Westminster City Council v Owadally & Anor [2017] EWHC 1092 (Admin)

[2017] EWHC 1092 (Admin)Case No CO/5275/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/05/2017
Before
LORD JUSTICE GROSSMR JUSTICE OUSELEY
Between
WESTMINSTER CITY COUNCILClaimantMOHAMMED OWADALLY AND SEEMA KHANDefendants
Richard Heller (instructed by Tri Borough Shared Legal Services) for ClaimantWilliam Clegg QC and Quentin Hunt (instructed by Blackfords LLP) for DefendantsHearing Hearing dates: 24 January, 2017
Judgment ApprovedLord Justice Gross :INTRODUCTION
[1]On this appeal, the Respondents have no merit whatever. However, they seek to uphold the decision of the Crown Court in their favour, namely, that the indication of pleas of guilty entered on their behalf and in their presence by counsel appearing for them in the magistrates’ court was an incurable error, fatal to the subsequent proceedings. The Respondents’ case is that only they, personally, could have indicated pleas of guilty and that the lapse of some 21 months, together with their participation in the confiscation proceedings in the interim are neither here nor there.[2]This case started life as an appeal by way of case stated from the judgment of HHJ Grieve QC, sitting at Southwark Crown Court on 7th June, 2016 (“the judgment”). In circumstances to which I shall come, the Judge held that the indications of pleas of guilty were entered in Westminster Magistrates’ Court on 14th May, 2014 by the Respondents’ barrister, on behalf of both Respondents, and therefore that the indications of guilty pleas were invalid, as was the Respondents’ committal to the Crown Court for confiscation proceedings. The Judge remitted the cases back to the magistrates’ court.[3]The facts, subject to what is said later, appear from the Case stated by the Judge, dated 30th September, 2016 (“the Case”).[4]On the 21st February, 2014, three informations were laid by the Appellant (“WCC”) against the Respondents (Mohammed Yousouf Farook Owadally and Seema Khan), alleging breaches of three separate planning enforcement notices served on them as owners of a property in London W9 (“the property”). The breaches were said to constitute offences contrary to s.179 of the Town and Country Planning Act 1990.[5]The summons required the attendance of the Respondents at Westminster Magistrates’ Court and, in due course, the Respondents attended there on the 14th May, 2014.[6]The events of that day are set out in the Case, but the finding about how the pleas were taken was based on the concession of prosecuting counsel:
“3. On 14 May 2014 the respondents attended Westminster Magistrates’ Court and indicated guilty pleas to the three offences through their barrister, Giles Atkinson. The respondents were present throughout the hearing and present in court at the point when the guilty pleas were indicated. 4. The prosecutor indicated to the court an intention to pursue confiscation proceedings and the case was subsequently committed to the Crown Court pursuant to s.70 of the Proceeds of Crime Act 2002 (‘POCA’).”
[7]On the 9th June, 2014, the case was listed for committal for sentence at Southwark Crown Court, before Mr Recorder Rhodes QC. As observed in the Case (at [5]):
“The defendants would have admitted at their first hearing in the Crown Court to having been committed from Westminster Magistrates’ Court on 14 May 2014.”
A confiscation timetable was set, with a final hearing fixed for 5th March, 2015.[8]The Case records that a number of delays then ensued as the Respondents sought extensions of time or adjournments while pursuing other avenues of appeal relating to the planning status of the property. Ultimately, in September 2015, all planning appeals were exhausted.[9]On the 22nd September, 2015, at a mention in the Crown Court, the final confiscation hearing was re-fixed for 14th March, 2016. By this time (Case, at [7]), there had been an exchange of s.16 POCA statements of information prepared by the prosecutor and s.17 POCA responses by the Respondents. There had also been a number of mention hearings.[10]The next development was dramatic (Case, at [8]):
“On 29 February 2016, Blackfords LLP, solicitors acting on behalf of both respondents, wrote to the prosecution indicating that Mr Owadally and Ms Khan intended to apply to vacate their guilty pleas 21 months after the pleas were indicated. This was the first time since the pleas were indicated in May 2014 that the issue of vacation was raised.”
[11]Skeleton arguments from the Respondents followed, contending, first, that the pleas were invalid as they had been indicated by counsel acting on behalf of the Respondents, not by the Respondents personally and, therefore, that there had not been compliance with the correct procedure for entering pleas. Secondly, in the alternative, it was submitted that the pleas entered were equivocal and/or should be vacated in the residual discretion of the Court.[12]At a directions hearing on the 21st April, 2016, HHJ McCreath ordered that the first issue raised by the Respondents should be heard on the 20th May, 2016, without witnesses. If the Respondents were right on the first issue, it would be unnecessary to decide the second issue.[13]In the event, HHJ Grieve QC heard legal argument on the first issue on the 20th May 2016, by way of a preliminary point (as he understood it). There was no live evidence but the Crown Court had statements from both counsel who had appeared in the magistrates’ court on the 14th May, 2014 – i.e., both Mr Ham, prosecution counsel for the WCC and Mr Atkinson for the Respondents - and an attendance note from the Respondents’ then solicitor (Mr Sheerin). In a nutshell: i) Neither barrister could recall the procedure which had been followed at the magistrates’ court but Mr Ham’s contemporaneous notes referred to “guilty pleas indicated by the defendants”. ii) Mr Sheerin’s attendance note stated that Mr Atkinson (i.e., counsel) indicated guilty pleas on behalf of both Respondents. There was no witness statement from Mr Sheerin and he was not available to give evidence. iii) Nonetheless, counsel for the prosecution in 2016 is recorded as stating that there was no factual basis on which Mr Sheerin’s attendance note could be challenged and so (Case, at [12]) “expressly conceded that the court was bound to find that the pleas were entered by counsel on the defendants’ behalves and not by the defendants themselves”.[14]In the (reserved) judgment, delivered on 7th June, 2016, HHJ Grieve QC concluded that the pleas of guilty indicated, not by the Respondents but by their legal advisers, were invalid. There did not seem to be any reason in principle to distinguish the procedure for pleas in the Crown Court from pleas in the magistrates’ court: Case, at [16.1].[15]The Case (at [17]) stated the following questions (“the Questions”) for the opinion of the High Court:
“ i) Whether the Learned Judge was right to find that the ratio of R v Ellis… is equally applicable to an indication of plea in the Magistrates’ Court as to arraignment in the Crown Court? ii) Whether the Learned Judge was right to conclude, following R v Ashton [2006] EWCA Crim 794, that the indication of pleas of guilty by counsel on the respondents’ behalves and not by the respondents themselves was a procedural failure which invalidated the steps which followed; or should he have found that was not the intention of the legislature and gone on to consider the interests of justice generally, including the acceptance by the respondents in the Crown Court that they had been committed from the Magistrates’ Court?”
I shall refer to these as Question I and Question II respectively.

PROCEDURAL CONCERNS

[16]As has been seen, the Respondents challenged the validity of their pleas in the Crown Court and the matter has since come to this Court by way of case stated. At the outset, we raised with counsel, Mr Heller for the Appellant and Mr Clegg QC for the Respondents, our concern as to whether the Crown Court had had jurisdiction to entertain the Respondents’ challenge. In this regard, we drew to the attention of counsel the observations of this Court in R v Sheffield Crown Court and Sheffield Stipendiary Magistrate (1994) 15 Cr App R (S) 768.[17]In Sheffield, this Court upheld the validity of the decision of the stipendiary magistrate to commit the matter to the Crown Court for sentence and set aside the Crown Court’s decision to the contrary. Kennedy LJ went on to say this (at p.771):
“ But in any event….the Crown Court had no power to go behind the order of the Magistrates’ court which committed these matters to the Crown Court for sentence. That order was, on the face of it, a valid order. If it was to be challenged, it could only be properly challenged in this Court [i.e., the Divisional Court]. The position can be different where the order is obviously bad on the face of it, for example, where a case has been purportedly committed for trial when the offence is one which can only be tried summarily….but that is not this case. ”
Scott Baker J (as he then was) added (ibid):
“ Only where a committal is plainly invalid on its face should it be sent back by the Crown Court.”
[18]It is necessary to distinguish between the choice of remedy and the court in which to pursue the most appropriate remedy.[19]It is not necessary to decide whether a challenge to the validity of pleas entered and to committal could be mounted by way of an appeal by way of case stated, pursuant to s.111 of the Magistrates’ Court Act 1980 (“the MCA”). If it could be, it would be subject to the 21 day time limit from the decision in s111 (2). Judicial review is the only alternative. As the discussion in Archbold (2017) at paras. 2-91 – 2-93 makes clear, views may differ as to the most appropriate course to follow in general when challenging a Magistrates’ Court decision on a point of law and there plainly is something of an overlap: see, R v Hereford Magistrates’ Court, ex p Rowlands and Ingram; R v Harrow Youth Court, ex p Prussia [1997] 2 Cr App R 340, esp. at pp. 343-344 and 350-1; R v Morpeth Ward JJ, ex p Ward 95 Cr App R 215, esp. at p.221; Revitt v DPP [2006] EWHC 2266 (Admin); [2006] 1 WLR 3172, esp. at [20]. The tenor of the cases is that case stated is to be preferred where findings of fact are to be made because the Divisional Court can then proceed on the basis of facts found, rather than having to find them for itself, as it would on a judicial review application. Nor should judicial review be used to circumvent the time limit for appeal by way of case stated.[20]As it seems to me, however, it is plain that the relevant Court in which to pursue either remedy is the High Court, not the Crown Court. On any view, this was not an appropriate case for an application to vacate a plea, to the Crown Court. To the extent that counsel suggested otherwise, I am unable to accept those submissions. The present case was far removed from a straightforward application to vacate a plea, which does not raise grounds challenging the powers and jurisdiction of the magistrates’ court – and with which the Crown Court can deal. Here the Crown Court had no jurisdiction to quash the committal, which was anything but obviously bad (see, Sheffield, supra). Instead, what was, in effect, involved here was the exercise of a supervisory jurisdiction over the conduct of the magistrates’ court; that jurisdiction the Crown Court does not have: Hereford Magistrates’ Court, at p.350, Lord Bingham CJ (as he then was). It necessarily follows that the Crown Court lacked jurisdiction to consider the issue, to find facts, to purport to overturn the plea and committal or to remit the matter to the Magistrates’ Court. The decision of the Crown Court is without effect and falls to be quashed.[21]What then is to be done? In the discussions during the hearing, perhaps unsurprisingly, there was no enthusiasm whatever from either party for starting again from scratch, which is what quashing the Crown Court decision alone would have entailed, leaving the Respondents to make an application for permission to apply for judicial review of the Magistrates’ Court’s committal, a long way out of time. Both parties wanted an answer to the question of whether, on the facts found, the magistrates had acted without jurisdiction. Mr Heller for the prosecutor, though rightly concerned about the effect of delay, did not contend, when the jurisdiction issue was raised, that this claim should have been brought by judicial review and so was now out of time.[22]In the circumstances, the most practical solution and the least unappealing amongst the unappealing range of alternatives, is to treat the proceedings before us as the substantive judicial review of both the Magistrates’ Court and the Crown Court decisions; to treat service on both Courts as waived, on the grounds that they are not prejudiced and, at this time remove, would be unable to assist us further; and to waive all other procedural requirements. We were told that the Magistrates’ Court had produced a statement about events before them but could cast no light on what had happened. Therefore, for entirely practical reasons in the particular circumstances of the case, and in order to avoid further adjournments and hearings, I propose treating the evidence before us as confined to the four corners of the Case. Neither counsel suggested otherwise when the jurisdiction issue was raised and the possibility of treating the hearings as judicial review hearings was mooted, or sought to adduce further evidence before us, or sought an adjournment to adduce further evidence on any issue. Again, at this stage, I am unpersuaded that there is any further useful evidence to be obtained, very unsatisfactory (see below) though the Crown Court finding was. On that basis I would quash the Crown Court decision. I therefore now consider the position on the judicial review of the Magistrates’ Court.[23]One additional matter falls to be mentioned at this point. The Questions (posed in the Case) have already been set out. I revisit them later. But whether in its original form or in some amended form the substance of a question proposed to the (Crown Court) Judge must form part of the inquiry before us. That additional Question was in these terms:
“Whether the learned Judge was correct to permit the Defendants to raise the question of validity of the committal for sentence 21 months after their cases were committed to the Crown Court under s.70 of the Proceeds of Crime Act 2002, and just one month before the listing of what would have been the final hearing of the matter?”
I shall refer to this Question as Question III.[24]HHJ Grieve QC declined to include Question III in the Case, on the ground that at the hearing before him:
“ counsel for the applicant did not dispute the defendants’ entitlement to raise the issue of the validity of the pleas entered in the magistrates’ court. This question therefore did not, and does not, arise.”
For my part, with respect, it seems clear that there must have been some misunderstanding and that counsel and the Judge were simply at cross-purposes. The proposed additional Question went to lapse of time and the progress of the confiscation proceedings in the meantime. It is clear from the Case that these issues were raised before the Judge. At all events, we indicated that we would hear argument on this additional Question and did so. There was no opposition from either counsel to the course we took.

THE LEGAL FRAMEWORK

[25]S.17A of the MCA is central to the dispute before us and provides, insofar as relevant, as follows:
“ (1) This section shall have effect where a person who has attained the age of 18 years appears or is brought before a magistrates’ court on an information charging him with an offence triable either way. (2) Everything that the court is required to do under the following provisions of this section must be done with the accused present in court. (3) The court shall cause the charge to be written down, if this has not already been done, and to be read to the accused. (4) The court shall then explain to the accused in ordinary language that he may indicate whether (if the offence were to proceed to trial) he would plead guilty or not guilty, and that if he indicates that he would plead guilty – (a) the court must proceed as mentioned in subsection (6) below; and (b) he may be committed for sentence to the Crown Court under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 if the court is of such opinion as is mentioned in subsection (2) of that section. (5) The court shall then ask the accused whether (if the offence were to proceed to trial) he would plead guilty or not guilty. (6) If the accused indicates that he would plead guilty the court shall proceed as if – (a) the proceedings constituted from the beginning the summary trial of the information; and (b) section 9(1) above was complied with and he pleaded guilty under it. …..”
[26]It is convenient to set out S. 9(1) of the MCA here:
“ On the summary trial of an information, the court shall, if the accused appears, state to him the substance of the information and ask him whether he pleads guilty or not guilty.”
[27]S.17A(4) envisages the court explaining the matters there set out to the accused, personally. Likewise, the language used certainly appears to require the indication of a guilty plea dealt with in sub-sections (4) and (5) to come from the accused personally. Sub-section (6) serves, in effect, as a deeming provision, converting an indication of a guilty plea into a guilty plea, as is clear from the cross-reference to s.9(1). S18 is also worth noting for the distinction it draws, where a plea of not guilty is indicated, between the accused and his representatives, a distinction absent from s17A.[28]Turning to authority, the position in the Crown Court is clear: only a defendant personally can enter a plea of guilty. No departure from this rule is permitted and any departure renders subsequent proceedings void, upon an appropriate application being made within time or with an extension of time, and upon the relevant facts being found by a court of competent jurisdiction.[29]In R v Ellis (1973) 57 Cr App R 571, the defendant’s counsel rather than the defendant personally had made his plea of guilty. After citing previous authority, Edmund Davies LJ (as he then was) said this (at pp.574 - 575):
“ ….before a criminal trial by judge and jury can be properly launched there must generally be an arraignment of the accused of the offence charged and he must personally answer to it, and ….this cannot be done through counsel or any other person on his behalf…. …great mischief could ensure if a legal representative was generally regarded as entitled to plead on an accused’s behalf. It would open the door to dispute as to whether, for example, counsel had correctly understood and acted upon the instructions which the accused had given him, and if a dispute of that kind arose, the consequential embarrassment and difficulty could be difficult in the extreme. We think that the only safe and proper course accordingly is to say… that (apart from a few very special cases) it is an invariable requirement that the initial arraignment must be conducted between the Clerk of the Court and the accused person himself or herself directly…. ”
The upshot was a mistrial; the defendant’s conviction was quashed and a retrial ordered.[30]In R v Williams [1978] QB 373, in a Crown Court trial, a misunderstanding led the clerk of the court to empanel a jury without taking the defendant’s not guilty plea. The defendant was convicted and argued that the trial was a nullity because he had not pleaded. The appeal was dismissed. It was implicit in the proceedings that the defendant had waived his right to plead not guilty personally; accordingly, the defective arraignment had not invalidated the trial. Giving the judgment of the Court, Shaw LJ distinguished between pleas of guilty and pleas of not guilty. As to guilty pleas, Shaw LJ, having cited Ellis, said this (at p.378):
“…There [i.e., in Ellis] the critical issue was whether a plea of guilty tendered by counsel and not by the accused himself could be regarded as an effective and binding plea. It is of course plain to see why it cannot and should not be so regarded. It is a plea which is self-incriminatory and self-incrimination cannot be vicariously accomplished. Any contrary view would be fraught with manifest dangers. Injustice rather than justice would be the likely products of a principle which permitted indirect delegated confessions of guilt. No qualification of or deviation from the rule that a plea of guilty must come from him who acknowledges guilt is thus permissible. A departure from the rule in a criminal trial would therefore necessarily be a vitiating factor rendering the whole procedure void and ineffectual……”
[31]Further authorities expand on the analysis and consequences of non-compliance with the provisions of s.17A, MCA (or its predecessors).[32]In R v Cockshott and Others [1898] 1 QB 582, this Court held that where a defendant had not been informed of his right to be tried by a jury (on an either way offence) before he pleaded guilty in the magistrates’ court, the conviction – following his guilty plea – was bad. Dealing with the question of waiver, Wright J said this (at p.586):
“ As to the waiver which has been suggested, there cannot be a waiver of a right which the defendant does not know that he has. I doubt whether he could waive the right to be informed of his option to be tried by a jury if he knew that he had the option. I am inclined to think that, the duty to inform having been imposed upon the Court for the protection of all accused persons, the right to be informed could not be waived….. ”
[33]In R v Kent Justices, Ex parte Machin [1952] 2 QB 366, this Court quashed the applicant’s convictions in the following circumstances. The applicant had been charged before the justices with indictable offences. He consented to summary trial but it had not been explained to him that he might be committed to the Quarter Sessions for sentence. Granting the order for certiorari, Lord Goddard CJ, cited Cockshott and referred (at p.359) to the statutory provisions in question as “peremptory” because “for many centuries in English history an indictable offence could only be tried by a jury and the power of magistrates to try cases of theft and false pretences is purely the creation of statute”. Continuing, Lord Goddard CJ (at pp.360 - 361) expressed his conclusion in these terms:
“The convictions must be quashed because the justices took upon themselves, although with the consent of the prisoner, to try offences summarily without a strict compliance with the provisions of the Act, which alone allow an indictable offence to be tried summarily….. In this case we hold that the convictions were bad and therefore the case could not be sent forward for sentence to quarter sessions, because the justices never had jurisdiction to try it because the provisions of the section had not strictly been complied with.”
[34]The decision of the Court of Appeal in R v Sekhon [2002] EWCA Crim 2954; [2003] 1 WLR 1655 arose in the context of the myriad statutory procedural requirements for confiscation orders. Giving the judgment of the Court, Lord Woolf CJ observed (at [28]):
“….that it would not have been the intention of Parliament to exclude the jurisdiction of the court in relation to the making of confiscation orders because of procedural defects of a technical nature that caused no injustice to the defendant….”
However, Lord Woolf went on to say (at [29]):
“ We would expect a procedural failure only to result in a lack of jurisdiction if this was necessary to ensure that the criminal justice system served the interests of justice and thus the public or where there was at least a real possibility of the defendant suffering prejudice as a consequence of the procedural failure.”
[35]In R v Soneji [2005] UKHL 49; [2006] 1 AC 340, again in the context of confiscation orders, the House of Lords held that the correct approach to an alleged failure to comply with a provision prescribing the doing of some act before a power was exercised was to ask whether it was a purpose of the legislature that an act done in breach of that provision should be invalid. Building on the influential analysis of Lord Hailsham of St Marylebone LC in London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182, at pp. 189-190, this decision signalled a move away from the dichotomy between “mandatory” and “directory” requirements and a move towards placing the emphasis on the consequences of non-compliance – and whether Parliament can fairly be taken to have intended total invalidity: see, esp. the speech of Lord Steyn, at [14] – [23].[36]I come next to the decision in R v Ashton [2006] EWCA Crim 794; [2007] 1 WLR 181, where, as explained at [1], the applications before the Court raised linked issues as to the consequences in law when there had been irregularity in the way in which an accused had come to be convicted and/or sentenced at the Crown Court. Dealing with the application of the principles to be derived from Sekhon and Soneji, Fulford J (as he then was), giving the judgment of the Court, said this “ 4. ….Indeed, these three applications demonstrate how far-reaching the effect of those authorities is likely to be whenever there is a breakdown in the procedures whereby a defendant’s case progresses through the courts (as opposed to the markedly different situation when a court acts without jurisdiction). In our judgment it is now wholly clear that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised (‘a procedural failure’), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue. 5. On the other hand, if a court acts without jurisdiction – if, for instance, a magistrates’ court purports to try a defendant on a charge of homicide – then the proceedings will usually be invalid.” In the event, two of the three applications before the Court were refused, as constituting procedural failures, whereas the third was granted and the appeal therein was allowed, on the ground that the defect was wholly jurisdictional rather than procedural in nature.[37]For present purposes, it is pertinent to note that the Court in Ashton (at [69]) referred to Cockshott and Ex p Machin without disapproval; to the contrary, they were “clearly important” authorities with regard to the approach to be adopted when there has been a material procedural failure – albeit noting that they preceded Sekhon and Soneji. Furthermore, the Court (at [87]) treated the “informed acquiescence” of the accused as a “significant relevant factor when assessing the twin issues of prejudice and whether or not it is just for the proceedings to continue” in the case of a procedural failure. However, earlier (at [83]), the Court acknowledged, in my view with approval, counsel for the Crown’s (Mr Perry, as he then was) acceptance that “waiver cannot operate to confer jurisdiction”. The Court’s observations on waiver and acquiescence were thus directed to procedural failure rather than the case of a court acting without jurisdiction.[38]In R v Clarke [2008] UKHL 8; [2008] 1 WLR 338 the House of Lords quashed convictions where an indictment had not been signed by a proper officer until a late stage in the proceedings. As the head note records, the House held that a bill of indictment should not become an indictment unless and until duly signed; that, in the absence of an indictment, there could be no valid trial on indictment and thus the proceedings were invalidated; finally, the signing of the indictment at a late stage of the proceedings could not validate the invalid proceedings already conducted.[39]In coming to its decision, the House considered Sekhon, Soneji and Ashton. At [14], Lord Bingham of Cornhill, giving the leading speech, accepted the “general validity” of the distinction drawn in Ashton at [4] – [5] (set out above), while remarking that “I would myself express the decision to be made rather differently”. Addressing the argument that Ashton had represented a victory of “substance” over “formalism”, Lord Bingham said this (at [17]):
“ … It is always, of course, lamentable if defendants whose guilt there is no reason to doubt escape their just deserts…. Technicality is always distasteful when it appears to contradict the merits of a case. But the duty of the court is to apply the law, which is sometimes technical, and it may be thought that if the state exercises its coercive power to put a citizen on trial for serious crime a certain degree of formality is not out of place…”
[40]Lord Bingham went on to say (at [20]) that the decisions in Sekhon and Soneji were “valuable and salutary” but the effect of the sea change they had wrought had been exaggerated and they did not warrant “… wholesale jettisoning of all rules affecting procedure irrespective of their legal effect.” Disagreeing with Ashton on a point not relevant for present purposes, Lord Bingham and the House went on to allow the appeals.[41]R (Rahmdezfouli) v The Crown Court sitting at Wood Green v The London Borough of Barnet [2013] EWHC 2998 (Admin) was a decision of this Court, following an unsuccessful application on the claimant’s part in the Crown Court to vacate his plea of guilty entered in the magistrates’ court. The offences there alleged were the same as those alleged here. As set out in the judgment (at [4]), the claimant contended that the Crown Court Judge erred in refusing to allow him to vacate his plea after finding as a fact that the magistrates’ court clerk had “failed to ask the statutory questions of the applicant” as required by s.17A of the MCA. It was not disputed (see, at [6]) that the requisite procedure had not been followed “in any respect”. As further appears from the judgment:
“ ...defence counsel conferred with his client and on coming into court told the court that his client wished to plead guilty to the offence. It was argued by the Interested Party ….. that it was therefore appropriate for the court to accept from what counsel said that this defendant was fully aware of the implications of the offence to which he was intending to plead guilty and should therefore be regarded as having been fully informed before making that decision.”
It may be noted that the Interested Party had made that submission on paper; it did not appear before this Court; neither did the Crown Court.[42]Mr Clegg QC, who appeared in that case too for the claimant, submitted:
“ 7 ….that there was a requirement that the defendant should at the least have explained to him by the court, in ordinary language as the section requires, of four essential things: that the offence he faced was an either way offence; that he would be asked for an indication as to his plea if the case proceeded to trial; that if he indicated he wished to plead guilty that would be treated as a guilty plea; and fourthly that the court had the power to send him to the Crown Court for sentence if it thought right so to do.”
As Mackay J, giving the judgment of the Court put it:
“ 9 The issue therefore in this claim is whether it was the intention of Parliament that a failure to follow the statutory procedure laid down in section 17A rendered all subsequent proceedings invalid and a nullity, or whether they were to be considered a procedural failure ….”
[43]Mr Clegg’s submission (recorded at [11]) was that the failure in that case “went to the heart of the court’s jurisdiction”. A magistrates’ court only derived its jurisdiction from statute and was only entitled to try an either way offence, as opposed to a summary offence, where the statutory requirement has been fully complied with.[44]Mackay J observed (at [12]) that there was “a clear line of authority” supporting Mr Clegg’s submission. He referred, inter alia, to Cockshott and Ex p Machin. He noted that (as already observed) these authorities had not been disapproved of in Ashton (at [67] – [69]). Quashing the conviction, Mackay J’s essential reasoning was as follows (at [16]):
“ Adopting the criterion expressed in paragraph 4 of Ashton and not disapproved by the House of Lords in ….[Clarke]…, the legislature in enacting section 17A must have intended …., acting in line with then existing authority, that where a magistrates’ court declined or failed to follow the requirements of the section it was acting without jurisdiction every bit as much as if, for instance, it had purported to try a defendant on a charge of homicide…..”
It may be noted that although the proceedings were in form a challenge to the Crown Court decision, and the Magistrates’ Court was not a party, Mr Clegg’s submissions evolved into a challenge to the Magistrates’ Court decision - and it was that decision that was quashed.[45]Pulling the threads together: i) Although Mr Heller sought to contend otherwise, I cannot agree that the position under s.17A of the MCA in the magistrates’ court is different from that on arraignment in the Crown Court. Although the magistrates’ court is dealing with an indication of a plea, s.17(A)(6) and s.9(1) of the MCA, as already demonstrated, serve to treat that indication as a plea. The fact that in cases of committal for sentence, there will be a moment in the Crown Court where the defendant accepts that he/she has been committed from the magistrates’ court does not to my mind furnish a relevant distinction. ii) It is neither here nor there that Ellis and Williams precede the MCA. Mr Clegg submitted, rightly in my view, that the MCA was a consolidating statute. iii) Ellis spoke of a few exceptions to the requirement that a defendant must enter a guilty plea personally. Suffice to say that none of those exceptions is applicable here. iv) It follows that the observations in Ellis and Williams are equally applicable in the magistrates’ court in respect of indications of guilty pleas. It is correct that the observations in Williams in this regard were, strictly, obiter but the combination of Ellis and Williams is powerfully persuasive. v) It is, as it seems to me, beyond sensible argument to the contrary that s.17A, MCA requires the defendant to enter a guilty plea personally and that a failure to do so involves non-compliance with the provisions of the section. This is so whatever the position may be in respect of other provisions of the MCA. Thus, for example, s.122 provides that an absent party represented by a legal representative is not deemed to be absent. But even there it may be doubtful whether a legal representative can enter a binding guilty plea in the absence of the accused: see, Blackstone (2017), at D22.5. vi) In general, the law has moved away from the “mandatory”/ “directory” dichotomy and now asks instead whether the legislature intended that the consequences of a procedural failure should entail the invalidity of the proceedings which follow. In doing so and as has been seen, the law distinguishes broadly between “mere” procedural failure and proceeding without jurisdiction. Informed acquiescence, or waiver, on the part of the accused may be of the first importance to the former but, as recounted in Ashton, waiver cannot operate to confer jurisdiction. Clarke serves as an authoritative reminder that there are instances where, however technical or lamentable it may be, a procedural requirement may be jurisdictional, so that non-compliance results in the invalidity of the proceedings which ensue, upon the appropriate application being brought in time or within any extended time. As it seems to me, the observations in Ex p. Machin and Williams epitomise this approach. vii) For completeness, it is a part of the confiscation context (Sekhon and Soneji) that the Court is under a statutory duty to make a confiscation order where the requisite conditions are satisfied. The conclusion that non-compliance with a statutory requirement is there treated as a “mere” procedural failure fits readily within this context. viii) The requirements of s.17A (or its predecessors) have been consistently treated in the authorities as jurisdictional: Cockshott, Ex p Machin and Rahmdezfouli. In this regard, although it is relevant that only the claimant was represented in Rahmdezfouli, the Court’s decision was plainly based on a careful consideration of the authorities, so that its persuasive authority is not materially reduced. ix) Here, as elsewhere, decisions of Courts cannot be ignored and will stand unless or until successfully challenged by an appropriate application made within time or any extension of time.

CONCLUSIONS

[46]Against this background of statute and authority, I can state my conclusions relatively briefly.[47]First, on the basis of the facts set out in the Case, the requirements of s.17A, MCA were not complied with in the magistrates’ court: the indication of the Respondents’ guilty pleas was not given by the Respondents personally. I have already explained the pragmatic basis for adhering to the findings of the Crown Court.[48]Secondly, on the authority of Cockshott, Ex p Machin, Ellis, Williams and Rahmdezfouli, had the point been taken promptly by the appropriate application and certainly by the time of the first Crown Court hearing, there could be no realistic doubt that the pleas and the proceedings to date would have been treated as nullities. The non-compliance was jurisdictional in nature.[49]Thirdly, the next question in the present case is whether those authorities are dispositive in circumstances where after the non-compliant indication of guilty pleas the Respondents admitted at the first hearing in the Crown Court that they had been committed from the magistrates’ court. That committal could only have come about following guilty pleas. Moreover, they participated in the interlocutory hearings in the confiscation proceedings – including the s.17 POCA responses. For 21 months, nothing was said to cast doubt on the validity of those guilty pleas. As a matter of “merits”, there is a most attractive argument that the Respondents have accepted the position so clearly that they cannot now take the point that their pleas (and all subsequent proceedings) were nullities.[50]As it seems to me: i) If the proceedings had been brought by appeal by way of case stated, the 21-day time limit would have applied to them. Likewise, in an application for permission to apply for judicial review s31(6) of the Senior Courts Act 1981 would apply, along with the extendable time limits of judicial review in CPR, Part 54.5, and the need for permission. Proper grounds to explain the delay would be required in relation to which prejudice and all other circumstances would be considered. These circumstances would include the nature of the decision challenged, its factual strength and the implications of refusing an extension. ii) Where, however, with any necessary extension of time, permission has been granted and facts have been found which show that the court had no jurisdiction to convict or commit, the conviction would be quashed. That is the position here.[51]Once the procedural difficulties have been put to one side (as they have in the peculiar circumstances of this matter), the insuperable difficulty is that – as established by authority – the jurisdiction of the magistrates’ court to deal with these either way offences is conditional on strict compliance with the s.17A, MCA requirements. A failure so to comply, here constituted by not taking the indication of pleas from the Respondents personally, meant that the magistrates’ court was acting without jurisdiction. It follows that the committal for sentence was invalid, thus fatally undermining the Crown Court proceedings: see, for instance, the observations in Ex p. Machin and Williams. The defect, once found, could not be cured or overcome by waiver, ratification, acquiescence or the like; none of these, as expressed in Ashton, could operate to confer jurisdiction. It will be recollected that in Clarke the absence of an indictment meant that there could be no valid trial on indictment and the signing of the indictment at a late stage could not validate the invalid proceedings already conducted – as here, without objection. Here too, as interpreted by authority, Parliament’s intention must be understood as meaning that non-compliance with the s.17A, MCA requirements results in the invalidity of any proceedings which follow - so reflecting the fundamental importance of guilty pleas being entered personally; and that such invalidity, once found, was incurable by the Respondents’ participation in the proceedings which followed. Accordingly, I am, most reluctantly, driven to the conclusion that the Respondents’ submission is correct in law. Put another way, any other conclusion would run strongly and unacceptably counter to the tenor of authority, to which reference has been made.[52]I reiterate that the approach followed in this case is based on the following considerations: the case is where it is because of the procedural errors made on all sides, so that, in effect, each party required our indulgence; the need for a pragmatic response at the stage this case has reached; the problems of deciding whether to grant permission when the case is already before us, and the facts have been found. This approach is no guide at all as to how a court should approach judicial review applications of this nature in the future. It is to be hoped that the court is not put in this position again.[53]I return to the Questions and to the form of Order. It follows from the conclusions to which I have come that I would have answered the Questions as follows: i) Question I: yes; ii) Question II: yes; iii) Question III: see above; it cannot be answered yes or no; it depends.[54]In the event, as this matter is to be treated as a Judicial Review rather than an appeal by way of case stated, the Questions need not be formally answered. Instead, the Order (to be drawn up by counsel) should reflect that on waiving all procedural requirements, and the Court treating the proceedings as including applications for judicial review of the decisions of the Crown Court and of the Magistrates’ Court: i) the indications of pleas by counsel on behalf of the Respondents in the magistrates’ court are quashed; ii) the magistrates’ court committal of the Respondents for sentence to the Crown Court is quashed; iii) The decision of the Crown Court is quashed. Counsel should draft directions for the further conduct of the matter before the Magistrates’ Court.[55]Having regard to the history of these proceedings, I do not regard the outcome of the matter before us as necessarily precluding argument as to the incidence of costs for the proceedings to date. For my part, I would entertain submissions in writing in the absence of agreement in this regard.[56]Finally, before parting from these proceedings, I venture the following observations: i) The factual foundation for the conclusion that the Respondents had not personally indicated their intention to plead guilty lay in the prosecution concession in 2016, recorded in the Case, and which could not be disavowed before us. The basis for this was an attendance note of the Respondents’ then solicitor – the solicitor himself did not attend to give evidence, nor was there a witness statement from him. We do not know whether other evidence was sought or obtained, apart from the witness statement from the Magistrate’s Court to which I have referred. The lateness of the challenge, presence at the hearing while the pleas were indicated and the participation in the confiscation process are also all consistent with the proper entry of guilty pleas. There appears to have been no evidence at all from either Respondent. On what basis this “evidence” could outweigh the presumption of regularity, with respect, I struggle to understand. That presumption appears to have been overlooked entirely, yet should be of great weight when an issue of this nature is raised at such a distance in time. On this footing, the present case can be seen as exceptional. Should the contention be repeated in other cases that guilty pleas had not been indicated or entered personally, I would anticipate a very close scrutiny of the available evidence, against the background of the clear presumption of regularity. ii) That said, the present case stands as a reminder that guilty pleas in the magistrates’ court must be indicated or entered by defendants personally. All concerned should take care to ensure that this is the case; a failure to do so can (as has been seen here) give rise to an unnecessary waste of time and money. The importance of maintaining a suitable record is likewise apparent. iii) Further, it may be prudent to review the proposals for developing written and online procedures (for example, contained in the Prisons and Courts Bill 2017) to ensure that they do not inadvertently fall foul of the requirements of s.17A, MCA canvassed in this judgment. Mr

Justice Ouseley:

[57]I agree.

Cited in 6 later judgments