England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/10/2013

Mr Justice Mackay:

1. The Claimant appeared at the Hendon magistrates' court on 26 June 2012 in response to a summons issued on behalf of the Interested Party pursuant to section 179(2)(8) of the Town and Country Planning Act 1990 charging him with failure to comply with an enforcement notice. The offence charged was triable either way.
2. He had failed to attend court on earlier occasions and had been made the subject of a bench warrant not backed for bail. He had surrendered to the police and was produced at court that day. He was an Iranian businessman of some standing, described as owning "various properties in the UK".
3. At the magistrates' court he was represented by solicitors and counsel and had the services of an interpreter. He pleaded guilty to the charge and was committed to the Crown Court for sentence.
4. On 7 and 9 September 2012 he applied to the Crown Court to vacate his plea of guilty, which application was refused. He thereafter launched these proceedings relying on three grounds. The first ground, on which he was granted permission, alleged that the Crown Court judge erred when refusing to allow him to vacate his plea after finding as a fact that the magistrates' court clerk had failed to ask the statutory questions of the applicant as required by section 17A of the Magistrates Court Act 1980. The two grounds on which permission was refused have not been renewed to this court.
5. The relevant section of the Magistrates' Court Act 1980 provides as follows:-

"17A. Initial procedure: accused to indicate intention as to plea.

(1) This section shall have effect where a person who has attained the age of 18 years appears or is brought before a magistrates' court on an information charging him with an offence triable either way.

(2) Everything that the court is required to do under the following provisions of this section must be done with the accused present in court.

(3) The court shall cause the charge to be written down, if this has not already been done, and to be read to the accused.

(4) The court shall then explain to the accused in ordinary language that he may indicate whether (if the offence were to proceed to trial) he would plead guilty or not guilty, and that if he indicates that he would plead guilty –

(a) the court must proceed as mentioned in sub-section (6) below; and

(b) he may be committed for sentence to the Crown Court under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 if the court is of such opinion as is mentioned in sub-section (2) of that section.

(5) The court shall then ask the accused whether (if the offence were to proceed to trial) he would plead guilty or not guilty.

(6) If the accused indicates that he would plead guilty the court shall proceed as if –

(a) the proceedings constituted from the beginning the summary trial of the information; and

(b) section 9(1) above was complied with and he had pleaded guilty under it.

(7) If the accused indicates that he would plead not guilty section 18(1) below shall apply.

(8) If the accused in fact fails to indicate how he would plead, for the purposes of this section and section 18(1) below he shall be taken to indicate that he would plead not guilty.

(9) Subject to sub-section (6) above, the following shall not for any purpose be taken to constitute the taking of a plea –

(a) asking the accused under this section whether (if the offence were to proceed to trial) he would plead guilty or not guilty;

(b) an indication by the accused under this section of how he would plead."

6. At the Crown Court it was not disputed that the magistrates' court did not follow the procedure set out above in any respect. Instead defence counsel conferred with his client and on coming into court told the court that his client wished to plead guilty to the offence. It was argued by the Interested Party in its response on paper to this claim that it was therefore appropriate for the court to accept from what counsel said that this defendant was fully aware of the implications of the offence to which he was intending to plead guilty and should therefore be regarded as having been fully informed before making that decision. It was the fact that there had been a restraining order granted under the Proceeds of Crime Act 2002, of which the claimant must have been aware since he had sought variation of it, therefore the claimant ought to have been aware that confiscation proceedings were going to take place, and that those proceedings could only take place in the Crown Court to which he was therefore bound to be committed for trial. The Interested Party did not appear before this court to develop those submissions further.
7. The claimant through Mr Clegg QC submits that there was a requirement that the defendant should at the least have explained to him by the court, in ordinary language as the section requires, of four essentials things: that the offence he faced was an either way offence; that he would be asked for an indication as to his plea if the case proceeded to trial; that if he indicated he wished to plead guilty that would be treated as a guilty plea; and fourthly that the court had the power to send him to the Crown Court for sentence if it thought right so to do.
8. Mr Clegg showed us in his submissions the suggested form of words on election annexed to Home Office Circular 45/1997 which develop these requirements, succinctly stated in the claimant's skeleton, in a slightly more elaborate suggested form.
9. The issue therefore in this claim is whether it was the intention of Parliament that a failure to follow the statutory procedure laid down in section 17A rendered all subsequent proceedings invalid and a nullity, or whether they were to be considered a procedural failure, in which case the court had to consider the interest of justice, whether there was prejudice if any to the parties or either of them and or whether it would be unjust to continue with the matter.
10. This issue was considered by the Court of Appeal Criminal Division in R v Ashton and Others [2006] 2 Cr App R 15 in a judgment given by Fulford J as he then was. Having considered the decision of the House of Lords in R v Soneji [2006] 2 Cr App R 20 and the Court of Appeal in R v Sekhon and Others [2003] 1 Cr App R 34 he expressed his conclusion in this way:

"4. 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 a procedural failure. If there is such a risk the court must decide whether it is just to allow the proceedings to continue.

5. On the other hand if a court acts without jurisdiction – for instance a magistrates' court purports to try a defendant on a charge of homicide – then the proceedings will usually be invalid."

11. Mr Clegg's argument is clear and simple. The failure in this case went to the heart of the court's jurisdiction. A magistrates' court is only entitled to try an either way offence, as opposed to exercising its normal jurisdiction over summary offences, where the statutory requirement has been fully complied with, since a magistrates' court only derives its jurisdiction from statute. It was therefore essential, he argues, that the defendant be told, and told by the court with the authority that the court commands, that it was possible or, if that was the case, almost certain that the case would be sent to the Crown Court for sentence (because of the likelihood of confiscation proceedings). Had he been told that by the court he might not have wanted to plead guilty but might have decided to take his chances with a jury at the Crown Court. He should at least have been given the opportunity to do so.
12. There is a clear line of previous authority in support of Mr Clegg's position. In R v Cockshott and Others (1898) 1 QB a statutory predecessor to section 17A was considered and the defendant, who was legally represented, pleaded guilty on advice, the clerk of the court not having informed him fully of the position he faced. Wright J said (at 586):

"I think it would be wrong to fritter away the protection which the section intends to give to accused persons. It intends to give them protection in the broadest and most generous way by providing that the option of trial by jury shall be put before any accused person before the charge is gone into. I think the option ought to be put to him before he is asked whether he pleads guilty or not guilty. The protection is possibly even more necessary where he intends to plead guilty. He might plead guilty because, though he had no great confidence in the tribunal before which he appeared, he thought that by pleading guilty he would get a lighter sentence; whilst if he new he had a right to be tried by a jury he would prefer to avail himself of that right. I think it is immaterial whether in fact he knows that he has the right or not; he ought to be informed of it by the court…I am inclined to think that, the duty to inform having been imposed upon the court for the protection of all accused persons, the right to be informed could not be waived."

13. This authority was followed in R v Kent Justices ex parte Machin [1952] 36 CAR 23 in the judgment of Lord Chief Justice Goddard and in R v Horseferry Road Magistrates Court, ex parte Constable [1981] Crim LR 504 where the Divisional Court held that, albeit the form of words used by the clerk was "adequate though not following the statutory wording more closely", the failure was regarded as "a matter of fundamental importance" and the decision was quashed and the case remitted.
14. These three authorities were considered in Ashton at paragraphs 67-69 and were not disapproved of, indeed they were described as "clearly important as regards the approach to be adopted when there has been a material procedural failure". A fourth authority namely R v Haye [2002] EWCA Crim 2476, a decision of the Court of Appeal Criminal Division, was doubted and said to be an authority which the court was confident, if decided now, would have been decided the other way.
15. In my judgment Haye is not of assistance to our task in the present appeal. It concerned a defendant who was validly sent for trial to the Crown Court on a charge of robbery pursuant to section 51 of the Crime and Disorder Act 1998. The prosecution at the Crown Court preferred an indictment containing a single count of theft and dropped the charge of robbery. The defendant pleaded guilty to the new charge in due course. The Crown Court failed to follow a procedure laid down by schedule 3 paragraph 7 of the 1998 Act under which the court was required to explain to the defendant that if he indicated that he would plead guilty the Crown Court would proceed as if he had been arraigned on the fresh count in question and had pleaded guilty, but if he indicated that he would plead not guilty or failed to indicate how he would plead the court would consider whether the offence was more suitable for summary trial or trial on indictment. There was a procedure under paragraph 9 of the schedule for the resolution of that issue. The reservations expressed about this case in paragraph 69 of Ashdown are therefore entirely understandable.
16. But Mr Clegg rests on his fundamental submission that the court never complied with the statutory procedure which was designed to confer jurisdiction on the magistrates' court to try either way offences which it did not otherwise have. Adopting the criterion expressed in paragraph 4 of Ashton, and not disapproved by the House of Lords in R v Clarke and McDaid [2008] 1 WLR 338, the legislature in enacting section 17A must have intended in my judgment, acting in line with then existing authority, that where a magistrates' court declined or failed to follow the requirements of the section it was acting without jurisdiction every bit as much as if, for instance, it had purported to try a defendant on a charge of homicide. The requirement that the defendant be present in court throughout this procedure, and to explain the effect of the section "in ordinary language" fortify the view of Wright J that the defendant should be informed of his rights by the court itself and not merely by an advocate acting on his behalf.
17. In my judgment therefore the claimant's argument is right and the consequent proceedings in the Crown Court were invalid and a nullity. The conviction must be quashed and the Interested Party ordered to pay the applicant's costs of these proceedings.

Lord Justice Moses:

18. I agree.