England and Wales High Court (Administrative Court) Decisions

Salubi & Anor , R (on the applications of) v Bow Street Magistrates' Court [2002] EWHC 919 (Admin) (10th May 2002)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		10 May 2002

Lord Justice Auld:

Introduction

1. These appeals raise a number of questions arising out of the introduction on 15^th January 2001 of a new procedure under sections 51 and 52 of the Crime and Disorder Act 1998 replacing, in the case of indictable-only offences, committal proceedings by a procedure known as “sending” defendants to the Crown Crown for trial. Committal proceedings continue to apply to either-way offences unless they are related to indictable-only cases.
2. The new provisions require a magistrates’ court to “send forthwith ” to the Crown Court an adult who “appears” or is brought before” it charged with an indictable-only offence and also with any related either-way offence, or summary offence punishable with imprisonment or disqualification from driving, instead of committing him there for trial. In addition, a magistrates’ court, after it has sent an adult for trial under the new procedure, may, if he subsequently “appears or is brought before it” send him there for trial in respect of any related either-way or summary offence fulfilling the requisite conditions.
3. The purpose of the new procedure is two-fold: first, to simplify and speed the progress of indictable-only and related other offences to the Crown Court; and, second, subject to the magistrates’ court’s discretion in “tacking on” to already sent cases related either-way or summary offences, to exclude the use of committal proceedings in such cases. There are two important features of the new procedure. First, the prosecution does not serve the evidence on which it bases its charges(s) until after the case has arrived at the Crown Court. And, second, if a defendant wishes to challenge the sufficiency of the evidence for that purpose, he does so for the first time in the Crown Court by way of application for dismissal after service of the evidence and before arraignment. See paragraphs 1 and 2 of Schedule 3 to the Act and The Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 1998 and The Crime and Disorder (Dismissal of Charges Sent) Rules 1998.
4. Those provisions, which came into force on 15^th January 2001 have given rise to problems of statutory interpretation and abuse of process where: 1) indictable-only cases “straddle” the commencement date in one way or another; 2) there are consecutive charges of either-way and related indictable-only offences, or of two or more indictable-only offences arising out of the same facts; and 3) where a magistrates’ court wrongly purports to commit indictable-only cases to the Crown Court instead of sending them there.
5. The first two groups of difficulties have arisen in the main out of the meaning of the words in section 51 of the Act and in the relevant Commencement Order “appears or is brought before a magistrates’ court” and “charged”. Section 51 provides, so far as material:

“(1) Where an adult appears or is brought before a magistrates’ court charged with an offence triable only on indictment .… the court shall send him forthwith to the Crown Court for trial- (a) for that offence, and (b) for any either-way or summary offence with which he is charged which …..

(11) (a) … appears to the court to be related to the indictable-only offence; and

(b) in the case of a summary offence, … is punishable with imprisonment or involves obligatory or discretionary disqualification from driving.” [my emphases]

“(2) Where an adult who has been sent for trial under subsection (1) above subsequently appears or is brought before a magistrates’ court charged with an either-way or summary offence which fulfils the requisite conditions, the court may send him forthwith to the Crown Court for trial for the either-way or summary offence.” [my emphases]

And the Crime and Disorder Act 1998 (Commencement No. 8) Order 2000, in paragraph 3, provides that the new procedure only applies

“where the adult who appears or is brought before a magistrates’ court in the proceedings in respect of which he is charged with an indictable-only offence, as provided for in section 51(1) of the 1998 Act, so appears or is brought before the court for the first time on or after 15^th January 2001.” [my emphasis]

The issues

“appears or is brought before a magistrates’ court charged”

6. The first issue, which arises in the appeals of Thomas Salubi, Edwyn Wanogho and Roy Peter Harmer, is whether the word “charged” in the term “appears or is brought before a magistrates’ court charged” refers only to the procedure of charging in a police station or the laying of an information leading to a summons or the issue of a warrant for arrest, and not with that in which a prosecutor, after the defendant has been brought before the court on such a charge, reviews the case and prefers an additional or alternative charge. An integral part of these claimants’ cases is that once a person is before a magistrates’ court in respect of an offence, a prosecutor’s power is limited to that contemplated by section 123 of the Magistrates’ Courts Act 1980 Act, namely to amending or withdrawing the original charge or to inviting the court to consider additional charges; he has no power to bring or make a person appear before the court in respect of any new charge.
7. Mr. Benjamin Aina for Salubi and Mr. Stephen Fidler for Wanogho submitted that Parliament was not concerned with defendants already subject to proceedings for indictable-only offences before 15^th January 2001, but with defendants so charged appearing in or being brought before the courts for the first time after that date. They said that the new procedure does not apply to a charge preferred by a prosecutor in court after 15^th January 2001 arising out of the same facts as a charge in respect of which he had appeared or had been brought before a magistrates’ court before that date. Fundamental to this approach is the argument that such a new charge, preferred at court, does not – cannot - create new proceedings, namely those “in respect of which he is charged with an indictable-only offence” and “appears or is brought before the court for the first time on or after 15^th January 2001”. In such transitional cases, they argued, therefore, that both of the charges must proceed to the Crown Court by the same procedural route, namely the old one of committal, notwithstanding the intention of the legislature to confine it to either-way offences unless they are related to indictable-only offences.
8. On the same reasoning, counsel for the these three claimants also argued that the long-term effect of the new provision is to preserve committal proceedings for both indictable-only offences and related either-way offences where they are charged in proceedings on which a defendant has already appeared or has been brought before a magistrates court charged with either-way offences. Put another way, they said that once a person is before a magistrates’ court in respect of a charge, the proceedings “in respect of which he is charged” do not become proceedings in respect of some other charge by the addition or substitution of an alternative charge. On this approach, consecutive proceedings for offences arising out of the same facts would take separate routes to the Crown Court, each subject to a different procedural regime of preliminary challenge:

i) the first proceedings: by sending if they are indictable-only or indictable-only and related either-way charges; or by committal if they are either-way charges unrelated to an indictable-only charge; and

ii) the second proceedings by committal, whether indictable-only or related either-way offences.

9. Such an outcome, counsel for the claimants submitted, was part of Parliament’s intention to retain two separate systems of transmission to the Crown Court that would operate mutually exclusively from each other and would not permit the prosecution to change track in relation to the first charge in respect of which a defendant appears or is brought before the magistrates’ court. Mr. Aina added that an interpretation of section 51 that allows the prosecution to frustrate committal proceedings at any stage, no matter how long they have been under way, simply by adding an indictable-only charge to a proposed indictment would conflict with Parliament’s intended use of section 51, which is to bring persons charged with such offences before the Crown Court as soon as possible. He also submitted that it would conflict with the duty of magistrates under section 6(1) of the 1980 Act, which obliges examining magistrates to commit if they are of opinion that there is sufficient evidence to put an accused on trial for any indictable offence, whether or not preferred or suggested by the prosecutor. However, those particular submissions overlook the provision in section 51 for tacking-on related either-way and summary offences to indictable-only cases for sending to the Crown Court and the fact that section 6(1) of the 1980 Act should now be read subject to section 51 of the 1998 Act.
10. Counsel for the three claimants also relied on the practice of the Legal Services Commission in cases that had had at least one appearance in a magistrates’ court before the commencement date, of continuing to deal with them under the existing arrangements for committals for trial. However, it is plain that such practice cannot assist on a matter of statutory interpretation.
11. Mr. Martin Hicks, on behalf of the Crown in Salubi and Wanogho, and Mr. Mark Bryant-Jones, on behalf of the Crown and the Magistrates’ Court in Harmer, submitted that the clear intention of section 51(1) was that those accused of indictable-only and related either-way and summary offences should be brought before the Crown Court as soon as possible and that, to that end, the new sending procedure was designed to replace committal proceedings for indictable-only cases or a mix of indictable-only and such related cases. They challenged the proposition that the word “charged” in section 51 and the Commencement Order is confined to charges by the police at the police station or by the laying of an information as a result of which a defendant appears or is brought before the court. They referred to the recognised power and practice of prosecutors to add, substitute or amend charges after the commencement of criminal proceedings and to the wide application of the provisions for initiating criminal proceedings by laying information under section 1 of the 1980 Act, including an oral application by a prosecutor or counsel or solicitor on his behalf under Rule 4 of the Magistrates’ Courts Rules 1981. They added that it is plain from Rule 100 of those Rules that there is no need for formality about this; it is enough that the information or other document, which may consist of a written copy of the charge, is sufficient to indicate the nature of the charge; for it is that information which gives magistrates courts their jurisdiction in respect of criminal matters; see Hill v. Anderton [1982] 2 All E R 963, HL.
12. Mr. Hicks added that it was also plain, in the context of committal proceedings, from Rules 7(5) and (7) of the Magistrates’ Courts Rules 1981 that a charge need not be put in writing before the commencement of proceedings and that the court has the ultimate responsibility for formulating it and reducing it to writing:

”(5) After the evidence has been tendered the court shall hear any submission which the accused may wish to make as to whether there is sufficient evidence to put him on trial by jury for any indictable offence.”

(7) After hearing any submission made in pursuance of paragraph (5) or (6) [submission by prosecutor] the court shall, unless it decides not to commit the accused for trial, cause the charge to be written down, if this has not already been done, ….”

13. In practice, as Mr. Hicks observed, a charge is normally formulated in writing by the prosecutor, either through a charge at the police station and transmission of the charge sheet to the court or by the laying of an information before a magistrate. But there is nothing to prevent the preferment of an additional or alternative charge between the initial charge and the commencement of committal proceedings. He also drew attention to the absence in section 51(1) of the words “at a police station” after the word “charged”, contrasting their presence in section 50(1), which is concerned with early administrative hearings.
14. In my view, the submissions of Mr. Hicks and Mr. Bryant-Heron on the point of interpretation are correct. I see no reason as a matter of pure construction of the words of section 51, or in the context of the reform they were designed to secure, for confining the word “charged” in the manner suggested on behalf of the claimants. Nor can I see what possible purpose Parliament could have had in mind in tying the circumstances in which an accused appears or is brought before the court to some previously preferred charge if, on the occasion of the appearance, the court finds itself dealing with an indictable-only offence and any related offences. There is nothing in the wording of section 51 to confine offences triable only on indictment to charges originating in a police station or by some other formal means before and occasioning his appearance before the court. The draftsman, if he had so intended, had a ready precedent in his own formulation of section 50 of the Act, dealing with early administrative hearings:

. “Where a person … has been charged with an offence at a police station, the magistrates’ court before whom he appears or is brought for the first time in relation to the charge, unless the accused falls to be dealt with under section 51 below, consist of a single justice.” [my emphases]

15. Accordingly, I do not agree that the word charge in this context can only mean preferred by charge at a police station or by the laying of an information giving rise to an accused’s appearance in court. It cannot have been the intention of Parliament to limit the application of the section to proceedings where an indictable-only offence is charged before the first appearance at court. As Mr. Hicks and Mr. Bryant-Heron argued and illustrated, a defendant is properly described as “charged with an offence” when he faces an allegation of a criminal offence that has resulted or will result in criminal proceedings irrespective of the means used to institute them.
16. As I have said, the intention of Parliament was two-fold. First, it was to simplify and speed the procedure of transmission of all indictable-only cases to the Crown Court. Second, it was to leave the latter to deal with preliminary challenges to charges of this seriousness, requiring it to dismiss the charge where, in the words of paragraph 2(2) of Schedule 3 to the Act, “the evidence against the applicant would not be sufficient for a jury properly to convict him”. That dismissal exercise is much the same as that under section 6(1)(a) and (b) of the 1980 Act for examining magistrates in committal proceedings, namely whether there is sufficient evidence to put an accused on trial by jury for any indictable offence. The new scheme would not achieve those purposes if the timing and machinery of challenge could vary according to whether such charges come before the court on the first or a subsequent hearing and if there could be two parallel proceedings in respect of charges preferred separately but arising out of the same set of facts. I do not just have in mind the provisions in section 51(1) and (2) for the “tacking-on” of related non-indictable offences to the indictable-only regime, but also to consecutive charges of indictable-only offences arising out of the same facts, which would also be subjected to such separate and potentially conflicting treatment if the claimants’ argument were correct.
17. It follows, in my view, that where a charge of an indictable-only offence is preferred arising out of the same facts as an earlier indictable-only charge or either-way offence, it is caught by the new procedure and must be sent to the Crown Court. If the earlier charge was of a related either-way offence and has not yet been committed for trial, the court should send both to the Crown Court.
18. Equally, in cases straddling the commencement date, the date of the first appearance in which an accused stands charged of an indictable-only offence defines the “proceedings”, not the other way round, for determining whether he first appears or is brought before the court in respect of such charge before or after the commencement date. Where a defendant has appeared or been brought before the court before the commencement date in respect of an indictable-only charge, his appearance there after that date on a further indictable-only charge arising out of the same facts is a charge, within the meaning of the Commencement Order, “in the proceedings in respect of which he is charged with an indictable-only offence” and “so appears or is brought before the court for the first time on or after” that date. As I interpret the meaning of the word “charged” in section 51 and the Commencement Order, it follows that it is only where the pre-commencement appearance was in respect of an indictable-only offence, or of an either-way offence unrelated to a post commencement date indictable-only charge, that the pre-commencement matters continue to be dealt with by way of committal. Where the pre-commencement appearance was in respect of an either-way charge that remains uncommitted and is subsequently found to relate to a post commencement date indictable-only charge, both become subject to the new procedure.

Abuse of process.

19. The second main issue, which was argued in the case of Salubi, was abuse of process. Mr. Aina submitted that section 51 does not remove a magistrates’ court’s common law power to prevent the prosecution from abusing its process by relying on the new procedure to abort established committal proceedings.
20. A magistrates’ court has power to stay criminal proceedings for abuse of process, but the power is strictly confined to matters directly affecting the fairness of a trial before it, such as delay or unfair manipulation of court procedures; see R v. Horseferry Road Magistrates’ Court, ex p. Bennett [1994] AC 42, HL In addition, where the point is complex or novel a magistrates’ court should normally leave it for resolution, if sought, in Crown Court or the High Court as appropriate; see R v. Belmarsh Magistrates’ Court, ex p. Watts [1999] 2 Cr App R 188, DC; and R v. Horseferry Road Magistrates’ Court, ex p. DPP [1999] COD 441, DC. Even where the point is not complex or novel, it is well established that a magistrates’ court should be sparing in the exercise of its power to stay a summary trial or committal proceedings on the ground of abuse of process; see ex p. Bennett, per Lord Griffiths at 63H, and the other authorities cited in the current edition of Archbold, at paragraph [4-50]. The fact that a magistrates’ court has a duty under section 51(1) to send an indictable-only case to the Crown Court “forthwith” may not necessarily preclude it from exercising its jurisdiction to stay the proceedings as an abuse of process in an appropriate case, but such a case would be very rare. This canon of restraint should be equally, if not more, applicable to the sending procedure, under which the matter goes straight to the Crown Court and, unlike the dismissal procedure, may be the subject of an abuse application immediately after it has arrived there. See R v. Central Criminal Court and Nadir, ex p. Director of the Serious Fraud Office (1993) 96 Cr App R 248, DC, at 252, referring to the predecessor of paragraph 1-190-191 of the current edition of Archbold
21. Even in the rare cases where it might be appropriate to make an abuse of process application to a magistrates’ court at the sending stage, it should be remembered that the onus is on the defence to establish bad faith or serious misconduct and that incorrect procedure based on lack of judgment does not suffice; see R. v. Rotherham JJ., ex p. Brough [1991] COD 89, DC, and R v. Redbridge JJ., ex p. Whitehouse (1992) 94 Cr. App. 332, DC. In most cases the Crown Court is likely to be better equipped to make such value judgments Instances of possible bad faith might be the addition of an unmeritorious indictable-only charge in the late stages of committal proceedings for either-way offences, solely with the object of overcoming custody time limits or of overcoming evidential difficulties that would otherwise delay or defeat a committal.
22. I now turn to apply the above rulings to the individual claims of Salubi, Wanogho and Harmer.

Salubi and Wanogho

23. These two claimants challenge the decision of District Judge Wicks, sitting at Bow Street Magistrates’ Court on 4^th July 2001, holding that an indictable-only charge of conspiracy to defraud, preferred by the Crown Prosecution Service on 23^rd February 2001, was governed by section 51, requiring the case to be sent to the Crown Court and precluding him from enquiring into it as an examining Magistrate under section 6(1) of the Magistrates’ Courts Act 1980.
24. The facts and history giving rise to the claimants’ appearance before the District Judge on 4^th July 2001 were as follows. In August 2000 they were arrested on suspicion of having committed an offence of conspiracy to steal a large quantity of mobile telephones, contrary to section 1(1) of the Criminal Law Act 1977 – an offence triable only on indictment. Later in the year each was charged with the offence and made his first appearance before the Bow Street Magistrates’ Court. The Court, on those appearances, adjourned the proceedings for preparation of papers in anticipation of committal proceedings under section 6 of the 1980 Act. As I have indicated, section 51 was not to come into force until 15^th January 2001.
25. On 16^th February 2001 the two claimants appeared again before the Court for, as they thought, the committal proceedings. However, the prosecutor was not ready to proceed and the Court adjourned the matter. On 23^rd February 2001 the prosecutor served the committal papers and indicated an intention to prefer an alternative indictable-only charge in respect of the same matter, namely conspiracy to defraud, contrary to section 1(1) of the Criminal Law Act 1977.
26. When the matter came before District Judge Wicks in June and July 2001, the prosecutor contended that, with the new and substituted charge, the Court could send the matter forthwith to the Crown Court under section 51 thus avoiding the need for committal proceedings. Those representing the claimants disagreed, maintaining that, on a proper construction of the section and the Commencement Order, the new sending procedure would not apply to the new charge and that committal proceedings were necessary. The District Judge, on 4^th July 2001, ruled that section 51 applied to the new charge, thus requiring him to send the case to the Crown Court. He declined to hear defence argument as to the validity or propriety of the new charge, holding that, in the light of his ruling, it was not open to him to consider such matters; his only duty was to send the case forthwith to the Crown Court. However, pursuant to the power given to him by section 52(5) of the Act, he agreed to adjourn the matter pending an application by the claimants for judicial review.
27. On 2^nd November 2001 the claimants obtained permission to claim judicial review. However, in the meantime, Salubi, but not Wanogho, had been sent to the Crown Court at Southwark on two charges of common law conspiracy to steal and statutory conspiracy to defraud, which, on arrival in the Crown Court were found to be based on essentially the same evidence as the original charge of conspiracy to steal. On 7^th August 2001 Salubi applied to His Hon. Judge Fingret for dismissal of both charges under paragraph 2 of Schedule 3 to the Act on the ground that the served evidence was insufficient for a jury properly to convict him. The Judge, having heard submissions on the matter, dismissed both charges and quashed the corresponding counts in the indictment.
28. It is common ground that the charges of conspiracy to steal and conspiracy to defraud were alternative charges founded on the same facts. Both claimants maintain that the prosecutor here, in introducing the alternative charge of conspiracy to defraud, was taking a step within the original proceedings, not changing them or initiating new proceedings. They say that that the conspiracy to defraud was not a matter with which the police had charged them, nor was it the subject of a summons. It was simply the addition of a further matter for the consideration of the examining Magistrate. Therefore, there was throughout only one set of proceedings in respect of which they had been charged with an indictable-only offence and that it had commenced in late 2000 with the charge of conspiracy to steal. Accordingly, they say that they did not appear and were not brought before the Court “for the first time” after 15^th January 2001 in proceedings in respect of which they were so charged, and that the matter should have been dealt with as a committal. The prosecution say that the preferment of the new charge after that date created new proceedings in respect of which the claimants appeared before the court for the first time, and that, therefore, the only permissible procedure was to send them to the Crown Court under section 51.
29. Mr. Aina also submitted that the District Judge wrongly declined to hear his submission that the alternative charge of conspiracy to defraud was wrong in law and, in any event, an abuse of the court’s process. He queried the prosecution’s failure to explain why the charge was added so many months after the claimants’ arrest and original charge. He said that the facts of the case were straightforward. The evidence arguably supported the originally charged substantive offences of obtaining property by deception and of theft as well as the charge of conspiracy to steal. In the circumstances the additional alternative charge of common law conspiracy to defraud was improper and, in the circumstances, an abuse of the court’s process.
30. Mr. Hicks, for the Crown, submitted that the District Judge correctly read section 51 and the Commencement Order in determining that the post-commencement order proceedings for the new conspiracy to defraud charge were proceedings in respect of which the claimants appeared or were brought before the court “for the first time” after the commencement of the Act. As to abuse of process, he maintained that, once the District Judge had determined the section 51 point in favour of the prosecution, he was bound to send it to the Crown Court. He added that, in any event, Salubi and Wanogho suffered no prejudice because they still had a right to apply in the Crown Court for dismissal of the charge of conspiracy to defraud (which, as I have mentioned, Salubi did successfully).
31. As I have said in my general treatment of this issue, the primary task for the Court is one of construction of section 51 and paragraph 3 of the Commencement Order. On my construction of them, for the reasons I have given, the word “proceedings” in the latter applies to the proceedings in respect of the alternative charge of conspiracy to defraud preferred after the commencement date, irrespective of what other appearances he had previously made charged with another offence arising out of the same facts. Accordingly, as he first appeared before the court in proceedings in respect of such an offence – an indictable-only offence - after the commencement date, the magistrates’ court had no option but to send him forthwith to the Crown Court for trial on that charge (though not, somewhat academically, for the pre-commencement indictable-only charge of conspiracy to steal; see paragraph 19 above).
32. In my view also, the District Judge was entitled, on his correct construction of the statutory provisions, to decline to consider the propriety of the charge and the associated complaint of abuse of process, but was not, for the reasons I have given automatically precluded by section 51 from considering the latter if the two could in some way have been disentangled. This novel point was eminently a matter that he was entitled to leave for resolution by this Court and, in the meantime to exercise the power given to him by section 52(5) to adjourn the proceedings and remand the claimants.
33. The complaint is that the District Judge wrongly failed to hear argument and to rule on the issue of abuse of process, not that this Court should rule on it. I would add, for the avoidance of doubt, that if the Court had been asked to do so, I could not say, on the evidence and argument put before us, that there had been an abuse here.
34. Accordingly, I would dismiss both these claims for judicial review.

Harmer

35. Roy Peter Harmer challenges the decisions on 28^th November 2001 of District Judge Keating, sitting at the Horseferry Road Magistrates’ Court, to allow, and of the Commissioners of Customs and Excise to seek, withdrawal of four either-way charges of money laundering offences and to substitute for them indictable-only offences of conspiracy to convert the proceeds of crime, contrary to section 1(1) of the Criminal Law Act 1977, thereby engaging the sending procedure under section 51 of the 1998 Act. I say “engaging the procedure”, because the Court has not yet sent the matter to the Crown Court, but has adjourned the proceedings under section 52(5).
36. The history of the matter, in outline, is as follows. On 29^th September 2001, long after the commencement date for the new procedure, Harmer was charged with either-way money laundering offences. The matter proceeded through plea-before-venue and mode-of-trial to committal proceedings. Harmer, who was by then on bail, elected to challenge committal pursuant to section 6(1) of the 1980 Act. On 28^th November 2001, at the committal hearing before the District Judge, the prosecutor put before her a draft indictment alleging three counts of conspiracy to convert the proceeds of criminal conduct, all indictable-only offences, and invited her to send the Harmer to the Crown Court for trial. Harmer’s representative challenged the Court’s entitlement to do that on the grounds raised in the cases of Salubi and Wanogho. District Judge Keating thereupon adjourned the proceedings under section 52(5) of the 1998 Act to await the outcome of that challenge.
37. In this claim for judicial review Harmer maintains that the prosecution illegally and irrationally misinterpreted section 51 so as to enable it avoid committal proceedings and that the District Judge erred in accepting that interpretation, leading her to adjourn the proceedings.
38. Mr. Adam Kane, on behalf of Harmer, relied on the same central argument advanced by counsel for Salubi and Wanogho, namely that Harmer had not, in the circumstances, appeared or been brought before the magistrates’ court charged with an offence triable only on indictment because he had appeared or been brought there on the either-way offences and had not appeared or been brought before the court as a result of being charged with a qualifying offence under section 51. He underlined that submission on the facts of the case by pointing out that, prior to the grant of bail, Harmer had been brought before the court charged only with the either-way offences and that after the grant of bail he never appeared or was brought before the court charged with indictable-only matters; they only came into the picture with the production in court of the draft indictment after he had appeared there in respect of the either-way charges. He submitted that, in the circumstances, the District Judge unlawfully adjourned the proceedings under section 52(5), which only confers such power in proceedings “under section 51”.
39. Mr. Bryant-Heron, for the Court and the Commissioners, submitted that the prosecutor’s oral information to the District Judge of the proposed indictable-only charges and, in any event, the presentation to her of the draft indictment, constituted the laying of an information. The defendant’s presence at court made it unnecessary to issue a summons or warrant under section 1 of the 1980 Act to bring him there. Accordingly, he submitted, section 51 applied, as the information – the draft indictment – was laid when Harmer appeared before the District Judge charged with an offence triable only on indictment.
40. In my view, and for the reasons I have given earlier, that is a correct analysis of the law and of its application to the facts in this claim. Accordingly, I would hold that judicial review cannot lie against the prosecution for laying the information in the form of a draft indictment for indictable-only offences that, as a matter of law, are subject to the section 51 procedure. If the charges are faulty, they can be challenged by an early application for dismissal in the Crown Court. Equally, District Judge Keating did not act unlawfully in adjourning the matter under section 52(5) of the 1998 Act, since section 51 was engaged as a matter of law once the prosecutor placed the indictable-only charges before the court.

Ojutaleyo

41. Adebo Ojutaleyo challenges the decision of His Hon. Judge Griffith-Jones, in the Crown Court at Bournemouth on 6^th July 2001, refusing an application to stay the proceedings on a charge of forgery as an abuse of process.
42. The charge of forgery was an indictable-only matter in respect of which. on 2^nd February 2001, a magistrates’ court had erroneously committed Ojutaleyo to the Crown Court for trial. The error was realised after he had been arraigned and had entered a plea of not guilty, at a plea and directions hearing before Mr Recorder Milne on 12^th March 2001. The Recorder’s response to a defence application to quash the indictment was simply to mark it “no jurisdiction”.
43. Ojutaleyo was subsequently brought back before the magistrates’ court and, on the defence informing the court that the indictment had been “quashed”, he was re-charged and then sent to the Crown Court for trial pursuant to section 51. He duly re-appeared there before Judge Griffith-Jones, charged in a new indictment. The Judge, after argument, rejected a defence application to stay the prosecution as an abuse of process and ruled that the prosecution should proceed. He held that there had been no effective committal upon which the earlier indictment could have been properly founded, alternatively, that there had been a committal, albeit invalid, and that in either case the prosecution was entitled to start again by sending the case to the Crown Court under section 51. He adjourned the matter for a plea and directions hearing, which was later adjourned pending the outcome of this claim for judicial review.
44. Ojutaleyo now seeks a declaration that the Judge wrongly refused to stay the proceedings. Mr. Fidler, on his behalf, put the argument in various ways. In substance they amounted to the following train of reasoning. Although the committal was invalid, it was nevertheless effective to found the indictment. The Recorder, by marking the indictment “no jurisdiction”, effectively quashed it. It was then not open to the prosecution to proceed by way of a second indictment for the same offence, save by way of a voluntary bill because a committal can only give rise to one indictment.
45. Mr. Fidler maintained that the Judge should have determined the status of the original indictment and ruled that it had either been stayed or quashed. In either event, he submitted, the only way in which the prosecution could proceed was by way of a voluntary bill of indictment and that, accordingly, the Judge should have stayed the second indictment. Mr. Fidler’s justification for the claim, apart from what he submitted were strict procedural requirements, was that it was unfair to Ojutaleyo to arraign him on a second indictment without the protections afforded by the voluntary bill procedure.
46. Mr. Paul Hester, on behalf of the Crown made three main submissions. First, the purported committal was no committal at all. Second, the purported indictment based on that purported committal was no indictment at all; it was not quashed or stayed, but was correctly marked “no jurisdiction”. And, third, Ojutaleyo was re-charged in the magistrates’ court because the defence informed it that the indictment had been “quashed”, but re-charging was unnecessary because the matter, at that stage, had never left the magistrates’ court.
47. The first obstacle to the claim is that this Court has no jurisdiction to entertain it, since it is a matter “relating to trial on indictment” within section 29(3) of the Supreme Court Act 1981. The House of Lords, in Re Smalley [1985] AC 622, held that such an exclusion is engaged where, inter alia, the decision of the Crown Court sought to be challenged was one affecting the conduct of a trial on indictment given by way of pre-trial directions. In Re Ashton [1994] 1 AC 9 Lord Slynn, with whom the other members of the Appellate Committee agreed, held to that guidance. The application before the Judge was effectively for a stay of the proceedings as an abuse of process, as in Re Ashton, in which the House held that an order made on the application was caught by the provision. Similarly caught are: an order refusing an extension of time in which to prefer a bill of indictment, R v. Isleworth Crown Court, ex p. King [1992] COD 298, DC; and the arraignment of a defendant and the conduct of a plea and directions hearing, R v. Leeds Crown Court, ex p. Hussain [1995] 1 WLR 1329, DC.
48. In R v. Central Criminal Court, ex p. DPP [1993] 96 Cr App R 248, DC, the Divisional Court held that a dismissal in the comparable procedure for transfer of serious fraud cases under the Criminal Justice Act 1987 was amenable to judicial review. As the editors of the current edition of Archbold observe at paragraph 7-9, the House of Lords in Re Ashton expressed no view as to the correctness of that decision, though Lord Browne-Wilkinson in R v. Manchester Crown Court, ex p DPP (1994) 98 Cr App 461, HL, at 467, said that the transfer provisions in the 1987 Act may be a possible exception to the general rule in Re Smalley. With respect, I cannot see why that should be so, or in the closely analogous case of the sending provisions of section 51 of the 1998 Act.
49. I adopt and adapt the reasoning of the editors of Archbold, at paragraph 7-9, in relation to transfer cases under the 1987 Act, that it is unlikely that Parliament intended, when it enacted such a streamlined procedure for the more speedy prosecution of indictable-only cases, that a defendant should be able to challenge rulings as to dismissal or stay by way of application for judicial review, with the possibility of a further appeal to the House of Lords, in addition to an appeal to the Court of Appeal in the event of conviction. And, in complex and lengthy indictable-only cases justifying a preparatory hearing under the Criminal Procedure and Investigations Act 1996, there is also a right of appeal against rulings made at such a hearing. In my view, the general rule in Re Ashton is applicable to an application for dismissal or stay in sent cases. On that ground alone, I would dismiss this application for judicial review. I should add that, in doing so, I have considered the comprehensively and closely reasoned judgment of Mitchell J in R v. Crown Court at Maidstone, ex p London Borough of Harrow [2000] 1 Cr App R 117, DC, with which Kennedy LJ agreed, holding that where a judge makes an order that is jurisdictionally flawed the High Court may intervene notwithstanding that it relates to trial on indictment. I say nothing about the general application of that proposition, but simply note that there is no scope for its application in the circumstances of this claim.
50. I should also deal with Mr. Fidler’s argument that, there having been one indictment based on a committal, the prosecution could only proceed on a second indictment by way of voluntary bill. I do not agree that Mr Recorder Milne, when the jurisdictional error was first drawn to the Court’s attention, should have stayed the proceedings or quashed the indictment, or that his notation of the indictment “no jurisdiction” amounted to a quashing order, thus requiring the prosecution to start again in that way. The fact was - as the Recorder recognised and the Judge held - there was no indictment at that stage and the whole proceedings, including the arraignment and plea, dependent on it were a nullity. There was nothing to quash; as Mr. Paul Hester, for the prosecution put it in his submission to the Judge, the committal and hence the indictment were “ineffective”. Or, as the Judge put it more graphically, “the rocket never left the pad”. See e.g. Archbold, paragraph 1-209 and the authorities there mentioned.
51. The fact that this Court often loosely uses the word “quash” when marking acts as done without jurisdiction, when it could simply declare them to be so, does not accord them life or effect unless and until they are quashed. Procedural matters designed to simplify and speed the processes of the courts such as this should not turn on arid and philosophical debate as to whether a legal nullity requires recognition by a quashing order to make it so. Australian authorities on which Mr. Fidler relied to the contrary, relating to the quashing of an indictment based on an invalid committal for trial do not assist. See Smedley v. The State [1980] PNGLR 379 (Papua New Guinea) and R v. Derrick & Ors (1984) 70 FLR 320 (Supreme Court of the Northern Territory).
52. As Mr. Hester submitted, even if Mr. Fidler’s analysis were right, and a quashing order was needed and made in respect of the committal proceedings and the indictment based upon them, there is no authority to prevent the prosecution from starting again, in this instance by way of the appropriate sending machinery of section 51. The authorities of R .v. Thompson and Clein [1978] 1 WLR 1425 and R v. Barnet Magistrates’ Court ex p. Wood [1993] Crim LR 78], upon which Mr. Fidler also relied for this purpose, do not forbid a second committal where the first is ineffective. They are authority for the proposition that, where a first indictment is quashed, the prosecution cannot then produce, or pursue a second indictment based on the same committal. They are thus, not concerned with an ineffective or invalid committal, as here, but with an error elsewhere resulting in the quashing of the indictment.
53. Accordingly, I would also dismiss this claim.

Boucher

54. Neisha Boucher applies for permission to challenge the decision of His Hon. Judge Moss, at a preliminary hearing in the Luton Crown Court on 25^th October 2001, dismissing his application for the stay of an indictment charging him with the indictable-only offences of conspiracies to supply controlled drugs.
55. The essential facts are similar to those in the case Ojutaleyo. Boucher was originally charged with offences of being knowingly concerned in the supply of Class A controlled drugs and possession of Class A drugs with intent to supply, both either-way offences. On 14^th September 2001, the date set for committal proceedings under section 6(1) of the 1980 Act, the prosecution substituted for those charges, charges of conspiracy to supply controlled drugs, both indictable-only offences. The magistrates’ court erroneously purported to commit him to the Crown Court for trial under section 6(1) of the 1980 Act. After realising its mistake, the magistrates’ court, on 1^st October 2001, took the view that its “committal” had been a nullity. Without objection from the defence, it purported to exercise its power under section 142 of the 1980 Act to rectify the mistake and sent Boucher to the Crown Court under section 51 of the 1998 Act.
56. In the event, this turn of events did not result in the preferment of two indictments in the Crown Court. As to the charges wrongly committed on 14^th September 2001, no bill of indictment was preferred by the prosecution or signed by a proper officer of the Crown Court in accordance with section 2(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933. However, a bill of indictment was preferred in respect of the identical charges sent on 1^st October 2001. On 26^th October 2001, when the matter came before Judge Moss, the indictment had yet to be signed. He ruled that the committal proceedings and all that flowed from them should be ignored as a nullity, that the magistrates’ court had correctly relied on section 142 as a means of rectifying its error, and that it had validly sent Boucher to the Crown Court for trial under section 51. He granted leave for the indictment to be signed out of time.
57. Boucher, by this application for permission to claim judicial review, seeks to argue, first, that, although the purported committal under section 6(2) was defective, it operated as a committal to the Crown Court in the light of the interpretation given to that term in Schedule 1 to the Interpretation Act 1978 which provides that “committed for trial” means where a person is “committed in custody or on bail by a magistrates’ court pursuant to section 6 of the Magistrates’ Courts Act 1980 … with a view to trial before a judge and jury”. Accordingly, so Mr. Adam Gersch argued on his behalf, once the magistrates’ court had committed him, it was no longer seized of the matter and had no power to rectify its error.
58. Boucher’s second argument is that the magistrates’ court did not, in any event, have power to rectify the matter under section 142. Mr. Gersch suggested that that the power given by provision is confined to rectification of sentences and does not apply to this sort of mistake. He maintained that only the Crown Court could deal with the matter.
59. This application faces the same preliminary objection under section 29(3) of the 1981 Act as that in the claim of Ojutaleyo which, for the reasons, I have given in that claim, is equally fatal here. Mr. Gersch sought to counter that difficulty by suggesting that, although the claim was in its form a challenge of a decision of the Crown Court, it was really aimed at the Court’s earlier treatment of the magistrates’ committal and all that flowed from it as a nullity. As such the true target of the complaint might be said to be the magistrates’ court’s erroneous committal. But, even viewed in that light, the complaint would not have availed Boucher in seeking to prevent the prosecution and the magistrates’ court from starting again. See R v. Norfolk Justices, ex p. DPP [1950] 2 KB 558.
60. As to the magistrates’ “committal” of the conspiracy offences on 16^th September, I do not consider that it can be defective because of the mandatory requirement in section 51 that indictable-offences should be sent, not committed, to the Crown Court, and yet operate as a committal so as to deprive the magistrates’ court of whatever power it may have had to rectify its error. The Interpretation Act is no help to Boucher in this context, since it refers to a committal “pursuant to section 6” of the 1980 Act, which plainly it was not. If the court had no power to commit, there was no committal, regardless of the existence and extent of the court’s power under section 142 to rectify mistakes; see Bannister v. Clarke [1920] 3 KB 598.
61. As to the argument that section 142 confers no such power, I confess to having some uncertainty. It provides:

“A magistrates’ court may vary or rescind a sentence or other order imposed by it when dealing with an offender if it appears to the court to be in the interests of justice to do so; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make.” [my emphasis]

62. On the one hand, the words “sentence or other order” could be said to suggest no particular class of order, and thus to be of sufficient width to enable the court to rectify a committal to the Crown Court which it had no power to make. On the other hand, the provision is directed in terms at orders made “when dealing with an offender” and the whole structure of the provision suggests that it is concerned with re-opening of cases after conviction or sentence. See e.g. R v. Gravsend JJ., ex p. Dexter [1977] Crim LR 298. Certainly, its most common use appears to be for the correction of unlawful or otherwise mistaken sentences.
63. However, magistrates’ courts have a long-standing common law power to rectify their various proceedings which are, for one reason or another, a nullity or otherwise vitiated. Thus, as the foot-notes to section 142 in the current edition of Stone’s Justices’ Manual show, they may: hear and adjudicate upon a summary case wrongly committed for trial, Bannister v. Clark; or commit for trial following an acquittal for an offence triable only on indictment, R v. West [1964] 1 QB 15; or re-try a case where some irregularity has vitiated the proceedings, R v. Marsham, ex p. Pethcic Lawrence [1912] 2 KB 362; or generally, deal with a matter when the hearing or sentence was a nullity; R v. Norfolk Justices, ex p. DPP [1950] 2 KB 558 and R v.Warwick Quarter Sessions, ex p. Patterson (1971) 115 Sol. Jo 484. In my judgment, whatever the ambit of section 142, the magistrates’ court had power at common law to correct its error in committing Boucher for trial by re-convening to send him for trial under section 51.
64. As, contrary to the way in which the matter was argued before the Judge, there was only one indictment, Mr. Adam Gersch did not try to resurrect his earlier argument based on duplicitous indictments. He did, however, submit, by way of modification of the central argument of the first three claimants, that, as Boucher had never been “re-charged” on his re-appearance before the magistrates’ court for the case to be sent to the Crown Court, the sending was invalid because he had not appeared or been brought to court charged with the offences later set out in the indictment. For the reasons that I have given, that argument too must fail.
65. Accordingly, I would refuse Boucher permission to claim judicial review.

Mr Justice Gage:

66. I agree.