Merritt, R (on the application of) v Peterborough Magistrates' Court [2009] EWHC 467 (Admin)

Case No CO/8343/2008[2009] EWHC 467 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 20 February 2009
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE SCOTT BAKER
MR JUSTICE DAVID CLARKE
Between
ALAN MERRITTClaimantv
Between
PETERBOROUGH MAGISTRATES' COURTDefendant
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 Nick Hoffman (instructed by Messrs Devas Keogh James, Peterborough) appeared for Claimant for The Defendant was not represented
J U D G M E N T

LORD JUSTICE SCOTT BAKER:

The

[1]applicant challenges the decision of Peterborough Magistrates to commit him for sentence to the Crown Court.[2]The facts shortly are these. On 7 May 2008 he appeared before the Peterborough Magistrates and pleaded guilty to two offences, assault occasioning actual bodily harm and assault by beating, contrary to section 39 of the Criminal Justice Act 1988. He was represented by the duty solicitor. The offences had been committed the previous evening and he had been in custody overnight. His case was adjourned for a pre-sentence report and also for further evidence about the extent of the injuries to one of the complainants. It was a nasty assault and it was obviously of importance to the magistrates to have further details of the injuries if they could.[3]The applicant was granted bail. The duty solicitor who represented him says in a statement that before the adjournment took place there were submissions whether the court's sentencing powers were sufficient. The prosecution submitted that this was a case that ought to be committed for sentence. The defence submitted that the powers of the magistrates were sufficient. The powers would have been six months on each offence, but since the offences were committed at the same time it was likely to be a case that was appropriate for a concurrent sentence. The court agreed with the defence submissions, but qualified their decision by saying that they would review the position if the injuries turned out to be more serious than appeared to be the case.[4]The applicant was back before the Magistrates' Court on 3 June 2008. On this occasion he was unrepresented because his means put him above the limit for state aid. The magistrates had a pre-sentence report on this occasion, but no further information about the injuries. They decided that their powers on sentence were inadequate and committed the applicant to the Crown Court.[5]The prosecutor records the following in his file in respect of the earlier 7 May hearing:
"Defendant pleads guilty to common assault to Kelly on basis of push not punch. Court to determine Newton hearing not necessary. Court decide to keep the case as at present. We don't know if any bones broken, but all options, reports including..."
Then there is something that looks like "for sentence" and then these words:
"and court may commit for sentence if it turns out anything was broken, even if PSR [Pre-sentence report] for whatever reason is not available."
[6]It appears from that note, which we take as the most accurate recollection of what occurred on the first occasion, that the decision not to commit for sentence was qualified in one respect and one respect only, and that was the possibility that the injuries turned out to be more serious than appreciated, for example by there having been any bones broken.[7]It is submitted that what was said on 7 May created a legitimate expectation in the applicant that if the injuries did not turn out to be any more serious than was then the case on the material before the court, that the applicant would be sentenced and dealt with in the Magistrates' Court.[8]It is, in my view, relevant to look at the point of principle with which the court is concerned in the present case. It was clearly expressed by Lord Bingham, CJ, in R v Nottingham Magistrates' Court ex parte Davidson [2000] 1 Cr.App.R (S) 169. He said this:
"If a court at a preliminary stage of the sentencing process gives to a defendant any indication as to the sentence which will or will not be thereafter passed upon him, in terms sufficiently unqualified to found a legitimate expectation in the mind of the defendant that any court which later passes sentence upon him will act in accordance with the indication given, and if on a later occasion a court, without reasons which justify departure from the earlier indication, and whether or not it is aware of that indication, passes a sentence inconsistent with, and more severe than, the sentence indicated, the court will ordinarily feel obliged, however reluctantly, to adjust the sentence passed so as to bring it into line with that indicated."
[9]The question of committal for sentence in such circumstances arose in a later case, namely R (on the application of Harrington) v Bromley Magistrates' Court, which was a decision of Mitting J. In that case the conditional indication in relation to committal for sentence was whether the applicant turned out to be dangerous and Mitting J held that the case fell within the principle that I have described.[10]It seems to me, in all the circumstances, that the applicant was given an unequivocal assurance on which he could base a legitimate expectation and that he did so. In my judgment, therefore, the decision by the Justices to commit to the Crown Court for sentence was unlawful. That decision should be quashed and the case remitted to the Magistrates' Court for sentence.[11]Accordingly, I would allow the application on that basis.

MR JUSTICE DAVID CLARKE: I agree.

LORD JUSTICE SCOTT BAKER: Thank you.

[14]MR HOFFMAN: My Lords, in case there is any doubt, I pre-empted what your Lordship's judgment would be, but I would ask for costs to be taxed in the normal way.

LORD JUSTICE SCOTT BAKER: Very well.

[16]MR HOFFMAN: I am grateful.

LORD JUSTICE SCOTT BAKER: Yes. It is community legal services funding you are asking for, is that right?

[18]MR HOFFMAN: In fact I believe there is already an order in place, but yes, I am, I am asking for that...

LORD JUSTICE SCOTT BAKER: Yes.

Cited in 1 later judgment