R (Salubi and another) v Bow Street Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Auld |
| Judgment Date | 10 May 2002 |
| Neutral Citation | [2002] EWHC 919 (Admin) |
| Docket Number | Case No. CO/3150/2001 Case No. CO/4955/2001 Case No. CO/3942/2001 Case No. CO/300/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 May 2002 |
[2002] EWHC 919 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Lord Justice Auld and
Mr. Justice Gage
Case No. CO/3150/2001
& CO/3944/2001
Case No. CO/4955/2001
Case No. CO/3942/2001
Case No. CO/300/2002
Benjamin Aina (instructed by Chambers Campbell) for the Claimant
Martin Hicks (instructed by Crown Prosecution Service) for the Defendant
Stephen Fidler (Instructed by Stephen Fidler & Co) for the Claimant
Martin Hicks (Instructed by Crown Prosecution Service) for the Defendant
Adam Kane (Instructed by Hallinnan Blackburn Gittings & Nott) for the Claimant
Mark Bryant- Heron (Instructed by Customs & Excise) for the Defendant
Stephen Fidler (Instructed by Stephen Fidler & Co) for the Claimant
Mr P Hester (Instructed by Crown Prosecution Service) for the Defendant
Mr A Gersch (Instructed by St Luce & Co) for the Claimant
Mr M Kennedy (Instructed by Crown Prosecution Service) for the Defendant
Introduction
These appeals raise a number of questions arising out of the introduction on 15 th January 2001 of a new procedure under sections 51 and 52 of the Crime and Disorder Act 1998 replacing, in the case of indictable-only offences, committal proceedings by a procedure known as "sending" defendants to the Crown Crown for trial. Committal proceedings continue to apply to either-way offences unless they are related to indictable-only cases.
The new provisions require a magistrates' court to "send forthwith "to the Crown Court an adult who "appears" or is brought before" it charged with an indictable-only offence and also with any related either-way offence, or summary offence punishable with imprisonment or disqualification from driving, instead of committing him there for trial. In addition, a magistrates' court, after it has sent an adult for trial under the new procedure, may, if he subsequently "appears or is brought before it" send him there for trial in respect of any related either-way or summary offence fulfilling the requisite conditions.
The purpose of the new procedure is two-fold: first, to simplify and speed the progress of indictable-only and related other offences to the Crown Court; and, second, subject to the magistrates' court's discretion in "tacking on" to already sent cases related either-way or summary offences, to exclude the use of committal proceedings in such cases. There are two important features of the new procedure. First, the prosecution does not serve the evidence on which it bases its charges(s) until after the case has arrived at the Crown Court. And, second, if a defendant wishes to challenge the sufficiency of the evidence for that purpose, he does so for the first time in the Crown Court by way of application for dismissal after service of the evidence and before arraignment. See paragraphs 1 and 2 of Schedule 3 to the Act and The Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 1998 and The Crime and Disorder (Dismissal of Charges Sent) Rules 1998.
Those provisions, which came into force on 15 th January 2001 have given rise to problems of statutory interpretation and abuse of process where: 1) indictable-only cases "straddle" the commencement date in one way or another; 2) there are consecutive charges of either-way and related indictable-only offences, or of two or more indictable-only offences arising out of the same facts; and 3) where a magistrates' court wrongly purports to commit indictable-only cases to the Crown Court instead of sending them there.
The first two groups of difficulties have arisen in the main out of the meaning of the words in section 51 of the Act and in the relevant Commencement Order "appears or is brought before a magistrates' court" and "charged". Section 51 provides, so far as material:
"(1) Where an adult appears or is brought before a magistrates' court charged with an offence triable only on indictment.… the court shall send him forthwith to the Crown Court for trial- (a) for that offence, and (b) for any either-way or summary offence with which he is charged which …..
(11) (a) … appears to the court to be related to the indictable-only offence; and
(b) in the case of a summary offence, … is punishable with imprisonment or involves obligatory or discretionary disqualification from driving." [my emphases]
"(2) Where an adult who has been sent for trial under subsection (1) above subsequently appears or is brought before a magistrates' court charged with an either-way or summary offence which fulfils the requisite conditions, the court may send him forthwith to the Crown Court for trial for the either-way or summary offence." [my emphases]
And the Crime and Disorder Act 1998 (Commencement No. 8) Order 2000, in paragraph 3, provides that the new procedure only applies
"where the adult who appears or is brought before a magistrates' court in the proceedings in respect of which he is charged with an indictable-only offence, as provided for in section 51(1) of the 1998 Act, so appears or is brought before the court for the first time on or after 15 th January 2001." [my emphasis]
The issues
"appears or is brought before a magistrates' court charged"
The first issue, which arises in the appeals of Thomas Salubi, Edwyn Wanogho and Roy Peter Harmer, is whether the word "charged" in the term "appears or is brought before a magistrates' court charged" refers only to the procedure of charging in a police station or the laying of an information leading to a summons or the issue of a warrant for arrest, and not with that in which a prosecutor, after the defendant has been brought before the court on such a charge, reviews the case and prefers an additional or alternative charge. An integral part of these claimants' cases is that once a person is before a magistrates' court in respect of an offence, a prosecutor's power is limited to that contemplated by section 123 of the Magistrates' Courts Act 1980 Act, namely to amending or withdrawing the original charge or to inviting the court to consider additional charges; he has no power to bring or make a person appear before the court in respect of any new charge.
Mr. Benjamin Aina for Salubi and Mr. Stephen Fidler for Wanogho submitted that Parliament was not concerned with defendants already subject to proceedings for indictable-only offences before 15 th January 2001, but with defendants so charged appearing in or being brought before the courts for the first time after that date. They said that the new procedure does not apply to a charge preferred by a prosecutor in court after 15 th January 2001 arising out of the same facts as a charge in respect of which he had appeared or had been brought before a magistrates' court before that date. Fundamental to this approach is the argument that such a new charge, preferred at court, does not—cannot—create new proceedings, namely those "in respect of which he is charged with an indictable-only offence" and "appears or is brought before the court for the first time on or after 15 th January 2001". In such transitional cases, they argued, therefore, that both of the charges must proceed to the Crown Court by the same procedural route, namely the old one of committal, notwithstanding the intention of the legislature to confine it to either-way offences unless they are related to indictable-only offences.
On the same reasoning, counsel for the these three claimants also argued that the long-term effect of the new provision is to preserve committal proceedings for both indictable-only offences and related either-way offences where they are charged in proceedings on which a defendant has already appeared or has been brought before a magistrates court charged with either-way offences. Put another way, they said that once a person is before a magistrates' court in respect of a charge, the proceedings "in respect of which he is charged" do not become proceedings in respect of some other charge by the addition or substitution of an alternative charge. On this approach, consecutive proceedings for offences arising out of the same facts would take separate routes to the Crown Court, each subject to a different procedural regime of preliminary challenge:
i) the first proceedings: by sending if they are indictable-only or indictable-only and related either-way charges; or by committal if they are either-way charges unrelated to an indictable-only charge; and
ii) the second proceedings by committal, whether indictable-only or related either-way offences.
Such an outcome, counsel for the claimants submitted, was part of Parliament's intention to retain two separate systems of transmission to the Crown Court that would operate mutually exclusively from each other and would not permit the prosecution to change track in relation to the first charge in respect of which a defendant appears or is brought before the magistrates' court. Mr. Aina added that an interpretation of section 51 that allows the prosecution to frustrate committal proceedings at any stage, no matter how long they have been under way, simply by adding an indictable-only charge to a proposed indictment would conflict with...
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