England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		6 March 2008

1. LORD JUSTICE RICHARDS: The claimant is 17 years of age though he will be 18 on 25 March. He appeared in the Sheffield Magistrates' Court on 27 September 2007 charged with eight counts of supplying class A drug and three counts of offering to supply class A drug. He was jointly charged with adults which explains why he appeared in the adult Magistrates' Court. On the day in question, however, he appeared alone. His case was adjourned to 5 October.
2. On 5 October he again appeared alone in the Magistrates' Court. His representative indicated to the court that he would be entering pleas of guilty to all the charges against him. The prosecution did not at that time object to such a course. The claimant thereupon entered guilty pleas to all the charges. The matter was stood down while the court considered where the case should proceed to. Representations were made on the claimant's behalf that the court had no power to send him to the Crown Court in the circumstances. He could be dealt with either in the Magistrates' Court or the matter could be remitted to the Youth Court. In the event, the Magistrates' Court remitted the case to the Youth Court.
3. The claimant appeared in the Youth Court later the same morning, when his case was adjourned for the preparation of a pre-sentence report prior to sentence.
4. The case came back to court for sentencing on 18 October. On that occasion the prosecution asked the district judge for the matter to be re-opened and for the previous proceedings to be declared a nullity on the basis that the Magistrates' Court should not have allowed the claimant to enter guilty pleas before the court had considered the appropriate venue and, in particular, had considered whether the case was suitable for trial in the Crown Court rather than for summary trial. That issue was adjourned for full argument until 25 October.
5. On 25 October the district judge held that the procedure adopted in the Magistrates' Court on 5 October was irregular. He purported to re-open the case pursuant to Section 142 of the Magistrates' Courts Act 1980 and to vacate the pleas of guilty previously entered by the claimant. He then proceeded to consider under Section 24(1) of the Magistrates' Courts Act and Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 whether the case was appropriate for trial in the Crown Court. He concluded that it was and the matter was adjourned for committal to the Crown Court, which was due to take place on 14 July. In the event matters were further adjourned pending the outcome of the present application for judicial review.
6. By this application the claimant challenges the district judge's decision to re-open the case and to vacate the pleas of guilty. Mr Justice Lloyd Jones ordered that the application for permission to apply for judicial review be listed with the substantive hearing to follow immediately if permission was granted and that committal proceedings be stayed pending the outcome of the judicial review.
7. The claimant's case has been presented to this court by Miss Sikand who was instructed only a few days ago when the case was listed before us at short notice. We are grateful to her for her clear and helpful skeleton argument and brief oral submissions. The Youth Court is not represented before us, but has filed an acknowledgement of service and has sent the court a letter containing short submissions of which the court has taken note.
8. The Director of Public Prosecutions was served as an interested party but did not file an acknowledgement of service or give any indication of an intention to take part in the proceedings until the court received, just before the commencement of the hearing, a short document from Mr McGonigal, instructed on behalf of the Director, setting out the Director's position in relation to this case. We are grateful to Mr McGonigal for that document, albeit concerned that the Director did not comply with the procedures under the Civil Procedure Rules in relation to his participation in judicial review proceedings of this kind. Mr McGonigal's document indicates in its conclusion that the Director is not seeking to uphold the decision of the district judge which is challenged in these proceedings.
9. The case advanced on the claimant's behalf can be considered in stages. First, when the claimant appeared before the Magistrates' Court on 5 October 2007 it is clear that the court ought to have considered under Section 24 of the Magistrates' Courts Act whether the claimant should be committed to the Crown Court for trial rather than being tried summarily. Section 24 provides:

"(1) Where a person under the age of 18 years appears or is brought before a Magistrates' Court on an information charging him with an indictable offence ..... he shall be tried summarily unless -

(a) the offence is such as is mentioned in sub-section (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 sub-section (3) of that section; or

(b) he is charged jointly with a person who has attained the age of 18 years 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 sub-section 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."

10. It is accepted that the offences with which the claimant was charged were indictable offences, that the offences were grave crimes such as are mentioned in sub-section (1) of Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, and that the claimant was jointly charged with a person or persons over the age of 18. Thus both sub-section (1)(a) and sub-section (1)(b) of Section 24 were engaged and the court ought to have considered the matters stated in them in order to determine the appropriate venue for trial. The court did not consider those matters. Without objection from the prosecution at that time, it simply allowed the claimant to enter pleas of guilty to all charges against him and decided thereafter to remit the case to the Youth Court for the claimant to be dealt with there.
11. The investigations carried out by the Director, as summarised in Mr McGonigal's note, cast no light on why the issues under Section 24 were not raised as they should have been by the prosecutor, if not by the court, on 5 October.
12. Miss Sikand submits that the entering of guilty pleas by the claimant, or at least the conviction of the claimant on the basis of those pleas (as to which see Section 9(3) of the Magistrates' Courts Act), amounted to an acceptance of summary jurisdiction by the Magistrates' Court. To proceed in that way without first considering the appropriate venue under Section 24(1) was a procedural irregularity but did not invalidate the court's acceptance of summary jurisdiction.
13. That submission is supported by R v Herefordshire Youth Court ex parte J, The Times, 4 May 1998. In that case the applicant attended the Youth Court, represented by a solicitor. He was charged with an offence of indecent assault. The charge was put to him and he pleaded guilty to it. The prosecution outlined the facts. The applicant's solicitor requested an adjournment for a pre-sentence report. Only then did the court clerk raise the issue of whether the offence should be considered a grave crime falling to be considered under the statutory predecessor of Section 91 of the 2000 Act. On the advice of the clerk, the justices held that the plea entered was void. They accepted the prosecutor's application that the case was suitable only for trial in the Crown Court and adjourned the case for committal proceedings.
14. A judicial review challenge to that decision succeeded before the Divisional Court. Lord Justice Schiemann, with whom Mr Justice Smedley agreed, stated first that Section 25(2) of the Magistrates' Courts Act did not apply. That subsection provides -

"Where the court ..... has begun to try the information summarily, [it] 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 ....."

15. The House of Lords held in R v Dudley Justices ex p Gillard [1986] 1 AC 422 that that provision applies only where the justices are actually conducting a summary trial and does not apply where, as in Herefordshire and the present case, a defendant has pleaded guilty and his plea has been accepted. In that situation the Magistrates' Court has no jurisdiction to commit the defendant for trial on indictment.
16. In the Herefordshire case, having stated that Section 25(2) did not apply, Lord Justice Schiemann went on to record the submission for the applicant that the onus had been on the court clerk and the prosecutor to consider the gravity of the offence and the question of mode of trial and to draw it to the attention of the court prior to the taking of a plea. He appears to have accepted that submission. The next, and key, part of his judgment is expressed as follows in the report:

"As the applicant in the instant case was represented and had entered a guilty plea which was not equivocal, the justices had no power other than to continue the case and to determine sentence."

17. The decision in Herefordshire is in line with the principles laid down in more recent cases about the effect of procedural errors. The general position in that respect is set out in the judgment of the court in R v Ashton and Others [2007] 1 WLR 181 at paragraphs 4 and 5:

"The outcome of each of these cases essentially depends on the proper application of the principle or principles derived from the decision of the House of Lords in R v Soneji [2005] Cr App R 302, [2005] HL 49, together with the earlier decision of this court in R v Sekhon and Others [2003] 1 WLR 1655, [2002] EWCA Crim 2954. Indeed, these three applications demonstrate how far-reaching the effect of those authorities is likely to be whenever there is a breakdown in the procedures whereby a defendant's case progresses through the courts (as opposed to a markedly different situation when a court acts without jurisdiction). In our judgment it is now wholly clear that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised ('a procedural failure'), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue."

18. I do not think that it can have been the intention of the legislature that failure to consider the matters set out in Section 24(1)(a) and (b) in circumstances where those provisions are engaged should render subsequent steps invalid.
19. One must therefore proceed on the basis that in this case there was a valid acceptance of summary jurisdiction by the Magistrates' Court and equally, therefore, that the subsequent remittal of the case for the claimant to be dealt with by the Youth Court was valid.
20. That brings me to the next stage in Miss Sikand's submissions. On 25 October the district judge in the Youth Court found that the procedure adopted on 5 October was irregular and then purported to re-open the case pursuant to Section 142 of the Magistrates' Courts Act. Miss Sikand submits that he had no power to do so. Section 142 reads, as far as material:

"(1) A Magistrates' Court may vary or rescind a sentence or other order imposed or made 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.

.....

(2) Where a person is convicted by a Magistrates' Court and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may .... so direct."

21. The Youth Court, in its acknowledgement of service and recent letter, suggests that Section 142(1) was applicable here. I do not accept that suggestion. The sub-section gives the court power to vary or rescind a sentence or other order imposed or made by it. It seems to me that it is specifically directed to sentences and related orders. In any event, it does not seem to me that the conviction of the claimant on the basis of guilty pleas entered by him can be treated as an order imposed or made by the court within the meaning of sub-section (1).
22. It seems more likely that the district judge was purporting to act in this case under sub-section (2). That provision was considered in R v Croydon Youth Court ex p Director of Public Prosecutions [1997] 2 Cr App R 411,BAILII: [1997] EWHC Admin 446, in which the relevant defendant had pleaded guilty at trial but, when the case against his co-defendant was dismissed on the same evidence, sought to change his plea and applied for the case to be ruled out pursuant to Section 142(2). The magistrates acceded to that application and ordered that the proceedings should be re-opened and the case heard again by a different bench.
23. The Director of Public Prosecutions challenged the magistrates' decision by an application for judicial review, which succeeded. The material parts of the judgment are conveniently brought together in the summary in the headnote which reads:

" ..... the justices were wrong in law and on the facts in believing that they had jurisdiction to make an order under Section 142(2) of the Magistrates' Courts Act 1980. The purpose of that section was to rectify mistakes. It was generally and correctly to be regarded as a slip rule and the power under the section could not be extended to cover situations beyond those akin to a mistake. Thus it was wholly wrong to employ Section 142(2) as a method by which a defendant could obtain a rehearing in circumstances where he could not appeal to the Crown Court by reason of his unequivocal plea of guilty. Nor was it in the interests of justice. The interests of justice also included the interests of the Courts and the public that people who had pleaded guilty with the advice of counsel should continue to be regarded as guilty and that there should be certainty and an end to litigation."

24. It seems to me that the approach of the court in that case applies equally in the somewhat different factual circumstances of the present case. Section 142(2) cannot be regarded as empowering the court to re-open a case in circumstances of this kind. I should add that there was no suggestion in Croydon Youth Court that Section 142(1) might be of any assistance in such circumstances.
25. It is right to comment by way of footnote that the court has power to permit a defendant to change his plea any time before sentence: see the decision of the House of Lords in S v Recorder of Manchester [1971] AC 481. Nothing in that decision suggests that in allowing a change of plea the court is exercising a power under what is now Section 142 of the Magistrates' Courts Act or that the power of the court to accept a change of plea extends to a power to re-open, contrary to the wishes of a defendant, a conviction based on an unequivocal plea of guilty previously entered and accepted.
26. For all those reasons the conclusion I reach is that it was the duty of the Magistrates' Court to consider the appropriate venue and in particular the matters arising under Section 24(1) before taking the claimant's pleas at the hearing on 5 October and it was the duty of the prosecution to draw relevant matters to the attention of the court on that occasion. But the failure to proceed in the way that the court should have proceeded does not empower the court subsequently to re-open the matter. It was too late for the matter to be re-opened by the Youth Court to which the claimant's case had been remitted to be dealt with following acceptance of summary jurisdiction. The decision to re-open the matter was unlawful.
27. I would therefore grant permission to apply for judicial review, allow the substantive application, quash the impugned decision and remit the case to the Youth Court with a direction that the court proceed to deal with the claimant on the basis of the pleas of guilty previously entered by him and accepted by the Magistrates' Court.
28. MRS JUSTICE SWIFT: I agree.
29. LORD JUSTICE RICHARDS: Does that cover everything?
30. MISS SIKAND: We do not need an order for remittal because it is currently in the Youth Court because when the adult court sent it to the Youth Court it did so under Section 8. When the district judge in the Youth Court re-opened the convictions he did not quash that part of the order, that is to send it to the Youth Court, so it is still in the Youth Court.
31. LORD JUSTICE RICHARDS: There is no harm in the order having a remittal in it for the avoidance of doubt.
32. MISS SIKAND: I am grateful for that. The quashing is of the decision to vacate the guilty pleas which follows then the quashing of the decision to commit to the Crown Court, which is what the judge purported to do.
33. LORD JUSTICE RICHARDS: He had not yet committed to the Crown Court.
34. MISS SIKAND: Sorry. He has made the decision in principle. He has gone through mode of trial.
35. LORD JUSTICE RICHARDS: I think in those circumstances it may be prudent to remit with a direction that the court proceed to deal with the claimant on the basis of the pleas of guilty previously entered. It avoids any possible doubt in the matter, does it not?
36. MISS SIKAND: I would be most grateful for that.
37. LORD JUSTICE RICHARDS: Mr McGonigal, is there anything you want to say on the relief?
38. MR McGONIGAL: No.
39. MISS SIKAND: The question of costs arises. It is unusual in the extreme for a court to award costs against a defendant court. I accept that, and I do not make that application. I do make an application that the costs be paid by the interested party in this case. I do so for very specific reasons. Although the Director of Public Prosecutions is an interested party as opposed to the defendant, it is quite clear that in cases such as these, in real terms, the DPP is the real opponent. This case arose because of the DPP's error. It was then the DPP's application, as it were, in the guise of a CPS lawyer, to apply to vacate the pleas. It was upon its application that the whole procedure took place and the district judge made his decision.
40. As your Lordship has already noticed and commented upon, there has been no acknowledgement of service or any indication of the DPP's position until this morning, and that is despite the many many phone calls between those instructing me and the CPS. In those circumstances it is my submission that it is appropriate that the DPP pays the costs of this litigation.
41. LORD JUSTICE RICHARDS: Mr McGonigal, have you come prepared to deal with that application?
42. MR McGONIGAL: I have not come prepared but I can make some submission in relation to it. The duty is on the court, in my submission, to ensure that its proper procedure is followed. It was the court's duty to deal with the question of venue before a defendant is arraigned. It is for the Crown to make submissions once the procedure has begun. I do not therefore accept my friend's proposition that the error was that of the prosecution.
43. LORD JUSTICE RICHARDS: If the prosecution applied for the matter to be re-opened?
44. MR McGONIGAL: That is the second point that my friend raises. According to the note left by the reviewing lawyer - I referred to it in my skeleton argument - it was raised by the district judge on 18 October. That is the note that I have.
45. LORD JUSTICE RICHARDS: The difficulty is that, as I said in my judgment, the statement of facts says that it was the prosecution who asked for the matter to be re-opened. I think that reflects the witness statement that was filed in support of the application.
46. MISS SIKAND: He sits behind me.
47. LORD JUSTICE RICHARDS: These are factual averments supported by the requisite statement of truth. We have nothing to counter them.
48. MR McGONIGAL: I can see it is supported by virtue of the statement of the solicitor on behalf of the defendant. I have not seen the acknowledgement of service or the reply from the court itself.
49. LORD JUSTICE RICHARDS: You have not missed much on this point. I do not think they touch the point.
50. MR McGONIGAL: I know what your Lordship says in relation to it. All I put forward is that according to the document I have it was a matter initiated by the court itself, District Judge Brown who dealt with the hearing on 18 October.
51. The third matter that my friend raises in relation to the Director of Public Prosecution is to adhere to the rules that he should have adhered to; I cannot make any comment because I have no instructions, but it is clear on its face that he has not. I cannot comment on a phone call that may have been made. You have the statement as a result of the document which has been handed to you already.
52. I do ask this court not to make the order for costs because, in my submission, it is the duty of the whole (?) the venue procedure to deal with that and the duty of the court.

R U L I N G

53. LORD JUSTICE RICHARDS: The Director is ordered to pay the claimant's costs of this application on the basis that on the evidence before the court it was the prosecution that asked for the matter to be re-opened and whose application led to the decision that this court has found to be unlawful - a decision that necessitated the judicial review proceedings being brought. The Director has not filed evidence challenging the factual evidence before the court. There is, in Mr McGonigal's written submissions, reference to the prosecutor's note for 18 October suggesting it was the district judge who raised the question of venue. That however is not in evidence as before us.
54. The right course is for this court to proceed on the basis of the evidence that is before us. It seems to us to be an entirely appropriate exercise of discretion to order the Director to pay the costs of proceedings that had been caused by the approach adopted by the prosecution.
55. MISS SIKAND: I do not think I need to ask for a detailed assessment of costs in the order as far as possible although I may have to.
56. LORD JUSTICE RICHARDS: We will give you a detailed assessment in case. Is it funded publicly or privately?
57. MISS SIKAND: Publicly funded. The certificate is in the bundle.
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