England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		11 October 2012

1. MR JUSTICE COLLINS: This is an appeal by way of case stated from a decision of the Justices for the area of South Cheshire, who on 16 March last decided that the appellant should be committed to the Crown Court to stand trial on two charges. It is said that the Justices erred in law in the manner in which they reached their decision to commit for trial.
2. The charges in question were brought under the Consumer Protection from Unfair Trading Regulations 2008, and they alleged first - I do not need to read them in full - that in January of 2011 the appellant being a trader, engaged in a commercial practice which was a misleading action, in that it contained false information and was therefore untruthful by misleading the consumer into believing that expensive repairs were required to her home. Thus the consumer decided to agree to have the work done and would not otherwise have done so. This is said to have been contrary to regulations 9 and 13 of the relevant regulations.
3. The second charge alleged that the appellant on the same occasion engaged in a commercial practice which was aggressive, in that it significantly impaired, or was likely to significantly impair, the average consumer's freedom of choice. What was done was demanding payment in cash and taking the consumer in question to her bank using harassment, coercion or undue influence. That was said to be contrary to regulations 11 and 13 of the relevant regulations.
4. Those offences are triable either way. That is found in regulation 13, which provides:

"A person guilty of an offence under [the various regulations including regulations 9 and 11] shall be liable -

(a) on summary conviction, to a fine not exceeding the statutory maximum [which is £5,000]; or

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding two years or both."

5. Accordingly the Justices have to consider, in any given case, whether their powers are sufficient, bearing in mind that they can do no more than fine to a maximum of £5,000. Accordingly if they decide either that the case crosses the custody threshold and might properly result in a sentence of imprisonment, or indeed a sentence less than imprisonment, but, for example, a community sentence or a fine in excess of £5,000, then the Justices ought to decline jurisdiction.
6. So far as the facts known to the Justices were concerned, they depended upon what they were told by the prosecuting authority, that is to say the Cheshire East Borough Council who brought the charges. The Council indicated to the Justices, when the matter first came before the court, that summary trial was what should occur. They did not submit that the case, or cases, were serious enough to merit a penalty which exceeded that which the justices could impose.
7. The allegations, so far as the justices were concerned, are set out in paragraph 7 of the case, which says as follows:

"In short, it is alleged in this case that the Appellant has carried out building work in the Complainant's home that was unnecessary and expensive [£6,000] and then driven the Complainant to the bank on more than one occasion for [her] to withdraw the cash to pay for the work. The Court considered that the Complainant was likely to be vulnerable given [her] age."

The age is not in fact identified but the complainant was an elderly lady. I am told by Mr Lake that by elderly he understood she was at least over 60.

8. It is obvious here that the allegation involved that unnecessary and expensive work was carried out, and an elderly lady, or maybe an elderly couple, were the victims. This was obviously a disgraceful action in which he prayed on the elderly and vulnerable. I am bound to say that it would not surprise me in the least if the Justices took the view that the maximum available to them was, in all the circumstances, insufficient.
9. However, an important thing to consider is the manner in which they went about reaching their decision. As I say, at the initial hearing, when the matter first came before the Justices, both the prosecuting authority and the appellant's representative submitted that it was appropriate that it should be summary trial, and the Justices in due course agreed. It seems that the legal adviser to the Justices took the view that the Justices had not been properly advised on the situation in law, and thus the decision they made for summary trial was one which should be re-visited. Accordingly he advised the Justices that they should exercise their powers under section 142 of the Magistrate's Court Act and reconsider the matter. This reconsideration took place on 12 March. It is against the decision reached on that reconsideration that this case is stated. It is not suggested that the magistrates did not have the power to reconsider the matter in accordance with section 142 of the Act.
10. The permission that the legal adviser had considered, one which led to the possibility of a wrong decision, was the failure to advise the magistrates that the court could only deal with the matter by way of financial penalty, so that the maximum power that the magistrates had was a fine of £5,000. They had no power to imprison and so no power to impose any other sort of penalty than a financial one. In those circumstances the question then arose as to the proper advice that should be given to the magistrates.
11. The prosecuting authority maintained its view that summary trial was appropriate. The Justices were then advised and acted in accordance with the advice as follows, which is set out in paragraph 13 of the case. So far as material, it reads:

"13. There being no sentencing guidelines for offences under the Consumer Protection from Unfair Trading Regulations 2008, our Legal Adviser drew our attention to the Sentencing Guidelines for Fraud Offences. He advised us that, in cases where there was no sentencing guideline for the offences alleged, both Legal Advisers and Magistrates had been trained to study the guidelines, identify the guideline for the offence that appeared most analogous to the offences alleged and to make reference to that guideline in dealing with the offences alleged either in deciding sentence after conviction or (as here) in determining what the sentence might be after conviction so that Magistrates could decide whether their sentencing powers were adequate when dealing with mode of trial. In accordance with standard procedure in the Magistrates' Court these issues were initially raised and with us by our Legal Adviser prior to our coming into Court..."

They then deal with that last point, but there is nothing that turns on it because it is not suggested that, as it were, secret advice was given, because the matter was dealt with openly and submissions were invited from the appellant's representatives at the hearing.

12. The appellant's advocate, for obvious reasons, maintained that summary trial was appropriate and that it was not correct to consider sentences available for fraud offences. Indeed the maximum penalty, in any event, even assuming it was an appropriate case for consideration of custody, was far less than that available in offences of fraud.
13. It is said that having argued that it would be inappropriate for the court to have regard to the fraud guideline, the appellant's advocate nevertheless made submissions by reference to it. That is not all that surprising since he had been told that the magistrates were going to consider the matter on that basis, so obviously he had to deal with that in his submissions, having already submitted that it was not appropriate to consider it.
14. The Justices in the case make the point that section 172 of the Criminal Justice Act 2003 requires the court to have regard to any guideline relevant to any sentencing function, and that in the introduction to the Sentencing Council's Magistrates' Court Sentencing Guidelines it is said that the guidelines should be considered so as to inform mode of trial decisions. That is clearly correct, but the problem here is that there are no guidelines which relate to offences against these regulations. However, it is possible for magistrates, indeed for any court, to consider guidelines which are analogous, if they truly are analogous, and it may be that in a given case the court can be assisted by considering such analogous guidelines.
15. What the court did in this case was, as I have said, to consider the guidelines on sentencing for fraud offences, and they found under confidence fraud that there was a reference to a single fraudulent transaction involving targeting a vulnerable victim. The starting point for that was said to be six weeks custody, and the range was of a medium community order to 26 weeks custody. What they did was to say to themselves that six weeks for fraud, if the loss to the victim was £10,000 or less, having regard to the differing circumstances, should be halved to three weeks and they approached it on that basis.
16. The difficulty clearly is that these offences do not involve allegations of dishonesty. If the victim is sufficiently seriously misled by what are clearly dishonest assertions as to the need for the work to be done, then charges based upon such dishonesty can always be brought whether obtaining by deception, or some other sort of fraud offence. However, these offences, as I said, do not involve an allegation of dishonesty. Accordingly it is not appropriate, in my view, to refer, as a guideline, to offences which do involve dishonesty, and indeed which are based upon allegations of dishonesty.
17. That is supported by a decision of the Court of Appeal: R v Stone and Moore [2012] EWCA (Crim) 186, a decision reached on 24 January of this year. In fact it is a decision which had been made before the hearing before the Justices, but unfortunately, I assume, not reported and certainly it was not drawn to the attention of the Justices. The judgment of the court consisting of the Lord Chief Justice, Holman J and Openshaw J was given by Openshaw J. It was a case where there had been a charge of conspiracy to defraud, but that had not been pursued and instead there had been convictions for counts charged under the 2008 regulations. The sentences imposed by the Recorder were based upon what was said to be analogous guidelines, again the fraud guidelines. The court took the view that that was inappropriate.
18. So far as material what was said was this at paragraph 36 of the judgment:

"36. We have already observed that the appellants were perhaps fortunate that the prosecution chose not to pursue the charge of conspiracy to defraud. If the appellants had been convicted of such an offence, then maybe the total sentences passed would have been justified. But the offences to which they pleaded guilty and the basis upon which they fell to be sentenced are offences of neglect of duty only. Dishonesty is not a component of the regulatory offences. We think that the Recorder was wrong to sentence them upon the basis that dishonesty was alleged in the charge, let alone that it had been admitted.

37. Furthermore, in our judgment, the Recorder was also plainly wrong to seek guidance from the Sentencing Guidelines Council's Definitive Guideline on Fraud, which is also predicated upon dishonesty."

Then he went on to say that the appellants could be sentenced only for what was alleged against them in the particulars of the offences, and of course the particulars did not and, similarly in this case, do not allege dishonesty.

19. Accordingly it seems to me that the Justices were given poor advice and they were wrong to approach the matter on the basis of the fraud guidelines. They ask three separate questions. First, they say:

"Absent a specific sentencing guideline for the offences before us, were we wrong in law in considering the starting points and ranges for offences within the Sentencing Guidelines Council's Magistrates' Court Sentencing Guidelines that are of a similar level of seriousness to inform our determination as to jurisdiction?"

In principle the answer to that would be "Yes", but one must underline the words "of a similar level of seriousness". It is only appropriate to refer to guidelines where the particular offence has no guidelines specific to it if in reality it is analogous, or of a similar level of seriousness. The mistake here was to refer to a guideline which was based upon dishonesty, when dishonesty was not an ingredient of the offences with which the appellant was charged.

20. The second question was:

"Was it an unreasonable exercise of our discretion to find that the most analogous Sentencing Guidelines Council's Magistrates' Court Sentencing Guideline was that pertaining to confidence fraud?"

The answer is that it was a wrongful exercise of discretion. I do not think one needs to use the word "unreasonable", but it clearly was in my view, for reasons I have given, wrong in law. The third question they ask is:

"Was it unreasonable for us to conclude that, on conviction after trial, this defendant would be likely to receive a custodial sentence?"

The first point to make is that a "highly likely" test was not a correct test. What they had to consider, when deciding on mode of trial, was whether, as I put it earlier, the custody threshold was passed. That is to say, whether it should be open to the court, on the facts, to impose a sentence which was more than that which they were empowered to impose.

21. It seems to me that looking at the circumstances of this offence, as known to the Justices, it is a case where they would have been entirely justified in taking the view that a court might well, once the full circumstances were gone into and whether or not there was a plea of guilty, have formed the view that a custodial sentence or a community sentence, rather than a fine, or indeed a fine in excess of the maximum which they were empowered to impose, would have been appropriate. Again they use the word "unreasonable".
22. That, I would suggest, is not again an entirely appropriate way of looking at it. The question is whether they were correct in law, but in a sense question (3) is perhaps, in the circumstances, not entirely material in the light of the wrong approach that the Justices took.
23. The question, therefore, I have to consider now is: what should be done? As I have said, I think that it is difficult to believe that on what is known, on the face of the statements before me, that the Justices were wrong to take the view that this was a case where their powers were insufficient. However, they clearly were driven by a wrongful consideration of the sentencing guidelines, and came to the view essentially that on those guidelines a custodial sentence was, as they put it, a "highly likely outcome". As I have said, that was the wrong test: they put it too high.
24. It seems to me in the circumstances that it is not for me to determine that issue. I think the matter should go back to the Justices for them to consider on a proper basis, bearing in mind the circumstances of the offence, and hoping that they will get further details from the prosecuting authority, who, in my view, should reconsider carefully their decision that this was an appropriate case for summary trial.
25. There is an added factor which the Justices may take into account, although it has not been raised, but it is a matter that could be relevant, that if they form a prima facie view that their powers are sufficient, but it transpires when they hear the whole of the matter that they take the view that they are not, there is the possibility of committal for sentence. However, they should not approach the matter in that way if they are persuaded on the material before them that, as I say, prima facie this is a case for a penalty which is in excess of that which they have power to impose.
26. I am told that there is a hearing due shortly and it would be sensible, as I say, for the matter to be sorted out in the light of this judgment.
27. MR JUSTICE COLLINS: When is the hearing?
28. MR LAKE: My Lord, it is 23 October.
29. MR JUSTICE COLLINS: [Judge addresses shorthand writer] It just occurred to me that you ought to have a copy of the transcript, which I will direct be provided. The shorthand writer tells me that I will be able to correct it at the beginning of next week. You will have it before the 23.
30. MR LAKE: Thank you, my Lord.
31. MR JUSTICE COLLINS: What about any further order?
32. MR LAKE: There is no issue of costs arising on this case, my Lord. The appellant was legally aided for the purpose of this appeal.
33. MR JUSTICE COLLINS: It is a question of who pays. It is the Ministry of Justice vote I know. You are legally aided for the purpose of this appeal. I have no power to make an order out of Central Funds because I am not a Divisional Court. There are ways and means. Prima facie you have succeeded. I think it ought to be out of Central Funds. What I will do, and the way we deal with it, is to find another judge and I will act as a Divisional Court for the purpose of the costs order. That I will do, because, as I say, I think it is appropriate that it is Central Funds, rather than the Legal Aid Fund, which after all is pretty strapped for cash.
34. MR LAKE: It is.
35. MR JUSTICE COLLINS: I will make that then. In due course you can expect an order for costs out of central funds. As I say, I have to find another judge to agree to that.