Adrian Jones v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hamblen,Mr Justice Lane |
| Judgment Date | 24 October 2019 |
| Neutral Citation | [2019] EWHC 2826 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2303/2019 |
| Date | 24 October 2019 |
[2019] EWHC 2826 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hamblen
and
Mr Justice Lane
Case No: CO/2303/2019
and
Pamela Rose (instructed by GT Stewart Solicitors & Advocates) for the Appellant
Simon Heptonstall (instructed by the Crown Prosecution Service, Appeals and Review Unit) for the Respondent
Hearing date: 16 October 2019
Approved Judgment
Introduction
This is an appeal by way of case stated against the decision of Mr Recorder Benson QC sitting at Croydon Crown Court on 25–26 April 2018, on an appeal from Croydon Magistrates' Court in respect of the appellant's convictions for driving related offences.
The case stated asks two questions:
(i) When the Crown Court determines an appeal against conviction, does it have the power under section 48 of the Senior Courts Act 1981 to re-determine the sentence de novo of matters where the appeal has been unsuccessful, in circumstances where another Crown Court has sentenced on those matters on a committal for sentence, heard prior to the appeal?
(ii) Can an offence of careless driving be established based upon the physical condition of a person when driving?
The factual and procedural background
On 26 September 2017 the appellant was found guilty at the Croydon Magistrates' Court on the following charges:
(i) Dangerous Driving on 5 November 2016, contrary to section 2 of the Road Traffic Act 1988 (Triable either way offence).
(ii) Failing to provide a specimen of blood for analysis on 5 November 2016, contrary to section 7(2) of the Road Traffic Act 1988 (summary only offence)
(iii) Driving with no insurance on 5 November 2016 (summary only offence).
The appellant was committed for sentence to the Crown Court under section 6 of the Powers of Criminal Courts (Sentencing) Act 2000 in respect of the failing to provide a specimen, and under section 3 of that Act for the dangerous driving offence.
On 12 December 2017, the appellant appeared at the Croydon Crown Court before Mr Recorder Wilson QC on the committal and was sentenced as follows:
(i) Dangerous Driving – 9 months' imprisonment suspended for 18 months
(ii) Failing to provide a specimen – 1 month's imprisonment consecutive suspended for 18 months.
(iii) No insurance – Licence endorsed, no separate penalty.
The total term of imprisonment was therefore 10 months' imprisonment suspended for 18 months. In addition, he was made subject to a 6 months curfew requirement electronically monitored for 40 days and a rehabilitation activity requirement (“RAR”). He was disqualified from driving for 18 months backdated to the date of the interim disqualification imposed by the Magistrates' Court on 27 October 2017. Finally, he was required to take an extended re-test pursuant to section 36(1) of the Road Traffic Offenders Act 1988 as a mandatory consequence of his conviction for dangerous driving.
Prior to the appeal hearing at the Crown Court, the appellant had complied with the orders imposed by the sentencing Court.
On 25 and 26 April 2018, the appellant's appeal against conviction was heard before Mr Recorder Benson QC and two lay justices. The Court acquitted the appellant of the offence of dangerous driving, but convicted him of careless driving, failing to provide a specimen and having no insurance.
Taking into account the sentence already completed by the appellant, the appellant was sentenced in relation to the careless driving to a £10 fine with 1 day's imprisonment in default, deemed served and licence endorsed. As the appeal was unsuccessful on the failing to provide a specimen charge, the court did not interfere with the sentence for that matter, save that, considering totality, it would have cut the disqualification period to 12 months disqualification as the appellant had been acquitted of the dangerous driving matter.
At the end of the hearing, at the invitation of the judge, the Probation Service agreed to revoke the RAR, the curfew and the electronic monitoring. This was to assist in the variation of a sentence now overtly too harsh as it was not believed that the Crown Court had the power to vary the sentence imposed by another Crown Court on the previous committal for sentence for a matter where the appeal had been unsuccessful. The extended re-test would fall away, as that was mandatory as a result of the original conviction for dangerous driving.
The facts found by the Crown Court in relation to the careless driving
As set out in the case stated, these are as follows:
“8. The Court could not be sure that the accident was caused solely as a result of the driving of the defendant. However, the defendant's evidence was that he attended a ‘wake’ following the funeral of his ex-partner's friend, who was tragically killed in a motor bike accident. He did not know anyone present. Outside this event, Mr Jones was attacked as seen on CCTV by a number of males. He sustained head injuries, one wound to his forehead and one to the back of his head. He lost consciousness, having fallen to the floor. It was shortly afterwards that he got into the car and drove off. Blood was “pouring” down his face from his head wounds whilst he was driving.
9. The Court found that the “reasonably prudent” driver would not have driven in these circumstances and when in his physical condition. Therefore, the defendant was found to be driving carelessly.”
Question 1 – The extent of the Crown Court's power under section 48 of the Senior Courts Act 1981 (“the 1981 Act”)
It is now agreed between the parties that the Crown Court does have the power under section 48 of the 1981 Act to confirm, reverse or vary the sentence in matters where the appeal has been unsuccessful, including in circumstances where another Crown Court has sentenced on those matters on a committal for sentence, heard prior to the appeal.
Section 48 of the 1981 Act provides as follows:
“Section 48 Appeals to Crown Court.
(1) The Crown Court may, in the course of hearing any appeal, correct any error or mistake in the order or judgment incorporating the decision which is the subject of the appeal.
(2) On the termination of the hearing of an appeal the Crown Court—
(a) may confirm, reverse or vary any part of the decision appealed against, including a determination not to impose a separate penalty in respect of an offence; or
(b) may remit the matter with its opinion thereon to the authority whose decision is appealed against; or
(c) may make such other order in the matter as the court thinks just, and by such order exercise any power which the said authority might have exercised.
(3) Subsection (2) has effect subject to any enactment relating to any such appeal which expressly limits or restricts the powers of the court on the appeal.
(4) Subject to section 11(6) of the Criminal Appeal Act 1995, if the appeal is against a conviction or a sentence, the preceding provisions of this section shall be construed as including power to award any punishment, whether more or less severe than that awarded by the magistrates' court whose decision is appealed against, if that is a punishment which that magistrates' court might have awarded.
(5) This section applies whether or not the appeal is against the whole of the decision.
(6) In this section “sentence” includes any order made by a court when dealing with an offender…”
In Dutta v Westcott (1987) 84 Cr.App.R. 103 the Divisional Court decided that the Crown Court had the power under section 48 to vary sentence not only on matters subject to the appeal but on all matters that were before the Magistrates' Court.
In considering that issue Woolf LJ emphasised the importance of the fact that an appeal to the Crown Court involves a re-hearing. As he stated at p110:
“In considering the proper interpretation of the section, it seems to me important to bear in mind that the Crown Court, when it is exercising its jurisdiction, is re-hearing the matter de novo. Whether it is dealing with conviction or sentence, the Crown Court looks at the matter afresh.”
The Court held that “the decision” which is the subject of the appeal under section 48(1) is “the whole of the decision made by the Magistrates' court on the occasion on which the conviction or sentence which was the subject expressly of the appeal was made” and that the Crown Court accordingly has the power to confirm, reverse or vary any part of that decision. As Woolf LJ explained at p111:
“In my view one is forced back to the meaning of the words to which I made reference, “the decision which is the subject of the appeal.” So far as those words are concerned, it is quite clear from section 48 itself that the decision which is the subject of an appeal cannot mean merely a decision to convict or a decision to sentence. Even on Miss Lang's submission it includes both a decision to convict and then the decision to impose a sentence. It is my view that the word “decision” as used in section 48 is being used in a wide sense. I regard it as clear from the wording of section 48 as a whole that what was intended by the words to which I have referred (which are not in my view words of art) was that the Crown Court should have the right to confirm, reverse or vary the whole of the decision made by the Magistrates' court on the occasion on which the conviction or sentence which was the subject expressly of the appeal was made. Therefore, although a defendant chooses only to appeal against part of the decision, namely, a particular conviction or a particular sentence, the Crown Court has jurisdiction in respect of all the matters which were then before the court.”
In my judgment the same approach...
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