1.
We have before us three applications by the Director of Public Prosecutions for
Judicial review of the decisions of Magistrates’ Courts not to commit
defendants to the Crown Court for sentence. In each case the defendant
indicated that he would plead guilty, and the main issue in each case is the
approach which a Magistrates’ Court should adopt in that situation. We
heard all three applications together, and it is convenient to look first at
the situation overall before turning to the facts of the individual cases.
2.
There are three types of criminal offence which come before Magistrates’
Courts - those which can only be tried summarily in the Magistrates’
Court, those which can only be tried on indictment in the Crown Court and a
middle band of offences which can be tried either in the Magistrates’
Court or in the Crown Court, commonly known as offences triable either way. We
are at present concerned only with offences triable either way where the
accused is prepared to plead guilty in the Magistrates’ Court.
3. Until
the 1st October 1997 the procedure which had to be adopted in
Magistrates’ Courts when dealing with offences triable either way was
that set out in sections 18 and 19 of the Magistrates’ Courts Act 1980
which, for present purposes, can be summarised as follows -
5. In
order to assist magistrates to decide whether or not to commit either way
offences for trial in the crown court National Mode of Trial Guidelines were
published, and the 1995 edition starts with some general observations. It then
goes on to deal with specific types of offence. The general observations are
worth setting out in full. They read :-
6. In
the light of those last few words it is worth emphasising that for the purposes
of a decision pursuant to section 19(1) the court was not informed of any
previous convictions of the accused (see
R
v Colchester Justice ex p. North Essex Building Co Ltd
(1971) 1 WLR 1109), and had to assume that the prosecution version of the facts
was correct (see general observation (b) above). The decision had to be made
before the plea was entered, although no doubt the representations made by or
on behalf of the accused often contained some indication of what the plea would
be. Once the court made its decision pursuant to section 19(1) it was not
allowed to reconsider that decision (
R
v Brentwood Justices ex p Nicholls
(1992) 2 QB 598) but it could commit the accused to the crown court for
sentence pursuant to section 38 of the 1980 Act if it was of the opinion -
8. In
my judgment that demonstrates conclusively that all relevant aspects of
character and antecedents can be taken into consideration before a decision is
made whether or not commit for sentence, and indeed that must be so because
unless it fetters its own discretion the Magistrates’ Court retains power
to commit for sentence until it pronounces sentence itself. Nothing in section
38, or elsewhere in the 1980 Act suggests otherwise. Our attention was
helpfully drawn by Mr Supperstone to the decision of this court in
North
Sefton Magistrates ex parte Marsh
(1995) 16 Cr App R (Sentencing) 401 where at page 406 Steyn L.J. rejected an
argument as to the proper construction of section 38. In my judgment the
argument then being advanced was wholly different to the argument which I
consider to be correct.
9. If
the question of whether or not to commit for sentence remains a live issue at
the end of the hearing then, in my judgment, at that stage the court should
seek assistance from the prosecution and from the accused or his representative
in relation to that issue. For the reasons set out above I can see no
objection to that course.
10. Even
though an accused indicates a plea of guilty there may be a dispute as to the
facts which must be resolved before sentence can be passed, and which can only
be resolved if evidence is called as envisaged in
R
v Newton
(1982)
77 Cr. App R 13. If the Magistrates’ Court comes to the conclusion that
however that dispute is resolved it will have adequate powers of sentence then
of course no problem will arise. The magistrates will simply proceed with the
Newton
hearing. Similarly if, whatever the outcome the Magistrates’ Court is of
the opinion that the case will have to be committed to the Crown Court for
sentence it is clearly preferable to leave the Crown Court to conduct the
Newton
hearing. But if the decision as to whether or not to commit for sentence turns
or may turn, on the outcome of the
Newton
hearing then, despite Mr Carter-Manning’s persuasive submissions to the
contrary, I am satisfied that the Magistrates’ Court should proceed to
conduct the
Newton
hearing. As Mr Supperstone pointed out, it really has no option, because it
can only commit for sentence if it is of the opinion that the offence was (not
may have been) so serious that greater punishment should be inflicted for it
than the court has power to impose - see section 38(2). The court cannot be of
that opinion if the accused has put forward a version of the facts which may be
accepted, and which if accepted would lead to a different conclusion in
relation to the seriousness of the offence. Obviously if a Magistrates’
Court does conduct a
Newton
hearing and then commits to the Crown Court it must in some way record its
findings for the benefit of the Crown Court, and it may be that the accused
will seek to challenge those findings in the Crown Court. I would not expect
him to be allowed to do so unless he could point to some significant
development - such as the discovery of important further evidence - having
occurred since the Magistrates’ Court reached its conclusion.
11. Since
we concluded the hearing of this case our attention has been drawn by counsel to
Bussey
v Suffolk Constabulary
, BAILII: [1998] EWHC Admin 485 ,
a case decided by another division of this court on 5th May 1998. In that case
the Magistrates’ Court proceeded to sentence without conducting any
hearing to decide whether the prosecution version of the facts or the
accused’s version was correct. For the purpose of sentence the
accused’s version was accepted. The accused then appealed against
sentence to the Crown Court, which decided to re-consider the factual issue and
resolved it in favour of the prosecution. This court held that the Crown Court
was entitled to do as it did, because it was not bound by any finding of fact
in the Magistrates’ Court which limited its powers of sentence. That we
accept, but the principles which apply in relation to the appellate
jurisdiction of the Crown Court do not assist in relation to how, when
exercising its ordinary first instance jurisdiction a Magistrates’ Court
should proceed.
12. A
point which was considered when submissions were made to us was the
undesirability of requiring vulnerable witnesses, such as those sexually abused
and children, to give evidence on more than one occasion, and the fact that
video equipment is often available only in a Crown Court. That I recognise,
but in the face of statutory wording which in my judgment is clear a desire to
protect vulnerable witnesses cannot justify a decision of a Magistrates’
Court to send to the Crown Court a case where if the defence version of the
facts is accepted the Magistrates’ Court’s own powers of sentence
will suffice.
13. Mr
Carter-Manning urged us to indicate that in certain serious cases it would be
appropriate for a Magistrates’ Court to commit for sentence even though
the court might consider its own sentencing powers to be adequate simply
because the case was of a type which ought to be dealt with at a higher level.
Personally I am sympathetic to this argument which, where a plea of guilty has
been entered, would keep in play the same criteria which section 19(3) requires
the court to consider where an accused indicates that he proposes to contest
his guilt. But in my judgment the clear words of section 38(1) do not leave
room for the course which Mr Carter-Manning proposes. A Magistrates’
Court only has power to commit for sentence if it is of the opinion that the
sentence should be greater than it has power to impose.
14. Before
I turn to look at the facts of the three cases which we have before us it is
worth emphasising that this court will only interfere with sentences imposed
by a Magistrates’ Court if they are “truly astonishing” and in
R
v Northampton Magistrates’ Court ex parte Commissioners of Customs &
Excise
(1994) 158 JP 1083 that approach was said to apply also to a challenge to a
decision in relation to venue. It may be no more than a way of giving emphasis
to the familiar test of irrationality, and certainly if the Magistrates’
Court fails to have regard to a material consideration this court can intervene
(see
R
v Flax Bourton Magistrates ex parte Customs & Excise
(1996) 160 JP 481), but the point being made in both cases, and which I readily
accept, is that this court will not lightly interfere.
15. On
26th February 1998 John Barratt took and drove away a Rover 820 motor car worth
£6000 without the consent of the owner. In the early hours of the next
morning that vehicle was used to ram raid commercial premises owned by Barry
King Sales. It was driven through the doors. It maybe that John Barratt was
not driving at the time, but he was there and entered the premises. That set
off a smoke alarm and the burglars left without stealing anything. Soon
afterwards police officers saw the stolen vehicle being driven by Barratt and
gave chase. Barratt drove very dangerously. He travelled at up to 90 miles an
hour in a residential area subject to a 30 mph speed limit, and drove on the
wrong side of the road, through red lights, and contravened “No
Entry” signs. He covered 7.2 miles in about 8 minutes, so his average
speed was nearly 60 mph. He was caught only because eventually when attempting
to drive between two concrete pillars he hit one of them. He and his passenger
then ran off but were apprehended. He was a disqualified driver and he was of
course uninsured. Breath tests showed 109 milligrams of alcohol in 100
millilitres of breath, nearly three times the legal limit. He had previous
convictions of a relatively minor nature, but was on bail at the time in
respect of six other matters including burglary, receiving stolen goods and one
other vehicle-related crime. He had been granted bail on 25th February, that
is to say the day before these offences began.
16. Barratt
was charged with burglary and with aggravated vehicle taking, both offences
being triable either way. On 13th March 1998 at Warley Magistrates’
Court he indicated that he would plead guilty. The prosecution then summarised
the facts but omitted to mention that at the material time Barratt was on bail.
The prosecutor gave the bench information as to Barratt’s previous
convictions. The solicitor for the defence then submitted that the
Court’s powers were adequate, and the two magistrates retired to consider
that submission. It is clear from the affidavit of one of them, Ms Johnson
that they considered the submission with care, and they came to the conclusion
that the offences could be dealt with in the Magistrates’ Court. The
prosecutor then sought a short adjournment to consider the possibility of
applying to this court. That was granted, and in the afternoon the case was
restored to the list before a differently constituted bench. The prosecutor
then sought a further adjournment, and invited the attention of the court to
the decision of the Court of Appeal Criminal Division in
R
v Hunter
(1994) 15 Cr App R (Sentencing) 530. The court ordered a pre-sentence report
and adjourned the case for two weeks. Before that period had expired the
applicant before us had obtained leave to move for judicial review and an order
had been made staying all further proceedings pending the decision of this court.
17. Mr
Carter-Manning submits that the decision taken by the Magistrates’ Court
on 13th March 1998 not to commit to the Crown Court for sentence was truly
astonishing. He submits that :-
18. Mr
Supperstone valiantly attempted to support the magistrates’ reasons for
concluding otherwise, which include a suggestion that the ram-raiding offence
was mitigated by the fact that Barratt was drunk at the time. Certainly there
were some mitigating features. Barratt did plead guilty, and was fully
co-operative after his arrest. In the ram-raid no goods were stolen, and
mercifully neither that offence nor the dangerous driving caused any personal
injury, but in my judgment the decision of the justices was truly astonishing.
As Mr Supperstone pointed out the problem which he faced is not so great in
relation to the aggravated vehicle taking because the maximum penalty is two
years, and he drew our attention to four authorities where sentences imposed
were twelve months imprisonment or less, but, as Mr Carter-Manning submitted,
it seems probable that if the justices had considered the National Mode of
Trial Guidelines, and had taken properly into account the fact that they were
dealing with two serious offences and not one, they might well have been
assisted to arrive at a different conclusion.
19. In
the Warley Magistrates’ Court case I would grant the relief sought, that
is to say I would quash the decision of 13th March 1995 and order the justices
to commit Barratt to the Crown Court for sentence pursuant to section 38 of the
1980 Act.
20. Richard
Marlin was finance director of Kerbsave Limited, which also traded as Personnel
Plus, a supplier of temporary agency staff. The agency staff completed a
pre-printed time sheet showing the hours they worked, and the sheets were
signed by an authorised person in the business which employed them. TNT
Express was one such employer, and TNT discovered that they had been presented
with inflated invoices backed by false time sheets. An enquiry revealed that
Marlin was responsible, and over a period of 9 months from February to October
1997 he had created the false documents to cover cheques which he had drawn
from Kerbsave’s account. In order to make the withdrawals he had to
forge the signature of a fellow director. He also made false entries in the
Kerbsave ledger to indicate that the cheques were payments to the Inland
Revenue. During the course of police enquiries it emerged that Marlin had also
claimed £2449.93 in bonus payments to which he was not entitled. He was
charged with five counts of theft and seventeen counts of false accounting, all
triable either way. He indicated pleas of guilty to twenty one of the twenty
two offences, and the remaining offence of theft was withdrawn. He therefore
admitted four counts of theft totalling £8345-36, and in addition charges
covering the false bonus claims. The total amount covered by the indictment
was £10,795.29. No other offences were taken into consideration, although
there was, we are told, evidence to suggest a similar fraud was being carried
out in relation to companies other than TNT. As Personnel Plus used a
factoring company to collect payments from its customers that company claimed
compensation for its losses in the sum of £15,067.02.
21. When
the matter came before the Magistrates’ Court on 16th February 1998
Marlin indicated that he would plead and the prosecution submitted that the
case should be committed to the Crown Court for sentence because these offences
represented a significant breach of trust committed by a person in a position
of authority in a disguised and sophisticated manner involving considerable
sums of money. Counsel for the defendant submitted that the method was not
sophisticated, that the period of offending was relatively short, that it
occurred when the defendant had financial problems, that he had a good
character, and that the case could be distinguished from the guideline case of
Barrick
(1985) 7 Cr App R 142. The court was asked to consider two other cases
Mason
(1986) 8 Cr App R (Sentencing) 226 and
Patel
(1986) 8 Cr App R (Sentencing) 67, in which sentences of 9 and 12 months
imprisonment were imposed where similar sums were involved. It is clear from
the affidavit of the Chairman of the bench that the court also took particular
note of the recent decision of the Court of Appeal Criminal Division in
Clark
[1998] Crim LR 227 as indicating that theft of sums less than £17,500 would
merit imprisonment ranging from short periods up to 21 months. Somewhat
surprisingly the magistrates accepted that the offences had not been committed
in a particularly sophisticated manner, and rightly they recognised that the
defendant must receive full credit for his plea of guilty. They concluded that
the defendant was unlikely to receive a custodial sentence in excess of twelve
months imprisonment, and adjourned the matter for the preparation of a
pre-sentence report. It is clear from the affidavit of the prosecutor that
when they adjourned the case the magistrates indicated that they were willing
to accept jurisdiction in the case pending the preparation of a pre-sentence
report, but would re-consider the question of jurisdiction once they had
considered that report. If that is an accurate representation of what was
said, and it is to some extend supported by Mr Harris, who appeared as
solicitor for the defendant, I regard the wording as unfortunate, because it
suggests that unless something emerged from the report which made the
defendant’s position worse the court which considered the report, and
which would probably be differently constituted, would accept jurisdiction. On
16th February 1998 the court, if not willing to commit the case to the Crown
Court for sentence forthwith, could and in my opinion should have said simply
that the question of jurisdiction would be considered when the pre-sentence
report became available. It might even have been thought worthwhile to
emphasise that the possibility of a committal to the Crown Court remained a
live issue.
22. On
12th March 1998 the case did in fact come back before a differently constituted
bench, but fortunately that bench had the services of the same clerk. The
pre-sentence report commended a combination order, and the clerk advised the
court that no new facts had come to light. The Chairman’s affidavit
continues “we accordingly felt bound by the decision of the bench on 16th
February to retain jurisdiction”, and it is clear that the court would
then have sentenced had the prosecutor not sought an adjournment to enable an
application to be made to this court. That application was granted, and when
leave to move was given the proceedings in the Magistrates’ Court were
ordered to be stayed.
23. Mr
Carter-Manning submits that although that it may be possible to reach the
conclusion that an appropriate sentence would be twelve months imprisonment or
less, and thus would not exceed the overall jurisdiction of a
Magistrates’ Court, the court on 16th February failed to consider by what
route they could arrive at an appropriate sentence. Clearly the false invoice
charges had to receive concurrent sentences, and Mr Carter-Manning submits that
those charges could not properly be dealt with by means of a sentence of
imprisonment of six months or less. Furthermore, if an equivalent sentence was
imposed for the false bonus charges that would not properly represent the
relative criminality as between the two types of charges. In reality Mr
Carter-Manning submits, and I am inclined to accept, the better view is that
the sentences on all of the charges should be concurrent because they all
represented no more than different ways of milking funds over the same period
whilst occupying a position of trust.
24. Mr
Carter-Manning further submits that on 12th March 1998 the court was wrong to
consider itself bound by what had occurred on 16th February 1998, and he
invited our attention to the decisions of this court in
R
v Dover Justice ex parte Pamment
(1994) 15 Cr App R (Sentencing) 778 and
R
v North Sefton Magistrates’ Court ex parte Marsh
(1995) 16 Cr App R (Sentencing) 401. Those two cases established that a
decision not to commit a case to the Crown Court for trial under section 19 of
the Magistrates’ Courts Act 1980 does not inhibit the jurisdiction of the
Magistrates’ Court in relation to section 38.
25. Mr
Janner, for Marlin, submits that if on 16th February 1998 the
Magistrates’ Court did accept jurisdiction then on 12th March 1998 the
court had no right to re-consider the decision unless in the interval something
had occurred which seemed to call for a heavier sentence. That I accept, hence
the need to tread warily, and if intending the reserve the decision in relation
to jurisdiction to make that point clear.
26. As
to the conclusion that the Magistrates’ Court did have adequate powers of
sentence, Mr Janner submitted that the magistrates could order compensation.
and that the decision in the case of
Clark
supports the conclusion of the Magistrates’ Court on 16th February as to
the adequacy of its powers in relation to imprisonment.
27. I
cannot find anything in the affidavit of the magistrate who chaired the bench
on 16th February to suggest that compensation was ever considered, and
obviously if it was to be considered (as it should have been) proper
information was required as to the defendant’s means, which at that
stage, without the assistance of a pre-sentence report, was probably not
available. The magistrates were right to have regard to the decision in the
case of
Clark,
but, for the reasons indicated by Mr Carter-Manning, were wrong to decide as
they did to retain jurisdiction simply because in their judgment “the
defendant was unlikely to receive a custodial sentence of more than twelve
months”. What they ought also to have considered was whether for any one
offence or series of offences for which in principle concurrent sentences had
to be imposed a sentence of six months would be appropriate. Accordingly I am
satisfied that on 16th February 1998 the Magistrates’ Court failed to
have regard to an important material consideration, and for that reason the
decision should be set aside (See
R
v Flax Bourton Magistrates’ Court
(1996) 160 JP 481 at 485E). If the magistrates had approached the matter in
the right way on 16th February it seems clear to me that they would have
recognised that it was then too early to reach a conclusion other than that the
case should be committed for sentence to the Crown Court. The question then
arises as to whether we should require the justices to commit Marlin to the
Crown Court for sentence. In my judgment it is appropriate to take that
further step, even though I recognise the possibility that if the
Magistrates’ Court had approached this case properly it might in the end
have decided to retain jurisdiction for reasons which this court would regard
as unimpeachable. A proper approach in my judgment would have been :-
28. Accordingly
the order which I would make in relation to this case should not be taken as
any indication that the appropriate sentence in the Crown Court will in fact
exceed the jurisdiction of the Magistrates’ Court. It may or may not do
so, but having regard to the history of this matter I am satisfied that it is
the Crown Court, which has the full range of sentences at its disposal, which
should now decide what the sentence ought to be. The alternative would be to
remit the case to the Magistrates’ Court to make a proper decision as to
venue in accordance with the decision of this court, and that might result in
two hearings rather than one, thus protracting the whole matter unnecessarily
and unreasonably particularly so far as Marlin is concerned.
29. On
10th September 1997 Martin Carbonelli, an unemployed man aged 43 in receipt of
State benefits of £98 per fortnight, was found when his house was searched
to be in possession of enough cannabis resin for 160 doses (worth £150)
and to have £140 in cash. He was interviewed in the present of a
solicitor and admitted selling cannabis resin to friends for two years, partly
to finance his own drug habit. A statement was prepared under the Drug
Trafficking Act 1994 which assessed his benefit from drug trafficking at a
minimum of £3,341. He was charged with possession, possession with intent
to supply, and supplying cannabis, all three offences being triable either way,
and on 25th November 1997 he indicated that he would plead guilty. The case
was then adjourned to 6th January 1998, the magistrates properly indicating
that all sentencing options, including custody, needed to be considered.
30. On
6th January 1998 the prosecution submitted that the case should be committed to
the Crown Court for sentence as this was a commercial supply over a long
period, and having regard to what was said by the Court of Appeal Criminal
Division in the guideline case of
Aramah
(1982) 76 Cr App R 190 the sentencing powers of the Magistrates’ Court
were not sufficient. Furthermore it was pointed out that the justices had no
power to make a confiscation order under the Drug Trafficking Act 1994.
31. On
behalf of Carbonelli it was contended that he only supplied small amounts of
drugs to friends at no commercial gain for himself, and that his admissions in
interview were false because he was under the influence of cannabis and alcohol
and felt under duress. Understandably the justices who were sitting on that
occasion decided to adjourn the case so that the factual dispute could be
resolved by the calling of evidence. However, on 10th March 1998 a differently
constituted bench of its own motion decided that the factual issue was not so
great as to affect the sentence, and proceeded to sentence Carbonelli to 120
hours of Community Service.
32. The
decision of the magistrates’ Court on 10th March 1998 as to the need for a
Newton
hearing was plainly wrong, and the Magistrates’ Court on reflection has
now consented to this court making a declaration to that effect. In that
situation the applicant has decided not to seek any other remedy, but if the
prosecution version of the facts had been accepted at the
Newton
hearing which should have been held it seems to me that the case should then
have gone straight to the Crown Court for sentence. I reject Mr
Supperstone’s submission that because Carbonelli was prepared to plead
guilty, had a modest criminal record, and had a favourable pre-sentence report
an appropriate sentence in his case if he was shown to be trading for gain
would not have exceeded the jurisdiction of the Magistrates’ Court.
33. In
the event I need say no more than that there will be a declaration that the
decision made on 10th March 1998 to proceed to sentence without conducting a
Newton
hearing was a decision which could not have reasonably been made. There will
be no other relief.
34. MR
JANNER: My Lords, I apply for leave to appeal to their Lordships' House in
respect of two issues. I preface my application with just this comment: this,
of course, is the first leading case on the new procedure and plainly do raise
points of public importance.
35.
The first issue is the "character and antecedents" dealt with at pages 9 to
10 of the judgment. Your Lordships have held that the consideration set out in
section 29 of the 1991 Act can be taken into account by Justices for the
purposes of section 38 of the 1980 Act. In short, our submission was that in
so doing (in other words, by specifically incorporating section 29 into the
Justices' consideration under section 38) that had the effect of re-enacting
the original section 38. It is for that reason, my Lords, the question arises
on a potential appeal as to whether the Justices should take into account the
provisions of section 29 of the Criminal Justice Act 1991 when determining the
seriousness of an offence under section 38 of the 1980 Act.
36.
The second issue is this: your Lordships have held in firm terms that the
prosecution does have the right to address the court about making a sentence.
Again, very shortly, we submitted that there was no statutory basis for so
doing comparable to the provision in section 19(1). We also submitted that as
a matter of policy it would be wrong for the prosecution to be involved in this
aspect of sentencing, necessarily involving a submission on their part that a
higher sentence than the Magistrates have power to impose is the appropriate
sentence in the instant case.
37.
Therefore, I respectfully submit that the issues does raise the wider
question as to the role of the prosecution in the sentencing process. The
ground on which leave is sought is this: whether in the absence of an express
statutory provision, entitling the prosecution to address the Justices about a
venue for sentence, any right does exist?
39. LORD
JUSTICE KENNEDY: You need two statements, do you not? You need a certificate,
first of all.
41. LORD
JUSTICE KENNEDY: Without checking it, I am reasonably satisfied that you need
to require us to certify and you need also then to get leave. This is not
habeas
corpus
like the last matter, where you do not need anything other than leave.
42. MR
JANNER: My Lords, we have only briefly checked. I am looking at page 1687 of
the 1997 White Book.
46.
What would be required is that you should obtain from us a certificate which
would specify the point or points of law which you submit to be of general
public importance, and then, secondly, that you should obtain leave from us or
from the House. If you do not get a certificate, you do not go anywhere. If
you do get a certificate, even if we refuse leave, you have a right to renew
your application for leave to the House.
48. LORD
JUSTICE KENNEDY: Speaking for myself, without even consulting my Lord, I am
not prepared to certify without having it on paper, so that I can see it in
front of me, what it is that you want to us certify. Would it personally cause
the two of you a great inconvenience to come back at 2 o'clock, having put on
paper what you want us to certify?
49. MISS
REEVE: My Lord, it would make it difficult for me because I am supposed to be
appearing in another court.
50. LORD
JUSTICE KENNEDY: That is all right. You tell us what the attitude of your
clients would be, because we know the general nature of the application.
51. MISS
REEVE: My Lords, the attitude would be that although there is new procedure,
the two points one seeks leave on are not ones which are part of the new
procedure. In fact, the first point being the interpretation of section 38(2)
by the statutory means of section 29 is not a point which has been altered by
the introduction of the new Act. It is something that has always been the
case, and it is simply a matter of interpretation of two statutes that have
been around for a long time.
52.
In relation to the prosecution's right to address, again it is submitted
that it has always been the duty of the prosecution to assist the court in
relation to matters, such as its powers on sentence and the range on sentence.
That simply continues to be the case when making submissions in relation to
which court the case should be heard. Those are the submissions that has
occurred to me off the cuff.
53. LORD
JUSTICE KENNEDY: Thank you very much. What we will say is that we will
consider the matter further at 2 o'clock. You need not attend, Miss Reeve. If
Mr Janner is available at 2 o'clock, having, if he does not mind, given us a
few moments in advance to see what he has reduced to writing, that is to say
the one or two points he wants certified (assuming they are broadly the same,
as he has indicated) he would not be taking the Director by surprise.
54. MR
JANNER: My Lord, they are the same. Perhaps I can address you on the question
of costs while my learned friend is here? Plainly, I have no application in
respect of
Warley
and
Staines,
but I do make an application with regard to the
North
East Suffolk
case, which is the Newton hearing case. We do not oppose the appropriateness of
a Newton hearing in the Magistrates' Court in that case, but our submission was
that as a matter of principle when considering section 38 Justices could hold a
Newton hearing. This was the essential point at issue between the parties.
Your Lordships have found in our favour and rejected Mr Carter-Manning's
submissions at page 11 of the judgment. In relation to that case, I would ask
for costs?
55. MISS
REEVE: My Lord, given that the Applicants were no longer seeking any Order
which was actually going to affect the defendant in any way, arguably he did
not need to be represented at all in relation to this point. My learned friend
has only appeared to represent the defendant.
56. LORD
JUSTICE KENNEDY: I think the difficulty that Mr Janner is maybe in is that you
are not representing the Magistrates. What is the position about that, Mr
Janner? From whom are you seeking costs? The Magistrates submitted to an
appropriate Order.
57. MR
JANNER: My Lords, I will be seeking costs from the Applicants on the basis that
the issues specifically raised in that case was the Newton hearing point.
58. LORD
JUSTICE KENNEDY: No, you brought proceedings on judicial review against the
Magistrates' Court, not against the ----
60. LORD
JUSTICE KENNEDY: Yes, the Applicants put in the application and you were
resisting it. That is right.
61. MR
JANNER: So it is against the Crown Prosecution Service (which concerned the
argument between us on a Newton hearing) that I seek leave for costs in that
limited form on that limited application. I am legally aided on all three
applications.
63. MISS
REEVE: My Lord, again, it was a point that was agreed beforehand. It was a
point that was proper to bring to before the court's. Although I may be wrong
in this, it was my recollection that it was the intention, (and Mr Janner may
correct me on this) that all Newton hearings should be heard in the
Magistrates' Court and, to that extent, guidance was sought as to whether they
should be heard when committal was clearly appropriate on either version or
whether there was an issue to be raised as to whether a Newton hearing could
affect sentence. On that basis, it was right for the Applicants to seek the
court's guidance on this general point and that is what it did. Mainly the
defendant is legally aided. It would be a matter simply which public body
would fund the application.
64. LORD
JUSTICE KENNEDY: So far as that aspect of the matter is concerned, we have come
to the conclusion that the proper Order, insofar as it may differ from anywhere
else, will be no Order for costs in relation to the
North
East Suffolk Justices
case. That simply means that each side is protected on that particular aspect
of the matter. Whether they are severable or whether it will cause more
trouble than it is worth, I am not sure.
67. MR
JANNER: -- and two counsel in respect of
Warley
and North East Suffolk
,
and just legal aid taxation in relation to
Staines?
69. MISS
REEVE: My Lords, relating to point of certification of a point of general
public importance, when I was reading the White Book earlier it appeared that
there were two exceptions to the requirements of certification. One was the
habeas
corpus
and the other was the decision of the Divisional Court of the Queen's Bench
Division.
72. LORD
JUSTICE KENNEDY: You may be right. I rather doubt it. It certainly has not
been my recollection.
74. LORD
JUSTICE KENNEDY: We will check it between now and 2 o'clock. You have taken
the point. It does not do you any damage anyway. Very well, we will deal with
the matter further at 2 o'clock.
75. LORD
JUSTICE KENNEDY: Despite the misgivings this morning, we are wholly satisfied
that you do have to certify a point before you can persuade us to give leave.
I think there is a certain misreading in the paragraph which follows in the
practice direction.
76.
In principle, so far as you are concerned, first of all we are grateful for
what you have put in front of us. The only doubt we have is the wording in the
first line:
77.
Normally one does not talk about considerations in the context of the statute;
do you? If there is some particular reason for it wording that way, do tell us.
78. MR
JANNER: The only reason we used that wording was to emphasise the
considerations therein set out, but "provisions" certainly cover it properly.
80. Do
you want the whole of the Criminal Justice Act? I think it says Part III in
the statute. It is the relevant part we know. I do not have it in front of
me. It is at the top of page 10 of the judgment:
81. I
am, at the moment, disposed to put in whatever form you wish to have it in. I
would have thought, on the face of it, it might be sufficient for your
purposes: "Whether or not the provisions of Part 1 of the Criminal Justice Act
1991..." I do not think you need the part. You have the section, so you are
only limiting yourself to the section, so we do not need that.
83. Question
2 will read as typed. We will certify in relation to those two questions.
Persuade to us give leave?
84. MR
JANNER: My Lords, in addition to the submissions that I made this morning,
perhaps they are really emphasising the general public importance. What I say
is this: the underlying issue of general public importance on the first
question is whether antecedents and character should have any bearing on the
decision under section 38. That section makes no specific provision allowing
them to be taken into account. I have mentioned, of course, the section 38 in
its original form which referred, in terms, to character and antecedents.
85.
My Lords, where a defendant is of bad character or has committed offences
whilst on bail or has failed to respond to previous sentences, those factors
would inevitably adversely affect his prospects of persuading Justices to
retain jurisdiction, certainly in borderline cases.
86. LORD
JUSTICE KENNEDY: If we are right on this judgment, it is simply a question of
statutory construction.
87. MR
JANNER: My Lords, I accept that. Of course, what I say is where the history of
section 38 is as confused as it is together with the history of section 29
which has gone through certainly two (
inaudible-
coughing
),
and this is the first time, as I understand it, that consideration has been
given as to the interplay of the two, bearing in mind the points made by Mr
White in his article, bearing in mind the fact that this is a brand new
procedure, this may be appropriate, bearing in mind the points that I have
made, nevertheless, for their Lordships' consideration.
88. LORD
JUSTICE KENNEDY: You have applied. I am afraid we are not prepared to grant
leave. You have to ask their Lordships' House.
90. LORD
JUSTICE KENNEDY: I think the same considerations apply. This is plainly a
matter which they should consider whether they are prepared to entertain.