Sean Ian Howard Sumner, R (on the application of) v Wirral Borough Magistrates' Court & CPS [2005] EWHC 3166 (Admin)

Case No CO/9502/05[2005] EWHC 3166 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday 14 December 2005
Strand
London WC2
B E F O R E:
MR JUSTICE STANLEY BURNTON
Between
The Queen, on the application of:ClaimantSEAN IAN HOWARD SUMNERClaimant-v-
Between
WIRRAL BOROUGH MAGISTRATES' COURT AND CPSDefendant
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 ALAN BOSCOE (a solicitor/advocate) (instructed by Davison Flynn Boscoe & Partners) appeared for CLAIMANT for The Defendant did not attend and was not represented
JUDGMENT
[1]MR JUSTICE STANLEY BURNTON: This is an application by Sean Ian Howard Sumner for judicial review of a decision made by District Judge of the Magistrates' Court Sanders on 31st October 2005 to commit the claimant for sentence to the Crown Court. This is another of those cases in which a defendant to criminal proceedings pending before a magistrates' court contends that as a result of an indication given implicitly or expressly by one bench of magistrates he had a legitimate expectation of his sentence being determined by the magistrates' court. Therefore it was unlawful for a subsequent bench (or in this case a district judge) to depart from the assurance impliedly given by the earlier bench in committing him to the Crown Court for sentence. The application is brought because the penalties available in the Crown Court are significantly greater than those available before the magistrates.[2]The district judge has given a note of the reasons for his decision, but, before that, it is right to set out what happened before the magistrates. The defendant appeared on 26th September before the magistrates on charges of theft, the theft being shoplifting (which had been committed, it was alleged, on 26th June 2005), and of dangerous driving, driving whilst disqualified, driving with excess alcohol and driving without insurance on 25th September 2005 - the previous day. He had been granted police bail but on 8th August 2005 he failed to surrender to that bail.[3]On 26th September 2005 he appeared before the magistrates. They heard all the facts of the case and ordered a pre-sentence report with all options open, that is to say, they gave no indication that there would be a non-custodial sentence. But they did not commit him for sentence and indeed granted him bail pending sentence.[4]In those circumstances it is submitted that a legitimate expectation arose that the claimant would be sentenced by the magistrates' court rather than being committed to the Crown Court. It would appear from a form completed by the magistrates on 26th September (when, I should add, the claimant pleaded guilty to all six offences other than Bail Act matters which had been committed on separate occasions) that the maximum sentence they might impose was twelve months' imprisonment; that is to say, on one inference that could be drawn from the form they completed the claimant could be sentenced to a total of twelve months' imprisonment. The district judge, as I have already stated, committed him for sentence notwithstanding what had happened earlier.[5]On 31st October the district judge again heard the facts of the case from the prosecution. Mr Sumner had been disqualified from driving in August 2004. According to the summary of the district judge - and I do not think it is suggested that that is materially inaccurate - in the very early hours of Sunday 25th September Mr Sumner was seen driving a car in Heswall bus station with two passengers. He had stopped for the police, but when told to turn off the engine and get out of the car he accelerated rapidly with tyres screeching. It was alleged that he had driven at a police officer, causing the officer to take avoiding action by diving out of the way. That particular allegation is, I understand, disputed, but those were the facts as outlined to the district judge by the prosecution. The car exited the bus station at speed, jumped a red traffic light on a busy arterial road in the Wirral and, after travelling a short distance, crashed into a wall causing substantial damage. The driver and passengers had left the scene of the accident, but Mr Sumner was stopped and arrested about an hour later. He admitted being the driver of the car and during the police station breath test procedures provided two samples of breath, the lowest of which provided a reading which was over twice the legal limit.[6]The shoplifting matter was entirely separate. It was a theft of a ring and watch from a shop in Birkenhead on 26th June to a value of £135 with no other aggravating features.[7]Mr Sumner had previous convictions: a total of 39 offences dealt with on eighteen occasions. In the two years prior to the offences for which he was committed, his record showed a number of offences involving motor vehicles, for one of which, namely being carried in a motor vehicle, which was associated with a non-dwelling burglary, he was sentenced to four months' imprisonment, but that no doubt reflected the burglary as well as or rather more than the being carried. He was sentenced to two months' imprisonment on 15th December 2003 for interfering with a motor vehicle, being carried, making off without payment, a failure to surrender and criminal damage.[8]The district judge was told that Mr Sumner was in significant breach of a community rehabilitation order imposed on 3rd September 2004 in relation to other motor vehicle offences. The breach proceedings were to be heard in a separate court on a different day. The judge said:
"I formed the view that the matter of dangerous driving was serious, being aggravated by the fact that it involved allegations of driving at a police officer, crossing a red light on a busy road, and causing serious damage to a vehicle, whilst over twice the legal alcohol limit for driving whilst disqualified from driving. Notwithstanding Mr Sumner's guilty plea, I was of the clear opinion that the appropriate sentence for this offence exceeded my sentencing powers."
[9]The district judge said that he noted the indication on the earlier occasion by the lay bench but that the note on the file showed that that decision had been made on the basis that the court had available to it twelve months' imprisonment. The district judge declined to sentence Mr Sumner and committed him to the Crown Court for three reasons, according to his note. First, the lay magistrates were mistaken in their unqualified conclusion that they had a twelve-month sentence available to them for these matters. In fact the sentence for shoplifting was unlikely to be a sentence of more than four to six weeks. In those circumstances the maximum sentence that was available for the substantive offences, namely the driving and the shoplifting, would be no more than six months plus four to six weeks. Secondly, he considered that a limited sentence on the dangerous driving of six months, which was all that could possibly be passed by the magistrates' court, was so out of line as to be unreasonable. He followed an earlier decision of mine in R v Barking Magistrates' Court ex parte White [2004] EWHC Admin 417, in refusing to enforce an expectation assumed to be otherwise legitimate on the basis that a sentence passed in accordance with that expectation would have been outside the range available to the sentencing court and therefore unlawful. Thirdly, he said that it would be inappropriate to commit the dangerous driving for sentence and retain jurisdiction of the shoplifting.[10]Mr Boscoe on behalf of Mr Sumner has sought to distinguish the case of White. In my judgment it can only be distinguished on the basis that the district judge erred in considering that the earlier bench could not reasonably have thought that six months was appropriate or a maximum of twelve months was appropriate necessarily on a guilty plea on the basis of the antecedents of Mr Sumner on the facts of the cases before them. If the sentence which they envisaged, namely a maximum of twelve months, was unavailable to the magistrates as a matter of law, then any expectation created by them would not be a legitimate expectation as one which could not be and should not be enforced in judicial review proceedings.[11]In my judgment the magistrates were clearly wrong to retain jurisdiction in this case. The driving offence was of very great seriousness. Admittedly no one was injured, but, on the facts as alleged by the prosecution, it involved driving at a police officer, causing the officer to take avoiding action by diving out of the way, exacerbated by drinking and disqualification and exacerbated by a record which involved other offences of a like nature. For the magistrates to approach the matter on the basis, as I think the district judge was right to assume, that a sentence of six months was necessarily adequate was not simply wrong but wholly unreasonable. It seems to me that this was a case which any reasonable magistrates' bench must have committed to the Crown Court.[12]I would add some other comments on the present case. The first is that, after the appearance before the magistrates, Mr Sumner again failed to surrender to his bail. It seems to me that when that occurs any expectation created at an earlier stage falls to be revisited, since it casts light on the character and conduct of the defendant and on the appropriateness of any sentence which the court previously had in mind. The court not only would be entitled but bound to take into account that repeated failure to surrender in deciding on the ultimate penalty; and that of itself might justify quite lawfully a committal to the Crown Court for sentence.[13]Secondly, the authorities deal with the legitimate expectation in the present context in a manner which is different from the manner in which it is dealt with in other contexts. In other contexts a legitimate expectation does not bind the public authority creating that expectation but it is an expectation to be taken into account when a decision is made. In the present case the Crown Court will be told of what happened before the magistrates when the expectation was created, and I would expect the Crown Court to take that into account in deciding on the appropriate sentence for Mr Sumner.[14]The other matter I would mention is that in other contexts what is not simply a legitimate expectation but an actual sentence may be increased. I refer to the jurisdiction of the Crown Court on appeal from the magistrates' court, which may (although it rarely does) increase a sentence imposed by the magistrates when there is an appeal by the defendant, and the power of the Court of Appeal, Criminal Division, to increase a sentence where the Attorney General appeals on the basis that a sentence was unduly lenient. I find it curious that those powers, which appear to me to be inconsistent with the court adhering to a legitimate expectation created by a lower court, do not reflect on the jurisprudence in this area.[15]Be that as it may, in my judgment the district judge came to, if not the right decision, certainly a lawful decision, and I would therefore refuse this application.[16]MR BOSCOE: My Lord, one issue I can raise with your Lordship is a public funding certificate --

MR JUSTICE STANLEY BURNTON: Yes.

[18]MR BOSCOE: -- which is being messed about by Legal Services at the moment. I am not sure if it is place, but if your Lordship would order taxation of the costs ...[19]MR JUSTICE STANLEY BURNTON: You may have the usual certificate subject to filing the certificate with the court. If you are being messed around, would fourteen days do?[20]MR BOSCOE: Thank you.

Cited in 3 later judgments