McDermott-Mullane, R. v [2016] EWCA Crim 2239

[2016] EWCA Crim 2239

Case No 2016/05356/A3

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday 20th December 2016

Strand

London, WC2A 2LL

B e f o r e:

LADY JUSTICE RAFFERTY DBE

MR JUSTICE WYN WILLIAMS

MR JUSTICE MORRIS

Between

R E G I N ACrown

Between

DANIELLE McDERMOTT-MULLANE

Computer-Aided Transcript of the Stenograph Notes of

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Mr P Jarvis appeared for Appellant

Mr S Heptonstall appeared for Crown

J U D G M E N T (As Approved by the Court)

[1]MR JUSTICE MORRIS: This is an application for an extension of time and for permission to appeal against sentence, referred to the full court by the Registrar.

[2]On 22nd March 2016 at Woolwich Crown Court the applicant pleaded guilty to one offence of shoplifting theft. She also admitted being in breach of a previous suspended sentence.

[3]On 19th April 2016 His Honour Judge Williams sentenced the applicant to 15 months' imprisonment for theft and the suspended sentence was partially activated to the extent of three months' imprisonment consecutively. The total sentence was therefore one of 18 months' imprisonment. The facts

[4]The facts of the offence can be stated shortly. On 28th November 2015 the applicant entered Curry's store in New Cross Gate. She picked up a 22-inch LED television and attempted to leave the store. She was stopped by the deputy manager. She then tried to run away but was blocked by shop staff. She then sat on the floor and in doing so knocked off a rail by the exit and dislodged a pole which she used to try and keep the staff at bay before it was taken off her. The police were called and attended. On arrest she kicked a table which struck the arresting officer's leg.

[5]When interviewed she made admissions to the theft. She stated she had taken a quantity of tablets before attending the store and could not account for why she had stolen the television. The procedural history

[6]It is important to set out some of the background to these proceedings. On 22nd February 2016 the applicant appeared at the Magistrates' Court at Bromley. She faced three charges. First, the theft of a television valued at £139.99. Secondly, assault on a constable in the execution of his duty, contrary to section 89(1) of the Police Act 1996. Thirdly, possession of an offensive weapon in a public place, namely the metal pole which she swung at the time of the incident.

[7]The theft was an offence of low value shoplifting. This is a summary offence, albeit one in respect of which the applicant had the right to elect Crown Court trial: see section 22A of the Magistrates' Courts Act 1980 ("MCA") which we set out below.

[8]The assault was a summary offence. The possession of an offensive weapon was triable either way and in relation to that offence the prosecution represented at the hearing that it was not suitable for summary trial. No representations were made by the applicant and the magistrates declined jurisdiction. That offence was thus to be sent for trial to the Crown Court under section 51(1) of the Crime and Disorder Act 1998 ("CDA").

[9]The prosecution indicated that the two summary offences were suitable for summary trial but the applicant's representative indicated that the applicant wished to have all matters dealt with together. Therefore, and as confirmed in the Magistrates' Court sending sheet, the magistrates at the same time sent to the Crown Court, under section 51(3) of the CDA, the two summary offences, namely the theft and the assault.

[10]It appears that at that hearing the applicant pleaded guilty to the offence of theft and not guilty to the other two counts. However, there was no requirement to take the plea for these related summary offences once there had been a not guilty plea to the either way offence and it was to be sent to the Crown Court for trial.

[11]Whatever the correct procedure and whatever happened, it is common ground that the applicant did not elect trial by the Crown Court in respect of the low value shoplifting theft under section 22A(2) MCA.

[12]Following the hearing before the magistrates, by letter dated 7th March 2016 and before the applicant made her first appearance at the Crown Court, the charge relating to the offensive weapon was discontinued. Then at the first hearing at the Crown Court on 22nd March 2016 the prosecution withdrew the assault charge. At that point an indictment was drafted which contained only the low value shoplifting theft charge. At that hearing that indictment was put to the applicant and she pleaded guilty. The judge accepted that plea and on 19th April proceeded to sentence her for that offence alone and dealt with the breach of the earlier suspended sentence.

[13]In his sentencing remarks, the judge referred to the aggravating features being the applicant's appalling record for theft by shoplifting. The mitigating feature was her mental health difficulties.

[14]The sentencing judge referred to case authority providing guidance for sentencing a persistent shoplifter. It does not appear that the sentencing judge was referred to or took into account the recent 2016 sentencing guidelines for theft. On the basis of those authorities he considered that the appropriate sentence after trial was two years, but reduced it by about one-third for her guilty plea at the first opportunity and imposed a sentence of 15 months. He activated the previous suspended sentence in part only for a period of three months, giving credit for some co-operation with the community elements of the suspended sentence. The Grounds of appeal

[15]The grounds of appeal are as follows:(1) the sentence of 15 months imposed by the Crown Court for the theft was wrong in principle;

(2) alternatively the sentence imposed was manifestly excessive.

[16]We address only the first ground, for reasons which will become apparent. As regards that ground, counsel for the applicant submits that when the either way offence was withdrawn, the Crown Court should have considered its jurisdiction in relation to the sole remaining offence of theft which was triable only summarily. The applicant submits that the Crown Court had one of three options only. First, to proceed to sentence but limited to the powers of the Magistrates' Court pursuant to schedule 3 paragraph 6(4) CDA. That provision specifically restricts the sentencing powers available to the court to the powers available to the Magistrates' Court and in this case that was a maximum sentence of six months' imprisonment under section 22A(5) MCA. Secondly, and alternatively, to invoke its powers under section 66 of the Courts Act 2003 and proceed to sentence as a District Judge in the Magistrates' Court. Again in those circumstances the maximum sentence would have been six months' imprisonment under section 22A(5) MCA. Thirdly, as a further alternative, to invite the prosecution to consider whether it wanted to relist the offence in the Magistrates' Court.

[17]In any event the Crown Court did not have jurisdiction to sentence a summary only offence without pursuing one of those options.

[18]In this respect, and in respect of this ground, the prosecution goes even further and concedes that in fact the indictment itself, containing as it did a sole count of low value shoplifting theft, was a nullity. For reasons which we now explain we agree with the prosecution. The legislative framework

[19]The legislative framework in which the issues raised on this appeal arise concern both the specific nature of the offence of low value shoplifting and more generally the circumstances in which the Crown Court has power to deal with summary offences and in particular the procedure for sending offences, and in particular summary offences, to the Crown Court under section 51 CDA. Section 22A MCA

[20]First, section 22A MCA, introduced by section 176 of the Anti-Social Behaviour, Crime and Policing Act 2014, makes special provision for an offence of low value shoplifting in the following terms:

"(1) Low-value shoplifting is triable only summarily. (2) But where a person accused of low-value shoplifting is aged 18 or over, and appears or is brought before the court before the summary trial of the offence begins, the court must give the person the opportunity of electing to be tried by the Crown Court for the offence and, if the person elects to be so tried— (a) subsection (1) does not apply, and (b) the court must send the person to the Crown Court for trial for the offence."

Section 22A(3) then defines low value shoplifting itself as follows:

"'low-value shoplifting' means an offence under section 1 of the Theft Act 1968 in circumstances where— (a) the value of the stolen goods does not exceed £200 (b) the goods were being offered for sale in a shop or any other premises, stall, vehicle or place from which there is carried on a trade or business, and (c) at the time of the offence, the person accused of low-value shoplifting was, or was purporting to be, a customer or potential customer of the person offering the goods for sale."

The sentence for low value shoplifting is set out in section 22A(5), on summary conviction a maximum of six months' imprisonment or a fine or both. However, after trial on indictment, following election by the defendant, the maximum sentence remains that for theft under section 1 of the Theft Act 1968 generally, namely a maximum of seven years. Jurisdiction of the Crown Court

[21]If the Magistrates' Court declines jurisdiction over an either way offence the case is sent for trial to the Crown Court under section 51 CDA. Section 51(1) to (3) CDA provides as follows:

“51 (1) Where an adult appears or is brought before a magistrates court ("the court") charged with an offence and any of the conditions mentioned in subsection (2) below is satisfied, the court shall send him forthwith to the Crown Court for trial for the offence. (2) Those conditions are - (a) that the offence is an offence triable only on indictment other than one in respect of which notice has been given under section 51B or 51C below; (b) that the offence is an either-way offence and the court is required under section 20(9)(b), 21, 22A(2)(b), 23(4)(b) or (5) or 25(2D) of the Magistrates' Courts Act 1980 to proceed in relation to the offence in accordance with subsection (1) above; (c) that notice is given to the court under section 51B or 51C below in respect of the offence. (3) Where the court sends an adult for trial under subsection (1) above, it shall at the same time send him to the Crown Court for trial for any either-way or summary offence with which he is charged and which – (a)(if it is an either-way offence) appears to the court to be related to the offence mentioned in subsection (1) above; or (b) (if it is a summary offence) appears to the court to be related to the offence mentioned in subsection (1) above or to the either-way offence, and which fulfils the requisite condition (as defined in subsection (11) below).”

[22]Thus, where an offence triable either way is sent to the Crown Court for trial on indictment under section 51(1) and (2) the Magistrates' Court is required under section 51(3)(b) to send for trial at the Crown Court any other related summary offence with which the defendant is charged.

[23]Schedule 3 paragraph 6 CDA then sets out how that related summary offence is to be dealt with in the Crown Court once sent under section 51(3):

“6 (1) This paragraph applies where a magistrates' court has sent a person for trial under section 51 or 51A of this Act for offences which include a summary offence. (2) If the person is convicted on the indictment, the Crown Court shall consider whether the summary offence is related to the indictable offence for which he was sent for trial or, as the case may be, any of the indictable offences for which he was so sent. (3) If it considers that the summary offence is so related, the court shall state to the person the substance of the offence and ask him whether he pleads guilty or not guilty. (4) If the person pleads guilty, the Crown Court shall convict him, but may deal with him in respect of the summary offence only in a manner in which a magistrates' court could have dealt with him. (5) If he does not plead guilty, the powers of the Crown Court shall cease in respect of the summary offence except as provided by sub-paragraph (6) below.”

Paragraph 7 of schedule 3 CDA deals with the procedure where no indictable only offence remains and provides:

"(1) Subject to paragraph 13 below, this paragraph applies where— (a) a person has been sent for trial under section 51 or 51A of this Act but has not been arraigned; and (b) the person is charged on an indictment which (following amendment of the indictment, or as a result of an application under paragraph 2 above, or for any other reason) includes no main offence. ... (3) The court shall cause to be read to the accused each count of the indictment that charges an offence triable either way." "(1) Subject to paragraph 13 below, this paragraph applies where— (a) a person has been sent for trial under section 51 or 51A of this Act but has not been arraigned; and (b) the person is charged on an indictment which (following amendment of the indictment, or as a result of an application under paragraph 2 above, or for any other reason) includes no main offence. ... (3) The court shall cause to be read to the accused each count of the indictment that charges an offence triable either way."

[24]Finally, section 40 of the Criminal Justice Act 1988 (CJA) makes provision for a power to join in an indictment certain summary offences including but not limited to common assault:

"(1) A count charging a person with a summary offence to which this section applies may be included in an indictment if the charge— (a) is founded on the same facts or evidence as a count charging an indictable offence; or (b) is part of a series of offences of the same or similar character as an indictable offence which is also charged, but only if (in either case) the facts or evidence relating to the offence are disclosed by material which, in pursuance of regulations made under paragraph 1 of Schedule 3 to the Crime and Disorder Act 1998 (procedure where person sent for trial under section 51 or 51A, has been served on the person charged. (2) Where a count charging an offence to which this section applies is included in an indictment, the offence shall be tried in the same manner as if it were an indictable offence; but the Crown Court may only deal with the offender in respect of it in a manner in which a magistrates’ court could have dealt with him."

The offences to which section 40 apply are listed in section 40(3) and include, inter alia, common assault and low value criminal damage triable only summarily under section 22(2) MCA. However, the summary offence of low value shoplifting under section 22A MCA is not listed in schedule 40(3) of the CJA. Analysis

[25]Against this legislative background and on the basis that in this case the applicant did not elect for Crown Court trial pursuant to section 22A(2) MCA the following points emerge. First, absent such an election the theft remained at all times a summary offence and the maximum sentence for that offence in this case was six months, subject to reduction for guilty plea. Secondly and more fundamentally the question arises as to what is to happen to a related summary offence where the main offence for which the defendant has been sent for trial under section 51(1) CDA falls away because it is withdrawn. Where a related summary offence is sent to the Crown Court for trial under section 51(3), one of two things can happen:(1) The summary offence can be included in the indictment where section 40 CJA applies.

(2) If section 40 does not apply then the provisions of schedule 3 paragraph 6 CDA come into play and, if the defendant is convicted of the main offence on the indictment, the court can sentence for the summary offence if the defendant pleads guilty (paragraph 6(4)) and if he pleads not guilty the powers of the Crown Court cease.

[26]In the present case, the first option cannot apply because section 22A (where the defendant has not exercised his or her right to elect) is not an offence falling within section 40. So, a low value shoplifting offence, which remains summary, cannot be added to the indictment which contains the main offence.

[27]It follows, a fortiori, that, absent election, low value shoplifting is not capable of forming the sole count of an indictment (see the observation in R v Arnold

[2016] EWCA Crim. 1267

at paragraph 7). On this basis alone, we consider that the indictment in the present case was a nullity.

[28]As regards the second option, if the trial of the main offence continues and there is a conviction, the Crown Court could, on a guilty plea, sentence for the section 22A offence but limited to the six months maximum.

[29]However, paragraph 6(4) of schedule 3 CDA did not apply in this case. The Crown Court did not have power to sentence the applicant, even limited to magistrates' powers. Paragraph 6(4) applies only where the defendant has been convicted on indictment in relation to the offence for which he has been sent for trial under section 51(1) CDA - namely the main indictable or either way offence. In this case there has not only been no conviction, but in fact no indictment at all for the main - section 51(1) - offence (the offensive weapon charge). It was withdrawn.

[30]Finally, paragraph 7 of schedule 3 cannot apply because here there is no valid indictment at all and therefore paragraph 7(1)(b) is not satisfied. Moreover, paragraph 7 applies only where the remaining counts are offences triable either way and not summary only offences: see paragraph 7(3).

[31]Accordingly, in the present case only the Magistrates' Court had power to deal with the offence of theft with which the applicant was charged.

[32]In these circumstances the practical solution for the Crown Court Judge in this case would have been to invoke his powers under section 66 of the Courts Act 2003 and to proceed to hear and determine the case as a District Judge of the Magistrates' Court. However this was not done.

[33]For these reasons we conclude not merely that the Crown Court had no power to impose the sentence which it imposed, but more fundamentally that the indictment upon which the applicant was convicted and sentenced was a nullity.

[34]We conclude therefore that the Crown Court had no jurisdiction to deal with the theft offence, nor with the activation of the suspended sentence and the matter should have been remitted to the Magistrates' Court by the Crown Court. Reconstituting

[35]Since the Crown Court had no jurisdiction, the Court of Appeal Criminal Division has no jurisdiction under the Criminal Appeals Act 1968 to hear an appeal against what happened in the Crown Court. The proper remedy to challenge a Crown Court decision or order made without jurisdiction is by way of judicial review to the High Court for a mandatory prohibiting or quashing order. In such circumstances this court has power to re-constitute itself as an administrative court and in this case we do so. We are now sitting as a Divisional Court of the Administrative Court and we subject the proceedings in the Crown Court to judicial review.

[36]All relevant matters having been placed before us, and subject to the consent of the parties which we assume will be given, we will formally dispense with all the relevant formalities for such an application for judicial review under Part 54 of the CPR, including formalities as to the issue and service of the application and the relevant time limits. We have concluded that the Crown Court had no jurisdiction whether to convict or sentence the applicant. Accordingly, we will make a quashing order, quashing both the conviction and both aspects of the sentence.

[37]On that basis the applicant will thus be released from custody with immediate effect.

[38]MR HEPTONSTALL: My Lady, the result of that order is of course the release. There has not yet been a sentence for the offence and the theft will need to be dealt with.

LADY JUSTICE RAFFERTY: Why?

[40]MR HEPTONSTALL: It is an offence that has been charged. The result of the quashing order is to quash the way in which it has been dealt with, but it remains a live offence.

LADY JUSTICE RAFFERTY: Does it?

[42]MR HEPTONSTALL: My Lady, yes, because the court's disposal has been quashed, so we are back now at the stage where the Crown Court Judge, this court having quashed what that judge did, now faces a decision whether to act under section 66 or let the magistrates deal with it because the quashing puts the court back in the situation it was prior to the order that was quashed.

LADY JUSTICE RAFFERTY: I thought we had quashed the conviction.

[44]MR HEPTONSTALL: You have quashed the conviction but then there remains a charge that is left, to which she has not -- the conviction has been quashed.

LADY JUSTICE RAFFERTY: The indictment is a nullity.

[46]MR HEPTONSTALL: The indictment is a nullity.

LADY JUSTICE RAFFERTY: You mean it is one of these limbo charges?

[48]MR HEPTONSTALL: It remains a limbo charge for which she has to either go back before the District Judge --

LADY JUSTICE RAFFERTY: Does she?

[50]MR HEPTONSTALL: The alternative my Lady would be for me to offer no evidence.

LADY JUSTICE RAFFERTY: Yes, it would.

[52]MR HEPTONSTALL: In the circumstances, I accept she is going to be released today whatever the course but it is dealing with the formality. The reality is my Lady that if it is left then the suspended sentence may remain to be dealt with if she commits an other offence on release.

LADY JUSTICE RAFFERTY: What is wrong with that?

[54]MR HEPTONSTALL: My learned friend may have submissions against it, but there may be an attraction for her in fairness to say:

"Well I accept I have committed an offence, I have been punished for it but the punishment will not show on my record by this disposal. The best way is to deal with what I accept I have done, put that and the suspended sentence order behind me."

[55]MR JUSTICE WYN WILLIAMS: Is there any reason in law why you cannot offer no evidence before us sitting in whatever capacity we need to receive it and we can then direct verdicts of not guilty.

[56]MR HEPTONSTALL: My Lord, there is not a procedural impediment. My submission is that it is correct that the offence having been committed and accepted that it would be wrong for it to be brushed aside and not recorded, particularly when this lady has suffered a punishment for it. I am not asking the court to extend any further time.

[57]MR JUSTICE WYN WILLIAMS: Does that mean therefore that in whatever capacity we are sitting what you are suggesting is that she should be invited to plead?

[58]MR HEPTONSTALL: My Lord, yes.

MR JUSTICE WYN WILLIAMS: The conviction is then recognised, but then what happens.

[60]MR HEPTONSTALL: Then she is sentenced.

[61]MR JUSTICE WYN WILLIAMS: Re-sentence in a term which is no longer than would allow her immediate release, is that what you are suggesting?

[62]MR HEPTONSTALL: My Lord has it. That deals with my submission and the justice of the situation.

LADY JUSTICE RAFFERTY: We can sit as a Magistrates' Court.

[64]MR HEPTONSTALL: My Lady, yes.

LADY JUSTICE RAFFERTY: Although it sounds cumbersome it might be an acceptable route. Let us just see what Mr Jarvis wants to say.

[66]MR JARVIS: It probably will set a record for how many different courts can sit in one building at the same time with the same personnel.

LADY JUSTICE RAFFERTY: Absolutely, we are happy to help.

[68]MR JARVIS: The reality of the position is I see the Crown's sensitivity, the course that has been proposed is not going to affect her situation in light of the court's ruling at all, so I am not going to take up any more time making submissions about it.

[69]MR JUSTICE WYN WILLIAMS: Except for this. Presumably your client has to be prepared to plead guilty?

[70]MR JARVIS: Well, she has done so twice already.

MR JUSTICE WYN WILLIAMS: I appreciate that but she ought to be part of the process.

LADY JUSTICE RAFFERTY: She is, if I may say so, looking a tad bemused.

MR JUSTICE MORRIS: I am not surprised.

[74]MR JARVIS: Yes, I spoke to her beforehand about what the likely outcome is.

LADY JUSTICE RAFFERTY: Just bear with us one moment. (Pause) With any luck with your astute ears you may both have overheard that. In case you did not, here is our suggestion. We could reconstitute ourselves as the Magistrates' Court. Assuming she pleaded guilty, we could then sentence her in a way which dealt with all the Crown's anxieties and would ensure her immediate release and would make sure there were no limbo charges, but to do that you need time, Mr Jarvis, to explain it to her. So why do we not rise now briefly which will free the court and you can talk to her over the video, without us embarrassing you, and, assuming all is well, you just let us know and we will come back in. How does that sound?

[76]MR JARVIS: That sounds absolutely fine, thank you. (Short Adjournment)

LADY JUSTICE RAFFERTY: Mr Heptonstall, what we suggest is that we now sit as a Magistrates' Court. The Associate will very kindly put the charge to Miss McDermott-Mullane. Let us see what she says and then were she to plead guilty Morris J will add one sentence to his judgment.

[78]MR HEPTONSTALL: I am grateful.

[79]THE CLERK OF THE COURT: Danielle McDermott-Mullane, you are charged as follows: theft, contrary to section 1(1) of the Theft Act 1968. Particulars of the offence, Danielle McDermott-Mullane on 29th day of November 2015 stole a television belonging to Curry's. Are you guilty or not guilty?

[80]THE OFFENDER: Guilty.

LADY JUSTICE RAFFERTY: Thank you.

[82]MR JUSTICE MORRIS: Danielle McDermott-Mullane, you have pleaded guilty to an offence of theft. The sentence for this offence will be four months' imprisonment and at the same time the earlier suspended sentence will be activated to the extent of three months consecutive. The total sentence therefore is seven months' imprisonment. You have served that time and that will enable your release with immediate effect.