Introduction
Sadly, no one seems to get excited about the law concerning the sending or committal of cases from the Magistrates’ Court to the Crown Court. It is a highly technical area. However, it is an area where in certain circumstances a favourable outcome can be achieved for a defendant. It is also important to get these technical aspects right first time to prevent a case from entering into further litigation in the Court of Appeal or Divisional Court. That would undoubtedly be stressful for a defendant due to the uncertainty attached to further legal proceedings and costly for the prosecution.
The recent case of R v Gould and others [2021] EWCA Crim 447 (in which Edmund Burge QC represented the CPS) has caused a stir in the judiciary. Every Crown Court judge I have been in front of in the last few weeks dealing with these issues is aware of the case. In the judgment, Lord Justice Edis urged caution in how Crown Court judges use their powers under section 66 of the Criminal Justice Act 2003 (“CJA”) to correct errors in sending cases to the Crown Court. It requires careful reading by all who practice in the criminal courts.
Unfortunately, given the dates of sentencing in all the cases on appeal, the Gould judgment does not deal with the new consolidated provisions of the Sentencing Act 2020 enacted for all cases being committed after 1 December 2020 (sending is still dealt with under the Crime and Disorder Act 1988). Recently, a number of issues have arisen where cases are still being committed under the old legislation, the Powers of Criminal Court (Sentencing) Act 2000. Equally a number of issues arise where cases are being committed under the wrong section of the new legislation. Practitioners will need to carefully consider the corresponding provisions in the Sentencing Act 2020 going forward.
R v Gould and others [2021] EWCA Crim 447
Gould was a joined appeal of four cases. All of the cases had different issues arising out of Crown Court judges attempting to rectify procedural errors in how some or all the matters before the court had been sent or committed by the Magistrates’ Court to the Crown Court.
Gould considered whether the powers granted to Crown Court judges by section 66 CJA were either:
(a). A power exercisable by a judge of the Crown Court which is only exercisable in order to facilitate the power of the Crown Court to deal with cases before it, or
(b). Whether it is an original jurisdiction which enables a holder of one of the judicial officers identified in it to sit as a Magistrates’ Court.
Edis LJ held that it was the latter. The Court of Appeal acknowledged that section 66 CJA was drawn in very wide terms. After much discussion and consideration of the explanatory notes of the CJA and the 2013 amendment to s66 CJA (which increased the types of judicial officer holders who could exercise s66 CJA powers) the conclusion was:
“section 66 as it now stands empowers those judicial office holders named in it to sit as a Magistrates' Court exercising the power to do so which is vested in DJs(MC).” The only limitation of section 66 CJA was that only powers which relate to “criminal causes or matters” may be exercised.
Parameters of Section 66
The Court of Appeal went on to examine the parameters of section 66 CJA in circumstances that all criminal lawyers will be familiar with, as they regularly arise in the sending and committals of cases:
- When the Magistrates’ Court made an order which gives jurisdiction in the case to the Crown Court by committal for sentence or sending for trial, that is the end of the Magistrates’ Court jurisdiction in the case, they are functus officio. The Crown Court judge cannot use section 66 CJA to make any order which the Magistrates’ Court could no longer make.
- Where an order is plainly bad on its face, the Crown Court may hold nothing has occurred which is capable of conferring any jurisdiction to deal with it.
- There is no power in the Crown Court to quash an irregular order. If quashing of an order is required, this can only be done by a Divisional Court (note that the Court of Appeal have requested the Criminal Procedure Rules Committee to consider whether an expediated and summary procedure should be adopted).
- It is open to a judge in the Crown Court, as a DJ(MC), to lay and commit a new charge in the correct form. When a Crown Court judge sits as a DJ(MC) the ticketing provisions (e.g. for youth courts) do not apply. However, note below the words of caution when taking this approach.
Possible consequences
Edis LJ held that the exercise of section 66 CJA powers would result in an ineffective order if the judge acted beyond the jurisdiction of the Magistrates’ Court and may result in an ineffective order if the judge is responsible for procedural errors.
If the errors are the kind that Parliament intended would mean that everything that follows should be invalid, then that will be the result. The case will be a nullity. Equally, if the errors made do not undermine the jurisdiction of the court but mean there has been prejudice or substantial risk of unfairness the same result will follow.
The Court of Appeal went on to give a warning to the Crown Court that the procedures within the Magistrates’ Court are normally exercised by a DJ(MC) or legal adviser with expertise. That warning in and of itself may be enough to cause Crown Court judges to pause before utilising their section 66 CJA powers.
The Court of Appeal urged caution, stating that if a Crown Court judge is unsure about what they are being asked to do the safe course will be to decline to deal with anything which requires the Magistrates’ Court to deal with it, and the prosecution must then take its case to a Magistrates’ Court.
The prosecution should always be in a position to assist the Crown Court with procedural assistance when seeking to rectify some procedural error it has made.
Where may prejudice or risk of unfairness occur?
Clearly, the circumstances where prejudice or unfairness may occur are highly fact-specific. One example provided by the Court of Appeal is where a case has wrongly come before a Crown Court. In those circumstances, the judge should bear in mind that the defendant must not be denied a possible outcome. Magistrates’ Court, particularly Youth Courts, may have a different approach to sentencing or possible outcome. For example, Youth Courts are the only courts who can impose a Referral Order. The Crown Court judge should not deprive a defendant of the possibility of being dealt with by the lower court.
The issue of prejudice and potential unfairness is one which will require careful consideration by all parties. As recognised in the Gould judgment committals for sentence are often dealt with in busy lists, and the procedural minefield of the sending and committal process means careful consideration should be given to these issues.
Quashing and remittal
Edis LJ confirmed there is no power for the Crown Court to quash a committal. That a power available only to the Divisional Court.
Borne out of the use of casual language, there has often been an assumption parties in the Crown Court that there is some power to remit cases from the Crown Court to the Magistrates’ Court where there are procedural errors in committal. The Court of Appeal confirmed that that is not the case.
If a committal or sending is bad on its face, the Crown Court has no jurisdiction. There is no committal or sending as the case has never legally left the Magistrates’ Court, and that is where the jurisdiction remains. The Magistrates’ Court role is not at that stage functus. It then remains open as to whether the Crown Court judge can use their section 66 powers to deal with the matter from scratch, or whether the case should be listed in the Magistrates’ Court to be dealt with.
Conclusion
The case law on sending and committing cases is significant in volume, and in some cases contradictory. The judgment of Gould seeks to provide helpful guidance to the Crown Court in how to deal with this complex and technical area. When these issues arise it is clear that the prosecution will be expected to have a considered position and assist with the law. For those defending in these cases careful consideration needs to be given to the impact of any actions of the Crown Court, and whether a defendant will suffer prejudice or potential unfairness. It is clear that given the complexity of the legislative regime in this area appeals will continue to flow from this issue.
John McNamara’s principle area of practice is defending individuals facing criminal allegations. He undertakes serious cases of violence, sexual allegations including cases concerning rape, firearms, money laundering and complex fraud.
John undertakes serious cases in the youth court and represented youth defendants and young people on the most serious charges in the Crown Court. Instructing solicitors have observed that John goes the extra mile in cases involving young and vulnerable people.
