QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE HON MR JUSTICE BRYAN
| RYAN HARVEY
|- and -
|THE DIRECTOR OF PUBLIC PROSECUTIONS
Benjamin Douglas-Jones QC and Andrew Johnson (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 17 November 2020
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 10:30am on 29 January 2021.
LORD BURNETT OF MALDON:
"(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.
(1A) The power conferred on a magistrates' court by subsection (1) above shall not be exercisable in relation to any sentence or order imposed or made by it when dealing with an offender if—
(a) the Crown Court has determined an appeal against—
(i) that sentence or order;
(ii) the conviction in respect of which that sentence or order was imposed or made; or
(iii) any other sentence or order imposed or made by the magistrates' court when dealing with the offender in respect of that conviction (including a sentence or order replaced by that sentence or order); or
(b) the High Court has determined a case stated for the opinion of that court on any question arising in any proceeding leading to or resulting from the imposition or making of the sentence or order.
(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.
(3) Where a court gives a direction under subsection (2) above—
(a) the conviction and any sentence or other order imposed or made in consequence thereof shall be of no effect; and
(b) section 10(4) above shall apply as if the trial of the person in question had been adjourned.
(5) Where a sentence or order is varied under subsection (1) above, the sentence or other order, as so varied, shall take effect from the beginning of the day on which it was originally imposed or made, unless the court otherwise directs."
i) Does the Magistrates' Court have any power to allow a plea of guilty to be vacated under section 142 of the Magistrates' Courts Act 1980 once the defendant has been sentenced in the Crown Court?
ii) In the circumstances of this case was I correct to refuse to vacate the defendant's guilty pleas pursuant to section 142(2) of the Magistrates' Courts Act 1980?
"The power under section 142 of the Magistrates' Courts Act is a power to rectify errors and defects, to avoid the need for unnecessary appeals to the Crown Court or the High Court, as emphasised by the Divisional Court in R(Williamson) v City of Westminster Magistrates' Court  EWHC 1444 (Admin);  2 Cr App R 24. The power is not a general power of review; nor does it confer a function properly performed by an appellate court. It is not a power that can properly be exercised by a Magistrates' Court, as the Youth Court did in this case, where there has been a committal for sentence and the Crown Court has passed sentence for the offences in question. The orders made by the Youth Court ... were therefore unlawful." (Emphasis added)
"It is clear to us from the Croydon case and the Holme case [Holme v Liverpool City Justices & Crown Prosecution Service  EHC 3131 (Admin)] that section 142 does not confer a wide and general power on a Magistrates' Court to re-open a previous decision on the grounds that it is in the interests of justice to do so. It is, as Collins J said in Holme, a power to be used in a relatively limited situation, namely one which is akin to mistake or the slip rule."
"The purpose of s.142 as originally enacted was to enable the magistrates' court itself to correct mistakes in limited circumstances to avoid the need for parties to appeal to the Crown Court, or to the High Court by way of case stated, or to bring judicial review proceedings. In our judgment the introduction of the s.142 power was designed to deal with an obvious mischief: namely the waste of time, energy and resources in correcting clear mistakes made in magistrates' courts by using appellate or review proceedings. The removal of the short time limit in 1996 is consistent with that approach. It is the common experience of courts in all jurisdictions that mistakes and slips are often not picked up immediately. … So far as the jurisdiction relating to convictions is concerned, the amendment enables the magistrates' court to exercise the power in circumstances beyond those originally envisaged. But the power remains rooted in the concept of correcting mistakes and errors. It is not a power equivalent to an appeal to the Crown Court or the High Court, nor is it a general power of review. It would be possible to construct an argument that because a magistrates' court made an error of law, and thus reached a wrong decision, it would be in the interests of justice for the matter to be remitted under s.142 for a rehearing. However, such an interpretation would have the effect of neutering appeals by way of case stated. It would have the effect of conferring a similar power on the bench considering a s.142 application as possessed by the High Court."
"36. We accept that there may be circumstances in which s.142(2) could be used to allow an unequivocal guilty plea to be set aside. Examples which spring to mind include cases in which a guilty plea had been entered to an offence unknown to the law. Surprising though it may seem, such errors do occur in particular in connection with repealed legislation. That would fall comfortably within the language of mistake. They may include cases where a jurisdictional bar was not appreciated by the defendant relating, for example, to a time limit or the identity of a prosecutor. There may be cases in which the proceedings were, in truth, a nullity. We would not exclude the possibility that s.142(2) would be apt to deal with a case in which circumstances developed after a guilty plea and sentence which led the prosecution to conclude that the conviction should not be sustained.
37. However, the question in this claim is whether what the claimant alleges passed between him and Mr Mardon, and more generally his allegations concerning Mr Mardon's conduct as his solicitor, fall within the concept of "mistake" for the purposes of s.142(2). At the heart of the claimant's contention is the proposition that he misapprehended the strength of the case against him as a result of flawed legal advice. In our judgment, the circumstances relied upon by the claimant, even if they were established as being correct, do not bring the case within the ambit of the power found in s.142(2). The claimant is seeking to use that provision as a surrogate for a full appeal on the basis of the conduct of his solicitor. Such appeals are never straightforward. … In our judgment, s.142(2) of the 1980 Act does not provide an appropriate vehicle for the consideration of such matters."