Bentham, R (on the application of) v HM Prison Wandsworth [2006] EWHC 121 (Admin)

Case No CO/10192/2005[2006] EWHC 121 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 7 th February 2006
Before
THE RT HON LORD JUSTICE HOOPERTHE HON MR JUSTICE GROSS
Between
THE QUEEN (on the application of John Preston Bentham)ApplicantThe Governor of Her Majesty’s Prison WandsworthDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Adrian Chaplin (instructed by Treasury Solicitor) for DefendantJonathan Hall (instructed by Clarke Kiernan solicitors) for Applicant
JudgmentMr Justice Gross :INTRODUCTION
[1]Pursuant to permission granted by this Court on the 14th December, 2005, John Preston Bentham’s (“the applicant’s”) application for habeas corpus was heard on the 19th December, 2005. On that day we granted his application, indicating that we would give reasons later. These are those reasons.[2]Also on the 19th December, in circumstances which will become apparent, I reconstituted myself as a Judge of the Crown Court and directed that the applicant should appear at Kingston Upon Thames Crown Court at 12.00 on that day.[3]The applicant challenged his detention by way of a remand in custody pursuant to various orders of the Kingston Upon Thames Magistrates’ Court (“the Magistrates’ Court”) and the Kingston Upon Thames Crown Court (“the Crown Court”).[4]In a nutshell, the issue was whether the applicant was effectively sent by the Magistrates’ Court to the Crown Court, pursuant to s.51(7) of the Crime and Disorder Act 1998 (“the CDA 1998”).[5]As was observed in argument, there was a distinct Alice in Wonderland air about the proceedings.[6]It was the Crown’s case that the applicant was not effectively sent by the Magistrates’ Court on the first occasion; accordingly, when the matter came before him in the Crown Court, HHJ Tilling was right to rule that he lacked jurisdiction to deal with an application to dismiss; thereafter, the Magistrates were entitled (or entitled and bound, it matters not) to send the applicant back to the Crown Court. The orders that he be remanded in custody were therefore unobjectionable.[7]By contrast, it was the applicant’s case that he was effectively, if defectively, sent to the Crown Court. HHJ Tilling erred in declining jurisdiction; all subsequent orders of the Magistrates’ Court and the Crown Court remanding him in custody were made without jurisdiction; he was accordingly entitled to be immediately released (for however short a period). The applicant had, of course, no interest in the Crown Court remanding him in custody. To the contrary, his purpose throughout has been to argue that the defects in the effective s.51(7) Notice sending him to the Crown Court were such that he was entitled to succeed in his application to dismiss - with whatever practical consequences might flow from that conclusion.[8]It is immediately apparent that the argument presented to HHJ Tilling was this. Either, as the applicant contended, he had been effectively but defectively “sent”, so that he was entitled to succeed in his application to dismiss. Or, as the Crown submitted, he had not been effectively sent at all, so that the Crown Court had no jurisdiction to entertain the application to dismiss.[9]As will become clear, it was our view that there was another way of analysing the matter. Namely: i) that regardless of the defects in the Notice, the applicant had been validly “sent” to the Crown Court; but ii) the defects in the Notice did not mean that an application to dismiss based thereupon was entitled to succeed.

THE LEGISLATIVE FRAMEWORK

[10]I turn to the legislative framework. Previously, all cases tried on indictment before the Crown Court were either the subject of committal, or resulted from the grant of leave to prefer a voluntary bill of indictment: Archbold (2006), at 1-14.[11]By the CDA 1998, however, a procedure was established for magistrates to send adults charged on indictable-only offences to the Crown Court for trial, without any committal proceedings. S.51(1) of the CDA 1998 provides as follows: “ Where an adult appears or is brought before a magistrates’ court (‘the court’) charged with an offence triable only on indictment (‘the indictable-only offence’), the court shall send him forthwith to the Crown Court for trial –(a) for that offence, and(b) for any either-way or summary offence with which he is charged which fulfils the requisite conditions…. ”. (a) for that offence, and (b) for any either-way or summary offence with which he is charged which fulfils the requisite conditions…. ”.[12]S.51(7) of the CDA 1998, crucial to this application, is in the following terms:
“The court shall specify in a notice the offence or offences for which a person is sent for trial under this section and the place at which he is to be tried; and a copy of the notice shall be served on the accused and given to the Crown Court sitting at that place. ”
[13]Supplementary provisions are contained in Rules 7.2 and 12 of the Criminal Procedure Rules 2005 (“the Rules”); these provide as follows:
“7.2 (1) Every information laid in, or summons, warrant or other document issued or made by, a magistrates court shall be sufficient if it – (a) describes the offence with which the accused is charged…in ordinary language avoiding as far as possible the use of technical terms; and (b) gives such particulars as may be necessary to provide reasonable information about the nature of the charge. (2) It shall not be necessary for any of those documents to – (a) state all the elements of the offence; or (b) negative any matter upon which the accused may rely.

(b) the notice required by section 51(7) of the 1998 Act…”

[14]The sending procedure under s.51 of the CDA 1998 is linked to the indictment by the provisions of s.2(2) of the Administration of

Justice (Miscellaneous Provisions) Act 1933, which includes the following:

“(2) Subject as hereinafter provided no bill of indictment charging any person with an indictable offence shall be preferred unless either – …(ac) the person charged has been sent for trial for the offence under section 51…..; or … Provided that – … (iB) in a case to which paragraph (ac) above applies, the bill of indictment may include, either in substitution for or in addition to an count charging an offence specified in the notice under section 51(7)…, any counts founded on material which, in pursuance of regulations made under paragraph 1 of Schedule 3 to that Act, was served on the person charged, being counts which may be lawfully joined in the same indictment;…”

Provided that –

[15]Where this “sending” procedure is invoked, it follows that the person does not have an opportunity to challenge the validity of the charge(s) prior to his being sent for trial. That lacuna is filled by the CDA 1998 making provision, in Schedule 3 thereto, for applications to dismiss:
“1. The Attorney General shall by regulations…provide that, where a person is sent for trial under section 51… on any charge or charges, copies of the documents containing the evidence on which the charge or charges are based shall, … (a) be served on that person; and (b) be given to the Crown Court… 2. (1) A person who is sent for trial under section 51….on any charge or charges may, at any time – (a) after he is served with copies of the documents containing the evidence on which the charge or charges are based; and (b) before he is arraigned (and whether or not an indictment has been preferred against him) apply orally or in writing to the Crown Court …for the charge, or any of the charges, in the case to be dismissed. (2) The judge shall dismiss a charge (and accordingly quash any count relating to it in any indictment preferred against the applicant) which is the subject of any such application if it appears to him that the evidence against the applicant would not be sufficient for a jury properly to convict him…”

THE FACTUAL HISTORY

[16]Against, this background, I come to the factual history. Though somewhat convoluted, it may be summarised relatively shortly.[17]On the 23rd August, 2005, the applicant and a co-accused (Peter Herridge, “the co-accused”) were arrested; no more need be said as to the co-accused, save insofar as necessary to explain the position of the applicant.[18]Thereafter, on the 25th August, the applicant was charged by the police with the following offences (“the charge sheet”):
“D000001 Conspiracy (Original) Between 27th January 2005 and 23rd August 2005 within jurisdiction of Central Criminal Court conspired together with Peter Herridge to supply drugs, namely cocaine and amphetamine sulphate. Contrary to section 1(1) of the Criminal Law Act 1977. MD71014 Concerned in supply drug (A) (Original) Between 1st December 2004 and 23rd August 2005 within jurisdiction of the Central Criminal Court were concerned in the supplying of a controlled drug of a class, namely cocaine in contravention of the Misuse of Drugs Act 1971. Contrary to section 4(3)(B) of and Schedule 4 to the Misuse of Drugs Act 1971. MD71015 Concerned in supply drug (B) (Original) Between 1st December 2004 and 23rd August 2005 within jurisdiction of the Central Criminal Court were concerned in the supplying of a controlled drug of a Class B, namely amphetamine sulphate …in contravention of the Misuse of Drugs Act 1971. Contrary to section 4(3)(B) of and Schedule 4 to the Misuse of Drugs Act 1971.”
MD71014 Concerned in supply drug (A) (Original)

MD71015 Concerned in supply drug (B) (Original)

[19]On the 25th August, the applicant and his co-accused appeared in custody before the Magistrates’ Court. Pursuant to s.51(1) of the CDA 1998, the Justices purported to send the applicant and co-accused for trial to the Crown Court. The applicant and co-accused were remanded in custody.[20]The notice which the Magistrates’ Court purportedly gave pursuant to s.51(7) of the CDA 1998 (“the Notice”) said this in the box provided for “Offences”:
“Conspiracy (both defs) Supply drugs x 3 Drive disq (Herridge) ”
Supply drugs x 3 Drive disq (Herridge) ”

Supply drugs x 3

[21]The Notice was dated 25th August, 2005. As is undisputed, it was sent to the Crown Court without, at the time, any accompanying documents.[22]However, on the 1st September, the Magistrates’ Court did send other documents to the Crown Court. These included the charge sheet and the (or a copy of) the “MEMORANDUM of an ENTRY entered in the REGISTER..” of the Magistrates’ Court (“the Memorandum”). The Memorandum set out the offences in terms and detail similar to that contained in the charge sheet; it also recorded that the applicant had been sent (in custody) to the Crown Court under s.51 of the CDA 1998.[23]There was no express cross-referencing between the Notice, the charge sheet and the Memorandum.[24]On the 5th October, the applicant appeared before the Crown Court; his case was adjourned to a PCMH scheduled for the 31st October; he was remanded in custody.[25]On the 31st October, the applicant gave notice of his intention to apply for dismissal of the charges for which he had been (purportedly) sent for trial. A further remand in custody followed. On the 24th November, the matter came before HHJ Tilling; in legal argument then and on the 28th November, as foreshadowed, it was contended on the applicant’s behalf that the Notice did not comply with the requirements of s.51(7) CDA 1998 or Rule 7(2) of the Rules and did not contain offences known to law. In particular, the conspiracy charge – which as an indictable-only offence was the trigger for the invocation of the s.51 procedure – was bad, in that it made no mention of what the applicant and co-accused had conspired to do, or the dates when the conspiracy had taken place. Again as foreshadowed, the Crown submitted that the purpose of s.51(7) had been frustrated, the sending had not been effective and the Crown Court lacked jurisdiction to dismiss the charge(s). From the transcript it appears that the Crown’s submission came to this:
“It [i.e., the Notice] has not been effective because of the inability… for your Honour to go on to consider an application to dismiss. The reason that it has not been effective is because of the lack of specificity in that notice.”
[26]On the 28th November, HHJ Tilling ruled that the sending had been invalid and that he lacked jurisdiction (“the 28th November ruling”). The central passage in the learned Judge’s ruling appears from the transcript as follows:
“The form by which the magistrates gave notice to this court of the charges upon which they have sent the defendants is contained in a single word ‘Conspiracy’. It then adds in brackets ‘(both defendants)’. It does not specify what that conspiracy is. The question therefore, in my view, is quite simply: Is that a proper sending of that charge? In my view, it is not an offence known to the law. A conspiracy must be to conspire to commit an offence and no offence is shown. It therefore follows, in my view, that this is not a valid sending. The magistrates must readdress their minds to the matter. It is unfortunate (and I suspect it is a problem that needs to be looked at) that clerks, no doubt in a hurry at the magistrates’ court have tended to summarise or put in shorthand the charges that they are sending. That ….on the basis of section 51 is not a correct procedure. They must go with sufficient clarity to identify the particular indictable offence which they are sending. It follows that since this…is not a valid sending, I have no jurisdiction to adjudicate on whether or not I should dismiss those charges, although it seems to me in passing that the consequence would be likely in a case such as this to be effectively the same; that is to say, a new and proper sending of a conspiracy to supply controlled drugs could then be undertaken.”
[27]Following this ruling, the matter came back before the Magistrates’ Court on the 30th November; in the interim, the applicant had been released, it would seem after HMP Wandsworth concluded that there was no warrant for the continued detention of either the applicant or the co-accused.[28]By this time, the charges had been amended in certain respects; the detail does not matter for present purposes. The Crown invited the magistrates to send the matter to the Crown Court on the basis that the conspiracy charge disclosed an indictable-only offence. The applicant’s counsel contended that the original sending had been valid and the Magistrates’ Court had no jurisdiction to send or re-send the applicant to the Crown Court.[29]Unsurprisingly, the magistrates adjourned to consider the legal argument and to obtain a transcript of HHJ Tilling’s ruling. The applicant and co-accused were remanded in custody. In the event, the two accused were produced again on the 9th December, when the magistrates ruled that they had the necessary jurisdiction to send the applicant (and co-accused) to the Crown Court and purported to do so. The notice purportedly given under s.51(7) CDA 1998 on this occasion (“the second Notice”) had been substantially amended; so far as concerns the applicant, it now read as follows:
“(1) Conspiracy with Peter John Herridge to supply controlled drugs of Class A and Class B, namely cocaine and amphetamine sulphate, between 27/01/2005 and 23/08/2005, contrary to Section 1(1) Criminal Law Act 1977. (2) Being concerned with others in the supply of controlled drugs of Class A drugs, namely cocaine, between 01/12/2004 and 23/08/2005, contrary to section 4(3)(b) and Schedule 4 of the Misuse of Drugs Act 1971. (3) Being concerned with others in the supply of controlled drugs of Class B drugs, namely amphetamine sulphate, between 01/12/2004 and 23/08/2005, contrary to section 4(3)(b) and Schedule 4 of the Misuse of Drugs Act 1971.”
[30]On the 12th December, the matter came before HHJ Jones at the Crown Court; the Judge remanded the applicant and co-accused in custody until the 19th December, 2005, when a hearing was scheduled to consider the application to dismiss the charges upon which on the 9th December, the two accused had been sent to the Crown Court.

THE RIVAL CASES

[31]Before us, the applicant’s case was presented by Mr. Hall, who, we underline, had not appeared at the Crown Court. The Crown’s case was presented by Mr. Chaplin. I was most grateful to both counsel for their helpful submissions.[32]For the applicant, Mr. Hall submitted that the 28th November ruling was fundamental to the application and that HHJ Tilling had been wrong to rule as he did, for these principal reasons: i) The purpose of a notice under s.51(7) of the CDA 1998 was to do no more than inform the accused and the Crown Court of the offence(s) for which he had been sent for trial. No particular form was required. The nature of the case would appear from the documents served pursuant to para.1 of Schedule 3 to the CDA 1998. ii) The s.51(7) notice was filled out administratively after the hearing and the decision to send the person to the Crown Court; there was a real distinction between the sending and the subsequent notice, an administrative act; completion of the notice could not retrospectively invalidate the sending. See: R v McGrath [2003] EWCA Crim 2062. iii) By analogy, in the context of committal proceedings, a failure to sign a committal certificate as required by the Magistrates’ Court Rules did not invalidate the committal: R v Carey (1983) 76 Cr App R 152. iv) There is nothing in the relevant legislation to suggest that the consequence of the s.51(7) notice being filled out incorrectly (assuming there to be a correct way of filling out the notice) was, without more, intended to invalidate an otherwise valid sending; cf., the failure to comply with time limits, dealt with in R v Fehily [2002] EWHC 1295 (Admin), esp. at [46] – [47]. See too, Archbold, at 1- 197.[33]If these criticisms of the 28th November ruling were well-founded, then the remands in custody by the Magistrates’ Court on the 30th November and 9th December were made without jurisdiction; either the Magistrates’ Court was functus officio or the matter was within the exclusive jurisdiction of the Crown Court. Furthermore, the remand by the Crown Court on the 12th December was itself invalid, depending as it did on the purported sending by the Magistrates’ Court on the 9th December. Accordingly, the applicant was not lawfully detained and was entitled to his immediate release.[34]For the Crown, Mr. Chaplin emphasised the importance of a s.51(7) notice; a proper specification of the offence(s) sent to the Crown Court was necessary for a Judge to consider an application to dismiss; indeed, the notice was the foundation for the exercise by the Judge of his jurisdiction to consider and determine an application to dismiss. The very real significance of the notice was also indicated by the linkage between it and the indictment to follow. Reliance could not simply be placed on the charge sheet; it might have been amended, or some charges might have been dropped. While realistically recognising the attraction of a more pragmatic approach to defects in the notice, there ought at the least to have been some cross-referencing between the Notice and the charge sheet and/or the Memorandum in this case. Throughout, Mr. Chaplin underlined that he had not been facing the arguments of Mr. Hall as deployed before us - but instead an application to dismiss, the whole thrust of which, as canvassed by the applicant’s previous counsel, had been concentrated on the Notice itself.

DECISION

[35]With respect to Mr. Chaplin’s submissions, I have come to the clear conclusion that those of Mr. Hall are to be preferred. My reasons follow.[36]First, looking at the legislative framework free of authority, I incline instinctively to the view that the tail must not be allowed to wag the dog. The decision of substance is that of magistrates under s.51(1) of the CDA 1998, to send the person to the Crown Court for trial. Only thereafter and then by way of an administrative act, is the notice prepared. No particular form is prescribed for the s.51(7) notice. Nor is there any provision dealing with the consequences of a defective notice. In these circumstances, it would be at least curious if defects in the notice served to invalidate (or render ineffective) an otherwise valid (or effective) sending.[37]Secondly, these views based on the legislative framework are powerfully reinforced when regard is had to authority. Certainly there is no support in authority for the proposition that a defective s.51(7) notice renders ineffective an otherwise unexceptionable sending under s.51(1). i) To begin with, there is the observation, of general importance, of Lord Woolf MR (as he then was) in R v Home Sec., Ex p Jeyeanthan [2000] 1 WLR 354, at p.359:
“It must be remembered that procedural requirements are designed to further the interests of justice and any consequence which would achieve a result contrary to those interests should be treated with considerable reservation. ”
See too, R v Soneji [2005] UKHL 49; [2005] 3 WLR 303. ii) Next, there is the decision of the Divisional Court in Fehily(supra), in which it was held that mere failure to comply with the time limits for serving documents under ss. 51 or 52 or Schedule 3 of the CDA 1998 would not vitiate or render a nullity proceedings against defendants for indictable-only offences. iii) McGrath (supra) is an important decision in the present context. In that case, the s.51(7) notice stated that the person had been sent for trial to the Crown Court “on the following indictable only offence: burglary, agravated.” Quite apart from the misspelling, the point was taken on appeal that the notice did not make clear the nature of the indictable-only offence; the appellant had not been charged with the distinct offence of aggravated burglary; the notice had not followed the wording of the relevant schedule to the Magistrates’ Court Act 1980, which had specified the circumstances in which a burglary would indeed be an indictable-only offence (as the case in point undoubtedly was). The CACD nonetheless declined to hold that there had been “no notice” under s.51(7) and dismissed this ground of appeal. Laws LJ went on to say this:
“ We would say only that, given the plain unqualified obligation on magistrates’ courts imposed by section 51(1) and the fact that section 51(7) is on any view adjectival to that obligation, we consider that it would be difficult to argue that the very existence of the section 51(1) duty in any case depends on the fulfilment of the section 51(7) duty. That is not to say that a failure to fulfil section 51(7) might not give rise to due process arguments on behalf of a defendant if prejudice or unfairness were occasioned, but nothing of that kind is in reality in play here… ”
Mr. Chaplin submitted that these observations of Laws LJ were obiter. With respect, it is unnecessary to take time over that submission. Assuming, without deciding, that Mr. Chaplin is right in that submission, in my judgment, these observations of Laws LJ are of cogent persuasive force and very relevant to the issue before this Court. iv) Finally, there is the analogous decision of Carey (supra), in which a failure to sign a committal certificate as required by the Magistrates’ Court Rules was said to invalidate the committal; the Court of Appeal was unimpressed and underlined that the certificate was not the committal; the committal must have taken place before the certificate came into existence.[38]Thirdly, the Crown’s emphasis on the s.51(7) notice in the context of an application to dismiss, is, as it seems to me, misplaced. The focus of an application to dismiss is on the charges and the evidence served in support thereof: see, paras. 1 and 2 of Schedule 3 to the CDA 1998. In this regard, the s.51(7) notice does not fall to be considered in a vacuum, without reference to the other material supplied to the Crown Court, in accordance with the provisions of Schedule 3 and Rule 12.1(a) of the Rules. It would, with respect, be absurd to suppose that charges are to be dismissed because of some technical deficiency in the s.51(7) notice, regardless of an otherwise proper sending and ample supporting material available to the Judge in the Crown Court before whom the application has come. It is, however, precisely at this juncture that the argument before HHJ Tilling appears to have gone astray; the fallacy of supposing that the application to dismiss hinged on the Notice, viewed in isolation, led all concerned to assume that the choice lay between beginning again at the Magistrates’ Court or dismissing the charges. It is of course not for this Court to express any view on any evidence based application to dismiss. That said, insofar as the intended application to dismiss was based on the failure in the Notice to specify the “conspiracy” offence appropriately, any such contention was doomed to fail once regard was had to the charge sheet and the Memorandum, both of which had been supplied to the Crown Court. On all the material before the Judge, there could have been no realistic doubt as to the nature and details of the conspiracy in respect of which the applicant came to be before the Crown Court. If this be right, then, as suggested in argument, all that was conceivably missing here was the briefest express reference in the Notice, such as “see attached charges” or “see attached Memorandum”.[39]Fourthly, I come to policy. If the Crown’s contention is well-founded, it would serve to encourage a growth industry in unmeritorious complaints based on the drafting of s.51(7) notices. That is an unattractive prospect, made worse by the increased burden such an outcome would place on magistrates’ courts to draft ever-lengthier notices. Such notices would be bound to come to resemble the second Notice in the present case, containing as it did a wealth of unnecessary detail. In my view, time consuming and costly form filling is to be discouraged, not promoted.[40]For these reasons, Mr. Hall’s argument must succeed. The applicant was effectively sent by the Magistrates’ Court to the Crown Court on the 25th August, 2005 and, with respect, HHJ Tilling was in error in ruling to the contrary on the 28th November. It follows that the subsequent remands of the applicant in custody by both the Magistrates’ and Crown Courts are unsustainable and the applicant is entitled to the relief sought, namely habeas corpus.[41]As foreshadowed, it does not at all follow that an application to dismiss based merely on the drafting of the Notice was entitled to succeed; in my view, it was not.[42]Before leaving the matter, it may be appropriate to refer to good practice on the part of magistrates’ courts when drafting s.51(7) notices. i) Here, I wish to say nothing to increase the paper burden on magistrates’ courts and their clerks; nor do I wish to be unduly prescriptive; moreover, as is apparent, nothing like the detail contained in the second Notice is required. ii) That said, as a matter of good practice, I cannot avoid observing that the drafting of the Notice was altogether too exiguous. iii) Accordingly, it does not seem to me that it would be unduly burdensome to require a s.51(7) notice, as a matter of good practice, either(a) to summarise the offence(s) in a more careful form than was here the case or(b) to cross-refer to documents to be sent to the Crown Court, such as the charge sheet (if unamended) or, perhaps preferably, the Memorandum of an Entry entered in the Register of the magistrates’ court. iv) The effort of doing so would undoubtedly be time well spent. As Laws LJ observed in McGrath (supra), while defects in s.51(7) notices may well not invalidate the prior sending, deficiencies in such notices may give rise to due process arguments or (as demonstrated in the present case) at least to the unnecessary incurring of time and costs in resolving the matter.

THE PRACTICAL CONSEQUENCES

[43]For the reasons already set out, the applicant was, at the conclusion of the hearing before this Court on the 19th December, 2005, entitled to his immediate release. However, he was by then already en route, in custody, to the Crown Court, where the future conduct of his case could be considered, now in the light of the ruling of this Court, at a hearing previously scheduled. Before us, there was no dispute that, pursuant to s.80 of the Supreme Court Act 1981 (see, Archbold, at 3-174), the applicant could be directed by a Crown Court to appear at the (Kingston Upon Thames) Crown Court for that hearing. Accordingly, I reconstituted myself as a Judge of the Crown Court and made an appropriate direction. In the result, it may be thought that there is a somewhat pyrrhic element in the applicant’s victory on the habeas corpus application. So be it. Lord Justice Hooper: I agree

Cited in 1 later judgment