R v Lambert (Goldan)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thomas |
| Judgment Date | 03 April 2009 |
| Neutral Citation | [2009] EWCA Crim 700 |
| Court | Court of Appeal (Criminal Division) |
| Date | 03 April 2009 |
| Docket Number | Case No: 2009/00586/D5 |
[2009] EWCA Crim 700
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM KINGSTON CROWN COURT
MR JUSTICE SAUNDERS
Before : Lord Justice Thomas
Mr Justice Penry-davey
and
His Honour Judge Radford
Case No: 2009/00586/D5
T20080458 & T20087344
Mr David Young for the Appellant
Mr Jonathan Laidlaw QC for the Respondent
Hearing date: 25 March 2009
Lord Justice Thomas :
The factual background
On 25 July 2006 a rally took place in Hyde Park; complaints were made that banners and images depicting the leader of the LTTE (popularly known as the “Tamil Tigers”) were displayed. The LTTE had become a proscribed organisation in March 200The appellant was discovered to have been involved in the organisation of the rally. On 21 June 2007 he was arrested and his house searched. On 22 June 2007 the Crown applied successfully for a further seven days detention; during that period of detention a significant amount of material in respect of the case against him was disclosed. On 27 June 2007 he was charged with assisting or arranging a meeting to support a proscribed organisation, namely the LTTE, contrary to s.12 of the Terrorism Act 2000. It is an “either way offence”, triable in the Magistrates' Court or the Crown Court. Accordingly a plea before venue hearing took place at the City of Westminster Magistrates' Court under s.17A of the Magistrates' Courts Act 1980 on 28 June 2007. A further amount of advance information was served prior to the hearing. There is a dispute between the parties as to whether the appellant indicated a not guilty plea; it was agreed before the judge that that issue did not need to be resolved. He was released on bail.
S.117 of the Terrorism Act 2000 requires consent to prosecution in the case of most offences under the Act, including those under s. 1S.117(2) and (2A) provide:
“(2) Proceedings for an offence to which this section applies –
(a) shall not be instituted in England and Wales without the consent of the Director of Public Prosecutions.
………..
(2A) But if it appears to the Director of Public Prosecutions or ….. that an offence to which this section applies has been committed for a purpose wholly or partly connected with the affairs of a country other than the United Kingdom, his consent for the purposes of this section may be given only with the permission –
(a) in the case of the Director of Public Prosecutions, of the Attorney General
……….”
In other words, the D.P.P. could not give his consent to prosecute the offence with which the appellant was charged without the permission of the Attorney General. The permission of the Attorney General was given on 3 August 2007. On 9 August 2007 the appellant was committed for trial at the Central Criminal Court. On 24 August 2007 a preliminary hearing took place at the Central Criminal Court. The trial is due to take place on 1 June 2009.
The issue
The appellant subsequently, on 13 January 2009, contended that as the plea before venue hearing took place before the permission of the Attorney General was given, the proceedings had not been properly instituted and were a nullity. It was contended on behalf of the Crown that in the light of s.25(2) of the Prosecution of Offences Act 1985 and decisions of this Court on that section and its predecessor, the permission of the Attorney General had been given at a proper time and the validity of the proceedings was not affected. Section 25 provides as follows:
“(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;
(b) ……
and so applies whether or not there are other exceptions to the prohibition (and in particular whether or not the consent is an alternative to the consent of any other authority or person).
(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; and
(b) shall be subject to any enactment concerning the apprehension or detention of children or young persons .”
The decision of the trial judge
The issue came on for argument before Saunders J on 22 January 2009 at a preparatory hearing. In a judgment given on 26 January 2009 he held in the light of the decisions in R v Elliott (1985) 81 Cr. App. R. 115, R v Whale and Lockton [1991] Crim. L.R. 692 and R v Bull (1994) 99 Cr. App. R. 193 that the plea before venue hearing was a procedural step which could be taken before the permission of the Attorney General was obtained and the consent of the Director given. He concluded at paragraph 16 of his judgment:
“On the authorities which bind me, I am satisfied that the ambit of s.25 extends to procedural steps which do not involve the defendant answering the charge. Further, as an alternative basis, I do not accept that merely because mode of trial is dealt with and the opportunity to indicate a plea is given that that takes the hearing out of the category of a remand hearing and therefore outside the wording of s.25. Where a defendant indicates a not guilty plea or gives no indication of plea, that does not involve answering the charge in the terms of the authorities. He does answer the charge if he pleads guilty. The plea before venue procedure is a request to provide an indication to the Court which need not be complied with, and has no status unless it is a guilty plea. Is it significantly different from the Defence solicitor writing to the Court to indicate that there will be a plea of not guilty or that they are not ready to enter a plea? It is an anomaly that a different legal situation follows whether the plea is guilty or not guilty but that is caused by the wording of s.17A and I suspect that the terms of s.25 were not considered when that section was drafted.”
The three earlier decisions
It is convenient first to refer to the three cases. All were before the plea before venue procedure was introduced
i) Elliott was charged with an offence under the Explosives Substances Act 1883 in respect of which it was provided by s.63 of the Administration of Justice Act 1982 that proceedings should not be instituted without the consent of the Attorney General. Elliott was charged on 22 April 1983 and consent was not given until 14 June 1983. It was contended on behalf of Elliott that the proceedings were instituted when he was charged and, as consent was not given, the proceedings were void. On the basis of the predecessor sub-section to s.25( 2) (s.6(2) of the Prosecution of Offences Act 1979) which was in materially identical terms, the Crown contended that because the sub-section provided that it did not prevent “the remand in custody or on bail of a person charged with any offence”, it was plainly envisaged that the absent of consent did not prevent the charging of a person. Stephen Brown LJ giving the judgment of the court concluded:
“In this case, the Court has considered with care the submissions made succinctly and interestingly by Mr Milford [counsel for Elliott] but it has come to the conclusion that section 63 of the Administration of Justice Act 1982 should be interpreted as meaning that instituting proceedings relates to the time when a person comes to court to answer the charge. Accordingly the provision that proceedings for a crime will not be instituted “except by or with the consent of the Attorney-General” must mean the time when he attends at the Magistrates' court to answer the charge. To hold otherwise would be to overlook and to ignore the provisions of section 6 of the Prosecution of Offences Act 1979.”
ii) In Whale and Lockton, the defendants were arrested on 21 February 1989. They were charged on 25 February 1989 with offences under s.4 of the Explosives Substances Act 1883. S.7 of that Act (as substituted by s.63 of the Administration of Justice Act 1982) provided that proceedings should not be instituted without the consent of the Attorney General. On 9 March 1989, Whale applied for bail at the Magistrates' Court. He was remanded on bail on 10 March 1989 and the case was adjourned to 23 March 1989, as the consent of the Attorney General had not yet been given. On 23 March 1989, Lockton was further remanded in custody for 7 days and Whale remanded on bail until 20 April 1989. The consent of the Attorney General was given on 29 March 1989 and Lockton remanded for a further 7 days on 30 March 1989. He was periodically remanded thereafter until the committal proceedings came on for hearing on 11 May 1989. Whale and Lockton contended that consent should have been obtained before the first court hearing. It was also argued that, as a committal hearing was fixed for 23 March 1989, the process of seeking to vacate that date was part of the proceedings which therefore must have been instituted before the consent of the Attorney General was given. The court, in holding that the argument failed, referred to Elliott and continued:
“One may be assisted by the court's description for purposes of that case [Elliott] of the stage at which proceedings were to be regarded as having been instituted. It was said that proceedings are instituted at the time when a person comes to court “to answer the charge”. In our judgment, that reference was to the stage at which the case proceeded beyond the formalities of the charging of the offender and such ensuing remands as in...
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