England and Wales High Court (Administrative Court) Decisions

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 -

4. The matters set out in section 19(3) were and are:-

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 -

7. Section 38(3) provided that -

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?

38. Those are the two issues upon which leave is sought.

39. LORD JUSTICE KENNEDY: You need two statements, do you not? You need a certificate, first of all.

40. MR JANNER: My Lords, I am not sure that is right.

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.

43. LORD JUSTICE KENNEDY: Unfortunately, in this particular court we do not have the White Book.

44. MR JANNER: Let me hand it up, if I may.

45. LORD JUSTICE KENNEDY: I will read paragraphs 16-203:

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.

47. MR JANNER: My Lords, my application is for a certificate?

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 ----

59. MR JANNER: No, my Lord. With respect, the Applicants ----

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.

62. LORD JUSTICE KENNEDY: Miss Reeve, tell me why not.

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.

65. MR JANNER: My Lords, there are two other applications. I ask for legal aid taxation, please?

66. LORD JUSTICE KENNEDY: You may have that.

67. MR JANNER: -- and two counsel in respect of Warley and North East Suffolk , and just legal aid taxation in relation to Staines?

68. MR JANNER: I do not think you need the Order for two counsel, but if you do, you may have.

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.

70. LORD JUSTICE KENNEDY: In a civil matter?

71. MISS REEVE: In the criminal matter, my Lord.

72. LORD JUSTICE KENNEDY: You may be right. I rather doubt it. It certainly has not been my recollection.

73. MISS REEVE: My Lord, if I can just find it?

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.

79. LORD JUSTICE KENNEDY: "Provisions" would be a more usual word in relation to this:

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.

82. LORD JUSTICE KENNEDY: Question 1 is to read:

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.

89. MR JANNER: My Lords, as to the second question ----

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.

91. MR JANNER: As your Lordship pleases. Thank you very much.