QUEEN'S BENCH DIVISION
B e f o r e :
(Vice President of the Court of Appeal, Criminal Division)
MR JUSTICE JACKSON
|THE QUEEN ON THE APPLICATION OF THE DIRECTOR OF PUBLIC PROSECUTIONS||CLAIMANT|
|- v -|
|CAMBERWELL GREEN YOUTH COURT||DEFENDANT|
|C, W, K and A||INTERESTED PARTIES|
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR J BARNARD (instructed by Lahiff & Co) appeared on behalf of the INTERESTED PARTIES
The DEFENDANT did not attend and was not represented.
Crown Copyright ©
Part 1: Introduction.
"17(1) The offences listed in Schedule 1 to this Act shall be triable either way.
"18(1) Sections 19 to 23 below shall have effect where a person who has attained the age of 18 appears or is brought before a magistrates' court on an information charging him with an offence triable either way and -
"(a) he indicates under section 17A above that (if the offence were to proceed to trial) he would plead not guilty, or
"(b) his representative indicates under section 17B above that (if the offence were to proceed to trial) he would plead not guilty.
"19(1) The court shall consider whether, having regard to the matters mentioned in subsection (3) below and any representations made by the prosecutor or the accused, the offence appears to the court more suitable for summary trial or for trial on indictment ...
"(3) The matters to which the court is to have regard under subsection (1) above are the nature of the case; whether the circumstances make the offence one of serious character; whether the punishment which a magistrates' court would have power to inflict for it would be adequate; and any other circumstances which appear to the court to make it more suitable for the offence to be tried in one way rather than the other.
"20(1) If, where the court has considered as required by section 19(1) above, it appears to the court that the offence is more suitable for summary trial, the following provisions of this section shall apply (unless excluded by section 23 below).
"(2) The court shall explain to the accused in ordinary language -
"(a) that it appears to the court more suitable for him to be tried summarily for the offence, and that he can either consent to be so tried or, or if he wishes, be tried by a jury; and
"(b) that if he is tried summarily and is convicted by the court, he may be committed for sentence to the Crown Court under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 if the convicting court is of such opinion as is mentioned in subsection (2) of that section.
"(3) After explaining to the accused as provided by subsection (2) above the court shall ask him whether he consents to be tried summarily or wishes to be tried by a jury, and -
"(a) if he consents to be tried summarily, shall proceed to the summary trial of the information;
"(b) if he does not so consent, shall proceed to inquire into the information as examining justices."
"21. Procedure where trial on indictment appears more suitable. If, where the court has considered as required by section 19(1) above, it appears to the court that the offence is more suitable for trial on indictment, the court shall tell the accused that the court has decided that it is more suitable for him to be tried for the offence by a jury, and shall proceed to inquire into the information as examining justices."
"24(1) Where a person under the age of 18 appears or is brought before a magistrates' court on an information charging him with an indictable offence other than homicide, he shall be tried summarily unless -
"(a) the offence is such as is mentioned in subsection (1) or (2) of section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (under which young persons convicted on indictment of certain grave crimes may be sentenced to be detained for long periods) and the court considers that if he is found guilty of the offence it ought to be possible to sentence him in pursuance of subsection (3) of that section; or
"(b) he is charged jointly with a person who has attained the age of 18 and the court considers it necessary in the interests of justice to commit them both for trial;
"and accordingly in a case falling within paragraph (a) or (b) of this subsection the court shall commit the accused for trial if either it is of opinion that there is sufficient evidence to put him on trial or it has power under section 6(2) above so to commit him without consideration of the evidence.
"25(1) Subsections (2) to (4) below shall have effect where a person who has attained the age of 18 appears or is brought before a magistrates' court on an information charging him with an offence triable either way.
"(2) Where the court has (otherwise in pursuance of section 22(2) above) begun to try the information summarily, the court may, at any time before the conclusion of the evidence for the prosecution, discontinue the summary trial and proceed to inquire into the information as examining justices and, on doing so, shall adjourn the hearing.
"(3) Where the court has begun to inquire into the information as examining justices, then, if at any time during the inquiry it appears to the court, having regard to any representations made in the presence of the accused by the prosecutor, or made by the accused, and to the nature of the case, that the offence is after all more suitable for summary trial, the court may, after doing as provided in subsection (4) below, ask the accused whether he consents to be tried summarily and, if he so consents, may subject to subsection (3A) below proceed to try the information summarily.
"(3A) Where the prosecution is being carried on by the Attorney General or the Solicitor General, the court shall not exercise the power conferred by subsection (3) above without his consent and, where the prosecution is being carried on by the Director of Public Prosecutions, shall not exercise that power if the Attorney General directs that it should not be exercised.
"(4) Before asking the accused under subsection (3) above whether he consents to be tried summarily, the court shall in ordinary language -
"(a) explain to him that it appears to the court more suitable for him to be tried summarily for the offence, but that this can only be done if he consents to be so tried; and
"(b) unless it has already done so, explain to him, as provided in section 20(2)(b) above, about the court's power to commit to the Crown Court for sentence.
"(5) Where a person under the age of 18 appears or is brought before a magistrates' court on an information charging him with an indictable offence other than homicide, and the court -
"(a) has begun to try the information summarily on the footing that the case does not fall within paragraph (a) or (b) of section 24(1) above and must therefore be tried summarily, as required by the said section 24(1); or
"(b) has begun to inquire into the case as examining justices on the footing that the case does so fall,
"subsection (6) or (7) below, as the case may be, shall have effect.
"(6) If, in a case falling within subsection (5)(a) above, it appears to the court at any time before the conclusion of the evidence for the prosecution that the case is after all one which under the said section 24(1) ought not to be tried summarily, the court may discontinue the summary trial and proceed to inquire into the information as examining justices and, on doing so, shall adjourn the hearing.
"(7) If, in a case falling within subsection (5)(b) above, it appears to the court at any time during the inquiry that the case is after all one which under the said section 24(1) ought to be tried summarily, the court may proceed to try the information summarily."
Part 2: The Facts.
Part 3: The Present Proceedings.
"Having regard to the provisions of sections 18 to 25 of the Magistrates' Courts Act 1980, a magistrates' court or youth court may change its decision concerning mode of trial at any time until the beginning of the summary trial or the beginning of the committal proceedings.
Part 4: Previous Relevant Decisions on Sections 18 to 25 of the 1980 Act.
"If I were obliged to construe section 25(2) in isolation, I would strongly incline to the view that the language of the subsection can more naturally be read as giving the court the opportunity to switch from summary trial to inquiry as examining justices only in the case where a trial in the narrow sense is proceeding and the process of leading evidence for the prosecution to prove the guilt of the accused has not been concluded."
"Unfortunately, the justices, as is clear from their affidavits, did not take into account any additional circumstances nor, it would seem, any additional facts beyond those which had been placed before the justices on 20 September. In those circumstances the question has to be asked: were they at liberty to review and reverse a decision which had been formally taken and announced by a properly constituted bench of justices having the power and duty to make the inquiry under section 24(1)? There is an apparent anomaly if they do not have such power, because section 25 provides that where a court has begun to try an information summarily it can, if it takes the view that it should not continue to try the case summarily, continue the hearing as examining justices with a view to committal for trial. It may therefore seem anomalous that they cannot change their minds before actually embarking on a summary trial.
"Justices like every other court, must of course exercise such discretion as they have judicially, but this is not merely a matter of discretion; it is a matter of power. Have they got power to reverse a decision taken by their colleagues at an earlier hearing? In my judgment the whole scheme of the Act suggests that they do not have that power before embarking upon the hearing. Once a decision has been made after proper inquiry and consideration of all relevant factors, it cannot be reversed merely by re- examining the case afresh on the same material.
"It seems to me that they may well have had the opportunity for taking a different view from that taken by their colleagues in the light of the new and additional factors which had emerged since 20 September. For example, not only was it alleged that a further serious offence had been committed whilst the applicant was on bail, and with which the justices had to deal quite separately, but in addition a great deal more information was before them as to the character of the applicant. They now knew that a number of other offences were alleged to have been committed by him from May onwards. Those were matters which were not before the justices who had sat on 20 September, so there was in my judgment material upon which it could be argued that it would be proper for the justices to review the question as to mode of trial.
"As I have said, that was not in fact the way in which these justices proceeded. Their affidavits are very frank and clear about that matter. It seems to me that this was simply a different view formed upon the same facts by a differently constituted bench. In my judgment in the result they did exceed their powers. Prima facie therefore that decision should be quashed and also the decision to commit for trial."
"I agree. In my opinion, a decision under section 24(1) of the Magistrates' Courts Act 1980 is not irrevocable. However, once such a decision has been taken and announced, it will in the great majority of cases stand. But in a case where trial on indictment has been decided upon, it is in my opinion open to the justices to review that decision at any stage up to the start of their inquiry as examining justices. Such a review will be permissible if a change of circumstances has occurred since the original decision was taken and also if circumstances are brought to the attention of the court which, although existing when the original decision was taken, were not then drawn to the attention of the court. I am thinking, for example, of a case where justices are told on a later occasion that the facts of the charge were less serious than the court was originally led to believe, or where the court learns facts about the defendant's background, character, and antecedents, which indicate that if he is found guilty there will be no need after all for it to be possible to sentence him in pursuance of section 53(2) of the Children and Young Persons Act 1933.
"Similarly, in a case where summary trial has been decided upon, it is in my opinion open to the justices to review that decision at any stage up to the beginning of the summary trial. Such a review is permissible if a change of circumstances has occurred since the original decision was taken and also if circumstances are brought to the attention of the court which, although existing when the original decision was taken, were not then drawn to the attention of the court ...
"Put more shortly, at any stage before the tracks divide, the decision as to which track is to be pursued is open to revision upon the demonstration of what may shortly be called a change of circumstances. I see nothing in section 24(1)(a) to prevent this. On the contrary, I take it to have been the intention of Parliament that the decision should be taken on the fullest information available to the court immediately before the tracks divide. Any other construction may lead to injustice."
"We have had to consider whether it could reasonably be held that by pleading not guilty in the presence of the justices, the justices had begun to try the information summarily. With considerable regret, because the result again appears technical and unattractive, we feel it impossible to distinguish this case on the grounds that a plea of not guilty had been entered."
"For my part I would respectfully doubt the proposition that even where there has been a change of circumstances, either circumstances since the original decision or where there were matters existing at the date of the original decision but were not drawn to the attention of the court, there is jurisdiction other than under section 25, particularly having regard to the mandatory terms of section 21, already read.
"It is however, in my view, unnecessary to make any concluded view upon that since, for the reasons I am just about to give, in my view that situation does not arise. The dicta in support of it were obiter and, since in the case of ex parte F (supra) it was not stated where the power derived, I would, for my part, with great respect, doubt the validity of that decision."
"I agree. I would only add that I also find considerable difficulty in seeing how there could be a suggested power in the justices to re- hear and re- determine the question of the mode of trial outside the provisions of section 25 of the Magistrates' Courts Act.
"Section 21 of the Act is mandatory in its terms. If it appears that the offence is more suitable for trial on indictment, the court shall proceed to inquire into the information as examining justices. What is suggested is that if new circumstances arise after the justices have concluded that there should be a trial on indictment, or it appears that if existing circumstances had not been brought to the attention of the justices reaching that conclusion, then the matter can be reopened.
"To my mind, there is nothing in the Act that begins to support such a suggestion. On the contrary, as well as the mandatory provisions of section 21, the fact that section 25 sets out the specific circumstances when the mode of trial can be changed, militates, in my view, strongly against the suggestion that the mode of trial could nevertheless also be changed in circumstances not falling within the requirements of that section."
"Furthermore, we share the doubts which have been expressed about Ex parte F in this court in R v Hammersmith Juvenile Court, Ex parte O (1987) 86 Criminal Appeal Reports 343 (See May LJ at page 349) and R v Liverpool Justices, Ex parte Crown Prosecution Service, Liverpool (1989) 90 Criminal Appeal Reports 261, in particular the judgment of Stocker LJ ... at page 268."
"In our judgment, having regard to the mandatory terms of section 20(1)(2) and (3) of the Act of 1980, once the court had determined mode of trial under section 19, the only jurisdiction to reopen the mode of trial was pursuant to the provisions of section 25(2) of the Act. We agree with Mr Gordon's submission that the jurisdiction of the magistrates' court is entirely statutory."
"In our opinion the same reasoning cannot be applied to a plea of not guilty. It must be remembered that it is the plea of not guilty which puts the defendant's guilt in issue and creates the need for a 'trial' in the narrow sense. In that respect, we take the view that a plea of not guilty can be said to initiate the process of determining guilt, ie it is an essential and necessary introduction to the trial. Whether the plea of not guilty does or does not form part of the actual process of determining guilt or innocence will depend on the particular facts of the case. If, as a fact, all that happens following a plea of not guilty is that the court puts the matter over to another day for trial, then the process of determining guilt or innocence, although initiated, has still has not begun: see the judgment of Bingham LJ in Ex parte Critchley."
Part 5: The Claimant's Case as Presented Today.
"After informing the accused as provided by the last two preceding subsections the court shall ask him whether he wishes to be tried by a jury or consents to be tried summarily, and, if he consents, shall proceed to the summary trial of the information."
"We now come to the question whether a person having elected, the magistrate, having heard that he elects and pleads not guilty but having gone no further, can allow him to withdraw his election and say instead: 'I elect to go for trial by jury'. In my opinion he can ... "
"[The magistrate] could only have proceeded to try it as a summary offence so long as the election stood, but I do not think it would be a correct reading of these sections to say that once the election had been given, it has been given for all time, so that if the accused might have been advised, if his advocate had been present, to refuse summary trial, he would not be allowed, when his advocate did arrive, to elect to go for trial before a jury."
"Suppose that the trial of the information has begun, because the plea has been taken. Is there any reason why a magistrate in those circumstances, if he ascertains that the accused wants to change his election, should not allow him to do so? ... Mr Buzzard submits that he cannot, and he places that submission upon the words of section 19(5). He puts his case as high as this, that once the accused has consented to be tried summarily a magistrate is bound to proceed to the summary trial of the information, and no magistrate can give the accused an opportunity of reconsidering his consent, unless, Mr Buzzard is disposed to concede, it were done by mistake.
"That would be a very cumbersome procedure if, when the accused wanted to change his mind half a minute after he had given his consent, there had to be an investigation whether he was acting under a mistake or not. I do not think the words of section 19 require so harsh and, as it seems to me, unreasonable a construction to be put on them. I think that when Parliament uses the word 'shall' in subsection (5), it is using it in relation to the object of this part of the section, which is, as is shown by subsection (3), to lay down the things that must be done before the trial is proceeded with, and the order in which they have to be done.
" ... I do not think that means that once the procedure is set in motion, the court has ineluctably to allow the wheels to revolve without any power to stop them if the accused wants to change his mind. I think it means no more than this, that if the summary trial is to be proceeded with in the way in which section 19 provides, those are the steps that must be taken, but I can find nothing in the words of subsection (5) which would deprive a magistrate or any court of the ordinary right which they must have in the interests of justice of allowing an accused who has given his consent ill- advisedly to abandoning his right to a trial by jury, to be given the opportunity of reconsidering it."
"What will be of the greatest importance is that it should be clearly established that a significant injustice has probably occurred and that there is no alternative effective remedy."
Part 6. Decision.