John Scott Dougall v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews,Lord Justice Holroyde |
| Judgment Date | 09 May 2018 |
| Neutral Citation | [2018] EWHC 1367 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/357/2018 |
| Date | 09 May 2018 |
[2018] EWHC 1367 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Lord Justice Holroyde
Mrs Justice Andrews DBE
CO/357/2018
APPEARANCES
Mr O Greenhall (instructed by Lloyds PR Solicitors) appeared on behalf of the Appellant.
Mr J Boyd (instructed by the Crown Prosecution Appeals Review Unit) appeared on behalf of the Respondent.
This appeal by way of Case Stated raises a short but important point as to the proper construction of section 127 of the Magistrates' Courts Act 1980, which imposes a time limit on the commencement of a prosecution for a summary offence.
Section 127 of the 1980 Act provides as follows:
“(1) Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates' court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose.
(2) Nothing in—
(a) subsection (1) above; or
(b) subject to subsection (4) below, any other enactment (however framed or worded) which, as regards any offence to which it applies, would but for this section impose a time-limit on the power of a magistrates' court to try an information summarily or impose a limitation on the time for taking summary proceedings, shall apply in relation to any indictable offence.
(3) Without prejudice to the generality of paragraph (b) of subsection (2) above, that paragraph includes enactments which impose a time-limit that applies only in certain circumstances (for example, where the proceedings are not instituted by or with the consent of the Director of Public Prosecutions or some other specified authority).
(4) Where, as regards any indictable offence, there is imposed by any enactment (however framed or worded, and whether falling within subsection (2) (b) above or not) a limitation on the time for taking proceedings on indictment for that offence no summary proceedings for that offence shall be taken after the latest time for taking proceedings on indictment.”
The chronology of relevant events is helpfully summarised in the Case Stated. On 24 November 2015, the appellant, Mr Dougall, was involved in an incident in which, it appears, he admittedly bit another man. His explanation for doing so was that he acted in self-defence. On 3 February 2016, he was arrested, interviewed, and released on bail. He was not, however, charged until 21 July 2016, almost eight months after the incident.
The charge laid against him on that date was that he had assaulted the complainant, thereby occasioning him actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861. That is an offence which may be tried either on indictment or summarily; an either-way offence.
By section 5 of Schedule 1 to the Interpretation Act 1978, “indictable offence” means an offence which, if committed by an adult is triable on indictment whether it is exclusively so triable or triable either way. The general effect of section 127(2) of the 1980 Act, therefore, is that the time limit for a summary offence contained in subsection (1) does not apply to an indictable-only or either-way offence. There may be rare exceptions to that general rule, where a statute expressly imposes a time limit for commencing proceedings on indictment, but none of them applies in the present case.
The appellant made his first appearance before a magistrates' court on 18 August 2016. On that date the charge was amended to one of assault by beating, contrary to s.39 of the Criminal Justice Act 1988. That is a summary offence and may only be tried summarily. The appellant pleaded not guilty, and his case was listed for trial in the magistrates' court on 28 November 2016. There followed a number of delays and adjournments which unhappily had the effect that the trial was not concluded until 8 May 2017, when the appellant was convicted and sentenced to a community order.
The Deputy District Judge (Magistrates' Courts) who heard the trial (“the DDJ”) was not the judge who had permitted the prosecution to amend the charge on 18 August 2016. At the commencement of the trial, it was submitted to her, on behalf of the appellant, that the court had no jurisdiction to try him because the amendment of the charge had contravened section 127 of the 1980 Act. It was submitted that section 127 showed a clear Parliamentary intention that summary offences should be dealt with speedily, and that it was not permissible to add or substitute a charge of a summary offence in circumstances such as these.
It was submitted on behalf of the prosecution that the amendment had been properly made and had caused no prejudice to the appellant because it resulted in his facing a less serious charge than he had done previously. The prosecution relied on the decision of a Divisional Court in R v Scunthorpe Justices ex parte McPhee and Gallagher [1998] EWHC 228 (Admin). The facts in the Scunthorpe Justices case were that the applicants had been involved in an incident on 22 October 1996, when they admittedly beat their victim and stole her trainers. On 23 January 1997 they were charged with robbery. That is an indictable-only offence. The case was to be tried on 25 April 1997. Before that date the prosecution agreed that they would accept guilty pleas by the applicants to offences of theft and common assault and would not pursue the charge of robbery. On 25 April 1997, accordingly, the prosecution applied to amend the information to charges of theft, an either-way offence; and common assault, a summary offence. So far as the charge of theft was concerned, the amendment was permitted and the applicants pleaded guilty....
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R Augustine Ogunsola v Crown Court at Aylesbury
...amended to a summary only offence?” R v Scunthorpe Justices ex parte McPhee and Gallagher [1998] EWHC 228 Versus Dougall v CPS [2018] EWHC 1367 (Admin) 2. Are there ‘Abuse of Process’ issues for Prosecution to offer a change of indictment on the day of a trial of an Indictable offence to t......