Divisional Court
| DOI | 10.1177/002201838905300201 |
| Date | 01 May 1989 |
| Published date | 01 May 1989 |
| Subject Matter | Divisional Court |
DIVISIONAL
COURT
PROPERTY
SEIZED
BY CUSTOMS &
EXCISE-
APPLICATION OF S.48 MAGISTRATES' COURTS ACT 1980
R. v. Southampton Magistrates' Court, ex p. Newman
This case, reported at (1988) 152J.P. 664, has thrown a spotlight on
a clear anomaly in the law relating to the seizure of property which
clearly will result in injustice being caused to some defendants.
The defendant in this case was arrested by Customs Officers on a
charge of conspiracy to import cannabis. He was dressed in his
pyjamas at the time of his arrest and had no property actually on his
person but the Customs Officersquite lawfullyseized certain property
at his home. The applicant wished to have certain documents which
had been seized by the Customs and Excise Officers returned to him
and alleged they were necessary for the preparation of his defence.
The documents were not returned to him and the Solicitor acting on
his behalf accordingly made an application to the Magistrates' Court
under the provisions of section 48 of the Magistrates' Courts Act
1980. The Justices eventually came to the conclusion that they had
no jurisdiction to make an order under this section. Section 48 of
the Act states that:
"Where asummons or warrant has been issued requiring any
person to appear or be brought before aMagistrates' Court
to answer to any information or where any person has been
arrested without awarrant for an offence and property has
been taken from him after the issues of the summons or
warrant or as the case may be on or after his arrest without a
warrant, the Police shall report the taking of the property
with particulars of the property to the Magistrates' Court
which deals with the case and if the court, being of the opinion
that the whole or any part of the property can be returned to
the accused consistently with the interests of justice and the
safe custody of the accused so directs the property or such
part of it as the court directs shall be returned to the accused
or to such other person as he may require."
117
Journal
of
Criminal Law
The
applicant applied to the Divisional
Court
for judicial review
and the Divisional
Court
dismissed his application.
The
court
took
the
view
that
the
power
of
the
Justices
under
section 48 only
applied to direct the
return
of
property
actually
taken
from his
person
and
it did
not
apply to
property
taken
from his
home.
Where
the
Police were involved in a prosecution, an alternative
remedy was available
under
section 1
of
the
Police (Property)
Act
1897 which empowers acourt of summary jurisdiction to
"make
an
order
for the delivery of the
property
to
the
person
appealing
to the Magistrates'
Court
to be
the
owner
thereof."
However,
by
interpreting both this
Act
and
sections 21
and
22
of
the
Police
and
Criminal Evidence
Act
1988, dealing with access
and
copying and
retention
of documents seized, it was clear these provisions did
not
apply to Customs
and
Excise.
The
court did indicate this does
not
mean
aperson has no remedy and
pointed
out
Magistrates'
Courts
have an
inherent
jurisdiction to control
their
own pro-
cedure.
If, for example, an accused person indicated to a
court
that
without his documents he
cannot
prepare
his case or his defence,
the
court could always
adjourn
or
refuse to go
ahead
until
the
documents
had
been
handed
over
to
the
defence.
They
did however
indicate they felt
there
was a
need
for a
statutory
remedy
to deal
effectively at any time with applications for
the
restoration of
property
in such circumstances
but
it was a
matter
for
the
legislature
to consider.
It
is perhaps interesting to
note
that
the
Judge
pointed
out
that
the
Editor
of
the
Justice of
the
Peace
had,
at
J.P.N.
vol. 120,
p. 205, indicated acontrary view
but
he did
not
feel able to
follow
the
learned
Editor's
interpretation of section 48 in these
circumstances.
C. E. Bazell
Solicitor
Clerk to the Justices
North Oxfordshire
118
Divisional Court
COMMITIAL FOR SENTENCE TO CROWN
COURT-DEFENDANT
DISPUTES THE FACTS PUT FORWARD BY PROSECUTION
Munroe v. Crown Prosecution Service
Most contested trials, both in the Crown and Magistrates' Courts,
clearly involve cases where the defendant pleads not guilty to the
offence with which he ischarged. In most cases where a defendant
pleads guilty, no evidence is called by either prosecution or defence
save possibly that of defence character witnesses. However, since
the Court of Appeal case of R. v. Newton (1983) 77
Cr.App.R
13,
where adefendant pleads guilty to an offence and accepts all the
necessary ingredients of the offence, but still disputes certain facts
put forward by the prosecution, evidence should be called so the
court can come to a decision as to what facts they find proved and
then sentence on that basis.
If
this procedure is not followed, then
the defence version of the facts should be accepted. In practice
the procedure is not carried out if the difference between the facts
put forward by the defence and prosecution are so minimal that
they will not in reality affect sentence.
In the present case, reported at (1988) 152 J.P. 657, the
defendant was committed for sentence to the Crown Court under
the provisions of Section 38 of the Magistrates' Courts Act 1980
after he had pleaded guilty to an offence of assault occasioning
actual bodily harm. At the Crown Court he disputed the version
of the offence put forward by the prosecution who alleged the
defendant had struck a Police Officer four punches with a clenched
fist which landed on the Officer's head. The defendant only
admitted hitting the Police Constable once and not with a clenched
fist.
The defendant by choice was unrepresented at the Magistrates'
Court but was represented at the Crown Court. At the Crown
Court he indicated his disagreement with the prosecution's version
of the offence and also submitted he had drawn attention to the
Justices that he disagreed with the prosecution's version at the
Magistrates' Court. The Clerk to the Justices and the Crown
Prosecutor at the Magistrates' Court had no note of any such
submission having been made by the defendant. At the Crown
Court the defendant's advocate submitted the case should be
119
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