Bromley, R (on the application of) v Secretary of State for Justice & Anor [2010] EWHC 112 (Admin)

[2010] EWHC 112 (Admin)Case No CO/95042008Case No CO/103552009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
IN THE MATTER OF A CLAIM FOR JUDICIAL REVIEW
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/02/2010
Before
LORD JUSTICE AIKENSMR JUSTICE OPENSHAW
Between
RClaimantOn the application ofClaimantMICHELLE BROMLEYClaimant(1) SECRETARY OF STATE FOR JUSTICEDefendants(2)CHIEF CONSTABLE OF KENTDefendant- and –CROWN PROSECUTION SERVICE Interested Party
Mr Arash Abzarian instructed by Haskell & Co for ClaimantMr Steven Kovats instructed by the Treasury Solicitor for First DefendantHearing Hearing date: 13 January 2010
Judgment
[1]This is the judgment of the court.

The Claims

[2]The court has before it two claims for judicial review. They are brought by Miss Michelle Bromley. Effectively they are against Her Majesty’s Court Service (“HMCS”), which is an executive agency of the Ministry of Justice. Permission to bring the judicial review claims against the Chief Constable of Kent was refused and he was not represented before us. The claims arise out of proceedings before the Crown Court in Maidstone in the summer and autumn of 2008. We heard argument in this case on 13 January 2010 and we reserved judgment. We are particularly grateful for the comprehensive and cogent written submissions of Mr Arash Abzarian on behalf of the claimant, Miss Bromley, as well as his very well argued and concise oral submissions at the hearing.[3]The two claims can be summarised as follows: first, in claim CO/9504/2008, Miss Bromley alleges that she was unlawfully detained between 19 July and 24 July 2008 as a result of the execution on her of a bench warrant for her arrest which was not backed for bail. The warrant was issued on the orders of HHJ MacDonald QC when sitting with two lay magistrates in circumstances we will elaborate later. It is said that, in the circumstances which existed when the warrant was executed, the court had no jurisdiction to issue a warrant for the arrest and detention of Miss Bromley. It is also claimed that when the warrant was issued, because Judge MacDonald was sitting with two lay magistrates and (it is alleged) the order was made by them together, the court was improperly constituted for the purposes of issuing a warrant. Therefore, it is argued, the warrant was issued in excess of jurisdiction and so was a nullity or invalid and ineffective. Lastly, it is said that the warrant was in a defective form because it did not refer to the statutory power under which it was issued.[4]For all those reasons, Miss Bromley’s claim, as advanced by Mr Abzarian on her behalf, is that she is entitled to a declaration that the warrant was unlawful. She also claims damages for her detention during two periods; first, between her arrest on 19 July until her release on bail on 24 July and also for the time she spent in custody between 23 September until her sentence by the Crown Court at Maidstone on 21 November 2008. The basis of this claim for damages is that there has been a violation of Miss Bromley’s rights under Article 5(1) of the ECHR, ie her right to liberty, and so, she argues, she can claim damages by virtue of sections 6, 7 and 8 of the Human Rights Act 1998.[5]Miss Bromley claims damages of £25,000 for the first period of detention and £40,000 for the second period of detention.[6]The second claim is made in the proceedings CO/10355/2009. This claim relates to what happened in the Crown Court in Maidstone when Miss Bromley was sentenced on 21 November 2008. Between 19 – 21 November 2008 HHJ Lawson QC and two lay magistrates had heard an appeal from fourteen convictions against Miss Bromley by the Ashford Magistrates’ Court in February 2008. (Four of the conviction appeals were allowed by the Crown Court). The Crown Court then proceeded to sentence her, because she had been committed by the Magistrates Court to the Crown Court for sentence back in February 2008. However, the court did not reconstitute for the purpose of passing sentence; instead it continued to consist of Judge Lawson and the two lay magistrates. It is conceded by Mr Kovats on behalf of the Ministry of Justice and its executive agency, the HMCS, that sentence should have been passed by Judge Lawson sitting alone: see section 73(1) of what is now the Senior Courts Act 1981, formerly the Supreme Court Act 1981 (“SCA 1981”). The sentence passed was a term of imprisonment of 2 years and 6 days.[7]Miss Bromley claims that she was held in prison for the custodial term of this sentence when she should not have been because the sentence was imposed by a court which did not have jurisdiction to do so and so the sentence was unlawful. Miss Bromley claims that she is entitled to a declaration to that effect and an order to quash that sentence. She also claims damages for unlawful detention and a breach of her rights under Article 5(1) of the ECHR. She claims £50,000 damages for the violation of her right to liberty.[8]All these claims are resisted by the Ministry of Justice and HMCS.[9]It is necessary to set out the chronology of events in some detail in order to put the claims in context.[10]On 20 February 2008, in the Ashford Magistrates Court, Miss Bromley was convicted in her absence of thirteen charges of theft, one charge of taking a vehicle without consent and one charge of failing to surrender. Miss Bromley had stolen money from the bank accounts of an elderly person and (it was alleged) had used the motor car of one of the victims without his consent. (We refer to the offences in more detail below). In her absence, the court issued a warrant for her arrest, not backed for bail.[11]On 29 February 2008 Miss Bromley pleaded guilty to having failed to surrender to her bail on 20 February 2008. The court refused to retry the theft and taking without consent charges. The court committed Miss Bromley to the Crown Court at Maidstone for sentence on all fifteen matters. The committal for sentence was given the Crest reference of “S 20080086” by the Crown Court. On the same day, Miss Bromley lodged a notice of appeal against all the theft and taking without consent convictions and also (although she had not been sentenced) against her sentence. The appeal was given the Crest reference “A 20080062” by the Crown Court.[12]On 5 March 2008, Miss Bromley was granted conditional bail by the Crown Court at Maidstone with respect to her committal for sentence. The record states that:
“the appellant shall appear on a date and at a time to be notified before the Crown Court sitting at Maidstone or any other place that may be notified there to surrender to custody”
. On 7 March 2008 the Crown Court at Maidstone listed the appeal and committal for sentence to be heard on 21 April 2008.[13]On 21 April 2008 the Crown Court at Maidstone (consisting of HHJ Statman and 2 lay magistrates) adjourned the appeal and committal for sentence. There was an application for bail in relation to another matter, which was opposed by the prosecution in that case. The court log records (at 15.13 hours) “bail on the appeal remains”, which is not correct because Miss Bromley could not have been granted bail on her appeal. However, Miss Bromley was remanded in custody in relation to the other matter.[14]On 23 April 2008 the Crown Court at Maidstone sent a notice to Miss Bromley’s solicitors, Haskell & Co in Ashford, which was a Notice of Hearing of Appeal. In the centre of the top of the page it said “Case No A 20080062. Court Code 434”. (It will be recalled that the reference A20080062 is a reference to the appeal against conviction hearing.) It referred to “the appeal of Miss Michelle Bromley against conviction and sentence by Channel Magistrates Court on 29 February 2008”. The notice stated that this would be heard at the Crown Court at the Law Courts of Barker Road, Maidstone Kent on 15 July at 10.30 am.[15]The Warned List, published on 23 June 2008 states:
“Fixed: for appeal against Conviction and Sentence: A20080062: Bromley Michelle: Fixed for 15 July 2008 at Maidstone: T/E: 2 days”
. The Daily List for Tuesday 15 July 2008 at Maidstone states, for Court 1, that HHJ MacDonald QC was sitting with two lay magistrates, who are identified. After referring to other cases it states: “For appeal against conviction and sentence: A20080062: Bromley Michelle”.[16]Miss Bromley did not appear for that hearing on 15 July 2008, but her counsel, Mr Abzarian, did so, as did counsel for the Crown, Mr Ingram. The first issue the court considered was whether the hearing of the appeal had to be adjourned, given the fact that Miss Bromley was not present and neither was an important police officer witness for the Crown. After submissions, Judge MacDonald made a ruling on behalf of the court as a whole on what was to be done about the appeal hearing. He held that Miss Bromley was absent of her own volition and that she had waived her rights. However, because of the absence of the Crown witness, the court ruled that the appeal would be adjourned with a new estimate of 3 days.[17]Mr Ingram then turned to the question of Miss Bromley’s committal to the Crown Court for sentence. He applied for a warrant for her to be brought before the court. Mr Abzarian’s reaction was that, as his client had absented herself, he could not oppose an application for a warrant not backed for bail.[18]The alert clerk to the court then pointed out that Miss Bromley had been granted bail pending her sentence by the Crown Court, not in relation to her appeal on conviction. There was then this exchange between

Judge MacDonald and counsel:

“Judge Macdonald: She has not actually breached the Bail Act by failing to appear today, has she, because the committal for sentence is not in the list. I think that is a technical -------- Mr Ingram: But it is on the list in the sense that was to be heard at the end of the appeal. Judge Macdonald: Is that right? Mr Ingram: As I understand it, it was kept out of your Honour’ list for the obvious reasons that the bench should not effectively be prejudiced. Judge Macdonald: We had better check that because if that is the case then there is no technical difficulty and I think we will issue a warrant not backed for bail. My clerk will kindly look into that. The Clerk of the Court: I am told that it was not listed for today. They were going to list it for tomorrow. Judge Macdonald: The position would appear to be that or technically the committal for sentence is not listed at all. I suppose one consideration would be whether on the last occasion, 21st April, she was aware, although we were not until a moment ago. Mr Ingram: She could have been aware that she was committed for sentence. She must have been aware. Judge Macdonald: The sensible thing, obviously, is to issue a warrant. Mr Abzarian, do you want to say anything further? Mr Abzarian: Your Honour, I would submit that the two days are separate so if today is solely for the appeal and the bail notice does not state that she is to surrender for the purposes of the appeal then she has not been bailed for the purposes of the Bail Act and, in respect of her breaching any of the conditions of her bail, then I don’t think there is a power to issue a warrant for the breach of bail conditions. It is simply so in that case I would say that there is no power here to issue a warrant. ………”
[19]The judge ordered that a warrant would be issued, not backed for bail, the execution of which would be stayed for 24 hours. The hearing was then concluded. The warrant was in fact not issued until 16 July 2008. It is signed by Judge MacDonald alone. It has the reference of “Case No S 20080086”, which is the reference to the committal for sentence matter. The warrant is in the usual terms that “All Constables are ordered to arrest” Miss Bromley. The warrant gives her date of birth and address. It then says that Miss Bromley “who having been released on bail subject to a duty to surrender to the custody of the Crown Court, has failed to surrender as required…”. The constables are ordered to bring her forthwith before the Crown Court to appear at the Crown Court at Maidstone (or such other place as shall be notified) on such day and at such time as the court may direct “THERE to surrender herself into custody”. There is no reference to any specific statutory provision (such as section 7 of the Bail Act 1976), by virtue of which the court had power to issue the warrant for Miss Bromley’s arrest.[20]Miss Bromley was arrested on 19 July 2008 and brought before the Crown Court at Maidstone on 21 July 2008. She was refused bail that day but granted conditional bail the following day and released on bail on 24 July 2008.[21]The first claim, CO/9504/2008 was issued on 7 October 2008.[22]Between 19 and 21 November 2008, HHJ Lawson QC and two lay magistrates heard Miss Bromley’s appeal against all the theft and taking without consent charges. Her appeal was allowed in respect of three of the theft charges and the taking without consent charge. Having disposed of the appeals, the court, similarly constituted, sentenced Miss Bromley to a total term of imprisonment of 2 years 6 days. She was automatically released on licence after serving half her sentence on 21 September 2009.

The statutory provisions

[23]Section 3(1) and (2) of the Powers of the Criminal Courts (Sentencing) Act 2000 (“PCC(S)A 2000”) provide that where a person is convicted on summary trial and the magistrates’ court is of opinion that the offence or the combination of the offence and one or more offences associated with it was so serious that greater punishment should be inflicted for the offence than the court has power to impose, the court may commit the offender in custody or on bail to the Crown Court.[24]Section 108 of the Magistrates Courts Act 1980 (“MCA 1980”) provides that a person convicted by a magistrates’ court after a summary trial may appeal to the Crown Court against conviction or sentence.[25]Where a person has given notice of appeal to the Crown Court against a decision of the Magistrates Court and that person is in custody, the Magistrates Court may grant him bail to appear at the Crown Court at the time appointed for the appeal: see section 113(1) and (2)(a) of the MCA 1980. However section 113(3) provides that this does not apply where the accused has been committed to the Crown Court for sentence pursuant to section 3 of the PCC(S)A 2000.[26]The Crown Court is a superior court of record: see section 45(1) of the SCA 1981. As such the Crown Court has all such appellate and other jurisdictions as are conferred on it by the SCA 1981 and all other jurisdictions which were exercisable by the Crown Court immediately before the commencement of the SCA 1981: see section 45(2).[27]The jurisdiction of the Crown Court is exercisable by any judge of the High Court, any Circuit Judge, Recorder or District Judge of the Magistrates Court. The jurisdiction of the Crown Court may also be exercised by a judge of the High Court, a Circuit Judge or a Recorder sitting with not more than four Justices of the Peace and such a court will be judges of the Crown Court when exercising its jurisdiction: see section 8(1) of the SCA 1981. However this provision is subject to those of section 74 and 75(2) of the SCA 1981.[28]The general rule, set out in section 73(1) of the SCA 1981, is that all proceedings in the Crown Court shall be heard and disposed of before a single judge of that court. But this is subject to the provisions dealing with judges sitting with justices of the peace, which are dealt with in sections 8(1)(c) and 74 and 75(2) of the SCA 1981.[29]Section 74 of the SCA 1981, in its form in force as at July and November 2008, has the title “Appeals and committals for sentence”. Section 74(1)(a) of the SCA 1981 provides that in the case of hearings by the Crown Court of any appeals, the Crown court shall consist of a judge of the High Court, or circuit judge or Recorder who will sit with not less than two and not more than four justices of the peace.Formerly, by what had been section 74(1)(b) of the SCA 1981, the same rule applied to hearings of committals for sentence from the Magistrates Courts under what is now section 3 of the PCC(S)A 2000. However, the provision relating to the constitution of the Crown Court in the case of committals for sentence from the Magistrates Courts was amended by section 106 and Schedule 15 Part V(4) of the Access to Justice Act 1999. The effect of this (as was accepted before us) is that, from 12 November 1999, committals to the Crown Court for sentence under section 3 of the PCC(S)A 2000 are to be dealt with in the Crown Court by a judge alone.[30]Section 74(6) of the SCA 1981 deals with the consequences of decisions being made by the Crown Court if not properly constituted as required by section 74(1) and (2). These provisions state: “..... 74.-(1) On any hearing by the Crown Court-.(a) of any appeal ; [.....](b) [.....] the Crown Court shall consist of a judge of the High Court or a Circuit judge or a Recorder who, subject to the following provisions of this section, shall sit with not less than two nor more than four justices of the peace. (2) [Rules of court] may, with respect to hearings falling within subsection (1)- (a) prescribe the number of justices of the peace constituting the court (within the limits mentioned in that sub-section) ; and (b) prescribe the qualifications to be possessed by any such justices of the peace ; and the rules may make different provision for different descriptions of cases, different places of sitting or other different circumstances. .... (6) No decision of the Crown Court shall be questioned on the ground that the court was not constituted as required by or under subsections (1) and (2) unless objection was taken by or on behalf of a party to the proceedings not later than the time when the proceedings were entered on, or when the alleged irregularity began.” (a) of any appeal ; [.....] (b) [.....] the Crown Court shall consist of a judge of the High Court or a Circuit judge or a Recorder who, subject to the following provisions of this section, shall sit with not less than two nor more than four justices of the peace. (2) [Rules of court] may, with respect to hearings falling within subsection (1)- (a) prescribe the number of justices of the peace constituting the court (within the limits mentioned in that sub-section) ; and (b) prescribe the qualifications to be possessed by any such justices of the peace ; and the rules may make different provision for different descriptions of cases, different places of sitting or other different circumstances.[31]Section 81 of the Senior Courts Act 1981 provides, in relation to the Crown Court’s power to grant bail: “81.-(1) The Crown Court may [ subject to section 25 of the Criminal Justice and Public order Act 1994, ] grant bail to any person .... (b) who is in custody pursuant to a sentence imposed by a magistrates' court, and who has appealed to the Crown Court against his conviction or sentence ; or (c) who is in the custody of the Crown Court pending the disposal of his case by that court; or .... (2) Provision may be made by [ Rules of court] as respects the powers of the Crown Court relating to bail, including any provision-(a) except in the case of bail in criminal proceedings (within the meaning of the Bail Act 1976), allowing the court instead of requiring a person to enter into a recognizance, to consent to his giving other security; .... (4) The Crown Court, on issuing a warrant for the arrest of any person, may endorse the warrant for bail, and in any such case- (a) the person arrested under the warrant shall, unless the Crown Court otherwise directs, be taken to a police station ; and .... (5) A person in custody in pursuance of a warrant issued by the Crown Court with a view to his appearance before that court shall be brought forthwith before either the Crown Court or a magistrates' court.. ”(b) who is in custody pursuant to a sentence imposed by a magistrates' court, and who has appealed to the Crown Court against his conviction or sentence ; or(c) who is in the custody of the Crown Court pending the disposal of his case by that court; or (a) the person arrested under the warrant shall, unless the Crown Court otherwise directs, be taken to a police station ; and[32]Sections 6(1) and 7(1) of the Bail Act 1976 provide: “6. (1) If a person who has been released on bail in criminal proceedings fails without reasonable cause to surrender to custody he shall be guilty of an offence. .... .... 7. (1) If a person who has been released on bail in criminal proceedings and is under a duty to surrender into the custody of a court fails to surrender to custody at the time appointed for him to do so the court may issue a warrant for his arrest”. .... ....

The first claim (“the warrant claim”): the arguments

[33]The first issue to decide is whether the warrant for the arrest of Miss Bromley that was issued on 15 July 2008 was lawful. Mr Abzarian submits that the warrant was not lawful for three reasons. First, because Miss Bromley was only under an obligation to surrender to the Crown Court in respect of the bail granted in relation to her committal for sentence; there was no bail in relation to her appeal. As at 15 July there was no requirement for her to surrender to her bail in relation to the committal for sentence because that matter would only become relevant if she failed in one or more of her appeals. Everyone contemplated that those would not be dealt with until 16 July. So Miss Bromley’s failure to turn up to court on 15 July 2008 did not constitute an offence under section 6 of the Bail Act 1976 and there was no basis on which a warrant for her arrest could have been issued by the Crown Court pursuant to section 7 of that Act and section 81(4) of the SCA 1981.[34]Secondly, Mr Abzarian submits that the warrant was unlawful because the court which made the decision (and thus the order) did not have the jurisdiction to do so in the way it was constituted. That was because the warrant was issued on the decision and order of a court which consisted of Judge MacDonald and two lay magistrates, whereas the warrant should have been issued on the decision and order of the judge alone. Thirdly, Mr Abzarian submits that the warrant was unlawful because it failed to stipulate in it the statutory provision by which it could be issued and enforced.[35]For the respondents, Mr Kovats submits that, on the true construction of the Notice of Hearing of Appeal, Miss Bromley was obliged to surrender to her bail in relation to the committal for sentence matter on 15 July and she failed to do so. Therefore there was a breach and an offence by her and the court was, in those circumstances, entitled to order the issue and execution of a warrant for Miss Bromley’s arrest. Mr Kovats points out that the Crown Court had jurisdiction (under section 81(4) of the SCA 1981) to issue a warrant for the arrest of Miss Bromley who had failed to surrender to her bail. Secondly, although the actual bench warrant was only signed by Judge MacDonald, he accepts that it was the court consisting of the judge and the two lay magistrates that made the decision and order. However, he submits that as the court at the time was seized of the appeal against conviction, that constitution had jurisdiction to make the order to issue the bench warrant, although that related to the failure to surrender in relation to the committal for sentence. Thirdly, he submits that if there was a defect as to the jurisdiction of the court to order the issue of the warrant, then, by virtue of section 74(6) of the SCA 1981, objection had to be taken to the issue at the time the court made the order. It is too late to do so in Judicial Review proceedings. Fourthly, he submits that any defect (either so far as the constitution of the court is concerned or the format of the warrant) is a defect which does not have the consequence that the order and action on it (ie. Miss Bromley’s arrest and detention) was in excess of jurisdiction and so unlawful. He relies on the decisions of the House of Lords in R v Soneji [2006] 1 AC 340 and R v Clarke [2008] 1 WLR 338 and the decision of the Court of Appeal (Criminal Division) in R v Ashton [207] 1 WLR 181. He submits that Parliament could not have intended the defect in procedure, which was of the utmost technicality, to have had the dire consequences suggested, particularly as there was no injustice or prejudice to Miss Bromley.[36]The first basis of the claim depends on whether Miss Bromley was obliged to surrender to her bail at the Crown Court on 15 July 2008 for the purposes of her committal for sentence by the Magistrates Court. That depends on whether she was required to do so by virtue of the terms of the Notice of the Hearing of Appeal dated 23 April 2008. We are quite satisfied that she was so obliged. The Notice of the Hearing of Appeal specifically refers to “The appeal of Michelle Bromley against conviction and sentence”. Given that the Magistrates Court had not imposed any sentence because it had committed Miss Bromley to the Crown Court for sentence, it is only possible to read that phrase in the Notice of Appeal disjunctively: ie. it informed her of the hearing of the appeal against conviction and (if relevant) her committal for sentence. Anyone in Miss Bromley’s position, with her knowledge of what had gone on before, would be bound to read it in that way. There was no other notice to Miss Bromley about her committal for sentence. It is, in our view, clear therefore that this was a Notice in respect of both matters. The fact that there was only a reference to the appeal matter in the documentation is not, in our view, determinative of the point. Miss Bromley did not know of the fact that (within the Crown Court) the list had excluded the committal for sentence proceedings.[37]This construction makes practical sense. There would have been no useful purpose in the appeal against conviction and the committal for sentence being actually dealt with on twoseparate days. That would have increased costs and would have been quite contrary to the overriding objective of the Criminal Procedure Rules and in particular the duty of the court to deal with cases efficiently and expeditiously under Criminal Procedure Rule Part 1.1(2)(e). The obvious course was to deal with both matters at the same court on the same day if possible; the one to follow the other, even if the composition of the court had to be changed in accordance with section 74 of the SCA 1981. It might well have been that Miss Bromley intended not to pursue her conviction appeal; no one knew at the time of the listing and when the Notice of Hearing of Appeal was sent.[38]It is noteworthy that the view of the court that day was that Miss Bromley had absented herself of her own volition and had waived her rights. But for the fact that a Crown witness was missing the court would have gone on to hear and determine the appeals. If they had been dismissed, the court would have dealt with the committal for sentence. Miss Bromley was obliged to surrender to her bail for that purpose.[39]Therefore, the first basis of this claim fails.[40]On the second basis, the Crown Court obviously had jurisdiction to issue a warrant for the arrest of Miss Bromley because of her failure to surrender to her bail on 15 or 16 July 2008. However, in our view, the jurisdiction of the Crown Court to make the order for the issue of the warrant was exercisable by a judge of the Crown Court sitting alone, in accordance with section 8(1) and 73(1) of the SCA 1981. It was not exercisable by a judge and two magistrates sitting together as a court. The fact that the application for a warrant came up in the context of a hearing of an appeal from magistrates is irrelevant. The failure to surrender was in relation to the committal for sentence and the issue of the warrant was in relation to the failure concerning that procedure and hearing in the Crown Court.[41]That leads to a consideration of Mr Kovats’ argument that, by virtue of section 74(6), it is now too late for Miss Bromley to raise the point that the court was not properly constituted when the decision and order to issue the warrant were made. He relies on the heading to section 74, which refers to both “Appeals and committals for sentence”. We were, at first, attracted to this argument, but have decided that we cannot construe section 74(6) as Mr Kovats suggests. That provision refers to decisions made by the Crown Court which are challenged on the ground that the court was not constituted “as required by or under subsections (1) and (2)”. But those subsections only refer to appeals. The decision that was made and which is challenged was not in relation to the appeal of Miss Bromley, but concerned her failure to surrender to her bail in relation to the committal for sentence. That is a decision which should have been taken by a judge alone under section 73(1).[42]What is the consequence of our conclusion on this point? Mr Abzarian submits that it means that the court acted in excess of jurisdiction because it was wrongly constituted. Therefore its actions are invalid or a nullity. Mr Abzarian is correct to say that the decision and order ought to have been made by the judge alone and so it can be said that this is a jurisdictional issue. But it can also be said that this failure was just a failure to follow the right procedure; the warrant question should have been dealt with by the judge alone and so the magistrates should have retired whilst this issue was being considered and decided.[43]In Bennion, Statutory Interpretation (3rd Ed. 1997), the author says at page 31:
“Where a requirement arises under a statute, the court, charged with the task of enforcing the statute, needs to decide what consequence Parliament intended should follow from failure to implement the requirement. This is an area where legislative drafting has been markedly deficient. Drafters find it easy to use the language of command. They say that a thing “shall be done”
. Too often they fail to consider the consequences when it is not done. What is not thought of by the drafter is not expressed in the statute. Yet the courts are forced to reach a decision. It would be draconian to hold that in every case failure to comply with the relevant requirement invalidates the thing done….”[44]That passage was cited with approval by the Court of Appeal (Criminal Division) in R v Sekhon [2003] 1 WLR 1655 at paragraph 23. In that case the court held, at paragraph 29, that it would expect a procedural failure only to result in a lack of jurisdiction if:(a) that was necessary to ensure that the criminal justice system served the interests of justice and thus the public; or(b) where there was at least a real possibility of the defendant suffering prejudice as a consequence of the procedural failure. That statement was made in the context of procedural failures in relation to confiscation proceedings.[45]In R v Soneji [2006] 1 AC 340, the House of Lords had to consider another aspect of a failure to comply with procedural requirements in relation to confiscation proceedings. Lord Steyn surveyed the case law, including the decision of the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 334. Lord Steyn held that the old division of statutory requirements into those that were “directory” and those that were “mandatory” had outlived their usefulness. In agreement with the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in the Australian High Court, Lord Steyn held that the true question to ask was whether, as a matter of construction of the statute concerned, the act done in breach of the relevant legislative provision was invalid. He said the issue was: did Parliament intend that a failure to comply would result in total invalidity of the act in question: see paragraph 23 of his speech. Lord Rodger of Earlsferry, Lord Carswell and Lord Brown of Eaton – under – Heywood expressly agreed with Lord Steyn.[46]In R v Ashton [2007] 1 WLR 181, the Court of Appeal (Criminal Division) had to consider three cases where Crown Court judges had used power of District judges to overcome procedural failures or time limits. Fulford J gave the reserved judgment of the court. It is correct to point out (as Mr Abzarian did in argument) that at paragraph 4 Fulford J drew a distinction between cases where a court failed to take a required step properly or at all before a power was exercised, which he labelled a “procedural failure” and one where the court acted without jurisdiction. In the latter case he said (at paragraph 5) that if the court acts without jurisdiction then “the proceedings will usually be invalid”.[47]In R v Clarke [2008] 1WLR 338, the House of Lords had to consider whether the lack of a bill of indictment duly signed by a proper officer of the court, (in accordance with sections 1 and 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933), at the start of a trial before the Crown Court invalidated the trial proceedings and so the conviction of the appellant. The House held (reversing the decision of the Court of Appeal, Criminal Division) that it did. Lord Bingham of Cornhill gave the leading speech. At paragraph 14 he referred to the decision in R v Ashton (supra) and paragraphs 4 and 5 of Fulford J’s judgment in particular. Lord Bingham endorsed the “general validity of the distinction drawn by Fulford J” in those paragraphs, to which we have referred above.[48]Lord Bingham said, at paragraph 20, that the decisions in R v Sekhon and R v Soneji were “valuable and salutary”, but the effect of the “sea change” (the phrase used by Fulford J in Ashton) which they had wrought had been exaggerated. He added that those cases did not “warrant a wholesale jettisoning of all rules affecting procedure irrespective of their legal effect”. He held that the lack of a properly signed indictment at the start of a Crown Court trial did render the proceedings and the conviction invalid. The other four law lords agreed with him.[49]In our view, contrary to the submission of Mr Abzarian, there is not always a clear-cut distinction between a situation where the court has acted without jurisdiction and where there has been a failure to take a required procedural step properly or at all before a power of the court has been exercised. It might be said that the facts of the present case fall into either or both descriptions. One can say that the jurisdiction of the Crown Court to order the issue of a warrant for the arrest of someone who has failed to surrender to his bail is exercisable by a judge of the Crown Court sitting alone and that is a question of jurisdiction. But it is equally possible to say that the correct procedure in this case would have been for the justices to retire and for the judge to have heard and decided the issue of the warrant without them, which is a question of procedure.If too rigid a categorisation between “jurisdiction” and “procedural failures” is attempted, then there is a danger that the same problems and subtle distinctions will arise as were created by the division between “mandatory” and “directory” requirements of a statute and then assigning the consequences of falling into one or other category accordingly.[50]Therefore, following Sekhon, Soneji and Clarke , we think that we must ask: did Parliament intend by section 73(1) and any other relevant provisions of the SCA 1981 that the failure to ensure that it was the judge alone who exercised the power to issue a warrant for the arrest of Miss Bromley in this case was that the warrant was invalid and her detention unlawful?Our answer to that question, at least on the facts of this case, is a clear “no”. There is no logical or practical reason why Parliament should have intended that consequence. It was an unfortunate procedural lapse and nothing more.[51]If that is right, then we have to go on to consider the interests of justice generally and the question of whether there is a real possibility that Miss Bromley may have suffered prejudice as a consequence of this lapse. The interests of justice must be that a person who has not surrendered to her bail is brought before the court as soon as possible and the way to do that is by a warrant for her arrest. On possible prejudice, none was suggested by Mr Abzarian and we cannot think of any ourselves.[52]Therefore, we reject this ground for saying that the warrant was unlawful.[53]That leaves the last of Mr Abzarian’s arguments in relation to the first claim, ie. that the warrant was in an improper form. Mr Abzarian relies on statements made by Lord Wilberforce and Lord Diplock in R v Inland Revenue Commissioners, ex parte Rossminster Ltd and others [1980] AC 952. That case concerned the legality of a search warrant obtained by HM Inland Revenue, upon application to the Common Serjeant, in order to search specific premises and seize anything which they had reasonable cause to believe might be required as evidence in proceedings in respect of a tax fraud, in accordance with section 20C of the Taxes Management Act 1970, as amended. The warrant contained no particulars of the reason for the search. After the search (in which the Inland Revenue officers took vast quantities of materials but did not tell directors or officers of the company why it was taking them), the applicants challenged the whole procedure. They sought to quash the warrant. The Divisional Court rejected the claim but the Court of Appeal allowed it. The Court of Appeal’s decision was reversed by the House of Lords. One of the three issues that the House of Lords had to decide was how much information had to be disclosed upon the face of the warrant that had been issued pursuant to section 20C of the 1970 Act.[54]Mr Abzarian relies first on the statement of Lord Wilberforce, at page 1000A of the report:
“There is no mystery about the word “warrant”: it simply means a document issued by a person in authority under power conferred in that behalf authorising the doing of an act which would otherwise be illegal. The person affected of course, has the right to be satisfied that the power to issue it exists; therefore the warrant should (and did) contain a reference to that power”
. He also relies on what Lord Diplock stated at page 1009F:
“Even though the statute may not strictly so require (a matter on which I express no concluded opinion) the warrant in my view ought to state upon its face the statutory authority under which it has been issued…”
[55]Mr Abzarian points out, correctly, that the warrant in the present case does not refer to the statutory power under which it was issued, ie. section 7 of the Bail Act 1976. Therefore, he submits, it was unlawful.[56]The warrant in this case was in a standard form that is (and has been for years) used for the arrest of a person who has failed to surrender to bail on the appointed day. There is no requirement in the Bail Act that such a warrant must state upon its face the statutory authority under which it has been issued. In those circumstances, we conclude there can be no question of the warrant being unlawful. Neither Lord Wilberforce nor Lord Diplock stated, as a general proposition of law, that a warrant, whether it be for the arrest of a person or the search of premises and the detention of property, will be unlawful if it does not state on its face the statutory source of its authority. In our view, the most that can be said is that Lords Wilberforce and Diplock were making a statement of what would be good practice in the case of the type of warrant being considered in that case.[57]Therefore, the last basis for the first claim also fails. We do not therefore need to go on to consider issues of the consequences or the relief sought and we shall not do so. The claim for judicial review relating to the issue of the warrant on 15 July 2008 must fail.[58]Mr Abzarian repeats his argument that the effect of an improperly constituted court (contrary to section 73(1) of the SCA 1981) dealing with the committal for sentence was that the sentence was unlawful. Mr Kovats accepts that the court was not correctly constituted but submits that the effect of section 74(6) of the SCA 1981 is that it is too late now for Miss Bromley to raise the argument. If that is wrong, he repeats his argument based on the decisions in Sekhon, Soneji and Clarke.[59]For the reasons that we have given above, we cannot accept Mr Kovats’ argument based on section 74(6) of the SCA 1981.[60]That means we must ask: was it the intention of Parliament that the failure to follow the provisions of section 73(1) and section 74(1) of the SCA 1981 in this case, (because a judge and two lay magistrates passed sentence pursuant to section 3 of the PCC(S)A 2000), would be that the sentence passed would be invalid and so Miss Bromley’s detention unlawful? We are sure that the answer to that question is also “no, that was not Parliament’s intention”. It is noteworthy that Parliament made no amendments to the terms of either section 74(6) of the SCA when section 74(1)(b) was removed by the Access to Justice Act 1999. Therefore, the consequences of a failure to ensure that the committal for sentence was heard by a single judge were left at large and must be decided on the basis of the principles set out in Soneji and Clarke. We must have regard to the language of the relevant provisions and the scope and object of the whole statute and the consequences of non – compliance. In our view there is nothing in the wording or the scope and object of the statute to suggest that a failure by the judge to pass sentence sitting alone should invalidate the whole process and make the sentence and consequent detention unlawful.[61]Having reached the conclusion that the irregular constitution of the court did not necessarily render the sentence of the court invalid, we focus on the second part of the test as set out in paragraph 77 of Ashton, namely, whether “the interests of justice, and particularly whether the procedural failure, caused any prejudice to [the claimant], such as to make it unjust to proceed further”. It seems to us that this does require that we ourselves consider whether the sentence passed was appropriate. We note, by the way, that there was no application to appeal against sentence made to the Court of Appeal Criminal Division on either the ground that the sentence was unlawful or that it was manifestly excessive. That would have been an obvious way to challenge the sentence. Such an application would have been determined very speedily and certainly long before the hearing in this court.[62]Nonetheless, Mr Abzarian now submits before us that the sentence of 2 years and 6 days was too long. Insofar as the facts are clear from the papers before us they are as follows. When homeless, the claimant befriended Mr Smith, who was an elderly man, living on his own in sheltered accommodation. He had had a stroke, he was physically frail and to some extent confused. He let her stay with him, during which time she accompanied him to the Post Office to collect his pension from a savings account; she thereby learnt his PIN. After some time, she left, having stolen his Post Office card and his Abbey National Savings Book. During the course of the next few weeks she made regular withdrawals from both accounts and so stole from him quite a large sum of money. It is not possible on the material before us precisely to quantify the amount taken but it was several hundred pounds and certainly it was all the money that he had. Mr Smith was left – as the judge found – ‘destitute’.[63]Nor was this all, for Mr Smith arranged for her to spend some time staying with his elderly sister, Mrs Pitkin. Whilst the claimant was staying there, she rifled through Mrs Pitkins drawers and found her jewellery, which she had hidden there. The claimant stole it. The jewellery has not been valued and it may not have been worth much in financial terms but it had great sentimental value to Mrs Pitkins, since much of it had been given to her by her mother many years ago. It is true that the jewellery was recovered from the appellant, since she still had it with her when she was arrested, but that was fortuitous.[64]The claimant had a number of previous convictions, mainly for driving offences but also for shoplifting and for a benefit fraud. She had several convictions for drugs related offences, including at least one conviction for possession with intent to supply. She also had convictions for child cruelty, having a bladed article and for making a false statement. She had previously served a short sentence of imprisonment. None of those convictions had a direct bearing on her culpability for these offences but she was very far from being a person of good character.[65]It is important to remember that the court had heard the appeal against conviction, which lasted three days; the court formed a very adverse view of the claimant. In making the sentencing remarks, the judge set out detailed findings of fact: see the transcript for 21 November 2008, at pages 39-55. The court found that she had “callously targeted” Mr Smith and his sister, who were described as being vulnerable. They were generous and trusting and she took advantage of their perceived weakness. Her conduct is described as “base”. It was considered that the thefts from Mr Smith and from his sister were separate courses of conduct deserving consecutive sentences. The court sentenced her to 18 months in respect of the thefts from Mr Smith and six months consecutive for theft from his sister. The court passed a further consecutive sentence of 6 days in respect of a failure to answer her bail when required to do so.[66]Mr Abzarian submitted that we should apply the guidelines now relating to offences of theft. Although the guidelines would be relevant if a sentence were being passed on Miss Bromley today, the guidelines were not in force at the time. In any event, there are a number of seriously aggravating factors, to which we have already drawn attention, which justify departing from the guidelines.[67]We agree with the Crown Court’s approach; these were indeed mean offences which required a stiff sentence. We think that it is impossible to say that the sentence passed was in any way excessive or inappropriate. Accordingly, applying the test as laid down in Ashton, in our judgment, the procedural failure of sitting with the magistrates did not cause any prejudice to the appellant; it is not unjust to uphold the sentence passed, indeed the interests of justice require that we should not interfere with that sentence.[68]Therefore the basis for this second claim must also fail.In those circumstances, we need not consider other arguments about the consequences and what remedies, if any, the court might have been prepared to order if we had accepted Mr Abzarian’s arguments on the basis for that claim.[69]The two claims must be dismissed for the reasons we have given.[70]The salutary lesson to be learned from this case is that the administrators who give Notices of Hearings of Appeals in cases where there is both an appeal on conviction from magistrates to the Crown Court and also a committal for sentence should make sure that the appellant/person to be sentenced is informed of both hearings in the one document. The administrators should also make sure that the Notice of Hearing contains both Crest references numbers. Furthermore, the Crown Court judge hearing an appeal with magistrates should ensure, if there is also a committal for sentence in the same case, that he sits alone if and when he has to deal with the committal for sentence.

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