R (Gillan) v DPP
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE FORBES,LORD JUSTICE LATHAM |
| Judgment Date | 15 February 2007 |
| Neutral Citation | [2007] EWHC 380 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9940/2006 |
| Date | 15 February 2007 |
[2007] EWHC 380 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Latham
Mr Justice Forbes
CO/9940/2006
MR JOHN LOFTHOUSE (instructed by Talbot Walker) appeared on behalf of the CLAIMANT
MS DAWN HYLAND (instructed by The Crown Prosecution Service) appeared on behalf of the DEFENDANT
This is an appeal by way of case stated from the Crown Court at Winchester that raises directly, and it seems for the first time, the question of whether the Crown Court has, on committal for sentence of an either-way offence, the power to hold a fresh Newton Hearing when the committing justices have already held one and made a decision upon it.
The brief facts are these. The appellant pleaded guilty to a charge of assault occasioning actual bodily harm before the Basingstoke Magistrates' Court on 17 January 2006. The Crown alleged that the assault comprised repeated punching, followed by kicking to the head whilst the victim was on the floor. The appellant pleaded guilty on the basis that the victim had attempted to head-butt him (the appellant) before he struck him. The appellant denied that he had stamped on the victim's head, asserting that he had merely put his foot on the victim's shoulders and neck to prevent him from getting up.
The appellant's basis of plea was not accepted by the Crown and the justices rightly decided that a Newton Hearing was required to establish the facts for sentencing. The Newton Hearing was held before a district judge on 5 May 2006. The district judge found for the prosecution and determined that the appellant should be sentenced on the basis of the Crown's case. The case was adjourned to 1 June 2006 for the preparation of a pre-sentence report when, the power to do so having been specifically reserved by the district judge, the appellant was committed to the Crown Court for sentence.
On 23 June 2006, the appellant appeared before Winchester Crown Court, when it was indicated that he wished again to dispute the factual basis upon which he was to be sentenced. Accordingly, the case was adjourned for a further Newton Hearing. However, on 26 August 2006, having heard legal submissions on the matter, HHJ Hooton concluded that he did not have the power to conduct a further Newton Hearing in the Crown Court, the factual basis of the Crown's case having previously been determined by a district judge at such a hearing in the Magistrates' Court. Sentencing was then adjourned pending the outcome of this appeal in respect of the judge's ruling.
Initially the judge contemplated that there would be an application for judicial review of his decision. However, as I have already indicated, he later stated a case for the opinion of this court. The question posed for the opinion of the High Court is in the following terms:
"Where magistrates have determined the factual basis for sentencing at a Newton Hearing and then commit the defendant for sentence in the Crown Court, in the absence of some significant development such as the discovery of important further evidence, does the duty of the Crown Court to enquire into the circumstances of the case include a power to hear evidence in a second Newton Hearing to determine afresh the factual basis on which the defendant shall be sentenced?"
In my view, the central part of that question tends to cloud the issue and the question would be more appropriately phrased so as to omit those words and read as follows:
"Where magistrates have determined the factual basis for sentencing at a Newton Hearing, and then commit the defendant for sentence in the Crown Court, does the duty of the Crown Court to enquire into the circumstances of the case include a power to hear evidence in a second Newton Hearing to determine afresh the factual basis on which the defendant shall be sentenced?"
Hereafter I will refer to the question posed in the case stated as "the modified question" and state my conclusion with regard to the "modified question" rather than the original one.
In addition to the modified question, an issue of jurisdiction and procedure arises because, as is apparent from my recital of the facts, this is not an appeal from a final decision of the Crown Court, rather it is an appeal in respect of a judge's ruling as to whether he should conduct a further Newton Hearing before proceeding to deal with sentence. Therefore, this appeal is more in the nature of an interlocutory appeal.
In my view, it is convenient to consider first the question of this court's jurisdiction to hear an appeal by way of case stated in relation to an interlocutory decision. In Loade v Director of Public Prosecutions [1990] 1 QB 1052, this court (differently constituted) held that there is either no jurisdiction to entertain such an appeal in criminal proceedings or that it is the court's invariable practice not to entertain one. The court in that case was, however, willing to express an opinion on the question posed, but stated that, in future, a court might simply dismiss the appeal.
In giving the first judgment in that case, Neill LJ set out the terms of section 28 of the Supreme Court Act 1981, so far as material, as follows:
"(1) Subject to subsection (2), any order, judgment or other decision of the Crown Court may be questioned by any party to the proceedings, on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the Crown Court to have a case stated by that court for the opinion of the High Court.
(2) Subsection (1) shall not apply to - (a) a judgment or other decision of the Crown Court relating to trial on indictment …"
Neill LJ went on to observe:
"There is no definition of the word 'decision' in the Act of 1981. The use of the word in conjunction with the words 'judgment' and 'order' is some indication that appeals by way of case stated are meant to be confined to appeals from final decisions rather than preliminary rulings."
Neill LJ then reviewed the earlier legislation and the history of appeals by way of case stated to the High Court, before concluding as follows:
"I must now return to the words used in section 28(1) of the Act of 1981. I have come to the conclusion that looking at the word 'decision' in its context and also in the light of the history of appeals by way of case stated before 1971 and the parallel history of appeals by way of case stated direct from the justices there is a very powerful argument for construing the word 'decision' as meaning final decision. Indeed, in the case of criminal proceedings I am satisfied that the word should be so construed and that, whether regarded as a matter of jurisdiction or of invariable practice, the High Court will not entertain an appeal by way of case stated in a criminal case unless the Crown Court has reached a final determination."
Turning to page 1065 at letter F, Neill LJ said this:
"Nevertheless, the matter has been fully argued before us and I think it would be helpful if I were to express an opinion on the merits of the appeal even though it must be appreciated that what I say is obiter. I would, however, add a warning that it should not be assumed that in other cases the High Court will be prepared to express any opinion, however informal. The appeal may simply be dismissed."
Pill J (as he then was) delivered a short judgment in which he agreed with the judgment of Neill LJ.
I also agree with the judgment of Neill LJ and, for the reasons he gave, I am of the view that the word "decision" in section 28(1) of the 1981 Act means "final decision". It therefore does not include an interlocutory decision in criminal proceedings, such as the one under challenge in this case. However, the Crown Court is amenable to judicial review except in matters relating to trial on indictment (see section 29(3) of the 1981 Act) which this is not. Accordingly, in my view, the correct procedure for challenging the lawfulness of an interlocutory decision in criminal proceedings such as the present one is by way of an appropriate application for judicial review, although the circumstances in which that is likely to be necessary will, as it seems to me, be relatively rare and exceptional.
Strictly speaking, therefore, this appeal is at risk of being dismissed as indicated and for the reasons given by Neill LJ in Loade. However, the point raised is an interesting and important one, and we have been told that the Crown Court would welcome this court's guidance.
As Mr Lofthouse submitted on behalf of the appellant, it is open to this court to give appropriate directions to enable this matter to proceed by way of judicial review and to treat this hearing as the substantive application, emulating the approach adopted in Sunworld Limited v Hammersmith and Fulham LBC [2000] 1 WLR, 2102 (see the judgment of Simon Brown LJ (as he then was) at pages 2106E to 2107B). As it seems to me, that is the obvious and sensible way of dealing with this particular matter and, as I indicated earlier, it is plainly one that was in the contemplation of the judge (see his observations at page 18 of the transcript of the hearing). Furthermore, this approach will enable the matter to be considered and decided on its merits.
I therefore turn to consider the issue raised by these proceedings on the basis that the appellant or applicant seeks appropriate relief by way of judicial review of the judge's decision that he was bound by the factual findings of the district judge, the...
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