R v The Brent Magistrates' Court and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE McCOWAN,MR JUSTICE GAGE |
| Judgment Date | 07 October 1994 |
| Judgment citation (vLex) | [1994] EWHC J1007-2 |
| Date | 07 October 1994 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO 2587/94 |
[1994] EWHC J1007-2
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Before: Lord Justice McCowan and Mr Justice Gage
CO 2587/94
MR E McKIERNAN (Instructed by Stephen Fidler & Co., London WC1X 8TX) appeared on behalf of the Applicant.
THE RESPONDENT did not appear and was unrepresented.
Friday, 7th October 1994.
I will ask Gage J to give the first judgment.
MR JUSTICE GAGEThis is an application for judicial review and for Orders compelling the Magistrates at Brent Magistrates' Court to consider and sentence the Applicant for an offence of indecent assault, of which he was convicted at the Brent Magistrates' Court on 1st July 1994. In addition, the Applicant seeks an Order preventing the Harrow Crown Court from sentencing him until sentencing has been considered by the Brent Magistrates' Court. The Applicant proceeds with leave of Bell J, granted on 5th September 1994. Following the granting of leave, Dyson J gave him bail on 13th September 1994.
The matter has an unfortunate history. The chronology and background facts, so far as they are relevant, are these. On 30th April 1994 the Applicant was arrested for an offence of indecent assault. On 2nd May 1994 he appeared at Brent Magistrates' Court and was remanded in custody. On 1st July 1994 he was tried by the Magistrates and convicted. As appears from the papers, he is a man aged nearly 36; he has a long history of convictions, and he has two previous convictions for indecent assault.
The memorandum of conviction, which is before this court, shows that he was at that time committed to the Harrow Crown Court under the provisions of section 38(2)(a) of the Magistrates' Courts Act 1980, the Magistrates being of the view that the offence was so serious that greater punishment should be inflicted then they had power to impose. In addition, he was committed under section 24(2)(a) of the Powers of Criminal Courts Act 1973, the Magistrates being under the impression that he was, at that time, subject to a suspended sentence imposed by the Harrow Crown Court. It subsequently transpired that the suspended sentence had already been disposed of by the Crown Court in the previous year, by bringing the suspended sentence into effect.
On 19th August 1994 the Applicant appeared at the Harrow Crown Court. On that occasion Her Honour Judge Cohen was sitting with Justices, and she remitted the matter back to the Brent Magistrates' Court for that court to reconsider the committal, in the light of the fact that there was an error in the committal in respect of the suspended hearing.
At the hearing before the Crown Court, the Applicant's solicitor was shown a Pre-sentence Report. It would appear that it was a favourable report to his client (the Applicant), but for reasons, which it is not easy to understand, he was asked, and did give back the Report to the probation officer.
On 2nd July 1994 the Applicant appeared again at the Brent Magistrates' Court. It is necessary now to refer to the affidavit evidence as to what happened on that occasion. There is an affidavit sworn by Mr Stephen Maurice Fidler, the Applicant's solicitor, and also an affidavit sworn by the Clerk to the court.
Mr Fidler states in his affidavit, at paragraph 2(vii), that what occurred on 7th October 1994 was as follows. He referred to the authority of R v Norfolk Justices, ex parte Director of Public Prosecutions, to which I shall refer again in a moment. He submitted that the Magistrates should proceed to sentence the Applicant. He asked for the Report that had been before the Crown Court and had been removed from him on that occasion. The matter was put over until after the luncheon adjournment. He continues in his affidavit:
"The case was put over until after lunch to see whether the Report could be made available. Upon my return to Court, and upon the matter being recalled, the Clerk asked whether I had any further mitigation. I indicated that I had not mitigated at length and I wished the Court to see not only the Pre-sentence Report of 19th August 1994, but also the earlier one. The Justices then read out what I can call a Prepared Script or Judgement saying that there was no power to remit and that it was their intention to remit the defendant to the Crown Court for sentence."
He goes on to say that he made some objection to it, but that indeed was the Magistrates' Order.
The Clerk to the court gives this version of the events on 2nd September in his affidavit at paragraph 3:
"On 2 September 1994 the matter came before two of the three original justices who had heard the case on 1 July 1994. Mr Fiddler urged the magistrates to reconsider their decision and to sentence the applicant to six months imprisonment.
4. I was unable to find any authority for the judges purported remittal to the magistrates' "court. Mr Fiddler quoted as his authority R v Norfolk Justices ex parte DPP 1950 [2 KB 558]. I advised the magistrates that it was open to them to distinguish the Norfolk case from the present one as that case concerned an invalid committal. In the absence of a finding by the Crown Court on the validity of the committal under s.38(2)(a) Magistrates' Courts Act 1980 and having regard to the specific reasons announced for the committal on 1 July 1994, I advised the magistrates that there could be no legal objection to the validity of the committal. Nevertheless the bench considered it was in the interest of justice to allow Mr Fiddler to make representations on behalf of his client particularly as the bench comprised of two of the three justices who had committed the applicant for sentence.
5. The justices were of the opinion that the applicant would have been committed to be dealt with for the instant offence, whether or not he had been in breach of the Crown Court order. It should be noted that the justices were made aware on 1 July 1994 that if they considered their powers of punishment were adequate for the instant offence it was open to them to commit the applicant under s.56 Criminal Justices Act 1967 rather then s.38 Magistrates' Court Act 1980. A committal under the former provisions would have restricted the Crown Courts powers of punishment to those available to the magistrates court viz. a maximum of 6 months imprisonment and/or level 5 fine.
6. The justices announced that they did not consider that the judge had power to remit the matter back to them for reconsideration, but even if they did have power to reconsider they had not heard anything to persuade them that their decision of 1 July 1994 should not stand. Mr Fiddler contended that the magistrates must decide whether or not they had jurisdiction to reconsider the matter. In those circumstances the magistrates said that they regarded the purported remittal to them by the Crown Court on 16 August 1994 as a nullity and that they reaffirmed their decision of 1 July 1994 to commit the defendant in custody pursuant to s.38(2)(a) of the Magistrates' Courts Act for sentence, that decision still being outstanding the defendant to be detained in custody in accordance with that order."
As I have already indicated, he has now been granted bail by Dyson J. The matter comes before this court for the Orders which I have set out.
The Applicant contends that the decision of the Magistrates not to deal with the matter on 2nd September was wrong. It is submitted on his behalf that, the Crown Court having remitted the matter back to the Magistrates, the Magistrates should then have dealt with that matter. It is submitted that the Crown Court had an inherent jurisdiction to remit the matter back to the Magistrates' Court, when it discovered that the committal in respect of the Powers of Criminal Courts Act was in fact a nullity.
In support of these submissions, Mr McKiernan, who has appeared on behalf of the Applicant, has referred to three authorities. The first is R v Norfolk Justices, ex parte Director of Public Prosecutions [1950] 2 KB, to which I have already referred. Without referring to the judgment in that case, it seems to me that the facts are entirely different from this one. That was a case where the Magistrates committed for sentence to Quarter Sessions, and the court held that the original committal for sentence was a nullity. When the Magistrates were seized of the matter again, they said, and decided that they were functi officio. The court held in that case that the original committal had in itself been a nullity. The Magistrates were not only empowered to, but should in fact continue and deal with the matter of sentence.
The other two cases, which are relied on by Mr McKiernan, are R v Mutford and Lothingland Justices, ex parte Harber and R v East Suffolk Quarter Sessions, ex parte Harber; and R v Tottenham Justices, ex parte Rubens and R v Middlesex Quarter Sessions, ex parte Rubens [1970] 1 ALL ER 879. In my judgment, having been referred to those authorities, they deal with an entirely different problem. The courts in those cases were concerned with changes of plea after committal and after sentence. The matter on those occasions was remitted back to the Justices, but the circumstances were entirely different. Whilst, for my part, I would accept that within this statutory framework the Crown Court has an inherent jurisdiction to regulate his its own procedure, that is not this case.
In my judgment, the Applicant having been originally committed on 1st July 1994 under section 38(2)(a) of the Magistrates' Courts Act 1980, there was no power in the Crown Court to remit...
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