Dalzell v DPP [2008] EWHC 1193 (Admin)

Case No CO/8665/2007[2008] EWHC 1193 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 8 May 2008
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE MITTING
MR JUSTICE UNDERHILL
Between
KEITH JAMES PAUL DALZELLClaimantv
Between
DPPDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr G Hoare (instructed by Mike Fanning Solicitors, Keswick CA12 5JJ) appeared for ClaimantMr J Grout-Smith (instructed by CPS Workington CA14 4EW) appeared for Defendant
Judgment

LORD JUSTICE MITTING:

[1]There is before the court an appeal by way of case stated against the decision of District Judge Chalk, sitting in the West Allerdale and Keswick Magistrates' Court. He sentenced the appellant, on 2 March 2007, for two sets of offences. The first set was a group of three offences committed on 10 September 2006 involving common assault, and two separate incidents of criminal damage. They related to a very nasty incident that took place that night, involving the same family of victims.[2]The appellant was convicted of those offences after a trial, following which, on 14 December 2006, sentence was adjourned with a request for a pre-sentence report. The magistrates gave a clear indication that a non-custodial sentence was appropriate.[3]On 16 January 2007, the appellant was charged with driving whilst disqualified and uninsured on that day, to which he pleaded guilty on 29 January 2007. The magistrates indicated, at least for those two driving offences, that a community sentence was appropriate. How much further they went is a matter to which I shall return.[4]Sentence was adjourned to come together with sentencing for the assault and criminal damage offences. On 22 February, they came before District Judge Chalk, who said that he considered the previous indication of seriousness to be so manifestly wrong as to amount to an error of law, and that he intended to pass a custodial sentence.[5]This was objected to by the solicitor, Mr Fanning, on behalf of the defendant, saying that the previous indication was binding on the authorities and he could not pass a custodial sentence.[6]As I have said, on 2 March 2007, the District Judge sentenced the appellant to 140 days' imprisonment for common assault, with 28 days concurrent for each of the criminal damage charges, and 42 days' imprisonment concurrent for the disqualified driving, with no separate penalty for the no insurance offence. He took the view that the decision of the magistrates, on at least the first occasion, to indicate that a non-custodial sentence would be imposed, involved an unreasoned departure from the sentencing guidelines, to which they were required by statute to have regard. Also the indication, if repeated on 29 January, that, in any event, the matter had been overtaken by the fact that a further offence was committed on bail. He also took the view that the expectation could be ignored because it was irrational: a conclusion he based upon two decisions of Stanley Burnton J in R v Barking Magistrates' Court, ex-parte White [2004] EWHC 417 (Admin) and R v Wirral Borough Magistrates' Court, ex-parte Sumner [2005] EWHC 3166 (Admin).[7]The appellant did not appeal to the Crown Court against sentence. He has served his sentence, but continues to appeal against the sentence by case stated.[8]The questions that are raised in the case are, first, whether the indication given by the trial bench was a manifest breach of duty to have regard to the sentencing guidelines; secondly, if so, whether that breach rendered the proposed sentence unlawful; thirdly, whether he had power to rule on the lawfulness of the indication as to sentence; and fourthly, whether the case law relating to legitimate expectation could be distinguished in the way he proposed. No doubt in that connection he had in mind the line of authority which began with R v Gillam [1980] 2 Cr App R (S) 267.[9]The case stated is unclear in relation to the facts found as to what happened on 29 January 2007. It is unclear in that no findings of fact are made in relation to what the Justices dealing with the driving offences said, if anything, in relation to the first set of more serious offences.[10]On 28 October 2007, Collins J directed the appeal be heard by the Divisional Court, observed that the case seemed academic, that the sentence was presumably served, and raised the question of whether or not the subsequent driving offences (that is subsequent to the indication of a possible community penalty) could properly be regarded as justifying a different approach, and asked for careful consideration to be given to whether the case should be pursued. It is plain he took the view that there had not been shown on the case stated, or even raised as an issue on the case stated, the question of whether there had been a further indication, on 29 January, in relation to the totality of offending.[11]The next stage in these proceedings was that on 3 March 2008 Silber J realised that there could well be an issue as to what had happened on 29 January 2007. The case stated had annexed to it the defence skeleton argument relied on by Mr Fanning before the District Judge on 2 March 2007. In relation to the events of 29 January, that skeleton argument said that:
"The lay magistrates were told that the defendant was awaiting sentence on the outstanding matters, and that a full pre-sentence report was pending. They indicated that they considered this offence suitable for a community sentence, and adjourned sentence to link with the outstanding matters."
Similarly a later paragraph said that the court had told the defendant on two occasions that the sentence passed would be a community sentence. In neither paragraph does it make clear whether or not the magistrates had considered the totality of the sentences, something, which it is said, they could have done in order to ensure that an appropriately directed pre-sentence report was produced, even though sentencing for the more serious earlier offences was not in fact before them at all, and might never be. The Crown's skeleton argument in relation to the case stated, and the supplementary skeleton argument, proceeded on the basis that there had been no indication on the second occasion of what the sentence for the total offending should be, and that the subsequent offence amounted to a change in circumstances negating the effect of the earlier indication. The skeleton argument that was produced, as I understand it, before Silber J, on behalf of the prosecution, drew attention to the fact that the pre-sentence report that was produced, pursuant to the request in December, and satisfying whatever was sought in January, specifically said that:
"on adjourning for this report the Court indicated that sentencing options in the community were being considered. Due to the inclusion of two further driving offences since the original request. I have addressed all sentencing options available to the Court"
. He further said:
"Mr Dalzell is aware that the court may be considering the imposition of a custodial sentence today."
[12]The decision of Silber J in March was that the matter should be adjourned so that the District Judge could consider making a finding of fact for the purposes of the case stated appeal put shortly, as to what was said to and by the magistrates on 29 January. A not altogether clear or helpful letter was received from the District Judge, in which he said that he noted that he had permission to amend the case stated, but did not wish to do so. I note that is not what Silber J was seeking.[13]The District

Judge continued:

"Whilst I was not advised in detail, as to what issues the adjourning Magistrates applied, on the 29th January 2007. It was clear that they viewed the new offence of Driving whilst Disqualified as suitable for a community disposal and that did not affect the view of their colleague's assessment of a community penalty for the earlier matters. It is clear that it was considered but no record as to their reasoning is available. It would therefore be inappropriate to amend the original case stated."
It is not entirely clear what the District Judge meant by that, but it could well mean that in some rather vague way the Justices had considered a community penalty appropriate for all offences.[14]The final document was an affidavit from Mr Fanning (a witness statement of 27 February), setting out some history and then saying that he was certain that on each occasion an indication of sentence was given. It was that a community sentence would be passed. He was certain that on 29 January 2007 the court was made fully aware by him of the matters awaiting sentence, but nonetheless said community sentence was appropriate.[15]The matter now comes before us. As I have said, it is in form an appeal by way of case stated. The case is stated as it is and with affidavit evidence to supplement the findings. I should note that Mr Grout-Smith, on behalf of the Crown, says that in the light of what Mr Fanning says in his affidavit he is not in a position to contend that no indication was given on 29 January 2007. The position nonetheless is that we are stuck with the terms of the case, as it is stated.[16]When Mr Hoar, on behalf of the appellant, began, he was asked as to what the implications of the application were in the light of the provisions of section 28A of the Supreme Court Act 1981, which deals with the powers and obligations of this court in relation to a case stated. Section 28A(3) says that:
"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."
His suggestion was, that if the questions he posed were answered favourably to him, the court should quash the sentence and substitute a conditional discharge. This was indeed the course which was followed in the case of Gutteridge v the DPP [1987] 9 Crim App R (S) 279 (the Divisional Court), which nonetheless did not have its attention drawn to the powers of section 28A of the Supreme Court Act 1981. Nor did it appear to consider the problem that undoubtedly will arise if this court quashed and resentenced, as the suggestion was, that in addition to serving the full sentence of imprisonment to which he was sentenced, the appellant would be subject to a further additional penalty. It is clear that examining the provisions of section 28A (iii) gives rise to immense difficulties in circumstances where the sentence at issue has already been served. So far as remitting the matter to the Magistrates' Court is concerned, the Magistrates' Court would be faced with this: should they sentence? To the sentence to which, if the questions were answered favourably, Mr Dalzell should have been sentenced, the answer to that is "plainly not", because that would be to subject him to further restrictions in addition to the sentence that would have been quashed, as breaching the expectations which he had been given. If, on other hand, he was sentenced to an absolute discharge, leaving aside the problem of whether that would mean that he had not been convicted for certain purposes in relation to quite serious offences, it would be a wholly inappropriate sentence to be substituted; considerably more lenient than the somewhat lenient sentence apparently indicated by the Magistrate. It would suggest that we might reverse the determination and do nothing else about it. That would still leave the problem of what the sentence was. The case stated, with the problem over what happened on section 29 and the way it stands, together with the provisions of section 28A, means an appeal by way of case stated could not possibly assist the appellant. We would be prepared to consider an application for this matter to be dealt with as if it had been begun by an application to apply for permission for judicial review, and to give permission, say the matter was before us, which would potentially enable some of the remedy problems to be obviated. However, that brings us face to face with the problem of whether these proceedings would be academic: a problem that undoubtedly would arise in relation to the appeal by way of case stated as well. Nothing, even if Mr Hoar were successful in his submissions in relation to the merits of the case, would restore to his client the liberty to which the defeated expectation would have entitled him. Mr Hoar submitted that nonetheless it would not be an academic exercise, so far as Mr Dalzell was concerned, because he would have the benefit of having a declaration that the sentence should not have been imposed. But in my judgment that would be a completely hollow victory. Whatever might be the position in relation to the indication that was given and the expectation it created, it is perfectly clear that the indication of the magistrates that the first group of offences was appropriately dealt with by non-custodial was far too lenient. It is not necessary, for present purposes, to go to the question of whether it was truly irrational. That would be a matter for debate. It is certainly a question that could be raised, but it would be necessary to ensure that the declaration reflected the fact that he ought to have been sent to prison in terms of a proper sentence for the offence, and that the indication given by the magistrates that might have saved him was not an indication that should have been given. It would also be necessary to reflect similar points in relation to the second decision of the magistrates, if that too had encompassed the view about the totality of sentencing. So the declaration could not help Mr Dalzell, and it would indeed have been essential to ensure that it conveyed an accurate reflection of the view of the merits of the sentence. The case is also academic in terms of the wider considerations. I am prepared to accept that there may be wider considerations of some importance in relation to whether it is appropriate for District Judges, or another bench of magistrates, in effect, to sit as a Judicial Review Board concluding that sentences indicated by another bench are unlawful and indications can therefore be ignored. It is obviously a matter of concern as to whether, if that is the position, the right course is to ensure that the indicating bench has got together and required to pass the sentence, which it indicated, leaving the Crown to decide whether or not judicial review proceedings, in respect of that sentence, are appropriate. It would also be the question of whether, if an indication is given in the sort of circumstance that the District Judge saw arising here what might be called an unduly lenient indication, the CPS representing the Crown should not, at that stage, intervene to ensure that the Justices either gave an appropriate warning that options were open, or indicated what the appropriate guidelines were for saying it. All those, as I say, are matters which could give rise to a point of importance. Mr Hoar says it is of importance because this is something which is happening commonly. If it is happening commonly, that reinforces my view that this case is academic and that the issue can be raised in a subsequent case. It is in that subsequent case that the issue should be resolved. My own view that this is an academic case, and one that we should not use as a vehicle for laying down any general propositions, and it is reinforced by what I have said about the state of the evidence in relation to what happened on 29 January 2007. It is far from clear, notwithstanding that I understand the position which Mr Grout-Smith adopts as being entirely fair and helpful to the appellant, and to the court, because there remains very considerable doubt as to what the Bench actually had before it, considered and said. The witness statement of Mr Fanning is very general and the skeleton argument closer to the event does not deal with the fundamental point, which was whether the totality of the offending was considered still to be appropriate for a non-custodial sentence. My concern about that is reinforced by the extracts from the PSR, to which I have referred. All of those factors make this an inappropriate case to be used as the case on which to found general comments, particularly if the facts are, as Mr Hoar contends they were, before the second Bench. If we were to approach the matter on the basis of the facts, as Mr Hoar contends they were, before the second Bench of magistrates, and we were to be wrong, we might well have made some strongly critical comments about that Bench in circumstances in which it would have been quite unfair to do so. For those reasons, I do not consider that this appeal should now be entertained, even in a procedurally revised form, and I would dismiss it.[17]MR JUSTICE UNDERHILL: I agree. This appeal is academic as regards the appellant's individual position, and is not an appropriate vehicle for determining any wider questions of practice which might arise. I therefore dismiss the appeal.