R v CW and MM
| Jurisdiction | England & Wales |
| Judge | Lady Justice Rafferty |
| Judgment Date | 22 May 2015 |
| Neutral Citation | [2015] EWCA Crim 906 |
| Court | Court of Appeal (Criminal Division) |
| Date | 22 May 2015 |
| Docket Number | Case No: 201501833 C5 AND 201501834 C5 |
[2015] EWCA Crim 906
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LIVERPOOL CROWN COURT
His Honour Judge Watson QC
T20147924
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Rafferty
Mr Justice Sweeney
and
Mr Justice Hickinbottom
Case No: 201501833 C5 AND 201501834 C5
Anthony R. Barraclough for the Respondent CW Oliver Cook for the Respondent MM
Sarah Whitehouse QC and Martin Reid for the Appellant
Hearing date: 12 th May 2015
INTERLOCUTORY APPEAL s. 35(1) Criminal Procedure and Investigations Act 1996 Regina v CW and MM 5
CW and MM are charged with others on counts 1 and 2 of an 8 count indictment, to be tried in the Crown Court sitting at Liverpool. Counts 1 and 2 plead conspiracy to supply diamorphine and cocaine to persons unknown outside England and Wales, contrary to s1, 1A and 3 of the Criminal Law Act 1977. Such requires the consent of the Attorney General ("the AG") by virtue of S4Criminal Law Act 1977.
Those reading should remind themselves that reporting restrictions are in place.
There were preliminary hearings, for MM on 31 st October 2014 and for CW on 13 th November 2014 albeit he did not appear. All parties were aware consent had not been obtained and no indictment was preferred. Notwithstanding that, his counsel said CW would be interested in negotiation with the Crown so as to avoid a trial in respect of the heroin allegation.
An application for consent was received by the Attorney on 6 th November 2014 and granted on 1 st December 2014. The indictment and evidence were served on 12 th December 201
At a plea and case management hearing ("PCMH") on 23 rd January 2015 MM pleaded guilty to both counts and CW guilty to count 1, not guilty to count 2. Others arraigned entered guilty pleas. The issue of the timing of the Attorney General's consent was again raised.
On 13 th April 2015 at a preparatory hearing after argument the Judge ruled that the indictment and proceedings were null and void because consent had not been obtained in time. S4 of the Criminal Law Act 1977 ("S4") and S25 Prosecution of Offences Act 1985 were considered.
On 15 th April 2015 he refused the Crown leave to appeal.
The Crown's application for leave to appeal his ruling as to CW and Count 2 has been referred by the Registrar. For reasons which need not trouble us the application in respect of MM, and of CW as to Count 1, has fallen away. The syntax of the ruling, and the transcript of earlier appearances, is couched in the plural, reflecting the position until shortly before we sat.
We have been assisted for the Crown and for the Attorney General, an interested party, by Miss Sarah Whitehouse QC, who did not appear below, with Mr Reid who did, and for the Respondent CW by Mr Barraclough who also appeared below.
The statutory framework and caselaw
The Criminal Law Act 1977 S4 Restrictions on the institution of proceedings for conspiracy, reads where relevant as follows:
"(1) Subject to subsection (2) below proceedings under section 1 above for conspiracy to commit any offence or offences shall not be instituted against any person except by or with the consent of the Director of Public Prosecutions if the offence or (as the case may be) each of the offences in question is a summary offence.
(2) In relation to the institution of proceedings under section 1 above for conspiracy to commit—
(a) an offence which is subject to a prohibition by or under any enactment on the institution of proceedings otherwise than by, or on behalf or with the consent of, the Attorney General, ….
[ F1(5) Subject to subsection (6) below, no proceedings for an offence triable by virtue of section 1A above may be instituted except by or with the consent of the Attorney General."
S25 Prosecution of Offences Act 1985 reads where relevant as follows:
"25 Consents to prosecutions etc.
(1) This section applies to any enactment which prohibits the institution or carrying on of proceedings for any offence except—
(a) with the consent (however expressed)—of a Law Officer of the Crown or the Director; …..
(2) An enactment to which this section applies—
(a) shall not prevent the arrest without warrant, or the issue or execution of a warrant for the arrest, of a person for any offence, or the remand in custody or on bail of a person charged with any offence; …"
R v Lambert [2009] EWCA Crim 700 reads where relevant as follows:
"The analysis of the statutory language:…
16.……..there are two questions.
i) When were the proceedings instituted?
ii) If the permission of the Attorney General was not given before the proceedings were instituted, was the plea before venue hearing within the scope of s.25(2)?
(i) When were proceedings instituted?
17. The appellant was charged by the police on 27 June 2007 and brought before the Court on 28 June 2007. The charge would have been entered onto the Court record on 28 June 2007.
18. S.25 (2) of the Prosecution of Offences Act 1985 provides that
"for the purposes of this Part, proceedings in relation to an offence are instituted … (c) where a person is charged with the offence after being taken into custody without a warrant, when he is informed of the particulars of charge."
The judge took the view that this provision was not directly relevant as the subsection was by its express terms relevant only to Part 1 of the Prosecution of Offences Act and s.25(2) is not in Part 1. It was also argued by the Crown that the phrase "the institution or carrying on of proceedings" in s.25(1) must have a wider meaning than the ordinary meaning of the institution of proceedings and signify something of substance happening in respect of the charge. We can see no warrant in the language for so concluding.
19. The word "institute" is commonly used to mean commence; that is its ordinary meaning and there is ample authority to support that view. However, as Saville LJ observed in DPP v Cottier [1996] 2 Cr App R 410 at 416, the answer to the question when proceedings are begun or instituted depends on the context in which the words are used and the purpose of the provision. ……In the context of the Terrorism Act 2000 it could well be that in the light of s.15(1) (sic) of the Prosecution of Offences Act 1985 and the ordinary meaning of the term institute, that proceedings were instituted when the appellant was charged. However, there can be no reason for contending, as a matter of language and context, that the time at which proceedings were instituted in respect of the appellant for the offence under the Terrorism Act 2000 was any later than the time at which the appellant was brought to court following the charging and when the charge was entered onto the court register. In any sense of the word, the proceedings must have been instituted when the charge was entered into the court register…..
20. It follows, therefore, that the proceedings against the appellant were instituted before the Attorney General's permission was given to enable the Director to consent.
(ii) Was the plea before venue hearing within the scope of s.25(2)?
21. We therefore turn to the second question. The language of s.25 is clear. The purpose is to enable the arrest, charging and remand in custody or bail of a person against whom proceedings may have been commenced without the consent of the Attorney General or Director; it covers action that needs to be taken to apprehend the offender and detain him if there is not time to obtain permission. It does not in our judgment permit anything more to be done. Applying the analysis from Bull, it is clear that the decisions in Elliott and Whale and Lockton would have been the same.
22. If by reason of a wider reading of s.25(1) as contended by the Crown, something of substance was required to happen in the proceedings, a plea before venue is for the reasons we have already set out a hearing of substance.
Conclusion
23. The appeal is allowed as the permission of the Attorney General was not obtained before proceedings were instituted. We do not need to decide what consequences our decision has on proceedings begun without consent. In the present case, the Crown Court can reconstitute itself as a Magistrates' Court and hold a new plea before venue hearing. If the issue arises in other proceedings, it is desirable that the consequences be argued in a case where the decision on the issue will have practical significance."
Criminal Procedure Rules Pt 9, Sending for Crown Court Trial
The following extracts from the Criminal Procedure Rules ("CrimProcRules") read as follows:
"9.5 Duty of magistrates' court officer.
(1) The magistrates' court officer must –
(b) in that notice record –
(ii) any indication of intended guilty plea given by the defendant under rule 9.7 (Sending for Crown Court Trial).
9.7 Sending for Crown Court Trial
(1) This rule applies where a magistrates' court must, or can, send a defendant to the Crown Court for trial without first allocating the case for trial there…
(4)…the court must then…
(b) invite the defendant to make representation about—
(i) the courts power to send the defendant to the Crown Court, and…
(5) if the court sends the defendant to the Crown Court for trial, it must—
(a) ask whether the defendant intends to plead guilty in the Crown Court and—
(i) if the answer is "yes" make arrangements for the Crown Court to take the defendants plea as soon as possible, or
(ii) if the defendant does not answer, or the answer is "no", make arrangements for a case management hearing in the Crown...
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