Director of Public Prosecutions, R (on the application of) v Camberwell Green Youth Court [2003] EWHC 3217 (Admin)

Case No CO/3505/2003[2003] EWHC 3217 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 5th December 2003
Strand
London WC2
B E F O R E:
LORD JUSTICE ROSE
(Vice President of the Court of Appeal, Criminal Division)
MR JUSTICE JACKSON
Between
THE QUEEN ON THE APPLICATION OF THE DIRECTOR OF PUBLIC PROSECUTIONSClaimant- v-
Between
CAMBERWELL GREEN YOUTH COURTDefendantC, W, K and AInterested Party
Computer- Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR D PERRY AND MS E BROADBENT (instructed by the Treasury Solicitor) appeared for CLAIMANTMR J BARNARD (instructed by Lahiff & Co) appeared for INTERESTED PARTIES for The DEFENDANT did not attend and was not represented.
J U D G M E N T

LORD JUSTICE ROSE: Jackson J will give the first judgment.

[2]MR JUSTICE JACKSON: This judgment is in six parts, namely: part one, introduction; part two, the facts; part three, the present proceedings; part four, previous relevant decisions on sections 18 to 25 of the 1980 Act; part 5, the claimant's case as presented today; part 6, decision. Part 1: Introduction.[3]The issue in this claim for judicial review is whether magistrates have the power to reopen a previous decision as to mode of trial in circumstances where section 25(2) of the Magistrates' Courts Act does not apply. The claimant in this matter is the Director of Public Prosecutions. The defendant is Camberwell Green Youth Court, which took the decision under review. The interested parties are four young persons who have been accused of certain sexual offences. They are C, now aged 15; W, now aged 17; A, now aged 18; and R, now aged 18.[4]For reasons which will become apparent in this judgment, as events have turned out, the interest of the interested parties in today's proceedings is purely an academic one. Nevertheless, the court has gained great assistance from Mr Barnard, counsel for the interested parties, as well as Mr Perry, counsel for the Director of Public Prosecutions. I express gratitude to both counsel for their helpful skeleton arguments and for their helpful oral submissions today.[5]It is first necessary by way of introduction to read out the statutory provisions which are relevant to the issues under debate today. The Magistrates' Courts Act 1980 (to which I shall refer as "the 1980 Act") contains the following provisions:
"17(1) The offences listed in Schedule 1 to this Act shall be triable either way. "18(1) Sections 19 to 23 below shall have effect where a person who has attained the age of 18 appears or is brought before a magistrates' court on an information charging him with an offence triable either way and - "(a) he indicates under section 17A above that (if the offence were to proceed to trial) he would plead not guilty, or "(b) his representative indicates under section 17B above that (if the offence were to proceed to trial) he would plead not guilty. "19(1) The court shall consider whether, having regard to the matters mentioned in subsection (3) below and any representations made by the prosecutor or the accused, the offence appears to the court more suitable for summary trial or for trial on indictment ... "(3) The matters to which the court is to have regard under subsection (1) above are the nature of the case; whether the circumstances make the offence one of serious character; whether the punishment which a magistrates' court would have power to inflict for it would be adequate; and any other circumstances which appear to the court to make it more suitable for the offence to be tried in one way rather than the other. "20(1) If, where the court has considered as required by section 19(1) above, it appears to the court that the offence is more suitable for summary trial, the following provisions of this section shall apply (unless excluded by section 23 below). "(2) The court shall explain to the accused in ordinary language - "(a) that it appears to the court more suitable for him to be tried summarily for the offence, and that he can either consent to be so tried or, or if he wishes, be tried by a jury; and "(b) that if he is tried summarily and is convicted by the court, he may be committed for sentence to the Crown Court under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 if the convicting court is of such opinion as is mentioned in subsection (2) of that section. "(3) After explaining to the accused as provided by subsection (2) above the court shall ask him whether he consents to be tried summarily or wishes to be tried by a jury, and - "(a) if he consents to be tried summarily, shall proceed to the summary trial of the information; "(b) if he does not so consent, shall proceed to inquire into the information as examining justices." "21. Procedure where trial on indictment appears more suitable. If, where the court has considered as required by section 19(1) above, it appears to the court that the offence is more suitable for trial on indictment, the court shall tell the accused that the court has decided that it is more suitable for him to be tried for the offence by a jury, and shall proceed to inquire into the information as examining justices." "24(1) Where a person under the age of 18 appears or is brought before a magistrates' court on an information charging him with an indictable offence other than homicide, he shall be tried summarily unless - "(a) the offence is such as is mentioned in subsection (1) or (2) of section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (under which young persons convicted on indictment of certain grave crimes may be sentenced to be detained for long periods) and the court considers that if he is found guilty of the offence it ought to be possible to sentence him in pursuance of subsection (3) of that section; or "(b) he is charged jointly with a person who has attained the age of 18 and the court considers it necessary in the interests of justice to commit them both for trial; "and accordingly in a case falling within paragraph (a) or (b) of this subsection the court shall commit the accused for trial if either it is of opinion that there is sufficient evidence to put him on trial or it has power under section 6(2) above so to commit him without consideration of the evidence. "25(1) Subsections (2) to (4) below shall have effect where a person who has attained the age of 18 appears or is brought before a magistrates' court on an information charging him with an offence triable either way. "(2) Where the court has (otherwise in pursuance of section 22(2) above) begun to try the information summarily, the court may, at any time before the conclusion of the evidence for the prosecution, discontinue the summary trial and proceed to inquire into the information as examining justices and, on doing so, shall adjourn the hearing. "(3) Where the court has begun to inquire into the information as examining justices, then, if at any time during the inquiry it appears to the court, having regard to any representations made in the presence of the accused by the prosecutor, or made by the accused, and to the nature of the case, that the offence is after all more suitable for summary trial, the court may, after doing as provided in subsection (4) below, ask the accused whether he consents to be tried summarily and, if he so consents, may subject to subsection (3A) below proceed to try the information summarily. "(3A) Where the prosecution is being carried on by the Attorney General or the Solicitor General, the court shall not exercise the power conferred by subsection (3) above without his consent and, where the prosecution is being carried on by the Director of Public Prosecutions, shall not exercise that power if the Attorney General directs that it should not be exercised. "(4) Before asking the accused under subsection (3) above whether he consents to be tried summarily, the court shall in ordinary language - "(a) explain to him that it appears to the court more suitable for him to be tried summarily for the offence, but that this can only be done if he consents to be so tried; and "(b) unless it has already done so, explain to him, as provided in section 20(2)(b) above, about the court's power to commit to the Crown Court for sentence. "(5) Where a person under the age of 18 appears or is brought before a magistrates' court on an information charging him with an indictable offence other than homicide, and the court - "(a) has begun to try the information summarily on the footing that the case does not fall within paragraph (a) or (b) of section 24(1) above and must therefore be tried summarily, as required by the said section 24(1); or "(b) has begun to inquire into the case as examining justices on the footing that the case does so fall, "subsection (6) or (7) below, as the case may be, shall have effect. "(6) If, in a case falling within subsection (5)(a) above, it appears to the court at any time before the conclusion of the evidence for the prosecution that the case is after all one which under the said section 24(1) ought not to be tried summarily, the court may discontinue the summary trial and proceed to inquire into the information as examining justices and, on doing so, shall adjourn the hearing. "(7) If, in a case falling within subsection (5)(b) above, it appears to the court at any time during the inquiry that the case is after all one which under the said section 24(1) ought to be tried summarily, the court may proceed to try the information summarily."
[6]Having set out the relevant statutory framework, I can turn to the facts of the present case. Part 2: The Facts.[7]It is alleged that in February or March 2002, C and W indecently assaulted a 14 year old girl to whom I shall refer as R. It is alleged that on 11th July 2002, C and W again indecently assaulted R. On 23rd January 2003, W was arrested and charged with those two offences of indecent assault. On 31st January, W appeared before the Camberwell Green Youth Court. The prosecution proposed summary trial and the court decided to proceed in that manner. On 11th February 2003, both C and W were arrested in connection with other matters. On 19th February, C was charged with indecent assaults on R. Over the next few weeks, C, W, A and K were charged with rape and other sexual offences against females other than R. In due course, C, W, A and K were committed for trial to the Crown Court in respect of all the sexual offences against females other than R.[8]In the meantime, on 7th March 2003, C appeared before Camberwell Green Youth Court in connection with the alleged indecent assaults against R. The prosecution, overlooking the other charges against C, proposed summary trial in respect of the indecent assaults against R. The court agreed to deal with those charges summarily.[9]The Crown Prosecution Service subsequently appreciated that it was inappropriate for the matters concerning R to be separated off from the other sexual offences which with C and W were charged. On 2nd May 2003, both C and W appeared before the Camberwell Green Youth Court in connection with the alleged indecent assaults against R. The prosecution applied to District Judge Sawetz to reverse the decisions previously taken to deal summarily with these matters. The prosecution contended that in view of the other more serious charges due for committal to the Crown Court, these alleged indecent assaults should be dealt with by the Crown Court as well.[10]The District Judge refused the prosecution's application. She held that, at that stage, she had no power under either section 24 or section 25 of the Magistrates' Courts Act 1980 to reverse the court's previous decision to deal with these matters summarily.[11]On 9th May 2003, District Judge Sawetz made an order committing all four defendants for trial to the Crown Court in respect of the alleged rapes and other sexual offences against females other than R. On that occasion, C also faced one further charge of indecent assault against R. The District Judge refused to commit that to the Crown Court and ruled that it should be tried summarily along with the other offences involving R.[12]The Crown Prosecution Service were aggrieved by the District Judge's decisions to deal summarily with the charges of indecent assault involving R. Accordingly, the Director of Public Prosecutions launched the present proceedings for judicial review. Part 3: The Present Proceedings.[13]By a claim form issued on 24th July 2003, the DPP sought judicial review of two decisions. Those decisions were:(i) the decision made by Camberwell Green Youth Court on 2nd May 2003 not to reopen mode of trial proceedings;(ii) the decision taken by Camberwell Green Youth Court on 9th May 2003 not to commit a new charge of indecent assault preferred against C to the Crown Court. The relief sought was an order quashing those decisions and an order requiring the District Judge to commit the charges against C and W to the Crown Court.[14]On 14th August, the application for permission was dealt with at an oral hearing before Crane J. In order to cut the Gordian knot and to achieve a sensible resolution of the problem, on that occasion, Crane J granted to the prosecution leave to prefer a voluntary bill of indictment against C, W, R and K. That bill of indictment included both the offences of indecent assault against R and all the other sexual offences with which the various defendants were charged.[15]Although this resolved the immediate problem, the Director of Public Prosecutions still desired an authoritative decision as to whether or not the District Judge's decision of 2nd May 2003 was correct in law. Accordingly Crane J granted to the DPP permission to proceed with the claim for judicial review, but only for the purpose of claiming declaratory relief.[16]In the result, therefore, the DPP no longer claims any of the orders set out in the claim form. Instead he seeks a declaration in the following form (as amended today). "Having regard to the provisions of sections 18 to 25 of the Magistrates' Courts Act 1980, a magistrates' court or youth court may change its decision concerning mode of trial at any time until the beginning of the summary trial or the beginning of the committal proceedings.[17]Before addressing the issues which arise on the claim in its current form, it is first necessary to review the authorities on sections 18 to 25 of the 1980 Act. Part 4: Previous Relevant Decisions on Sections 18 to 25 of the 1980 Act.[18]In this part of my judgment, I shall omit reference to certain cases referred to in argument which have been either overruled or later shown to have proceeded on an incorrect assumption.[19]In R v Dudley Justices, ex parte Gillard [1986] AC 442, two defendants were charged with assault occasioning actual bodily harm. The justices accepted summary jurisdiction whereupon one defendant pleaded guilty and the other elected to go to trial in the Crown Court. One week later, the justices purportedly pursuant to section 25(2) of the 1980 Act discontinued the summary proceedings against the first defendant and committed both men to the Crown Court. The first defendant then brought proceedings for judicial review of the justices' decision on the second occasion. Both the Divisional Court and the House of Lords held that on that occasion, the justices did not have power to switch from conducting a summary trial to acting as examining justices.[20]In the House of Lords, there was a single speech by Lord Bridge, with whom Lord Scarman and Lord Mackay agreed. At page 452 letter D to E, Lord Bridge said:
"If I were obliged to construe section 25(2) in isolation, I would strongly incline to the view that the language of the subsection can more naturally be read as giving the court the opportunity to switch from summary trial to inquiry as examining justices only in the case where a trial in the narrow sense is proceeding and the process of leading evidence for the prosecution to prove the guilt of the accused has not been concluded."
[21]Lord Bridge then went on to review some wider considerations before concluding that the correct construction of section 25(2) was indeed as set out in that passage.[22]In R v Southend Magistrates' Court, ex parte Wood (1988) 152 JP 158, 27th February 1986, the Magistrates and all parties agreed to proceed by summary trial, but no plea was taken. Subsequently, a further charge was preferred against the defendant, and the Magistrates revoked their earlier decision. They committed the defendant for trial.[23]The Divisional Court of the Queen's Bench Division quashed that decision. Stephen Brown LJ, giving the principal judgment, held that where a magistrates' court had decided that a case should proceed by way of summary trial, it could only switch to committal proceedings in circumstances permitted by section 25. Such circumstances did not exist in that case.[24]In R v Newham Juvenile Court, ex parte F (A Minor) [1986] 1 WLR 939, the applicant, who was aged 16, appeared before the juvenile court charged with robbery and possession of an imitation firearm. The justices decided to proceed summarily. No plea was taken. Subsequently the applicant appeared before a differently constituted bench of justices, and faced additional charges. The justices purported to reverse the previous decision. They committed the applicant to the Crown Court for trial in respect of the original charges.[25]The Divisional Court quashed this decision. The ratio of the Divisional Court's decision was this: once a properly constituted bench of justices had considered all the factors placed before the court that were relevant to the exercise of their discretion under section 24 of the Magistrates' Courts Act 1980 and ordered summary trial, a differently constituted bench of justices had no power to re- examine that decision on the same facts.[26]However, the Divisional Court went on to utter some obiter dicta which have loomed large in the hearing today. At 945 H to 946 E Stephen Brown LJ said this:
"Unfortunately, the justices, as is clear from their affidavits, did not take into account any additional circumstances nor, it would seem, any additional facts beyond those which had been placed before the justices on 20 September. In those circumstances the question has to be asked: were they at liberty to review and reverse a decision which had been formally taken and announced by a properly constituted bench of justices having the power and duty to make the inquiry under section 24(1)? There is an apparent anomaly if they do not have such power, because section 25 provides that where a court has begun to try an information summarily it can, if it takes the view that it should not continue to try the case summarily, continue the hearing as examining justices with a view to committal for trial. It may therefore seem anomalous that they cannot change their minds before actually embarking on a summary trial. "
Justices like every other court, must of course exercise such discretion as they have judicially, but this is not merely a matter of discretion; it is a matter of power. Have they got power to reverse a decision taken by their colleagues at an earlier hearing? In my judgment the whole scheme of the Act suggests that they do not have that power before embarking upon the hearing. Once a decision has been made after proper inquiry and consideration of all relevant factors, it cannot be reversed merely by re- examining the case afresh on the same material. "It seems to me that they may well have had the opportunity for taking a different view from that taken by their colleagues in the light of the new and additional factors which had emerged since 20 September. For example, not only was it alleged that a further serious offence had been committed whilst the applicant was on bail, and with which the justices had to deal quite separately, but in addition a great deal more information was before them as to the character of the applicant. They now knew that a number of other offences were alleged to have been committed by him from May onwards. Those were matters which were not before the justices who had sat on 20 September, so there was in my judgment material upon which it could be argued that it would be proper for the justices to review the question as to mode of trial. "As I have said, that was not in fact the way in which these justices proceeded. Their affidavits are very frank and clear about that matter. It seems to me that this was simply a different view formed upon the same facts by a differently constituted bench. In my judgment in the result they did exceed their powers. Prima facie therefore that decision should be quashed and also the decision to commit for trial."[27]In a concurring judgment, McCullough J said this at page 947 C to H:
"I agree. In my opinion, a decision under section 24(1) of the Magistrates' Courts Act 1980 is not irrevocable. However, once such a decision has been taken and announced, it will in the great majority of cases stand. But in a case where trial on indictment has been decided upon, it is in my opinion open to the justices to review that decision at any stage up to the start of their inquiry as examining justices. Such a review will be permissible if a change of circumstances has occurred since the original decision was taken and also if circumstances are brought to the attention of the court which, although existing when the original decision was taken, were not then drawn to the attention of the court. I am thinking, for example, of a case where justices are told on a later occasion that the facts of the charge were less serious than the court was originally led to believe, or where the court learns facts about the defendant's background, character, and antecedents, which indicate that if he is found guilty there will be no need after all for it to be possible to sentence him in pursuance of section 53(2) of the Children and Young Persons Act 1933. "
Similarly, in a case where summary trial has been decided upon, it is in my opinion open to the justices to review that decision at any stage up to the beginning of the summary trial. Such a review is permissible if a change of circumstances has occurred since the original decision was taken and also if circumstances are brought to the attention of the court which, although existing when the original decision was taken, were not then drawn to the attention of the court ... "Put more shortly, at any stage before the tracks divide, the decision as to which track is to be pursued is open to revision upon the demonstration of what may shortly be called a change of circumstances. I see nothing in section 24(1)(a) to prevent this. On the contrary, I take it to have been the intention of Parliament that the decision should be taken on the fullest information available to the court immediately before the tracks divide. Any other construction may lead to injustice."[28]It should be noted that Stephen Brown LJ in ex parte F adopted a different approach to the construction of the statutory provisions than he had adopted in ex parte Wood.[29]In R v St Helens Magistrates' Court, ex parte Critchley (1987) 152 JPR 102, the applicant, an adult, was charged with two offences of criminal damage. The Magistrates accepted summary jurisdiction and the applicant pleaded not guilty. Subsequently, the applicant faced further charges. The Magistrates reversed their previous decision and committed the applicant for trial at the Crown Court in respect of all matters. The Divisional Court quashed the Magistrates' decision. Bingham LJ gave the principal judgment. He said that In re Gillard clearly established that where justices express willingness to try a case summarily and the defendant elects summary trial and pleads guilty, the justices cannot then switch their role to that of examining justices and commit for trial.[30]Bingham LJ went on to consider the circumstances of the case before him. At page 106 he said:
"We have had to consider whether it could reasonably be held that by pleading not guilty in the presence of the justices, the justices had begun to try the information summarily. With considerable regret, because the result again appears technical and unattractive, we feel it impossible to distinguish this case on the grounds that a plea of not guilty had been entered."
[31]Mann J agreed with that judgment; he said that he did so without enthusiasm, because the point was a highly technical one.[32]In R v Liverpool Justices, ex parte Crown Prosecution Service (1990) Criminal Appeal Reports 261, the Divisional Court quashed a decision of the Liverpool Justices to change the mode of trial. The Divisional Court examined with care the obiter dicta in ex parte F referred to earlier in this judgment and doubted that those passages were correct. At page 268, Stocker LJ said:
"For my part I would respectfully doubt the proposition that even where there has been a change of circumstances, either circumstances since the original decision or where there were matters existing at the date of the original decision but were not drawn to the attention of the court, there is jurisdiction other than under section 25, particularly having regard to the mandatory terms of section 21, already read. "
It is however, in my view, unnecessary to make any concluded view upon that since, for the reasons I am just about to give, in my view that situation does not arise. The dicta in support of it were obiter and, since in the case of ex parte F (supra) it was not stated where the power derived, I would, for my part, with great respect, doubt the validity of that decision."[33]At page 271, Saville J said this:
"I agree. I would only add that I also find considerable difficulty in seeing how there could be a suggested power in the justices to re- hear and re- determine the question of the mode of trial outside the provisions of section 25 of the Magistrates' Courts Act. "
Section 21 of the Act is mandatory in its terms. If it appears that the offence is more suitable for trial on indictment, the court shall proceed to inquire into the information as examining justices. What is suggested is that if new circumstances arise after the justices have concluded that there should be a trial on indictment, or it appears that if existing circumstances had not been brought to the attention of the justices reaching that conclusion, then the matter can be reopened. "To my mind, there is nothing in the Act that begins to support such a suggestion. On the contrary, as well as the mandatory provisions of section 21, the fact that section 25 sets out the specific circumstances when the mode of trial can be changed, militates, in my view, strongly against the suggestion that the mode of trial could nevertheless also be changed in circumstances not falling within the requirements of that section."[34]In R v Birmingham Stipendiary Magistrate ex parte Webb (1992) Criminal Appeal Reports 75, the applicant appeared before lay justices charged with possessing cannabis and supplying cannabis. The justices decided to try the case summarily. The applicant pleaded guilty to possession but not guilty to supply. The applicant subsequently appeared before a stipendiary magistrate who looked into the matter and concluded that summary trial was inappropriate. He sat as an examining magistrate and committed the applicant for trial to the Crown Court.[35]The Divisional Court, comprising Mann LJ and Brooke J, quashed that decision. The Divisional Court held that certain steps taken by the magistrate to bring himself within the provisions of section 25(2) were unsuccessful.[36]In R v Horseferry Road Magistrates' Court ex parte K [1997] QB 23 the defendant was charged with affray. The Magistrates' Court accepted summary jurisdiction and the defendant pleaded not guilty. Subsequently, the stipendiary magistrate changed the mode of trial and committed the defendant for trial to the Crown Court. The defendant's challenge to that decision failed because at the moment when the stipendiary magistrate changed the mode of trial, the defendant's summary trial had in fact begun. Thus jurisdiction existed under section 25(2). Forbes J delivered the judgment of the Divisional Court. At page 33, Mr

Justice Forbes said this:

"Furthermore, we share the doubts which have been expressed about Ex parte F in this court in R v Hammersmith Juvenile Court, Ex parte O (1987) 86 Criminal Appeal Reports 343 (See May LJ at page 349) and R v Liverpool Justices, Ex parte Crown Prosecution Service, Liverpool (1989) 90 Criminal Appeal Reports 261, in particular the judgment of Stocker LJ ... at page 268."
[37]At page 34, Forbes J said this:
"In our judgment, having regard to the mandatory terms of section 20(1)(2) and (3) of the Act of 1980, once the court had determined mode of trial under section 19, the only jurisdiction to reopen the mode of trial was pursuant to the provisions of section 25(2) of the Act. We agree with Mr Gordon's submission that the jurisdiction of the magistrates' court is entirely statutory."
[38]At page 36, Forbes J said this:
"In our opinion the same reasoning cannot be applied to a plea of not guilty. It must be remembered that it is the plea of not guilty which puts the defendant's guilt in issue and creates the need for a 'trial' in the narrow sense. In that respect, we take the view that a plea of not guilty can be said to initiate the process of determining guilt, ie it is an essential and necessary introduction to the trial. Whether the plea of not guilty does or does not form part of the actual process of determining guilt or innocence will depend on the particular facts of the case. If, as a fact, all that happens following a plea of not guilty is that the court puts the matter over to another day for trial, then the process of determining guilt or innocence, although initiated, has still has not begun: see the judgment of Bingham LJ in Ex parte Critchley."
[39]Forbes J went on to state that events which had occurred in the instant case following the plea of not guilty had caused the defendant's trial to begin.[40]In R v Fareham Youth Court and Morey ex parte Crown Prosecution Service (transcript 16th October 1998), the youth court decided to deal summarily with serious charges against M. M pleaded guilty to one charge and not guilty to others. The case was then adjourned. A differently constituted bench of justices resolved to commit M for trial.[41]In judicial review proceedings, the Director of Public Prosecutions challenged the decision of the youth court on the first occasion, and M challenged the decision of the youth court on the second occasion. Kennedy LJ (with whom Sullivan J agreed) held that the youth court on the second occasion had no power to re- open its decision about the mode of trial. Section 25(2) did not apply. Kennedy LJ was not persuaded to follow the obiter dicta in ex parte F. He agreed with the later decisions in which those dicta were disapproved.[42]It can thus be seen that the authorities on sections 18 to 25 of the Magistrates' Courts Act all follow a consistent theme. The only case which departs from that theme is ex parte F in its obiter dicta, and those obiter dicta have been repeatedly disproved in subsequent authorities.[43]Having outlined the relevant authorities on sections 18 to 25 of the 1980 Act, it is now possible to turn to the substantive arguments developed today. Part 5: The Claimant's Case as Presented Today.[44]Part 5 of this judgment bears that title because there is a marked development in the claimant's case as presented today from the claimant's case as formulated in the skeleton argument. I, for my part, make no criticism on that ground. The argument today was put most attractively, and I shall focus on those parts of the claimant's case which are actively pursued.[45]Mr Perry accepted with engaging candour that the weight of authority is against the contention which he is putting forward as to the correct interpretation of sections 18 to 25 of the 1980 Act. Nevertheless, Mr Perry has today developed three lines of argument.[46]The first line of argument is this: all the cases on the 1980 Act were decided without reference to the decision of the Divisional Court in R v Craske, ex parte Metropolitan Police Commissioner [1957] 2 QB 591. The Craske decision was not cited in any of the more recent cases, and if it had been, a different result would have been achieved.[47]The second line of argument is this: that quite apart from the words of sections 18 to 25 of the 1980 Act, the Magistrates' Court also has an inherent jurisdiction which enables it to re- open the question of mode of trial before the circumstances defined in section 25 have arisen.[48]The third argument which Mr Perry has pressed upon us is this: there are strong policy reasons why the Magistrates' Court should have the necessary flexibility to revisit questions of mode of trial before it has actually embarked upon a summary trial or alternatively an inquiry as examining justices.[49]I shall address those three arguments in that order.[50]Let me begin with the first argument. In R v Craske, ex parte Metropolitan Police Commissioner [1957] 2 QB 591, a youth aged over 17 but under 21 appeared before a metropolitan magistrate charged with, amongst other things, receiving a motor car knowing it to have been stolen. That was an indictable offence triable summarily under section 19 of the Magistrates' Courts Act 1952 if the accused consented. The provisions of that section were complied with and the accused consented to summary trial.[51]After a plea of not guilty had been taken, the magistrate adjourned the proceedings to enable the accused to be legally represented. At the adjourned hearing, the accused sought to withdraw his consent to summary trial. The magistrate allowed him to withdraw that consent and he did not proceed to deal with the case summarily. The prosecution challenged that decision by proceedings in the Divisional Court and that challenge failed.[52]The provisions of the Magistrates' Courts Act 1952 have a number of similarities to the present provisions of the 1980 Act. In particular, section 19(5) of the Magistrates' Courts Act 1952 provided:
"After informing the accused as provided by the last two preceding subsections the court shall ask him whether he wishes to be tried by a jury or consents to be tried summarily, and, if he consents, shall proceed to the summary trial of the information."
[53]Lord Goddard, Chief Justice, giving the principal judgment, said this at page 597:
"We now come to the question whether a person having elected, the magistrate, having heard that he elects and pleads not guilty but having gone no further, can allow him to withdraw his election and say instead: 'I elect to go for trial by jury'. In my opinion he can ... "
[54]At page 598, Lord Goddard said this:
"[The magistrate] could only have proceeded to try it as a summary offence so long as the election stood, but I do not think it would be a correct reading of these sections to say that once the election had been given, it has been given for all time, so that if the accused might have been advised, if his advocate had been present, to refuse summary trial, he would not be allowed, when his advocate did arrive, to elect to go for trial before a jury."
[55]Byrne J agreed with that judgment. Devlin J, who also agreed, said this at pages 599 to 600:
"Suppose that the trial of the information has begun, because the plea has been taken. Is there any reason why a magistrate in those circumstances, if he ascertains that the accused wants to change his election, should not allow him to do so? ... Mr Buzzard submits that he cannot, and he places that submission upon the words of section 19(5). He puts his case as high as this, that once the accused has consented to be tried summarily a magistrate is bound to proceed to the summary trial of the information, and no magistrate can give the accused an opportunity of reconsidering his consent, unless, Mr Buzzard is disposed to concede, it were done by mistake. "
That would be a very cumbersome procedure if, when the accused wanted to change his mind half a minute after he had given his consent, there had to be an investigation whether he was acting under a mistake or not. I do not think the words of section 19 require so harsh and, as it seems to me, unreasonable a construction to be put on them. I think that when Parliament uses the word 'shall' in subsection (5), it is using it in relation to the object of this part of the section, which is, as is shown by subsection (3), to lay down the things that must be done before the trial is proceeded with, and the order in which they have to be done. " ... I do not think that means that once the procedure is set in motion, the court has ineluctably to allow the wheels to revolve without any power to stop them if the accused wants to change his mind. I think it means no more than this, that if the summary trial is to be proceeded with in the way in which section 19 provides, those are the steps that must be taken, but I can find nothing in the words of subsection (5) which would deprive a magistrate or any court of the ordinary right which they must have in the interests of justice of allowing an accused who has given his consent ill- advisedly to abandoning his right to a trial by jury, to be given the opportunity of reconsidering it."[56]Mr Perry submits that the words "shall proceed" in section 20(3) and section 21 of the 1980 Act echo section 19(5) of the Magistrates' Courts Act 1952. The courts since 1980 have wrongly treated this as a mandatory provision without having regard to the decision in Craske, submits Mr Perry. The same reasoning, he submits, applies to section 24(1) of the 1980 Act, where one sees the words, "he shall be tried summarily".[57]Mr Perry goes on to argue that the obiter passages in ex parte F are correct. All the other decisions which either disapprove those passages or conflict with them are incorrect. All of these cases would have been decided differently, if only Craske had been cited in argument on the earlier occasions.[58]I am not persuaded by this argument for three reasons. First and foremost, Craske appears to have vanished from view for almost half a century. A body of case law has built up on the 1980 Act which treats decisions as to mode of trial as irrevocable unless section 25 applies. In my view, it is now too late for this court to discard 20 years of decisions on the operation of the 1980 Act. It would create unacceptable uncertainty in the criminal law if a consistent line of authority built up over 20 years could be overturned by the discovery of a long overlooked authority on an earlier Act. If the interpretation of sections 18 to 25 of the 1980 Act is to be revised, this must be a matter for the House of Lords, alternatively Parliament.[59]My second reason is that the whole regime of criminal trials changed greatly between 1957 and 1980. It is true that the 1980 Act was a consolidating Act, as Mr Perry pointed out in argument. Nevertheless, that statute consolidated some fundamental changes to criminal procedure including the great reforms of 1977. It is necessary to use great caution when transposing decisions on the interpretation of the Magistrates' Courts Act 1952 to problems arising on the interpretation of the Magistrates' Courts Act 1980.[60]My third reason is this. The circumstances in Craske were quite exceptional. The defendant in that case had taken a decision to abandon his right of trial by jury without having taken legal advice. He subsequently received legal advice, and it was appreciated that he had wrongly thrown away a fundamental right of an accused person. It was necessary in order to achieve justice in that case that Mr Craske should be permitted to withdraw his consent to summary trial in those exceptional circumstances. I am not persuaded that those exceptional circumstances which strongly influenced the reasoning of Devlin J in the passage that I have read out necessarily should cast a long shadow over the interpretation of the 1980 Act.[61]I turn now to the second of Mr Perry's arguments. This is based upon inherent jurisdiction.[62]Mr Perry places reliance on two authorities: first, R v Horseferry Road Magistrates' Court, ex parte Bennett [1994] 1 AC 42; and secondly, Taylor v Lawrence & Another [2002] EWCA Civ 1990; [2003] QB 528.[63]In Bennett, the House of Lords held that magistrates' courts had an inherent jurisdiction to protect the court's process from abuse. Indeed, any court must have this power whether or not it is a creature of statute such as the magistrates' court.[64]In my judgment, the abuse of process jurisdiction as explained by the House of Lords in Bennett is of no assistance in the present case. The kind of procedural problems which arise in the cited authorities and in the instant case have nothing to do with abuse of process. At its highest, the DPP's complaint in cases such as the present is that the need to resort to a voluntary bill of indictment is both cumbersome and inconvenient.[65]Let me turn now to Taylor v Lawrence. This is a much misunderstood authority. It has given rise to applications to the Court of Appeal at the rate of about 200 a year, not one of which has so far been acceptable. See Matlaszek & Another v Bloom Camillin (A Firm) [2003] EWCA Civ 154 at paragraph 30, and Gregory & Another v Turner & Another [2003] EWCA Civ 183 at paragraph 28.[66]Let me say a word about Taylor v Lawrence. Part 52 of the Civil Procedure Rules in its original form did not provide for the re- opening of an appeal after it had been concluded. Nevertheless, in Taylor v Lawrence, a five judge Court of Appeal comprising Lord Woolf CJ, Lord Phillips MR, Ward LJ, Brooke LJ and Chadwick LJ decided that such jurisdiction did exist. The Lord Chief Justice, giving the judgment of the court, reasoned as follows. The Court of Appeal has two objectives:(a) to correct wrong decisions and(b) to clarify and develop the law and to set precedents. An appellate court has the implicit powers to do that which is necessary to achieve those dual objectives. Accordingly, the Court of Appeal has a residual jurisdiction to re- open an appeal, in order to avoid real injustice in exceptional circumstances. The court stressed that this jurisdiction would seldom be exercised. At paragraph 55, the Lord Chief

Justice said:

"What will be of the greatest importance is that it should be clearly established that a significant injustice has probably occurred and that there is no alternative effective remedy."
[67]The court also said that the jurisdiction would only be exercised in a case where the House of Lords would not give leave to appeal.[68]The Court of Appeal has this inherent jurisdiction (which since October 2003 has been codified in the Civil Procedure Rules) because it is an appellate court almost at the apex of the court system. The county court, by contrast, which like the Magistrates' Court and the Court of Appeal is a creature of statute, has no such power. If an appeal from a district judge to a circuit judge is brought and the circuit judge wrongly refuses permission to appeal, then, save in certain special circumstances, that is the end of the matter. However great the injustice may be, there is no remedy or relief available to the party who has wrongly been refused leave to appeal. In my view, the reasoning of the Court of Appeal in Taylor v Lawrence has no bearing upon the present problem.[69]In support of his submissions, Mr Perry draws attention to the well- known, indeed seminal, article on "The Inherent Jurisdiction of the Court" by Sir Jack Jacob (1970) 23 Current Legal Problems. This article deals primarily with the High Court. The High Court is not a creature of statute. It has an inherent jurisdiction which is quite different from the Magistrates' Court.[70]Whilst acknowledging the great debt which the courts owe to this seminal paper by Sir Jack Jacob, which has been cited on a number of occasions, I do not find in this essay any support for the proposition that a magistrates' court has supplementary powers beyond those set out in sections 18 to 25 of the 1980 Act when questions arise as to revising decisions on the mode of trial. In the result, therefore, for my part, I would reject Mr Perry's argument based upon inherent jurisdiction.[71]Mr Perry's third argument is essentially a development of policy reasons why magistrates' courts should have the power to reconsider questions as to mode of trial before the circumstances set out in section 25 of the 1980 Act have arisen.[72]Some of these policy arguments are very helpfully deployed in Mr Perry's skeleton argument. Mr Perry submits that such a power should properly be exercised where the decision concerning mode of trial is taken in ignorance of a material fact, and it is in the interests of justice to change from summary trial to committal proceedings or vice versa. He submits that where there has been a material change in circumstances since the decision concerning mode of trial and it is in the interests of justice to change from summary trial to committal proceedings or vice versa, then it is right that the magistrates should be able to make that change.[73]Mr Perry submits that there are good practical reasons why justices who are minded for good reason to undo the decision of an earlier bench should be permitted to do so without embarking upon a summary trial or alternatively an enquiry as examining justices. Otherwise, submits Mr Perry, unnecessary costs will be incurred on, for example, embarking on a trial which is never going to be concluded; indeed that trial may be attacked as a sham because it would have been launched solely for the purposes of satisfying the requirements of section 25.[74]Mr Perry then gives examples of cases where it is obviously in the public interest that decisions as to mode of trial should be changed at an early stage. One example he gives is indeed the facts of this very case. Another example which he gives is this: suppose that the defendant appears in the Magistrates' Court charged with an offence of stealing a credit card, the justices accept that the case is suitable for trial, it subsequently transpires that the credit card was stolen in the course of a murder. The theft charge cannot be promptly committed to the crown court, even though it should be tried jointly with the murder charge.[75]It is possible to multiply examples of this kind, as Mr Perry does in his skeleton argument. Such cases can be dealt with by means of a voluntary bill of indictment, but that is cumbersome and inconvenient.[76]Mr Perry also makes the point that with the present emphasis of speed in youth justice, it becomes even more important that magistrates should have the necessary flexibility to change decisions as to mode of trial when it can be seen that those decisions were wrong.[77]For my part, I see very considerable force in all of these policy arguments. I think it desirable as a matter of policy that magistrates should have the power to change decisions concerning mode of trial (when good grounds exist to do so) even before the circumstances specified in section 25 of the Act have come into existence. It is to be hoped that Parliament, which devotes a great deal of time to the reform of criminal justice, will find an opportunity to make the sensible and beneficial reforms for which Mr Perry contends. One would have thought that those reforms may well not be controversial.[78]However, policy considerations of the kind urged by Mr Perry do not enable this court to extend the statutory powers of magistrates in relation to mode of trial. This court can only interpret sections 18 to 25 of the Magistrates' Courts Act as those sections now are.[79]Accordingly, I for my part am not persuaded by any of Mr Perry's submissions that this court should depart from the consistent theme of two decades' authority concerning the correct interpretation of the 1980 Act, nor should this court depart from what appears to be the clear meaning of those provisions of the statute. Part 6. Decision.[80]In my view, the statutory scheme is clear. The provisions of the 1980 Act concerning adults and juveniles run in parallel. In each case there is a procedure whereby the Magistrates' Court determines whether or not to accept summary jurisdiction. Section 20 sets out the procedure in respect of adults, section 24 sets out the procedure in respect of persons under the age of 18. In each case, the statute provides for a single decision on the mode of trial. It does not permit serial reconsideration of the same question, whether or not new material emerges.[81]One then moves on to section 25. Subsections (1) to (4) deal with adults, and subsections (5) to (7) deal with persons under 18. Subsections (2) and (3) permit the Magistrates' Court to change its mind as to mode of trial for adults during the course of the summary trial or committal proceedings. Subsections (5) to (7) permit the Magistrates' Court to change its mind as to mode of trial for persons under the age of 18 during the course of the summary trial or committal proceedings.[82]The statute is quite explicit as to the circumstances in which justices can change a decision as to mode of trial. It is not permissible to read into the Act some vague power to change the mode of trial in other circumstances.[83]This conclusion, which I reach as a matter of statutory construction, is supported by the line of authority referred to in part 4 of this judgment. Only ex parte F contains dicta which tend in the other direction. Those dicta have been disapproved on a number of subsequent occasions.[84]For all these reasons, in my judgment, the claimant's claim for a declaration must be refused.

LORD JUSTICE ROSE: I agree with my Lord's judgment, and I add just a few observations.

[86]Mr Perry's submissions, as always, are seductive. For my part, I accept his submission that, when a court is considering the interests of justice, it must consider not just the interests of the defendant but also those of the prosecution and the public; that is to say, as Lord Steyn has said, it must consider a triangulation of interests.[87]I also accept that there is force in Mr Perry's argument that the construction placed in R v Craske, ex parte Metropolitan Police Commissioner [1957] 2 QB 591 on the words: "shall proceed to summary trial", in section 19(5) of the Magistrates' Courts Act 1952, is a construction which, if applicable to the similar but not identical provisions in the 1980 Act, may have much to commend it from a practical point of view: it would afford to justices a degree of flexibility such as the obiter dicta in ex parte F contemplated, and as the comments by Professor Birch on ex parte Critchley [1998] Criminal Law Review 391 and by Professor Ormrod on R v Fareham Youth Court, ex parte M [1999] Criminal Law Review 325 show.[88]But the authorities reviewed by my Lord show that, in the period of over 20 years since the passing of the 1980 Act, different constitutions of the Divisional Court and magistrates' courts have proceeded, with increasing sureness, on the basis that, contrary to the dicta in ex parte F, there is no power in justices to change a mode of trial decision save under section 25 of the 1980 Act. It is because of this that alternative routes, such as the preferment of a voluntary bill as occurred in the present case, have been followed in order to avoid the difficulties which might otherwise arise.[89]That being so, it does not seem to me that this court should now adopt the construction of the statute suggested 17 years ago in ex parte F in the face of the overwhelming, indeed unanimous criticisms of that approach in all the subsequent authorities in this court. That is particularly so as the most recent of those authorities, R v Fareham Youth Court, ex parte M, is to my mind barely distinguishable from the present case and is binding on this court.[90]Accordingly and for the reasons given by my Lord I would refuse this application.[91]MR PERRY: My Lord, thank you very much indeed. Thank you my Lord. My Lords, two matters arise. Would your Lordships, so as to preserve the position of the Crown, consider a question? My Lords, my learned friend has had time to read the question as formulated.

LORD JUSTICE ROSE: It does show a close similarity to the amended declaration sought. Do you have any problem with that, Mr Barnard?

[93]MR BARNARD: No.

LORD JUSTICE ROSE: We will certify that question.

[95]MR PERRY: Thank you very much, my Lords. I will formally apply for leave.

LORD JUSTICE ROSE: We refuse leave to appeal.

[97]MR PERRY: Thank you very much indeed, my Lords. My Lords, the only other matter is the identity of the interested parties. My Lord, I was not a party to the Crown Court proceedings, but I am not sure if all of them were actually identified at the conclusion of the Crown Court proceedings, because some of them, of course, would have been under the age of 18. I am told they were not identified. My Lords, just to ensure there is no prejudice to the interested parties - -

LORD JUSTICE ROSE: My Lord's judgment will refer to them simply by initials.

[99]MR PERRY: My Lords, I am extremely grateful, and I know that any persons present will ensure that any reporting of the case will also refer to them by initials.

LORD JUSTICE ROSE: I think you can rely on that. Thank you.

[101]MR PERRY: My Lords, I am extremely grateful. Thank you very much.

LORD JUSTICE ROSE: Thank you both.

Cited in 6 later judgments