The King on the application of Crown Prosecution Service v Crown Court at Preston
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bennathan,Lord Justice Edis |
| Judgment Date | 27 July 2023 |
| Neutral Citation | [2023] EWHC 1957 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2384/2022 |
and
and
[2023] EWHC 1957 (Admin)
Lord Justice Edis
and
Mr Justice Bennathan
Case No: CO/2384/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Paul Jarvis (instructed by the Crown Prosecution Service) for the Claimant
The Defendant was not represented
Frances FitzGibbon KC, Jennifer Twite and Stephen Knight (instructed by Just for Kids Law) for First Interested Party
Philip Rule KC (instructed by Head of Legal at the CCRC) for Second Interested Party
Hearing date: 28 June 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on Thursday 27 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
In this application the Claimant [the “CPS”] challenges the decision of His Honour Judge Altham, the Honorary Recorder of Preston, of 6 June 2022, that it was not necessary for the First Interested Party [“Mr Mills”] to apply to vacate his earlier guilty plea at the Youth Court before the Crown Court could proceed to hear his appeal against his convictions, following a referral by the Second Interested Party, the Criminal Cases Review Commission [“the CCRC”].
The facts
Mr Mills was born on 7 December 1999. He is now 22 years old. He lives at an address in Chorley in Lancashire. In May 2015, when he was 15 years old, Mr Mills was charged with eleven offences of making an indecent photograph of a child, contrary to section 1(1) of the Protection of Children Act 1978 and one offence of having indecent photographs of a child in his possession, contrary to section 160(1) of the Criminal Justice Act 1988. At the time these offences were alleged to have been committed, Mr Mills was 14 years old. In October 2014 he had told his mother that he had indecent images of children on his computer, and she notified the police the same day. The police attended the family home, arrested Mr Mills, and took his computers away for examination.
Mr Mills made his first appearance at Preston Youth Court on 2 July 2015 with his legal representative. The hearing was adjourned until the following day whereupon Mr Mills pleaded guilty to all 12 charges and his case was adjourned for the Youth Offending Team to prepare a report. On 16 July 2015, Mr Mills received a referral order for 6 months and was ordered to pay costs.
On 1 February 2017 Mr Mills submitted an application to the CCRC for his convictions to be sent to the Crown Court for an appeal. His application was drafted by Ms Jennifer Twite of Just For Kids Law. Mr Mills made further submissions on 1 October 2018. On 31 October 2018, the CCRC notified Mr Mills that it would not be referring his convictions to the Crown Court. Mr Mills served more submissions on the CCRC on 7 January 2019. On 21 March 2019 the CCRC again notified Mr Mills that it would not be referring his convictions to the Crown Court. Mr Mills then embarked on judicial review proceedings against the CCRC to compel it to reconsider his application. The CCRC re-opened the application on 26 July 2019 and Mr Mills made yet more submissions to the CCRC on 15 March 2021 in response to questions the CCRC had sent to Mr Mills on 15 September 2020.
In 2022 the CCRC concluded that there was a real possibility that, if referred to the Crown Court on appeal, Mr Mills' convictions would not be upheld, the statutory test applied by the CCRC under section 13 of the Criminal Appeal Act 1995. On that basis the CCRC referred Mr Mills' case to the Crown Court. The CCRC's Statement of Reasons is dated 2 March 2022.
None of the parties to these proceedings challenges the CCRC's decision to refer Mr Mills' convictions to the Crown Court and the basis of that decision is not germane to the issues we have to address, but in essence the CCRC concluded that if everything relevant had been known and properly taken into account (a) Mr Mills may not have been prosecuted; (b) any such prosecution may have been stayed as an abuse and (c) Mr Mills may have had a defence to the matters to which he pleaded guilty. In their Statement of Reasons the CCRC approached Mr Mills' case on the basis that before hearing the appeal, the Crown Court would have to hear and grant an application for him to vacate his original guilty pleas in the Youth Court. That understanding of the correct procedure was based on a first instance decision by His Honour Judge Openshaw QC, as he then was, and it is the necessity or otherwise of that procedural step that is in dispute in this application. I note in passing that the CCRC's decision to refer included a finding of a real possibility that an application to vacate the earlier pleas would succeed.
The statutory framework
The two statutory provisions central to this application are section 108 of the Magistrates' Court Act 1980 [“MCA 1980”] and section 11 of the Criminal Appeal Act 1995 [“ CAA 1995”].
Section 108 of the MCA 1980 provides, so far as relevant, as follows:-
Section 108 Right of appeal to the Crown Court.
(1) A person convicted by a magistrates' court may appeal to the Crown Court— (a) if he pleaded guilty, against his sentence; (b) if he did not, against the conviction or sentence.
Section 11 of the CAA 1995 is in these terms:-
Section 11 Cases dealt with summarily in England and Wales.
(1) Where a person has been convicted of an offence by a magistrates' court in England and Wales, the Commission — (a) may at any time refer the conviction to the Crown Court, and (b) (whether or not they refer the conviction) may at any time refer to the Crown Court any sentence imposed on, or in subsequent proceedings relating to, the conviction.
(2) A reference under subsection (1) of a person's conviction shall be treated for all purposes as an appeal by the person under section 108(1) of the Magistrates' Courts Act 1980 against the conviction (whether or not he pleaded guilty).
The bar to an appeal in section 108 MCA 1980 did not represent a change in the law, as section 83 of the Magistrates' Court Act 1952 imposed the same limitation on appeals to the Quarter Sessions. The appellate Courts, however, have interpreted those provisions so as to modify what would otherwise be an absolute prohibition on an appeal against conviction after a guilty plea, in decisions I will consider below.
Subsection 6 of section 11 CAA 1995 prohibits the Crown Court on appeal from imposing any more severe punishment than that imposed in the court below. This is in contrast to the Crown Court's powers on an appeal under section 108 MCA 1980 without a reference by the CCRC.
Section 152 of the MCA 1980 states that the act applies to “juvenile courts” unless enactments specify otherwise. The effect of that provision is that although this case concerns convictions in the Youth Court, the areas of law involved are equally applicable to that court and the Magistrates' Court, and I will refer simply to the latter in this judgment for clarity and economy of expression.
The interaction of the normal appeal route from the Crown Court to the Court of Appeal Criminal Division and that on a reference by the CCRC, may have some relevance to an understanding of the issue in this case. The normal appeal route from the Crown Court is contained in section 1 of the Criminal Appeal Act 1968 [“ CAA 1968”] in these terms:
Section 1 Right of appeal.
(1) …a person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.
(2) An appeal under this section lies only— (a) with the leave of the Court of Appeal; or (b) if within 28 days from the date of the conviction, the judge of the court of trial grants a certificate that the case is fit for appeal.
The CAA 1995 modifies this for cases where the CCRC is involved as follows:-
Section 9 Cases dealt with on indictment in England and Wales.
(1) Where a person has been convicted of an offence on indictment in England and Wales, the Commission— (a) may at any time refer the conviction to the Court of Appeal, and (b) (whether or not they refer the conviction) may at any time refer to the Court of Appeal any sentence (not being a sentence fixed by law) imposed on, or in subsequent proceedings relating to, the conviction.
(2) A reference under subsection (1) of a person's conviction shall be treated for all purposes as an appeal by the person under section1 of the 1968 Act against the conviction.
The powers of the Crown Court on hearing an appeal from the Magistrates' Court, as far as relevant to this issue, are set out in section 48 of the Senior Courts Act 1981:
Section 48 Appeals to Crown Court.
(1) The Crown Court may, in the course of hearing any appeal, correct any error or mistake in the order or judgment incorporating the decision which is the subject of the appeal.
(2) On the termination of the hearing of an appeal the Crown Court— (a) may confirm, reverse or vary any part of the decision appealed against, including a determination not to impose a separate penalty in respect of an offence; or (b) may remit the matter with its opinion thereon to the authority whose decision is appealed against; or (c) may make such other order in the matter as the court thinks just, and by such order exercise any power which the said authority might have exercised.
(3) Subsection (2) has effect subject to any enactment relating to any such appeal which expressly limits or restricts the powers of the court on the appeal.
(4) Subject to section 11(6) of the Criminal Appeal Act 1995, if the appeal is against a conviction or a sentence, the preceding...
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