Williamson, R (on the application of) v City of Westminster Magistrates' Court & Ors [2012] EWHC 1444 (Admin)

[2012] EWHC 1444 (Admin)

Case No CO/6685/2011

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 29/05/2012

Before

THE RT HON LORD JUSTICE GROSS

THE HON MR JUSTICE BURNETT

Between

The Queen on the application of Simon WilliamsonClaimant

City of Westminster Magistrates’ CourtDefendant

Crown Prosecution ServiceInterested Parties

Rhys MardonInterested Party

Flora Page (instructed by Old Bailey Solicitors) for Claimant

Ben Lloyd (instructed by CPS) for Defendant

Hearing Hearing date: 3 May 2012

Judgment

The Hon Mr Burnett:

[1]This is the judgment of the court prepared by Burnett J.

[2]On 3 November 2010 the claimant pleaded guilty before District Judge Snow at the City of Westminster Magistrates’ Court to charges of assault and being drunk and disorderly. The charges arose out of events which had occurred on a London Underground train between Tottenham Court Road and Goodge Street stations on 1 July 2010. He was fined, ordered to pay compensation and made subject to a curfew. On 19 April 2011 the claimant issued an application in the same court pursuant to section 142(2) of the Magistrates’ Courts Act 1980 [“the 1980 Act”] seeking an order that it was in the interests of justice that his case be remitted for a fresh hearing. On 1 July 2011 the same Judge rejected that application. He concluded that he had power to remit the matter in the circumstances of this case but declined to do so for a number of reasons which he articulated. By this claim, the claimant seeks to quash the decision of 1 July 2011 and obtain a mandatory order requiring the Magistrates’ Court to reopen his convictions under section 142(2) of the 1980 Act.

[3]The argument advanced before the Judge, and repeated before us, was that the claimant received incompetent advice from his solicitor. In particular it is said that the solicitor lied about the strength of the case against him by suggesting that the prosecution had statements from two passengers on the train which supported the complainant’s account, when there were no such witnesses, and also wrongly said that he was unable to view the CCTV footage provided by the prosecution because it would not play on any of his equipment. The claimant had been keen to view the CCTV. His case is that he would not have pleaded guilty but for the misrepresentation about the existence of witnesses or if he had seen the CCTV, which in his estimation exonerates him. The solicitor did not provide a statement for the purposes of the hearing before the Judge and, beyond a bare denial of the allegations, there is no response before this court. The Issues

[4]Two principal questions fall to be considered in this claim for judicial review. First, was the Judge correct to conclude that the circumstances of this case were such that section 142(2) of the 1980 Act could operate to enable it to be remitted for a rehearing? Secondly, if he was correct in that conclusion, was his decision refusing to direct a rehearing vitiated by a public law failing?

[5]Permission to apply for judicial review was granted on grounds which may be summarised as follows: i) The way in which the Judge conducted the hearing meant that the claimant was not meaningfully heard. It is said that he did not get a fair hearing. ii) The refusal of the application was irrational and perverse. iii) This case concerns a grave injustice because a solicitor lied to his client in circumstances where the CCTV demonstrates that the alleged crime could not have been committed in the way alleged, so that, on the face of it, an innocent man stands convicted of a crime he did not commit.

[6]Miss Page, who appeared for the claimant, clarified that the complaint that the Judge failed to give the claimant a fair hearing was, on analysis, a reasons challenge. The claimant had placed a lengthy statement before the District Judge which merited only the barest of mentions in his ruling. It is said that the Judge did not engage with the evidence placed before him or with the arguments. They were not dealt with in the ruling.

[7]We confess some unease at the way in which the third of the grounds has been formulated. This court is not in a position to make findings that the claimant was lied to by his solicitor, or that the CCTV demonstrates that the crime was not committed in the way alleged, or that on the face of it an innocent man stands convicted of a crime he did not commit. The CCTV was not played to the Judge, but has been provided to us. The parties invited us to view the CCTV. We expressed doubts as to whether that course was appropriate in a judicial review application which would ordinarily consider the legality of the underlying decision on the basis of the material that was placed before the decision maker. We nonetheless did so de bene esse. In his statement made on 18 June 2010, which was before the Judge, the claimant analysed the witness statement of Melvyn Wright (the complainant) and compared it with his understanding of the CCTV. He stated that in a number of respects ‘the CCTV shows this did not happen’ and in others that the CCTV contradicts what Mr Wright said. In a statement made for these proceedings the claimant asserts that the CCTV ‘showed that Mr Wright was lying in almost every detail’. We have no quarrel with a proposition that the CCTV footage would have generated a line of cross examination going to the substance and detail of what occurred. We do not accept that it demonstrates that Mr Wright’s account was untruthful, nor that its essence was wrong. The assault was not captured by either camera but that does not mean it could not have occurred. There is much in the footage which suggests from the demeanour and remonstrations of other passengers on the train that they believed that the claimant had done something he should not have done.

The Facts

[8]On 1 July 2010 the claimant, who is a literary agent, attended a party at the Royal Festival Hall. He drank a fair amount of white wine but ate lightly. He travelled home on the Northern Line. The incident occurred shortly before the train arrived at Goodge Street station. Melvyn Wright, a man in his 70s, alleged that he was assaulted by the claimant. The circumstances in outline were these. Mr Wright had boarded the northbound train at Tottenham Court Road. He said that the claimant had his feet extended in front of him in a way that caused a lady to trip. When he remonstrated with the claimant, he was hit in the face causing slight injury. The police were called to Goodge Street station where the claimant was arrested. He immediately denied the suggestion that he had assaulted Mr Wright. He was taken to the police station and interviewed. He used the services of the duty solicitor, Mr Mardon who was then employed by EBR Attridge. The claimant insisted that he had no memory of the alleged assault and that anything of that nature would be entirely out of character. The claimant was a man of good character before these convictions. He explained in some detail about the strain he was under as a result of his mother's very serious illness at that time. She died shortly afterwards during the course of the proceedings in the Magistrates’ Court.

[9]The claimant retained the services of Mr Mardon to represent him in the Magistrates’ Court proceedings. The first court appearance was set for 30 July 2010 but was adjourned because of the claimant's need to be at his mother's bedside. The e-mail traffic between the claimant and Mr Mardon, which he summarised and from which he quoted in his statement before the Judge, shows that by 27 July he had decided to plead guilty. In an e-mail to Mr Mardon on 23 July he provided what he described as ‘ammunition for possible challenges to the aggravating factors’ including:

“Was the woman passenger in danger? It seems in nearly tripping over my allegedly sprawled legs, that doesn't indicate threat or danger per se, nor any bad intention on my part. - Was Mr Wright therefore too quick to step in, when it was probably not necessary? - If, as he claims, he smelled alcohol on my breath, was it wise to persist in challenging me. It would perhaps have been prudent to back off - particularly if he were an angina sufferer.”

A little later in the same e-mail he added:

“Obviously, it is against the spirit of my remorse over the incident to try to imply that Mr Wright is exaggerating, etc, but it would be useful to cast some doubt over the various aggravating factors which complicates the basic assault charge.”

On 27 July, in anticipation of the hearing then due to take place on 30 July, he asked Mr Mardon whether he had been able to see the CCTV footage. He added:

“I'm only pleading guilty on the basis that the police charge indicates that the CCTV footage is damning, although I can recall none of it, so can't deny it. It's still making me feel a little uneasy, as I can't get to see the footage showing what is meant to have happened”

. It was known from the outset that CCTV footage existed. That was obvious given its ubiquity in tube trains and it was shown to Mr Mardon at the police station. It appears to have been an assumption on the part of the claimant that he was charged because the CCTV footage was damning. That footage was viewed by PC McEvoy a few hours after the events in question. The short police report dated 27 July, served in accordance with usual practice at the hearing on 30 July, summarised the content of the CCTV in these terms:

“CCTV from inside the carriage has been downloaded and viewed by PC McEvoy 1968, it shows a disturbance on a train carriage that involves Wright who can be seen looking distressed. However, from the angles and other passengers on the carriage who stand up, you cannot see any assault or Williamson in any of the shots.”

The prosecution case against the claimant never sought to rely upon the CCTV as showing the assault. He was interviewed at length in the middle of the day following the incident. The content of Mr Wright’s statement, a copy of which had been provided to the claimant, was put to him line by line. There was no reference to the CCTV.

[10]It is clear from the claimant's own material that, were he not called suddenly to his mother's bedside on the 29 July, he would have entered a guilty plea at the hearing on the following day. He had prepared a detailed statement to assist Mr Mardon. It explained the enormous pressure he was under as a result of his mother's terminal illness. There was medical evidence dealing with that matter, together with character witness statements. The claimant also provided Mr Mardon with what he described as “mitigation points - bullet points". The claimant refined his statement and mitigation notes following the death of his mother and in advance of the next hearing. The statement and mitigation notes emphasised the claimant's remorse and his desire to make amends to Mr Wright. The mitigation notes included a reference to the fact that he was pleading guilty on the understanding that the evidence was damning and that he had not been allowed to see the CCTV.

[11]That next hearing was set for 20 August. In the meantime, the claimant explains that he rang Mr Mardon on or about 13 August to ask about the CCTV. It is the claimant's case that in the course of that telephone conversation Mr Mardon explained that the CPS had two further witnesses, a man and a woman. Mr Mardon had not been given copies of their statements but the CPS had outlined the content, he said. One confirmed that the claimant had punched Mr Wright. The other confirmed that he had said words to the effect of “I don't care, die!” in the course of the altercation. No such statements were ever served in the course of the criminal proceedings. Mr Wright’s statement had been made available at the interview. The statements of four police officers were served on 7 September 2010. A statement of PC McEvoy, describing the CCTV footage, was served on 30 September 2010. Finally, a statement from Mr Wright's general practitioner, Dr Seedat, was served on 1 November 2010. Following the telephone conversation on 13 August, upon which the claimant places considerable reliance, he sent Mr Mardon a long e-mail which included these observations:

“I am also very keen that the CCTV is found, or at least what is recorded in the police’s logging of that CCTV footage. I don't understand how it can be so difficult to locate, given its importance in crime detection and evidence. Do we know if the prosecution has seen it - if so can we INSIST on seeing it, and seeing it now. Then I will know if, based on the CCTV footage, the prosecution case can be refuted. If it is unclear then I have no defence, but if it clearly shows I DIDN’T hit anyone, then I shouldn't be pleading guilty and can use this as evidence. I may be clutching at straws, but I want to give myself the best chance, and not assume I'm guilty, without knowing. The CCTV would appear to be fundamental to my case and plea, otherwise it's my (non-remembering) word versus (two? three?) Witness reports, in which case I have to plead guilty.”

It was the claimant's understanding that Mr Mardon was due to meet the prosecutor on Monday 16 August to discuss the case.

[12]The hearing on the 20 August was adjourned. The claimant’s material shows that the reason for the adjournment was to enable the CPS to decide whether they would deal with these matters by way of caution, rather than prosecution. So much is clear from his e-mail to Mr Mardon on 27 August when he said:

“Any word back from CPS yet as to whether my charge can be downgraded to a caution? If it's a no, I hope you and I can get to view the CCTV.”

Precisely the same point was made in an email on 1 September.

[13]The next court hearing was set for 3 September 2010. The question of a caution remained outstanding. The claimant's statement put before the Judge sets out in some detail what occurred at that hearing. He says that Mr Mardon was very keen to explore the possibility of a caution. They also discussed the CCTV footage and in particular that it would be sought from the prosecution in the event that the caution route failed. The claimant says that Mr Mardon expressed reservations about the possibility of the matter being dealt with by caution, but thought the point worth pursuing. The claimant's note of their discussion includes:

“[Mr Mardon] did reiterate that these CCTV cameras would not give a proper image of people sitting on the edge of frame (i.e. those seated close to camera), and that it would not show the detail I required, and I'd be lucky if one could even see my legs on the edge of shot. To absolve me of guilt he said the footage would need to show me seated “with my hands by my side throughout” the incident, and the angle of the footage would not even make me visible. [This would be consistent with what he told me at Goodge Street police station on 2 July - i.e. that he had been briefly shown the CCTV footage and all he could see was the gentleman in question (Mr Wright) looking very distressed, after the alleged incident, with no sign of me at all.] He also said that I should not get sucked into an obsessive “quest” to see the CCTV footage, as it was not going to help me and that it would be best to move on. I agreed but said I still wanted to see the CCTV, so I could at least see the sequence of events which led to this out-of-character situation, otherwise I would never know if there was any truth at all in the accusation, or indeed whether I had a problem with alcohol which could arise again in the future. (I had at that point temporarily ceased drinking alcohol). I was still equivocal in my mind over the appropriateness of pleading guilty, in the event that the CPS refused a Caution, but knew I could not defend a not guilty plea on the basis of memory impairment and would inevitably be sentenced. ... If the CPS didn't agree to reclassify the case, then it was agreed I would apply to change my plea to guilty, as originally intended, a new hearing would be set, to replace the trial date, and we would proceed with the guilty plea, accompanied by Mr Mardon's request that credits be preserved, and his mitigating statements. In other words, for the sake of another two weeks’ uncertainty, I could end up with a guarantee that I would not face a prison sentence - the thought of which terrified me, so on the basis of this advice in his strong recommendation, I decided that pleading not guilty-even temporarily-was the best option.”

We observe that the description of the nature of the CCTV noted in the middle of this extract from the claimant’s statement accords with our own view of it.

[14]So it was that on 3 September, the claimant entered a not guilty plea.

[15]The trial was fixed for the 3 November 2010. The CCTV was provided to Mr Mardon on 21 October. In his statement placed before the Judge, the claimant explained that on 28 October he had a telephone discussion with Mr Mardon who told him that he could not view the CCTV footage because it would not play on his available equipment. Nonetheless, the claimant had by this time decided to plead guilty. He was understandably keen that his change of plea be notified to the court in advance of the hearing. The claimant pleaded guilty to the two charges but complains that Mr Mardon did not mitigate in the way he expected. He missed out points which the claimant wanted put in and included points which he did not wish to be mentioned.

[16]This necessarily lengthy summary of the claimant’s dealing with his solicitor in the months between arrest and the final disposal of the underlying proceedings is sufficient to inform the arguments advanced to this court. We note, however, that the claimant's dissatisfaction with the way in which he was represented extends to almost every aspect of his dealings with Mr Mardon. It is sufficient to quote from the statement dated 18 June 2011 encapsulating the features which it is said should have led

the Judge to remit the matter for a second trial:

“I believe Mr Mardon lied about the CCTV footage not being viewable, on the basis that it was in a file format he couldn't open and thus had not seen the footage (confirmed in his e-mail of 23.10). It was in fact a simple DVD that could have been played and viewed with no difficulty by anyone with access to a computer or DVD player. I believe Mr Mardon also lied about the two supposed independent witnesses. I was never sent statements and I never received any letters from him. Despite my urgent request for a meeting, he ignored this request.”

The claimant was not prepared to admit human failing or technical incompetence as a reason for Mr Mardon’s not being able to view the CCTV in late October, nor confusion or misunderstanding on his or Mr Mardon’s part to explain whatever may have been said in early August about witnesses.

[17]Following the hearing on 3 November 2010, the claimant continued to send e-mails to Mr Mardon asking for sight of the CCTV footage. On 2 December he learned that Mr Mardon was no longer working for EBR Attridge. On 15 December the claimant picked up a copy of the CCTV from those solicitors. Having viewed it, the claimant's conclusion was that it did not support the evidence of Mr Wright. Had he seen the CCTV footage before 3 November or been advised properly of its content, he says he would not have pleaded guilty.

[18]The claimant instructed new solicitors who investigated the matter and advised that he make an application pursuant to section 142 of the 1980 Act.

[19]Matthew Elkins of Old Bailey Solicitors, who has taken over representation of the claimant, has provided a statement dated 12 July 2011 in these judicial review proceedings. He explains that he was instructed on 11 February 2011. He wrote to EBR Attridge seeking disclosure of the claimant's file on 18 February. On the same day, he made contact with the firm of solicitors for whom Mr Mardon was then working with a view to obtaining a statement from him. Mr Mardon responded directing all enquiries to his former employers. Mr Elkins obtained the file from EBR Attridge on 16 March. They indicated that it was Mr Mardon's contention that the file was incomplete. On 18 February he also wrote to the City of Westminster Magistrates’ Court and the prosecution putting them on notice that an application might be made under section 142 of the 1980 Act. The application was issued on 19 April and a skeleton argument settled by Miss Page was served at the same time.

[20]On 5 May Mr Elkins took the opportunity of raising the case before District Judge Snow when he was at the court on another matter. He suggested to the Judge that Mr Mardon should give evidence. Although no formal direction was given concerning Mr Mardon’s attendance, nor was a witness summons issued, Mr Elkins explains that the Judge asked him to leave the court and telephone Mr Mardon. He did so. Convenient dates were discussed but Mr Mardon explained that he would need to take legal advice before agreeing to attend. Mr Elkins returned to court and passed that information on to the Judge. The Judge expressed the view that Mr Mardon should attend and asked that contact details be left with the court’s legal advisor. A date was fixed for 1 July 2011. The Judge ordered the claimant to serve a statement by 23 June. Mr Elkins told Mr Mardon of the date and confirmed the position in writing by letter dated 16 May. “This is to confirm that Mr Williamson's case is due to be heard on the 1st July at the City of Westminster Magistrates’ Court at 10am. Please be advised that DJ Snow expressly requested your attendance at court; DJ Snow directed the clerk of the court to contact you to ensure your presence.”

[21]On 9 June 2011 the legal adviser at Westminster Magistrates’ Court telephoned Mr Elkins. She indicated that she had spoken to Mr Mardon and that he required a waiver of privilege before he could make a witness statement. Mr Elkins immediately sent the court the waiver of privilege which the claimant had earlier signed on 17 February 2011 to enable his new solicitors to get the papers from EBR Attridge. There is no material before us which shows one way or other whether there was any further contact by the court with Mr Mardon before the hearing on 1 July. The claimant’s witness statement was served on the court, CPS and solicitors where Mr Mardon was thought to be working. That prompted a response from the solicitors that he had left their employment. They declined to provide current contact details. As a consequence, Mr Elkins contacted EBR Attridge for further help. EBR Attridge immediately forwarded the statement of the claimant and Mr Elkins’ covering letter to the last address they had for Mr Mardon.

[22]The hearing took place on 1 July 2011. The claimant was represented by Miss Page. The Judge had read the papers but the prosecutor had no file. The Judge decided to carry on and also indicated that he did not require Mr Mardon’s presence. He asked whether Miss Page wished to add anything to her skeleton argument, but she did not. He was not asked to view the CCTV, although we understand it was present at court, nor was there any thought that the claimant would given oral evidence. The Judge retired for a short while and handed down his ruling in writing when he returned. The ruling discussed the jurisdiction point and then set out why he refused the application in these terms:

“1) The incident occurred 12 months ago today. 2) Throughout the defendant was represented. 3) The defendant had months to prepare his case for trial. 4) Throughout the defendant made representations to the prosecution that he should be cautioned for the offence. A caution requires an admission of guilt. 5) The defendant entered his guilty plea on the day of trial, a day when his elderly victim attended to give evidence. 6) The defendant heard his advocate’s mitigation and only challenged one of the facts put forward by the prosecution. 7) The defendant has not complied with the Criminal Procedural Rules. 8) The public interest in finality. I am satisfied that against that background this application should be refused.”

I am satisfied that against that background this application should be refused.”

[23]The reference to the Criminal Procedure Rules reflects a citation in an earlier part of the ruling from rule 37.9. It sets out the procedure to be followed when a defendant applies to withdraw a guilty plea before sentence, pursuant to the undoubted common law power of a Magistrates’ Court to accede to such an application: see S (an infant) by Parsons (his next friend) v. Recorder of Manchester and others [1971] A.C. 481. That route was not open to the claimant because he had been sentenced. But in such cases the applicant is required to make the application as soon as practicable after becoming aware of the reasons for wanting to withdraw a guilty plea, he must explain why it would be unjust not to allow the withdrawal of that plea and must say whether he waives legal professional privilege in connection with the entering of the guilty plea.

[24]Mr Mardon has taken no formal part in these proceedings, but Mr Elkins has continued in his attempts to engage with him. Shortly before the hearing those attempts produced a response. It was in the form of an e-mail to Old Bailey Solicitors copied to the Court. Alas, for want of a full stop in Mr Elkins’ e-mail address it was not received by him. This is its substance:

“I write further to recent correspondence. I have not been asked by any party or the court to make any statement, comment, or observations on the material which has been forwarded to me. I have not been contacted by the CPS in connection with this matter either. I have not received or seen any material relating to the defendant's response to this application. I have not been provided with written waiver of privilege signed by Mr Williamson in relation to this matter. At this time, I cannot recall if any previous waiver has been provided, or is applicable here. I consider it inappropriate that the person with conduct of this case has over the last day or so barraged my current place of work with repeated telephone calls and has questioned the integrity of the staff there when told I was not available. Please note that you have always had my personal e-mail address, which has always been requested to have been used for correspondence. Please cease these activities immediately. I have denied the assertions made by Mr Williamson which were the basis of both an internal complaints procedure at my former employers ... and the court proceedings decision which is the subject of this current application. The decision of Messer's EBR Attridge LLP was that the assertions made were unfounded, save for some file management issues. It goes without saying that I do not have access to the original file on this case. In my opinion it is incomplete. This has been drawn to your attention previously and both the content of the file and the manner of documentary provision after I had left EBR Attridge supports my view. I have previously responded in writing on these matters and do not intend to respond further, save to reiterate that I refute the allegations as outlined and always acted in the best faith based upon the information and facilities I had at my disposal.”

On instructions, Miss Page refuted the description of persistent calls described by Mr Mardon. As to its substance, the fruits of any internal complaints procedure are not before this court. In his statement for these proceedings the claimant refers to a number of complaints he made in January 2011 to Mr Brazier of EBR Attridge, but not their outcome.

The submissions

[25]Miss Page submitted that the Judge was correct to construe section 142 of the 1980 Act in terms wide enough to enable the matter to be remitted for a retrial. She submitted that the reasons given by the Judge in refusing the application, whether taken individually or cumulatively, provides no rational basis for his conclusion in the face of the evidence set out in the claimant’s witness statement. She is particularly critical of the second reason given by the Judge, namely that the claimant was represented, as demonstrating a lack of appreciation on his part that it was the quality of that representation which was at the heart of the application. Similarly, she submitted that the Judge’s reference to the fact that Mr Mardon's mitigation only challenged one fact fails to grapple with the claimant’s clearly expressed criticism that he mitigated contrary to his instructions. She submitted that the reference to the Criminal Procedural Rules is nothing to the point because the application was being made after sentence and so they did not apply. Even so the claimant should not be criticised for the delay in making the section 142 application and he had waived privilege. She submitted that the reasoning fails to deal with the evidence placed before the Judge by the claimant. She reminded us that there is but one passing reference to it earlier in the body of the decision.

[26]Miss Page developed an additional submission. She submitted that if we were to conclude that the Judge did not have power in the circumstances of this case to remit the matter for a rehearing, we should treat this claim for judicial review as an application to quash the underlying convictions and sentence and remit the matter ourselves for a rehearing. The basis for such an approach, in respect of which Miss Page would invite us to dispense with all formalities as to pleadings etc, is that the claimant contends that it is plain on the material before us that there has been a miscarriage of justice. In those circumstances she submitted that we should exercise the power recognised by this court in R v. Bolton Justice, ex parte Scally [1991] 1 Q.B. 537 where convictions for drink-driving were quashed following guilty pleas when it was later discovered that the medical cleansing swabs in blood sampling kits used by the police force in question contained alcohol.

[27]Mr Lloyd, who appeared for the CPS in this court but not below, submitted that the terms of section 142 of the 1980 Act, given the authorities which have considered it, do not encompass a power to remit a case for rehearing in these circumstances. What the claimant was seeking was a full appeal which is not the purpose of section 142(2). If contrary to that submission the Judge had such power, his reasons for refusing to exercise it were more than adequate and stand up to public law scrutiny. He submitted that the circumstances in Scally were entirely different and that it is impossible to use the conclusion of the court in that case as a vehicle for quashing the underlying convictions in this one. The claimant, submitted Mr Lloyd, was and is not without a potential remedy if his underlying criticisms are correct. There are various mechanisms which might enable an appeal to be heard in the Crown Court.

Discussion

[28]Section 142 of the 1980 Act was amended by section 26 of the Criminal Appeal Act 1995 with effect from 1 January 1996 into its current form. Section 26 was entitled ‘Extension of power of courts in England and Wales’. Section 142 now provides:(1) A magistrates’ court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so, and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make. (1A) The power conferred on a magistrates’ court by subsection (1) above shall not be exercisable in relation to any sentence or order imposed or made by it when dealing with an offender if – a) the Crown Court has determined an appeal against- (i) that sentence or order; (ii) the conviction in respect of which that sentence or order was imposed or made; or (iii) any other sentence or order imposed or made by the magistrates’ court when dealing with the offender in respect of that conviction (including a sentence or order replaced by that sentence or order); or (b) the High Court has determined a case stated for the opinion of that curt on any question arising in any proceeding leading to or resulting from the imposition or making of the sentence or order.

(2) Where a person is convicted by a magistrates’ court and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may so direct. (2A) The power conferred on a magistrates’ court by subsection (2) above shall not be exercisable in relation to a conviction if- a) the Crown Court has determined an appeal against - i) the conviction; or ii) any sentence or order imposed or made by the magistrates’ court when dealing with the offender in respect of the conviction ; or b) the High Court has determined a case stated for the opinion of that court on any question arising in any proceeding leading to or resulting from the conviction.

(3) Where a court gives a direction under subsection (2) above- (a) The conviction and any sentence or other order imposed or made in consequence thereof shall be of no effect; and (b) section 10

(4) above shall apply as if the trial of the person in question had been adjourned. (4) [repealed]

(5) Where a sentence or order is varied under subsection (1) above, the sentence or other order, as so varied, shall take effect from the beginning of the day on which it was originally imposed or made, unless the court otherwise directs. As originally enacted it was in these terms:

“142.- (1) Subject to subsection (4) below, a magistrates’ court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make. (2) Where a person is found guilty by a magistrates’ court in a case in which he has pleaded not guilty or the court has proceeded in his absence under section 11(1) above, and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may, subject to subsection (4) below, so direct. (3) Where a court gives a direction under subsection (2) above- (a) the finding of guilty and any sentence or other order imposed or made in consequence thereof shall be of no effect; and (b) section 10(4) above shall apply as if the trial of the person in question had been adjourned. (4) The powers conferred by subsections (1) and (2) above shall be exercisable only within the period of 28 days beginning with the day on which the sentence or order was imposed or made or the person was found guilty, as the case may be, and only- (a) by a court constituted in the same manner as the court by which the sentence or order was imposed or made or, as the case may be, by which the person in question was found guilty, or (b) where that court comprised 3 or more justices of the peace, by a court which consists of or comprises a majority of those justices. (5) Where a sentence or order is varied under subsection (1) above, the sentence or other order, as so varied, shall take effect from the beginning of the day on which it was originally imposed or made, unless the court otherwise directs.”

A number of changes were wrought by the amendment. The repeal of section 142(4) did away with the 28 day time limit and also the restriction that the application under section 142 should be dealt with by the same bench as originally dealt with the matter. The addition of subsections 1A and 2A made clear that the power could not be exercised after there had been an appeal. The language of ‘the interests of justice’, which was in the original section 142(2), was introduced into section 142(1) concerning sentence. The restrictions in section 142(2), namely that the power could be used only following a not guilty plea or when the court had proceeded in the defendant’s absence, were lifted.

[29]The Magistrates’ Courts Act 1952, which hitherto had governed the jurisdiction of Magistrates’ Court, had no equivalent provision.

[30]Appeals from the Magistrates’ Court to the Crown Court are governed by section 108 of the 1980 Act. There is no right of appeal against conviction following a guilty plea, although it has long been recognised that an appeal may be brought to the Crown Court on the basis that the guilty plea was ‘equivocal’: see, for example, R v. Durham Quarter Sessions, ex parte Virgo [1952] Q.B. 1; R v. Plymouth Justices, ex parte Hart [1986] 1 Q.B. 950. An alternative mechanism of appeal, appropriate when dealing with questions of law, is an appeal by way of case stated pursuant to section 111 of the 1980 Act. Such an appeal is not constrained in the same way as an appeal to the Crown Court. An additional way in which the decision of a Magistrates’ Court may be challenged is in judicial review proceedings.

[31]The purpose of section 142 as originally enacted was to enable the Magistrates’ Court itself to correct mistakes in limited circumstances to avoid the need for parties to appeal to the Crown Court, or to the High Court by way of case stated, or to bring judicial review proceedings. In our judgment the introduction of the section 142 power was designed to deal with an obvious mischief: namely the waste of time, energy and resources in correcting clear mistakes made in Magistrates’ Courts by using appellate or review proceedings. The removal of the short time limit in 1996 is consistent with that approach. It is the common experience of courts in all jurisdictions that mistakes and slips are often not picked up immediately. The power conferred with regard to sentence explicitly refers to replacing a sentence imposed which was invalid. That might be regarded as correcting a classic ‘mistake’. It could be contended that it would be in the interests of justice to substitute a new sentence on the grounds that the one originally imposed was manifestly excessive. However, the sentencing provisions, whether in their original or new form in section 142, cannot be read as conferring a power to substitute a new sentence in the same way as an appellate court might do so. So far as the jurisdiction relating to convictions is concerned, the amendment enables the Magistrates’ Court to exercise the power in circumstances beyond those originally envisaged. But the power remains rooted in the concept of correcting mistakes and errors. It is not a power equivalent to an appeal to the Crown Court or the High Court, nor is it a general power of review. It would be possible to construct an argument that because a Magistrates’ Court made an error of law, and thus reached a wrong decision, it would be in the interests of justice for the matter to be remitted under section 142 for a rehearing. However, such an interpretation would have the effect of neutering appeals by way of case stated. It would have the effect of conferring a similar power on the bench considering a section 142 application as possessed by the High Court.

[32]Had Parliament contemplated such a broad power, it would not have chosen to describe the power in section 142 of the 1980 Act as being to ‘rectify mistakes etc.’ but used more expansive language.

[33]This interpretation of the provision is entirely consistent with the approach of this court in a number of cases. The amended section 142(2) was considered in R v. Croydon Crown Court, ex parte DPP

[1997] 2 Cr. App. R 411

, a case in which the defendant pleaded guilty but whose co-defendants were eventually acquitted on the ground that the prosecution had failed to negative the presumption of doli incapax. He applied under section 142(2) of the 1980 Act for a new trial. In quashing the Youth Court’s decision acceding to his application Mc Cowan LJ observed:

“In my judgment the purpose of section 142(2) is accurately described in the heading as a “Power to rectify mistakes”

. It is generally and correctly regarded as a slip rule. Miss Markus places great reliance on the fact that those words in the heading are followed be “etc”. But in my judgment that cannot extend the power given beyond a situation akin to mistake. There was no mistake in the present case or anything like it. The justices were in fact told at the trial, according to their chairman, that it was not essential for them to listen to the tape. They did rule that the interview was admissible and the defendant, advised by counsel, did then unequivocally plead guilty.The defendant could not appeal to the Crown Court because he hadpleaded guilty. It would be wholly wrong in my judgment for it to be possible to employ section 142(2) as a method of a defendant obtaining a re-hearing as a substitute for an appeal to the Crown Court which he cannot pursue because he has unequivocally pleaded guilty.” (pages 416 -417)

[34]R (Holme) v. Liverpool City Justices

[2004] EWHC 3131 (Admin)

was a case in which the Magistrates acceded to an application to revisit a sentence seven months after a conviction on the basis that the original decision had not taken into account the severity of the injuries suffered by a pedestrian in a collision resulting in a dangerous driving charge. The contention was that they had made a mistake in under-sentencing as a result of ignorance of the full facts. This decision was quashed. No mistake had been made within the meaning of section 142. That said, Collins J indicated that as a matter of theory it might be possible to say that a Magistrates’ Court had made a mistake if, for example, a sentence was imposed upon the basis of false information being provided by the defendant in mitigation.

[35]In R (Carl Acton) v. Feltham Magistrates’ Court

[2007] EWHC 3366 (Admin)

Mitting J commented upon the observation of McCowan LJ in Croydon Youth Court that section 142(2) should not be used as a mechanism for circumventing the prohibition on appealing to the Crown Court following a guilty plea. He said, “I do not exclude on a proper case argument that the statement that the magistrates’ court had no jurisdiction under section 142 to permit a plea to be vacated, save in the case of mistakes, to be moderately overstated. Nor do I exclude the possibility that in circumstances which in effect render proceedings before a magistrates’ court a nullity, that this court can and should intervene to quash those proceedings.”

[36]We accept that there may be circumstances in which section 142(2) could be used to allow an unequivocal guilty plea to be set aside. Examples which spring to mind include cases in which a guilty plea had been entered to an offence unknown to the law. Surprising though it may seem, such errors do occur in particular in connection with repealed legislation. That would fall comfortably within the language of mistake. They may include cases where a jurisdictional bar was not appreciated by the defendant relating, for example, to a time limit or the identity of a prosecutor. There may be cases in which the proceedings were, in truth, a nullity. We would not exclude the possibility that section 142(2) would be apt to deal with a case in which circumstances developed after a guilty plea and sentence which led the prosecution to conclude that the conviction should not be sustained.

[37]However, the question in this claim is whether what the claimant alleges passed between him and Mr Mardon, and more generally his allegations concerning Mr Mardon’s conduct as his solicitor, fall within the concept of ‘mistake’ for the purposes of section 142(2). At the heart of the claimant’s contention is the proposition that he misapprehended the strength of the case against him as a result of flawed legal advice. In our judgment, the circumstances relied upon by the claimant, even if they were established as being correct, do not bring the case within the ambit of the power found in section 142(2). The claimant is seeking to use that provision as a surrogate for a full appeal on the basis of the conduct of his solicitor. Such appeals are never straightforward. It is not uncommon for appeals against conviction from the Crown Court to the Court of Appeal Criminal Division to be launched on such grounds. They are allowed sparingly but, in any event, only after a careful exploration of the underlying circumstances following a procedure devised to ensure that the legal advisers concerned provide a full explanation of what occurred: see R v. Doherty; R v. McGregor

[1997] 2 Cr. App. R. 218

. The Court of Appeal there referred to guidance issued by the Bar Council with the approval of the Lord Chief Justice (the import of which applies with equal force when criticism is advanced against a solicitor) which sets out the procedure to be followed in such cases. In particular, a waiver of privilege is required which is sent to the criticised lawyers together with the grounds, with an invitation from the Registrar of Criminal Appeals to comment. The lawyers’ comments are then placed before the single judge along with the grounds and argument on behalf of the applicant, and if necessary before the full court. The court added that disputed allegations against former lawyers would be unlikely to carry any weight unless they were supported by oral testimony. The procedures identified in Doherty are a necessary precursor to any court seeking to determine whether allegations of incompetence or misconduct are established, before going on to determine whether a conviction is unsafe. In our judgment, section 142(2) of the 1980 Act does not provide an appropriate vehicle for the consideration of such matters.

[38]We conclude that the Judge erred in accepting that he had power to remit this conviction for a rehearing. In those circumstances the arguments concerning the exercise of his discretion, and those relating to his reasons become academic. It is unnecessary to consider them. It follows that this claim for judicial review fails unless the argument advanced by Miss Page by reference to Scally has merit.

[39]Scally was an unusual case. The facts, to which we have referred in passing, more fully were these. Each of the four applicants had been arrested on suspicion of driving with excess alcohol. Each provided a blood specimen which was analysed in a laboratory. The results suggested that the proportion of alcohol in the blood was above the legal limit. Each pleaded guilty and was convicted. It was subsequently discovered that at the time of taking the specimens the medical cleansing swabs in some of this batch of blood sampling kits themselves contained alcohol. That plainly invalidated the test results. The discovery having been made, the CPS no longer prosecuted in cases involving kits from the relevant batch. As Watkins LJ noted at 556, the applications had the tacit support of the CPS. The question faced by the court was whether the unequivocal pleas made it impossible for the Divisional Court to quash the convictions since the Magistrates themselves made no error. The court mined a seam of authority which was analysed in R v. Secretary of State for the Home Department, ex parte Al-Mehdawi [1990] A.C. 876. In that case, a failure on the part of an immigrant’s legal adviser to notify him of an appeal hearing was rejected as a basis for quashing the result, because there had been no irregularity in the conduct of the proceedings by the decision-maker. By contrast criminal cases in which the prosecution had acted improperly, for example, by suppressing material helpful to the defence would provide a basis for the court to intervene and quash a conviction, as would fraud, collusion and perjury by the prosecutor. Watkins LJ concluded: “What happened here was that, there being no dishonesty, the prosecutor (a combination of police and C.P.S.) corrupted that process leading to a conviction in a manner which was unfair, for it gave the defendants no proper opportunity to decide whether to plead guilty or not guilty, indeed it wrongly denied them a complete defence to the charge. In my view, that is conduct analogous to fraud, collusion or perjury if ever there was. I regard these applications … as providing a classic instance where the supervisory role of this court over magistrates’ courts is clearly required to be exercised. I would make the orders of certiorari sought.” (Page 556)

[40]Even if it were established that Mr Mardon misrepresented the existence of two prosecution witnesses and his inability to view the CCTV, such conduct on the part of the defendant’s own legal advisor provides no analogy with prosecutorial fraud etc. It would fall squarely within the category of behaviour which the House of Lords in Al-Mehdawi concluded would not lead to intervention by a court of judicial review. We agree with Mr Lloyd that this claim is ‘simply not within the territory of Scully’.

[41]It is of note that section 142 of the 1980 Act was not referred to in the course of argument or the judgments in Scully. That is because the case preceded the amendments introduced by the Criminal Appeal Act 1995, which swept away the restriction that the section could not be used following a guilty plea. In our judgment, the circumstances in Scully are of the sort which might well now be dealt with by an application under section 142(2) (following the amendment) because the underlying facts were not in dispute and the desired outcome, subject to arguments about the breadth of judicial review, was clear.

[42]We emphasise that we make no criticism of Miss Page in pursuing the section 142 route. On the contrary, we understand why she sought to utilise what appeared to be a quick, summary procedure, even though, as we have concluded, it could not assist the claimant in this case. Every effort has been made on the claimant’s behalf by his current solicitors. Mr Lloyd drew our attention to paragraph D29.4 of Blackstone’s Criminal Practice which identifies five potential routes by which a guilty plea before the Magistrates’ Court may be the subject of an appeal to the Crown Court:(a) when a plea is equivocal when made;

(b) when a plea is subsequently shown to be equivocal;

(d) when autrefois convict or acquit arises; and

(e) when a case is referred to the Crown Court by the Criminal Cases Review Commission [“CCRC”].

[43]In an appropriate case, therefore, mechanisms exist to deal with a real injustice. We express no views about the claimant’s prospects if he sought to utilise any of these mechanisms, save these. Options (c) and (d) have no conceivable application in this case. As to (a) and (b) a court will not readily accept that a plea was or became equivocal and would look carefully at the chronology of events, which includes in this case early indications that the plea was to be guilty, a not guilty plea, a change of plea, an exploration of the possibility of a caution and the fact that Mr Mardon did see the CCTV at the police station and formed a view of what it showed. We observe that Miss Page indicated that at no time did it appear to her that the plea was equivocal. She had proceeded on the very understandable basis that the plea entered in the Magistrates’ Court was unequivocal. Similarly, if the CCRC were approached it would look at these factors, together with all the evidence in the case to decide whether to refer the matter to the Crown Court. On any view, following alternative routes would be costly and have (at best) an uncertain outcome. In drawing attention to these options we did not understand Mr Lloyd to be suggesting that, on the facts of this case, any would be likely to prosper and we should not be taken as encouraging further litigation. If the result is that a person in the position of the claimant has no remedy, it is not because the law is deficient but because for good reason, especially an interest in finality, the law holds him to his guilty plea.

Conclusion

[44]For reasons which are different from those given by the District Judge we conclude that he was correct to refuse to remit the claimant’s case for a rehearing. In these circumstances the claim for judicial review is dismissed.