R (Westminster city council) v Owadally and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross,Mr Justice Ouseley |
| Judgment Date | 17 May 2017 |
| Neutral Citation | [2017] EWHC 1092 (Admin) |
| Docket Number | Case No: CO/5275/2016 |
| Court | Queen's Bench Division (Administrative Court) |
[2017] EWHC 1092 (Admin)
Lord Justice Gross
Mr Justice Ouseley
Case No: CO/5275/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Heller (instructed by Tri Borough Shared Legal Services) for the Claimant
William Clegg QC and Quentin Hunt (instructed by Blackfords LLP) for the Defendants
Hearing dates: 24 January, 2017
Approved Judgment
INTRODUCTION
On this appeal, the Respondents have no merit whatever. However, they seek to uphold the decision of the Crown Court in their favour, namely, that the indication of pleas of guilty entered on their behalf and in their presence by counsel appearing for them in the magistrates' court was an incurable error, fatal to the subsequent proceedings. The Respondents' case is that only they, personally, could have indicated pleas of guilty and that the lapse of some 21 months, together with their participation in the confiscation proceedings in the interim are neither here nor there.
This case started life as an appeal by way of case stated from the judgment of HHJ Grieve QC, sitting at Southwark Crown Court on 7 th June, 2016 ("the judgment"). In circumstances to which I shall come, the Judge held that the indications of pleas of guilty were entered in Westminster Magistrates' Court on 14 th May, 2014 by the Respondents' barrister, on behalf of both Respondents, and therefore that the indications of guilty pleas were invalid, as was the Respondents' committal to the Crown Court for confiscation proceedings. The Judge remitted the cases back to the magistrates' court.
The facts, subject to what is said later, appear from the Case stated by the Judge, dated 30 th September, 2016 ("the Case").
On the 21 st February, 2014, three informations were laid by the Appellant ("WCC") against the Respondents (Mohammed Yousouf Farook Owadally and Seema Khan), alleging breaches of three separate planning enforcement notices served on them as owners of a property in London W9 ("the property"). The breaches were said to constitute offences contrary to s.179 of the Town and Country Planning Act 1990.
The summons required the attendance of the Respondents at Westminster Magistrates' Court and, in due course, the Respondents attended there on the 14 th May, 2014.
The events of that day are set out in the Case, but the finding about how the pleas were taken was based on the concession of prosecuting counsel:
"3. On 14 May 2014 the respondents attended Westminster Magistrates' Court and indicated guilty pleas to the three offences through their barrister, Giles Atkinson. The respondents were present throughout the hearing and present in court at the point when the guilty pleas were indicated.
4. The prosecutor indicated to the court an intention to pursue confiscation proceedings and the case was subsequently committed to the Crown Court pursuant to s.70 of the Proceeds of Crime Act 2002 (' POCA')."
On the 9 th June, 2014, the case was listed for committal for sentence at Southwark Crown Court, before Mr Recorder Rhodes QC. As observed in the Case (at [5]): "The defendants would have admitted at their first hearing in the Crown Court to having been committed from Westminster Magistrates' Court on 14 May 2014." A confiscation timetable was set, with a final hearing fixed for 5 th March, 2015.
The Case records that a number of delays then ensued as the Respondents sought extensions of time or adjournments while pursuing other avenues of appeal relating to the planning status of the property. Ultimately, in September 2015, all planning appeals were exhausted.
On the 22 nd September, 2015, at a mention in the Crown Court, the final confiscation hearing was re-fixed for 14 th March, 2016. By this time (Case, at [7]), there had been an exchange of s.16 POCA statements of information prepared by the prosecutor and s.17 POCA responses by the Respondents. There had also been a number of mention hearings.
The next development was dramatic (Case, at [8]):
"On 29 February 2016, Blackfords LLP, solicitors acting on behalf of both respondents, wrote to the prosecution indicating that Mr Owadally and Ms Khan intended to apply to vacate their guilty pleas 21 months after the pleas were indicated. This was the first time since the pleas were indicated in May 2014 that the issue of vacation was raised."
Skeleton arguments from the Respondents followed, contending, first, that the pleas were invalid as they had been indicated by counsel acting on behalf of the Respondents, not by the Respondents personally and, therefore, that there had not been compliance with the correct procedure for entering pleas. Secondly, in the alternative, it was submitted that the pleas entered were equivocal and/or should be vacated in the residual discretion of the Court.
At a directions hearing on the 21 st April, 2016, HHJ McCreath ordered that the first issue raised by the Respondents should be heard on the 20 th May, 2016, without witnesses. If the Respondents were right on the first issue, it would be unnecessary to decide the second issue.
In the event, HHJ Grieve QC heard legal argument on the first issue on the 20 th May 2016, by way of a preliminary point (as he understood it). There was no live evidence but the Crown Court had statements from both counsel who had appeared in the magistrates' court on the 14 th May, 2014 – i.e., both Mr Ham, prosecution counsel for the WCC and Mr Atkinson for the Respondents — and an attendance note from the Respondents' then solicitor (Mr Sheerin). In a nutshell:
i) Neither barrister could recall the procedure which had been followed at the magistrates' court but Mr Ham's contemporaneous notes referred to "guilty pleas indicated by the defendants".
ii) Mr Sheerin's attendance note stated that Mr Atkinson (i.e., counsel) indicated guilty pleas on behalf of both Respondents. There was no witness statement from Mr Sheerin and he was not available to give evidence.
iii) Nonetheless, counsel for the prosecution in 2016 is recorded as stating that there was no factual basis on which Mr Sheerin's attendance note could be challenged and so (Case, at [12]) "expressly conceded that the court was bound to find that the pleas were entered by counsel on the defendants' behalves and not by the defendants themselves".
In the (reserved) judgment, delivered on 7 th June, 2016, HHJ Grieve QC concluded that the pleas of guilty indicated, not by the Respondents but by their legal advisers, were invalid. There did not seem to be any reason in principle to distinguish the procedure for pleas in the Crown Court from pleas in the magistrates' court: Case, at [16.1].
The Case (at [17]) stated the following questions ("the Questions") for the opinion of the High Court:
"i) Whether the Learned Judge was right to find that the ratio of R v Ellis… is equally applicable to an indication of plea in the Magistrates' Court as to arraignment in the Crown Court?
ii) Whether the Learned Judge was right to conclude, following R v Ashton [2006] EWCA Crim 794, that the indication of pleas of guilty by counsel on the respondents' behalves and not by the respondents themselves was a procedural failure which invalidated the steps which followed; or should he have found that was not the intention of the legislature and gone on to consider the interests of justice generally, including the acceptance by the respondents in the Crown Court that they had been committed from the Magistrates' Court?"
I shall refer to these as Question I and Question II respectively.
PROCEDURAL CONCERNS
As has been seen, the Respondents challenged the validity of their pleas in the Crown Court and the matter has since come to this Court by way of case stated. At the outset, we raised with counsel, Mr Heller for the Appellant and Mr Clegg QC for the Respondents, our concern as to whether the Crown Court had had jurisdiction to entertain the Respondents' challenge. In this regard, we drew to the attention of counsel the observations of this Court in R v Sheffield Crown Court and Sheffield Stipendiary Magistrate (1994) 15 Cr App R (S) 768.
In Sheffield, this Court upheld the validity of the decision of the stipendiary magistrate to commit the matter to the Crown Court for sentence and set aside the Crown Court's decision to the contrary. Kennedy LJ went on to say this (at p.771):
"But in any event….the Crown Court had no power to go behind the order of the Magistrates' court which committed these matters to the Crown Court for sentence. That order was, on the face of it, a valid order. If it was to be challenged, it could only be properly challenged in this Court [i.e., the Divisional Court]. The position can be different where the order is obviously bad on the face of it, for example, where a case has been purportedly committed for trial when the offence is one which can only be tried summarily….but that is not this case."
Scott Baker J (as he then was) added (ibid):
"Only where a committal is plainly invalid on its face should it be sent back by the Crown Court."
It is necessary to distinguish between the choice of remedy and the court in which to pursue the most appropriate remedy.
It is not necessary to decide whether a challenge to the validity of pleas entered and to committal could be mounted by way of an appeal by way of case stated, pursuant to s.111 of the Magistrates' Court Act 1980 ("the MCA"). If it could be, it would be subject to the 21 day time limit from the decision in s111 (2). Judicial review is the only alternative. As the discussion in Archbold (2017) at paras. 2–91 – 2–93 makes clear, views may differ as to the most appropriate course to follow...
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