that the force he had used was not reasonable. The appellant was arraigned and pleaded guilty to both charges. The case was adjourned and sent back to the Crown Court at Woolwich for sentencing. The appellant was remanded in custody.
  23. On 6 July 2023, the matter came before Mr Recorder Stephen Smith. The Recorder was to deal with two sets of matters. The first was to sentence for the four offences committed for sentence by the Bromley Magistrates' Court under the reference S20220201. The second was to sentence the appellant for the two offences to which he had pleaded guilty at the Central Criminal Court under the reference T20230256.
  24. The first matter that caused the Recorder concern was that the appellant was to be sentenced for one offence of the simple possession of a Class A drug (cocaine) (committed for sentence by the Magistrates' Court), and one offence of possession of a Class A drug (cocaine) with intent to supply to others. It seems that the Recorder considered that they were essentially the same offence and that the appellant should not be sentenced twice for similar or the same offences. The Recorder therefore said:
  25. "I am going to sit as a District Judge, which means that I have the powers of the Magistrates' Court, and I am going to vacate your plea, Mr Canatar, in relation to possession of cocaine."
  26. The Recorder then proceeded to sentence the appellant for the two offences to which he had pleaded guilty in the Central Criminal Court, and for the other three offense for which he had been committed for sentence by the Magistrates' Court. He imposed the sentences described at paragraph 2 above.
  27. The Appeal against Conviction

  28. On behalf of the appellant, Miss McCauley-Slowe submitted that the convictions for the possession of a Class A drug with intent to supply to others and the assault of an emergency worker should be set aside. First, she submitted that His Honour Judge Mann had not complied with the requirements of section 17A of the 1980 Act when he decided to send the offences to the Crown Court for trial, and that therefore the matters were not properly before the Crown Court. Secondly, she submitted that nothing had changed between the first set of charges in the Magistrates' Court and the second set of charges, so that it was unfair and an abuse or oppressive for the appellant to have to face the second set of charges. She relies upon the decision in Wangige. Further, she submitted that it was wrong of the Recorder to have vacated the plea of guilty in relation to the offence of simple possession in order to enable the court to sentence the appellant for the more serious offence of possession with intent to supply to others.
  29. Mr Barry, on behalf of the Crown, accepted that the proceedings before His Honour Judge Mann should ordinarily have taken place in the presence of the appellant, and that the appellant was not present. He submitted that His Honour Judge Mann had effectively had two options. The first was to invite the Crown to initiate proceedings in the Magistrates' Court. The second was to use the powers conferred by section 66 of the 2003 Act. He submitted that that was what the judge did and that that was in the interests of justice and of the appellant. Further, he submitted that it was not an abuse to proceed with the further charges. First, in both Antoine and Wangige the individual offender had been sentenced before the charges were brought, which was not the position in the case with which we are concerned. The proceedings here had not been concluded. Secondly, the position was more akin to that in Antoine, as the appellant was the beneficiary of an error on the part of the prosecution. Although there was a period of time when the appellant thought that he would be sentenced only for the offence of simple possession, and a pre-sentence report had been prepared on that basis, he did know from about 14 July 2023 onwards that the Crown Court and the prosecution were concerned that the charges did not reflect the gravity of the offending.
  30. Mr Barry submitted that the question was whether or not Parliament intended the whole proceedings to be invalidated in the light of the error that had occurred. That would be the case if, first, the appellant had been deprived of a right to a jury trial (which is not the issue here); or secondly, if the appellant had suffered prejudice. He submitted that that did not apply here, as even though the appellant had been sentenced on the basis that he had only pleaded guilty in the Crown Court, and had received a ten per cent reduction, that could be corrected when dealing with the sentence on appeal. In fact, as Mr Barry realistically accepted, the sentence had already been served by the appellant and there would be no way of dealing with that prejudice.
  31. Discussion

  32. The decision of His Honour Judge Mann to exercise the powers of a District Judge in the Magistrates' Court pursuant to section 66 of the 2003 Act was legally flawed as he did not follow the procedure set out in section 17A of the 1980 Act. First, the appellant was not present when this procedure took place, as required by section 17A(2) of the 1980 Act. Second, the charges (including the new charge of assault of an emergency worker) and the possession of cocaine with intent to supply to others were not read to him, as required by section 17A(3). Third, the appellant was not asked to indicate whether he intended to plead guilty or not guilty if matters went to trial.
  33. As this court held in Gould the procedure in section 17A is mandatory and the failure to follow the procedure in this case renders what followed a nullity and liable to be quashed: see [102], [103], [106] and [144]. See also R v Weekes [2022] 2 Cr App R(S) 35. Here, the offences were different from those that had previously been charged in the Magistrates' Court. Here it was an assault of an emergency worker and possession of cocaine with intent to supply. The section 17A requirements had never been complied with in relation to those offences at any stage. Furthermore, that did cause prejudice to the appellant. He was ultimately sentenced on the basis that he had indicated his intention to plead guilty for the first time on the day of trial in the Crown Court, and had received a ten per cent reduction in his sentence. If the section 17 procedure had been followed, he would have been asked whether he intended to plead guilty to the offences when His Honour Judge Mann was sitting as a District Judge in the Magistrates' Court. An indication at that stage that he would plead guilty would have entitled him to a reduction of one third of the sentence in accordance with the relevant Sentencing Council guideline.
  34. Next, we consider whether it was an abuse of process for the prosecution to seek to prosecute the appellant for the possession of a Class A drug (cocaine) within intent to supply and assault of an emergency worker, when those offences – or in any event the drugs offence – arose from the same facts in respect of which the appellant had pleaded guilty to offences in the Magistrates' Court and had been committed to the Crown Court for sentence.
  35. The starting point is the statement of principle of Cockburn CJ in R v Elrington (1861) 1 B & S 688 that:
  36. "We must bear in mind the well-established principle of our criminal law that a series of charges shall not be preferred, and, whether a party accused of a minor offence is acquitted or convicted he shall not be charged again on the same set of facts."
  37. That principle has been followed in cases where a person has been convicted of one offence and has subsequently been charged with a more serious offence arising out of the same or substantially the same set of facts. Thus, in R v Beedie [1998] QB 356, a woman died in her rented flat from carbon monoxide poisoning. The landlord was convicted and sentenced (to a fine) for offences under the Health and Safety at Work Act 1974. Subsequently, following an inquest at which he made admissions, the landlord was prosecuted for manslaughter. The court, having considered the decision in DPP v Connelly [1964] AC 1254, held that the second proceedings (manslaughter) should be stayed. The manslaughter charges were based on substantially the same set of facts as the earlier prosecution and gave rise to an offence of greater gravity. It was an abuse of process to continue the second proceedings.
  38. The position was also considered in R v Phipps [2005] EWCA Crim 33. There, the accused had driven the wrong way down a dual carriageway whilst under the influence of alcohol and had collided with another vehicle. The victim was injured. The accused was charged and pleaded guilty to an offence of driving with excess alcohol and was sentenced to a fine of £300. He was subsequently prosecuted for dangerous driving in respect of the same incident. The court held that the second set of proceedings arose out of the same or substantially the same set of facts as the earlier proceedings and, as there were no special circumstances to justify the second prosecution, they should have been stayed as an abuse of process. The court expressed the principle in the following terms:
  39. "21. The authorities do not consider in detail what is meant by the same or substantially the same facts but, in our view, as Lord Pearce makes clear in the passage already quoted, they essentially mean that the Crown should not be permitted, save in special or exceptional circumstances, to bring a second set of proceedings arising out of the same incident as the first set of proceedings after the first set of proceedings has been concluded. The principle (which is in essence that identified in the civil law by Wigram CJ in Henderson v Henderson) is that the Crown should decide at the outset, or at the latest before the conclusion of the first set of proceedings, what charges it wishes to bring arising out of the same incident. Any other approach is unfairly oppressive to a defendant. It is for that reason that the burden is on the Crown to identify special or exceptional circumstances to justify such a course. Once the Crown has identified the charges it wishes to bring, it is a matter of case management how those charges are tried. Thus it is a matter of case management where and when the trial or trials should take place."
  40. A similar view was taken in Wangige. There, a driver of a vehicle struck and killed a pedestrian. The driver was charged with four offences: one concerned using a motor vehicle with defective equipment; a second was using a motor vehicle without a valid test certificate; the two other offences concerned failing to stop and failing to report an accident. The driver was not charged with other offences as the police officer who investigated the incident took the view that the evidence did not establish that the accused had been speeding. The driver was convicted and sentenced. Subsequently, a different expert gave an opinion that the driver was in fact driving at excessive speed. The driver was subsequently charged with causing death by dangerous driving. The court held that the proceedings arose out of the same or substantially the same set of facts as the earlier charge and so should have been stayed as an abuse of process.
  41. Similarly, in R v Dwyer [2012] EWCA Crim 10, the offender was charged with possession of Class A drugs with intent to supply. He admitted that he had been dealing drugs for a period of six months, and he was sentenced on that basis. He was subsequently prosecuted for conspiracy to supply Class A drugs. The court held that it was an abuse of process to bring a prosecution on the same or substantially the same set of facts.
  42. There is one case, that of Antoine, in which a different conclusion was reached. There, the offender was found in possession of a revolver and ammunition. He was charged with having a firearm without a licence. He pleaded guilty in the Magistrates' Court and was sentenced to four months' imprisonment. In fact, the prosecution considered that he should have been charged with possession of a prohibited firearm, which carried a minimum sentence of five years' imprisonment. The offender had expected to be subject to a lengthy sentence of imprisonment, as he had been heard to say after his arrest that he was "looking at a long time, ten years", because he had "got caught with a loaded gun". The court held that the second set of proceedings were not an abuse of process. On the facts, no one with responsibility for the prosecution addressed their minds to the appropriate charge and how the charge should be prosecuted. As a result, the offender "was charged with the wrong offence in the wrong court". These amounted to special circumstances and the prosecution was not therefore an abuse of process. The court distinguished the case on its facts from cases such as Beedie and Dwyer.
  43. One question is whether the present case is distinguishable on the basis that the other cases involved situations where an offender had been convicted and sentenced, and then the second prosecution was brought. Here, of course, the appellant had not been sentenced at the time that the second set of offences were brought. On analysis, however, the problem in the present case is more complicated than that. The appellant had pleaded guilty to the offence of possession of cocaine in the Magistrates' Court, and thus he had been convicted of that offence. He had then been committed to the Crown Court for sentence for that offence and for three other offences. He was sentenced for the other three offences, but not for the fourth (possession of cocaine). The reason why he was not sentenced for that offence was because the Recorder directed that his guilty plea be vacated. The Recorder did that to enable him to deal with a different offence (possession of cocaine with intent to supply), when that matter was not properly before the Crown Court because the section 17A procedure had not been followed.
  44. The Recorder here sought to exercise the powers of a District Judge in the Magistrates' Court conferred on him under section 66 of the 2003 Act. The Magistrates' Court, however, had no further powers in respect of the matters that they had committed to the Crown Court for sentence; they were functus. The Recorder could not have exercised the powers of a District Judge to order that the plea be vacated, as a District Judge no longer had such powers.
  45. We also doubt that it would have been appropriate for the Crown Court to direct that the guilty plea offered in the Magistrates' Court be vacated on the particular and unusual facts of this case. It is correct that a Magistrates' Court could accept a change of plea at any time up to the sentence: see S (An Infant) v Recorder of Manchester [1971] AC 481. The question arises as to whether the Crown Court, seized with a committal for sentence, can order that a guilty plea entered in the Magistrates' Court be vacated, with the implication that the conviction is also in some way set aside. We recognise that this court has accepted that there may be circumstances where the Crown Court would have a power to direct that a plea be vacated, even if the offender had not sought (or even opposed) that course: see Gould at [112]. The court in that case emphasised, however, that such a power should only be used sparingly, where the interests of justice require it, and not in order to enable the prosecution to avoid the consequences of its own mistakes: see Gould at [112], where it was said that "it is unlikely to be appropriately used in order to rescue the prosecution from a muddle of their own making".
  46. In the particular and unusual circumstances of the present case, we do not consider that it would have been appropriate for the Crown Court to vacate the plea leading to conviction in the Magistrates' Court for simple possession in order to enable it to sentence for a different offence, namely possession with intent to supply, when that other offence was not even properly before the Crown Court. Nor do we consider that the reference to the prosecution being willing to withdraw the charge of simple possession assists. There was no charge of simple possession of cocaine before the Crown Court. That charge had already been dealt with in the Magistrates' Court and the appellant had been convicted.
  47. The correct legal position, therefore, is that there was before the Crown Court a committal for sentence on an offence of possession of cocaine. The attempts by the Recorder to undo that conviction (by vacating the guilty plea) are a nullity. The Crown Court, therefore, will need to sentence the appellant for that offence. The Crown Court could not also sentence for an offence of possession of cocaine with intent to supply in respect of the same facts, as that would violate the principle recognised in Elrington. An attempt to prosecute such an offence would in the circumstances of this case be an abuse of process.
  48. We consider that the position in relation to the offence of assault of an emergency worker would be different. That was not properly before the Crown Court, as the procedure in section 17A of the 1980 Act had not been followed. There would, we consider, have been no difficulty in that additional matter being the subject of further proceedings, if they had been properly instituted. The offence did not arise from the same or substantially similar facts to those which formed the subject of the charges that had been brought before the Magistrates' Court. We consider that the offence of assault of an emergency worker is a materially different offence, arising from a different part of the incident. It involved an assault on a policeman. It did not directly arise out of the offence of dangerous driving, or the possession of Class A or Class B drugs, save that it was the suspicion of possession of those drugs that caused the police to try to arrest the appellant in the first place. We recognise that there are cases which refer to the desirability of the prosecution bringing all the charges arising out of an incident at the same time, and we agree that it is usually desirable. However, it would not be an abuse of process and would not undermine public confidence in the criminal justice system or offend any sense of justice or propriety had the offence of assault of an emergency worker been the subject of separate proceedings.
  49. Standing back from the details, therefore, the position in this particular case is that it would have been an abuse of process for the prosecution to institute proceedings for an offence of possession of a Class A drug with intent to supply to others in respect of the events that occurred on 12 March 2021, given that the appellant had been convicted of an offence of possession of cocaine on the same facts and had been committed to the Crown Court for sentence and should already have been sentenced for that matter. It would not have been an abuse of process to proceed with an offence of assault of an emergency worker, but the proper procedure for such an offence to be sent to the Crown Court was not followed, and what has occurred since in relation to it is a nullity.
  50. The question then is: what should we do in the circumstances of this case? One option is to adopt the procedure which occurred in Gould, as described in [121] and [122]. We could reconstitute ourselves as a Divisional Court, we could quash the decision of His Honour Judge Mann to send the two charges to the Crown Court, and we could quash the convictions and the sentences that followed because they were all nullities.
  51. Mr Barry, sensibly and realistically, submitted that it would not be sensible to do that, because it was unlikely in the extreme that the prosecution would bring proceedings in relation to the assault of an emergency worker, still less the possession of cocaine with intent to supply to others, given that the appellant has in fact already spent a substantial period of time in prison for those offences.
  52. In those circumstances, we consider that the appropriate course of action in relation to those two offences is to allow the appeal against conviction for the offences of assault of an emergency worker and possession of a Class A drug (cocaine) with intent to supply to others. We therefore quash the convictions for each of those two offences, and we quash the sentences imposed on both of those offences.
  53. There is a different problem in relation to the offence of simple possession of cocaine which was committed for sentence to the Crown Court. As we have said, the Recorder should not have sought to use powers to sit as a District Judge in the Magistrates' Court to order the plea to be vacated, because the Magistrates' Court was functus.
  54. We consider that the appropriate course of action is to do that which was done in Gould (as described at [121] and [122]). We reconstitute ourselves as a Divisional Court. We dispense with the need to serve a judicial review claim form and an acknowledgement of service. We abridge all necessary time limits. We grant leave to apply for judicial review of the decision of Mr Recorder Smith, sitting as a District Judge in the Magistrates' Court, directing that the appellant's plea of guilty to the offence of possession of a Class A drug (cocaine) be vacated. We quash that decision. The Crown Court will therefore have before it, and will need to determine, the committal for sentence for the offence of simple possession.
  55. Shortly, I shall ask Yip J, a member of this Divisional Court and the Court of Appeal Criminal Division, to sit as a Crown Court Judge, to sentence the appellant in relation to that matter. We have carefully checked with both counsel that all relevant procedural rules governing the sentence that Yip J has indicated that she proposes to impose have been complied with.
  56. The Appeal against Sentence

  57. We turn next to the appeal against sentence for those offences which were committed for sentence to the Crown Court. The appellant was aged 39 at the date of sentence. He has 12 convictions for 16 offences. Most relevantly, he has a conviction for possession of a Class A drug (cocaine) in March 2008, for which he received a conditional discharge. The sentencing judge also had a pre-sentence report before him.
  58. In terms of the dangerous driving, the sentencing judge considered that it was a category A1 offence within the relevant Sentencing Council guidelines. It was culpability A as it involved a deliberate decision to ignore the rules of the road and it involved a sustained chase. In terms of herm, it was category 1 as there was damage to property. The sentencing judge said that the appropriate sentence would be one year and six months' imprisonment, before any reduction for the guilty pleas. As the appellant had pleaded guilty in the Magistrates' Court, the reduction was one third, and the appropriate sentence was 12 months' imprisonment. He also disqualified the appellant from driving for 23 months.
  59. In relation to the offence of possession of crack cocaine, the sentencing judge noted that the sentencing range was up to 51 weeks. He regarded the previous offence to be an aggravating factor. He considered that the appropriate sentence would be 52 weeks, before the one third reduction to reflect the guilty plea in the Magistrates' Court. That, he said, would result in a sentence of eight months' imprisonment, to be served concurrently with the other sentences. In relation to the offence of possession of a Class B drug (cannabis), the range went up to 26 weeks. The sentencing judge did not increase that to reflect any aggravating feature. He imposed a sentence of four months (26 weeks, reduced by one third, to reflect the guilty plea). That, too, was to be served concurrently.
  60. Miss McCauley-Slowe submits that the sentences for the possession of crack cocaine and cannabis were too high. In relation to the dangerous driving, she submits that the starting point of 15 months was too high and that 12 months would have been appropriate. She also relies on the principle of totality.
  61. In relation to the possession of crack cocaine, the starting point in the guidelines is a band C fine, with a range from a band A fine up to 51 weeks' custody. There was one wrap of crack cocaine. The offence was aggravated by the previous conviction for possession of a Class A drug. In our judgment, a sentence of 52 weeks' custody, before any reduction for the guilty plea, which was just outside the guidelines, was manifestly excessive. A sentence of four months' imprisonment – that is six months, reduced by one third to reflect the early guilty plea – would be appropriate.
  62. In relation to the possession of a Class B drug (cannabis), the starting point is a band B fine, with a range from a discharge to 26 weeks' custody. There were about 14 grams of cannabis. A sentence in the region of two months' custody – that is, three months reduced by one third to reflect the early guilty plea – is appropriate. To reflect totality, those sentences will be concurrent with each other, but consecutive to the sentence for the dangerous driving.
  63. In relation to the dangerous driving, the sentencing judge was correct to categorise it as a category A1 offence. The culpability was high. There was a deliberate decision to ignore the rules of the road and disregard for the lives of others. The dangerous driving was prolonged. It involved driving at high speed (up to 58 miles an hour) through residential streets, for a period of ten minutes. The appellant deliberately drove in that way to escape from police who had indicated that he should stop. It was category 1 harm, as he crashed into a bus stop and damaged property. The starting point under the guidelines is 18 months' imprisonment, with a range of 12 months to two years. We see no real aggravating or mitigating features. A sentence of 18 months, before the reduction for the guilty plea, is appropriate. That will be reduced by one third to reflect the guilty plea, to 12 months' imprisonment. That will be consecutive to the other two sentences to which we have referred. It is a separate offence. We agree therefore with the sentencing judge's imposition of a sentence of 12 months' imprisonment for the offence of dangerous driving. The total sentence therefore is 16 months' imprisonment, which reflects the total offending forming the subject matter of these three offences.
  64. The appellant had been subject to a qualifying curfew and should be credited with having served the equivalent of eight days of that sentence. That results in a total sentence of 16 months' imprisonment (less eight days).
  65. There is a mandatory disqualification for 12 months under section 34 of the Road Traffic (Offenders) Act 1988. We increase that by a disqualification of six months (half the period of the sentence imposed for the dangerous driving offence) under section 35A of the 1988 Act. We consider it appropriate to make a further increase for a further period of two months under section 35B, representing one half of the sentences to be served for the other offence. The total period of disqualification will therefore be 20 months (not 23 months), and we order that an extended driving test be taken.
  66. In summary, therefore, we allow the appeals against conviction. We set aside the convictions and the sentence in relation to the offences of assault of an emergency worker and possession of a Class A drug (cocaine) with intent to supply.
  67. In relation to the dangerous driving, the sentence of 12 months' imprisonment remains unaltered. The period of disqualification will be 20 months, as described, and we order an extended driving test be taken.
  68. We quash the sentence of eight months' imprisonment for the possession of crack cocaine and substitute a sentence of four months' imprisonment.
  69. We quash the sentence of four months' imprisonment for the possession of cannabis and substitute a sentence of two months' imprisonment. Those two sentences are to be served concurrently with each other, but consecutively to the sentence for the driving offence.
  70. I will, therefore, invite Yip J to reconstitute herself as a Judge of the Crown Court and to conduct the sentencing of the appellant in relation to the remaining part of the offences that were committed for sentence. We note that both Miss McCauley-Slowe and Mr Barry agree that that is the fair, just and proportionate way to proceed, both in the interests of the appellant and in the wider public interest in bringing this difficult matter to a conclusion.
  71. MRS JUSTICE YIP:

  72. As a result of the decisions taken by the Court of Appeal and the Divisional Court this afternoon, Mr Canatar falls to be sentenced for the offence of possession of Class A drugs (cocaine) to which he pleaded guilty in Bromley Magistrates' Court on 23 June 2022 and was committed to the Crown Court for sentence.
  73. Mr Canatar is not present today. He has waived his right to attend the hearing of his appeal, being on notice of it. He is legally represented by Miss McCauley-Slowe who has invited the court to proceed today so that the proceedings can be finalised.
  74. I am satisfied that it is appropriate to proceed in Mr Canatar's absence, having regard to the provisions of the Criminal Procedure Rules 25.2.1 and 25.16.6.
  75. Given the course I propose to take, it is in the interests of justice that I pass sentence this afternoon, and this can appropriately be done in Mr Canatar's absence.
  76. Ordinarily, the facts of the offence are such that a short custodial sentence would have been appropriate. However, I have to take account of the unusual circumstances in which he falls to be sentenced today.
  77. Mr Canatar was sentenced on 6 March 2023 to a total period of three years and ten months' imprisonment. That sentence included a sentence of two years and three months' imprisonment for an offence of possession with intent to supply. That offence arose out of the same facts as the offence for which he now falls to be sentenced. The Court of Appeal has quashed his conviction for that offence, and the Divisional Court has reinstated, through the decision that it has reached, the conviction for simple possession.
  78. In the meantime, Mr Canatar has effectively served the custodial element of the original sentence. We are informed that he has been released on licence.
  79. In those circumstances it would be wholly unjust to sentence him for a further term of imprisonment today, or indeed to impose any further penalty.
  80. Accordingly, in the particular circumstances that now exist, for the offence of possession of cocaine, to which Mr Canatar pleaded guilty on 23 June 2022, there shall be no separate penalty.

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