Ayhan, R. v [2011] EWCA Crim 3184

Case No 2011/03698/A1[2011] EWCA Crim 3184
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 13 December 2011
Between
R E G I N ACrown
The Strand
London
WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
MR JUSTICE SWEENEY
and
MR JUSTICE SINGH
__________________
- v -
Between
MURAT AYHAN__________________Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)165 Fleet Street, London EC4Telephone No: 020 7404 1400; Fax No: 020 7404 1424(Official Shorthand Writers to the Court)__________________Miss R Cahill appeared for ApplicantMr B Leonard appeared for Crown____________________J U D G M E N T

THE LORD CHIEF JUSTICE:

[1]On 21 April 2011, at Highbury Corner Magistrates' Court, the applicant, Murat Ayhan, pleaded guilty to the following four offences:(1) assault occasioning actual bodily harm;(2) assault by beating, contrary to section 39 of the Criminal Justice Act 1988;(3) damaging property valued at £500, contrary to section 1(1) of the Criminal Damage Act 1971; and(4) threatening to kill. The memorandum of conviction recorded that he was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. This provision is concerned with offences which are triable either way, and, if used, vests the Crown Court with the power to deal with an offender in any way in which it could have dealt with him if he had been convicted on indictment.[2]It appeared to have been overlooked that the second and third offences, assault by beating and criminal damage to property valued at £500, were triable as summary only offences. Therefore, notwithstanding the record in the memorandum of conviction, it appeared arguable that there was no jurisdiction to commit either of them for sentence under section 3 of the 2000 Act. The power to commit to the Crown Court summary only offences is found in section 6 of the 2000 Act. This gives the Crown Court power to deal with the offender in any way in which the magistrates' court could have dealt with him if he had been convicted at the magistrates' court of the offences. Section 6 therefore provides, in effect, a secondary power of committal, and its exercise is limited to the occasions when either way offences have been committed for sentence under section 3.[3]When the case came on before the Crown Court at Blackfriars before Miss Recorder Crane on 10 June, the applicant was sentenced to fourteen months' imprisonment for the first offence (assault occasioning actual bodily harm), four months' imprisonment for the second offence (assault by beating), and two months' imprisonment for the third offence (damaging property). All those sentences were ordered to run concurrently with each other. A consecutive sentence of eight months' imprisonment was imposed for the fourth offence (threatening to kill). The total sentence, therefore, was 22 months' imprisonment. An appropriate direction under section 240 of the Criminal Justice Act 2003 was made. An indefinite restraining order under section 5 of the Protection from Harassment Act 1997 was also made.[4]When the application for leave to appeal against sentence was received, the single judge, Roderick Evans J, observed the apparent flaw in the process of committal and, on that basis alone, referred the application for leave to appeal against sentence to the full court. He considered that there was otherwise no merit whatever in the application.[5]We note at the outset that in relation to the second and third offences the Recorder did not impose a sentence outwith the jurisdiction of the magistrates' court and that, as the sentences for the second and third offences were ordered to run concurrently with the sentence for the first offence, any defect in the process would be of no assistance to the applicant unless the sentences imposed for the first and fourth offences resulted in a total sentence which was excessive.[6]We shall deal briefly with the facts.[7]The applicant was born in 1984. He has a record for two offences of battery and one of criminal damage on the same woman who was the victim of his violence in April 2011.[8]The applicant and Ms Cigden had been married for a number of years. They separated and were divorced in 2010. They had a 5 year old son. On the evening of 7 April 2011 Ms Cigden and her friend, Ms Ayhan, went out together. During the course of the evening Ms Cigden received a number of text messages and phone calls from the applicant. She thought that he was jealous because she was out with one of her friends. She and Ms Ayhan returned home at about midnight. Her son was put to bed.[9]Shortly afterwards, the entrance buzzer sounded. She thought that it was her brother, whom she was expecting. She opened the door to find the applicant. He entered the flat and shut the door behind her. He started to shout at her and he slapped her face. He tried to enter the child's bedroom, but when she sought to stop him he grabbed her by the hair. He punched her in the face, head-butted her and broke her nose. She eventually managed to break free and run out of the flat. She alerted a neighbour and called the police. During the course of the assault, Ms Ayhan had sought to intervene. The applicant's reaction was to smash her telephone, slap her a number of times and push her away. Unfortunately, because of the noise, the child left his room and witnessed part of the assault by his father upon his mother. He was very upset. He was taken back to his bedroom by Ms Ayhan. When she returned, the applicant punched her in the face, tried to kick her and threw household objects at her. He punched the walls of the flat and smashed up Ms Cigden's laptop computer. He then left. The police arrived and arrested him.[10]On arrival at the police station the applicant admitted that he had struck Ms Cigden. He said, "When I get out of here I will go back to my flat. I will kill the fucking bitch. I will book my plane ticket to my country first and then I will kill her and then I will leave. You think I'm joking, I'm not joking. As soon as I get out, I'll go back and I'll fucking kill her." Before his interview took place he said, "As soon as I get out of this police station, I'm going to go back and I'm going to murder her". He declined to comment when he was interviewed.[11]The author of the pre-sentence report recognised that there was a high risk that the applicant would re-offend and cause harm to his former partner. He accepted responsibility for his actions and expressed remorse.[12]He sent a letter to the court, which we have read, underlining his sense of remorse. It is difficult to be fully convinced about the genuineness of his assertions of remorse. The letter suggests that he does not see himself as a persistent offender, or as a bad person, and that it was a single decision made on this particular occasion. That overlooks the earlier occasion when a non-custodial sentence was imposed on him for his violence towards the victim.[13]The Recorder set out the facts in a careful sentencing analysis. She noted the violence inflicted on the two victims and the fact that the applicant's son had witnessed the attack on his mother. She also noted that it was clear from the way in which the applicant had raised these matters with the police that the threats to kill were not idle threats. In those circumstances she imposed the sentence to which we have referred, having taken account of the principle of totality.[14]As to the merits of any possible appeal against sentence, there are none. Accordingly, on this basis this application is bound to be refused.[15]That leaves the jurisdiction point. Following the decision of Roderick Evans J, the Registrar undertook a number of enquiries of the clerk to the magistrates' court. It emerged that the memorandum of conviction in relation to the second and third offences was incorrectly recorded. The district judge who made the order for committal has confirmed that in relation to these two offences he acted under the provisions of section 6 of the 2000 Act; and the clerk has confirmed that it was incorrectly recorded that the committal was under section 3.[16]The question now, therefore, is whether any action should follow. It is well established that in circumstances like these the essential question is not what power the memorandum of conviction records the justices to have used, but the power they actually used: R v Folkestone and Hythe Juvenile Court Justices, ex parte R (1982) 74 Cr App R 58. That decision was followed by R v Hall (1982) 74 Cr App R 67, which involved a committal for trial. The committal for trial erroneously referred to section 6(2) of the Magistrates' Court Act 1980, which by virtue of the then transitional provisions of section 154(2) and Schedule 8, paragraphs 1 and 2, did not apply to the proceedings against the then appellant. Hall should have been committed for trial under section 1 of the Criminal Justice Act 1967. The court was invited to treat the entire committal as invalid. Giving the judgment of the Court, Lord Lane CJ referred to his earlier judgment in Folkestone and Hythe, and recorded that the court in that case had already decided that a mistake in the certificate did not invalidate a committal for sentence. The mistake was similar to that in the present case. Lord Lane then set out the features of the document to which we have already referred. In examining the argument on behalf of Hall, he concluded (at page 71):
"First of all it is quite plain from the opening words of rule 10(2) that the certificate is not the committal. The committal must have taken place before this document came into existence. Although it is perhaps not necessary to decide the exact moment when the committal takes place, it seems to this court highly likely to be when the committing justice tells the defendant that he is to be committed; that spoken order is probably the committal. Secondly, it emerges from the words of the rule that this certificate is something which the clerk sends forward to the committing court. If there is a mistake on the face of the certificate, such as one which exists here, it is a mistake of the clerk. But that is not the basis of our decision. The justices undoubtedly had power to act as they did under the Magistrates' Court Act 1952, section 7(1), so far as their power to commit for trial is concerned, and under the Criminal Justice Act 1967, section 1, so far as their power to commit for trial without consideration of the evidence is concerned. Consequently the fact that in the certificate which comes into existence later the wrong Act was mentioned seems to us in no way to invalidate the committal. That is enough so far as the first part of the argument is concerned."
[17]These principles were followed in R v Russell [1998] 2 Cr App R(S) 375, where

Lord Justice Rose V-P observed (at page 380):

".... in our judgment, the intention of justices is irrelevant to the jurisdiction: what matters, in the light of the Folkestone Juvenile Court case .... is whether, even if the memorandum of conviction is silent or inaccurate as to the relevant statutory provisions, the justices had the power to commit for sentence for all the new offences under section 40 and for the either way offence under section 38. In our judgment, they did. We therefore conclude that the committal was lawful, although the inaccuracy of the memorandum was lamentable."
[18]In short, therefore, on the basis of these decisions, which were then followed for a number of years, the correct approach to issues like these was to examine the question whether the magistrates' court was vested with the necessary jurisdiction to commit to the Crown Court. If it was, then an omission from, or an inaccuracy in, the memorandum of conviction about the statutory powers which were exercised, or which were available to be exercised, did not affect the validity of the committal. From this it followed that, in a case like the present, the question for consideration in relation to the second and third offences was whether the sentence imposed at the Crown Court fell within the jurisdiction which would have been available to the court if the memorandum of conviction had correctly recorded that for the second and third offences the committal was under section 6 of the 2000 Act rather than section 3. If sentence in excess of that jurisdiction was imposed, it would fall to be reduced so that it fell within the powers of the magistrates' court properly exercised. That would be the end of any problem.[19]That position seems to have obtained until R v Stockton [2009] EWCA Crim 354, where it was common ground between counsel that the intention of the district judge was to send all the offences to the Crown Court for sentence but, due to a regrettable error, the committal for sentence was committed under the incorrect sections of the 2000 Act. The application for leave to appeal against sentence was referred to the full court on the basis that:
"As the [appellant] had not been charged with any indictable offences, he should have been committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 .... in respect of the either way offences and under section 6 of the 2000 Act in respect of the summary offences."
In the argument it was common ground that the entire committal for sentence was defective, and accordingly it was quashed. No reference was made to the judgment of the court or the principles identified in Folkestone and Hythe, in Hall or in Russell.[20]In R v Buisson [2011] EWCA Crim 1841, the validity of a committal for sentence was again under examination. The appellant was before the Crown Court as a result of separate committals before Alton Magistrates' Court and Aldershot Magistrates' Court. The question for decision was the legality of the committals which had led to the imposition of sentence at the Crown Court. The court's attention was drawn to the decision in Folkestone and Hythe. It was submitted by counsel on both sides that the Folkestone and Hythe case could be distinguished from Buisson. In Folkestone and Hythe the committal was made under section 37 of the Magistrates' Court Act 1980, when it should have been made under section 28(1) of the Magistrates' Court Act 1952. Jackson LJ, in agreement with counsel, observed that it was only a matter of timing and date that determined which of the two provisions was applicable. Turning to the committal for common assault committed to the Crown Court from Alton Magistrates' Court, he recorded that both counsel were in agreement that the committal was unlawful. In giving the judgment of the court Jackson LJ said:
"17. .... Section 3 of the 2000 Act confers what might be called a primary power of committal upon the magistrates' court to commit a person convicted of an 'either way' offence to the Crown Court for sentence. Section 6(2) of the 2000 Act empowers the magistrates' court at the same time to commit that person for sentence in respect of any other offence. The power under section 6(2) might be referred to as a secondary power of committal. It is a power which can be exercised at the same time as the primary power of committal."
Turning to the distinction between that case and the present, he recorded: 21. "In the present case, however, the committal by the Crown Court judge sitting as a district judge [in a sensible attempt to resolve the problem] did not occur at the same time as the original committal by the magistrates' court. .... By the time of that hearing, the power to commit the assault offence to the Crown Court for sentence pursuant to section 6(2) of the 2000 Act had expired."

Turning to the distinction between that case and the present, he recorded:

[21]Again we note that neither the decision in Hall (supplementing the reasoning in Folkestone and Hythe), nor the decision in Russell were drawn to the attention of the court. We do not know of, and our attention has not been drawn to, any decision of this court which casts doubt on, or undermines, the principles identified in those three cases.[22]In our judgment, provided the power of the magistrates' court to commit for sentence was properly exercised in respect of one or more either way offences in accordance with section 3 of the 2000 Act, a mistake in recording the statutory basis for a committal of summary only offences does not invalidate the committal. The principle is that thereafter the Crown Court must abide by the sentencing powers available to the magistrates' court in relation to the summary only offences. If that principle is not followed, then the sentences must be reduced to sentences which fall within the jurisdiction of the magistrates.[23]That is what happened in the instant case. The sentences imposed on offences 2 and 3 were sentences in accordance with the powers which would have been available to the magistrates dealing with the case summarily. To the extent that Stockton and Buisson appear to depart from the principles we have identified, and which have been followed for a considerable period based on Hall and Russell, they should not be followed.[25]From the applicant's point of view, all these discussions are entirely academic. They make no difference and could never have made the slightest difference to the sentence that he has been ordered to serve.[26]We hope that this judgment will ensure that when such issues arise they can be dealt with in a robust and practical way.[27]The application for leave to appeal is refused. ____________________________

Cited in 15 later judgments

and 6 more of the most senior