R v Ashton; R v Draz; R v O'Reilly
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fulford |
| Judgment Date | 05 April 2006 |
| Neutral Citation | [2006] EWCA Crim 794 |
| Docket Number | Case No: 200506183 200505830 |
| Court | Court of Appeal (Criminal Division) |
| Date | 05 April 2006 |
[2006] EWCA Crim 794
Lord Justice Rose Vice President Of The Court Of Appeal Criminal Division
Mr Justice Penry-davey And
Mr Justice Fulford
Case No: 200506183
200506570
200505830
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT SITTING AT HULL (HHJ THORNE QC)
ON APPEAL FROM THE CROWN COURT SITTING AT BLACKFRIARS (HHJ PONTIUS)
ON APPEAL FROM THE CROWN COURT SITTING AT PETERBOROUGH (HHJ COLEMAN)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr David Perry and Mr Christopher Coltart (instructed by CPS London) for the Respondent
Mr J B Gateshill (instructed by John Robinson & Co) for the FirstApplicant
Mr Benjamin Squirrell (instructed by Farrell Matthews & Weir Solicitors) for the Second Applicant
Mr Rupert Hallowes (instructed by Powell Spencer & Partners) for the Third Applicant
Introduction
These three applications for leave to appeal have been referred to the Full Court by the Registrar because they raise linked issues as to the consequences in law when there has been irregularity in the way in which an accused comes to be convicted and/or sentenced at the Crown Court.
In two of these cases (Ashton and Draz), judges of the Crown Court exercised the powers of a District Judge (as a judge of the magistrates' court) in order to overcome certain procedural failures or alleged procedural failures which had occurred in magistrates' court proceedings when the applicants were either sent or committed to the Crown Court. In the case of O'Reilly, a judge of the Crown Court used the powers of a District Judge to deal with the defendant on a summary only offence (outside the six-month time limit).
Although a more comprehensive summary of the relevant facts of each case is set out below, the following provides an introductory outline to the circumstances of the three applications:
Darren O'Reilly
(i) In this case the indictment at the Crown Court was amended so as to include an allegation of a summary only offence.Furthermore, this occurred outside the six-month period within which proceedings must be instituted.
John Ashton
(ii) For this applicant, the proceedings for the offences with which he was charged can only be instituted by or with the consent of the Director of Public Prosecutions. In the Crown Court the prosecution advocate stated (incorrectly) that the required consent had not been obtained when the proceedings were instituted, and the judge was invited to act as a District Judge under section 66 of the Courts Act 2003 [29 below] in order to regularise the proceedings (the required consent having by then been obtained). The judge, relying on that provision, sat as a District Judge to determine mode of trial; the applicant pleaded guilty; and the judge committed him to the Crown Court for sentence. Thereafter, sitting as a judge of the Crown Court, he passed sentence on the applicant. We note that the prosecution and the defence both agreed to this course.
Omar Draz
(iii) This applicant was wrongly sent to the Crown Court for trial under section 51 of the Crime and Disorder Act 1998 [31]: he should have been committed to the Crown Court. The error was noticed when he first appeared in the Crown Court. The judge then dealt with him in accordance with the procedure set out in paragraph 7 of Schedule 3 of the Crime and Disorder Act 1998 [33] (the mode of trial procedure).Additionally, the judge concluded that it was not necessary for an indictment to be preferred. The applicant thereafter pleaded guilty to two charges which could and would have been included in an indictment (had one been preferred) and he was sentenced for those offences. We note again that the prosecution and the defence both agreed to this course.
The Central Issue of Principle
The outcome of each of these cases essentially depends on the proper application of the principle or principles to be derived from the decision of the House of Lords in R v Soneji [2005] 3 WLR 303; [2005] UKHL 49, together with the earlier decision of this court in R v Sekhon and others [2003] 1 WLR 1655; [2002] EWCA Crim 295Indeed, these three applications demonstrate how far-reaching the effect of those authorities is likely to be whenever there is a breakdown in the procedures whereby a defendant's case progresses through the courts (as opposed to the markedly different situation when a court acts without jurisdiction). In our judgment it is now wholly clear that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised ("a procedural failure"), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue.
On the other hand, if a court acts without jurisdiction – if, for instance, a magistrates' court purports to try a defendant on a charge of homicide – then the proceedings will usually be invalid.
In R v Sekhon in the context of confiscation proceedings, this court held that "the purpose of rules of procedure is not usually to give or take away a court's jurisdiction"; rather, procedural requirements "provide a convenient and just machinery enabling the court to exercise its jurisdiction" (paragraph 21 (v)). Furthermore, "(t)he procedural provisions can be, but usually are not, conditions that have to be fulfilled to give the court jurisdiction. More usually procedural provisions do no more than (a) enable the court if they are not complied with to make orders to require something to be done if it has not been done in accordance with the statutory provisions or (b) in the same circumstances to dismiss the proceedings" (paragraph 21 (vi)). Moreover, "substantive provisions giving the court its jurisdiction are not to be automatically defeated in the ordinary way by non-compliance with procedural requirements unless this is necessary to achieve the statutory purpose" (paragraph 21 (ix)).
At paragraph 29 of the judgment, Lord Woolf C.J.stated:
"We would expect a procedural failure only to result in a lack of jurisdiction if this was necessary to ensure that the criminal justice system served the interests of justice and thus the public or where there was at least a real possibility of the defendant suffering prejudice as a consequence of a procedural failure."
In R v Soneji the House of Lords held that a procedural failure in the sentencing process which led to the making of a confiscation order would not have been intended by Parliament to invalidate the order. Of particular importance to the issues we are considering, Lord Steyn approved the approach of the Australian High Court in Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355, in which it had been said:
"… a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid." (paragraph 21)
Lord Steyn went on to state at paragraph 23 that:
"Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead, as held in Attorney General's Reference (No 3 of 1999), the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity."
At paragraph 24 in dealing with the interests of justice in that case, Lord Steyn concluded:
"Thirdly, counsel for the accused relied on an alleged injustice caused to the accused by the delay of the confiscation procedures. In my view this argument was overstated. The prejudice to the two accused was not significant. It is also decisively outweighed by the countervailing public interest in not allowing a convicted offender to escape confiscation for what were no more than bona fide errors in the judicial process."
In our view Mr Perry, for the respondent, is correct, therefore, in arguing that the prevailing approach to litigation is to avoid determining cases on technicalities (when they do not result in real prejudice and injustice) but instead to ensure that they are decided fairly on their merits. This approach is reflected in the Criminal Procedure Rules and, in particular, the overriding objective. Accordingly, as indicated above at [4], absent a clear indication that Parliament intended jurisdiction automatically to be removed following procedural failure, the decision of the court should be based on a wide assessment of the interests of justice, with particular focus on whether there was a real possibility that the prosecution or the defendant may suffer prejudice. If that risk is present, the court should then decide whether it is just to permit the proceedings to continue.
The legislative provisions relevant...
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