Shanmuganthan v Director of Public Prosecutions [2006] EWHC 2577 (Admin)

Case No CO/2974/2006[2006] EWHC 2577 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 3rd August 2006
Strand
London WC2
B E F O R E:
MR JUSTICE NEWMAN
Between
THE QUEEN ON THE APPLICATION OF YOGANATHAN SHANMUGANTHANClaimant-v -
Between
THE DIRECTOR OF PUBLIC PROSECUTIONSDefendant
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 M WESTGATE (instructed by Birds, London SW18) appeared for CLAIMANTMR J HAY (instructed by the Crown Prosecution Service, Tolworth) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE NEWMAN: This appeal by way of case stated has a tortuous and unfortunate history. It relates to two convictions for assault arising out of proceedings in a Magistrates' Court as long ago as March 2002. The underlying offences date back to October 2001, namely 17 October and 21 October.[2]The assaults took place in a domestic context. It is unnecessary to elaborate further because the full particulars have already been set out in judicial review proceedings in this court and in a judgment of Keith J, dated 19 May 2003. The matter eventually took the shape of an appeal by way of case stated in relation to conviction. On 14 June 2006, Collins J granted permission to lodge the case stated out of time and directed, as one would expect, that the matter should be heard as soon as possible. Thus it is before this court on 3 August.[3]In view of the course which the court has determined is appropriate, with the agreement of counsel on both sides, it is unnecessary to go over the details of the case, so far as they touch upon the convictions. As with so many, regrettably domestic disputes, they can descend into violence and aggression. There was not only the allegation from the complainant but also a defence which involved allegations against the complainant that she too had been aggressive. More particularly there had been evidence advanced by the appellant, and no doubt urged by a representative on his behalf as being relevant, which, as the case stated records, was as follows:
"The appellant further gave evidence of her previous violent conduct and in particular evidence of her being violent in a bar and also of causing damage to the bed in his flat."
[4]The case stated, as it is in terms before this court is directed towards what is said to be the advice which was tendered to the justices by the clerk, which thus has given rise to this question: was the Justices' clerk wrong in law to advise us that the evidence of the complainant had been violent in a bar and had damaged the appellant's bed was irrelevant to the question of whether the assault took place as alleged?[5]The terms of the case stated were such, in my judgment, to have raised considerable problems for the argument, which the court would have been required to determine had the matter been not capable of shorter resolution. Suffice it to say, at this stage, that it is agreed that the appeal against conviction can be dismissed and, in my judgment, that is an appropriate course. Certainly no unfairness occurs as a result of that being the order of the court.[6]But that is not the end of the matter because in my judgment there would be unfairness and injustice if, as a result of the dismissal of the appeal against conviction, the sentence imposed by the magistrates was to stand. The appellant was sentenced to two months' imprisonment concurrent on each of the convictions for assault. He has served 17 days in custody, which qualifies to be regarded as a part of his sentence. He has therefore served a sentence of the order of some 34 days, allowing for his release having served half his sentence.[7]The stark question which confronts the court, and which now, in my judgment, has been resolved, is: how the interest of justice could be served if the appellant was, as a result of his appeal against conviction having been dismissed, to be required to serve the balance of his sentence so many years after its imposition, and after the passage of time in connection with legal proceedings; all of which must have brought about an oppressive sense of uncertainty which has been in his mind, over these years, as to whether he might have to return to custody in respect of these whole events.[8]Counsel, with customary ingenuity, as well as research, have, in my judgment, provided the court with a way forward. The first thing that the court must do, however, is to fill the procedural gap which has arisen, namely that as the case stated is presently formulated there is no issue raised in connection with the lawfulness of the sentence. The court has no hesitation in taking the view that the absence of that question being raised is nothing more than technical. The court is sufficiently informed about all the relevant material by the terms of the present case stated and knows of the sentence. It therefore has no reason to be impeded from treating the case stated, in the light of the events which have occurred, as raising a question as to the continuing validity of the sentence as it was originally imposed. Thus the court proceeds upon the assumption that there is an issue before it raising a question in the following terms, namely: whether the sentence imposed has, by reason of the passage of time which has occurred since it was passed, and having regard to the appellant having served 17 days in custody, become harsh and oppressive and, in the circumstances, unlawful.[9]Assuming that, therefore, to be the question, the matter, which had troubled the court: namely the extent to which any sentence imposed by a Magistrates' Court was something which could be raised by way of an appeal by case stated, has been resolved by reference to the Divisional Court authority of Universal Salvage Robinson v Boothby 5 Cr App R (S) 428. In that case Robert Goff LJ held that:
"Where a sentence imposed by a magistrates' court is either harsh and oppressive, or so far outside the normal discretionary limits as to enable the court to say that its imposition must involve an error of law of some description, even though the precise nature of the error may not be apparent at once, the matter may be the subject of an appeal by case stated."
The judgment contains, in particular, at page 430, useful development in connection with the subject by reference to earlier cases, for example, R v Winchester Crown Court ex -parte Lewington [1982] 4 Cr App R (S) 24, and the case of R v Saint Albans Crown Court, ex -parte Cinnamond 1981 1 QB 480. The position, therefore, is that the High Court has the power on a case stated to consider the lawfulness of a sentence imposed by a magistrate. That brings one to the next stage of the consideration, namely whether a sentence imposed by magistrates, which at the date it was imposed cannot be properly described as harsh or oppressive, or beyond the discretionary limits available in sentencing, can, when it comes before this court, be interfered with by reason of events which have occurred since the date of sentencing. In my judgment the powers of this court are manifestly wide enough to provide for the very unusual circumstances which have occurred. Section 28A of the Supreme Court Act 1981 provides at subsection (3):
"The High Court shall hear and determine the question arising on the case ... and shall - (a) reverse, affirm or amend the determination in respect of which the case has been stated; or (b) remit the matter to the magistrates' court, or the Crown Court, with the opinion of the High Court, and may make such other order in relation to the matter (including as to costs) as it thinks fit."
[10]In my judgment the appropriate way forward is there. So far as the issue which has been raised in connection with the sentence is concerned, the decision of the court is that it should be reversed. In my judgment it will be intolerably unfair and oppressive for this appellant now to have to serve the balance of the sentence, having regard to the passage of time which has occurred and to the period of time which he has already served.[11]In those circumstances it seems to me that it is clear that the question, so far as sentence is concerned, should be answered in the affirmative. As a result the order which the court must make is that the sentence should be quashed and the sentence should be varied so that it is a sentence of 28 days, to which I express the attention of the court that that should lead to no further period of custody and imprisonment to be served by this appellant. To that extent, therefore, this appeal is allowed but the appeal against conviction is dismissed.[12]MR JUSTICE NEWMAN: Thank you both very much. What about costs?[13]MR WESTGATE: Collins J extended legal aid to this hearing. I do not think I need any formal order for - -

MR JUSTICE NEWMAN: Do you need an order for assessment?

[15]MR WESTGATE: I am told I need an order for detailed assessment.[16]MR JUSTICE NEWMAN: Yes. Thank you very much.