Angelina Jobson v Director of Public Prosecutions [2025] EWHC 1385 (Admin)

[2025] EWHC 1385 (Admin)Case No AC-2024-LDS-000095
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue SITTING IN LEEDS, Leeds Combined Court Centre
The Courthouse
1 Oxford Row
Venue LeedsDate 05/06/2025
LS1 3BG
Before
MRS JUSTICE HILL DBE
Between
ANGELINA JOBSONAppellantDIRECTOR OF PUBLIC PROSECUTIONSRespondent
Tony Cornberg (instructed by Crowe Humble Wesencraft) for ClaimantVincent Scully (instructed by the Crown Prosecution Service) for DefendantHearing Hearing date: 13 May 2025
Approved JudgmentThis judgment was handed down remotely at 10:30am on 5 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

[1]The Appellant appeals by way of case stated against the decision of District Judge (Magistrates’ Courts) Currer (“the District Judge”) sitting in the Newcastle-upon-Tyne Magistrates’ Court on 23 February 2024. On 26 April 2024 the District Judge stated the following case for consideration by this court:
“Was I correct to find that a low value shop theft is not time barred under the provisions of section 127 [of the Magistrates’ Courts Act 1980 (“the MCA”)] in circumstances when the proceedings are brought outside of the 6 months’ time limit for summary only offences?”
[2]The Respondent’s position is that the District Judge had reached a correct finding on the issue, in light of Candlish v DPP [2022] EWHC 842 (Admin), [2022] 2 Cr App R 21.[3]The Appellant contends that the District Judge erred, such that the proceedings against her were time barred and her resulting conviction ought to be quashed.

The factual background

[4]The factual background to this appeal is agreed, as follows.[5]On 26 October 2023, the Appellant was charged by way of a postal charge and requisition with an offence of theft of £88 of meat from a butcher’s shop. The alleged offence had taken place on 10 April 2023, such that the Appellant was charged six months and 15 days later.[6]On 15 November 2023 the Appellant failed to attend her first appearance at the Magistrates Court and a warrant was issued for her arrest.[7]On 5 December 2023, the warrant having been executed, the Appellant appeared before the Magistrates Court. She pleaded guilty and was given a conditional discharge for six months.[8]Later the same day, the Appellant’s representatives realised that the prosecution had been commenced against her more than six months after the alleged offence. They applied to the District Judge to re-open the case against her under s.142 of the MCA, so that they could raise the issue of the prosecution being time barred.[9]On 23 February 2024, the Appellant’s application came before the District Judge, who heard full argument on the issues before dismissing the application, in reliance on Candlish. The District Judge then stated the case for the opinion of this court.

The statutory framework

[10]The MCA, s.127 makes provision in respect of the time limits for commencing proceedings as follows:
“127 Limitation of time (1) Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates’ court shall not try an information The reference to “an information” in s.127(1) should now be read as referring to “a written charge (or to the issue of a written charge)”: see ss.29 and 30(5)(a) of the Criminal Justice Act 2003. or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose. (2) Nothing in — (a) subsection (1) above; or (b) subject to subsection (4) below, any other enactment (however framed or worded) which, as regards any offence to which it applies, would but for this section impose a time-limit on the power of a magistrates’ court to try an information summarily or impose a limitation on the time for taking summary proceedings, shall apply in relation to any indictable offence. (3) Without prejudice to the generality of paragraph (b) of subsection (2) above, that paragraph includes enactments which impose a time-limit that applies only in certain circumstances (for example, where the proceedings are not instituted by or with the consent of the Director of Public Prosecutions or some other specified authority). (4) Where, as regards any indictable offence, there is imposed by any enactment (however framed or worded, and whether falling within subsection (2) (b) above or not) a limitation on the time for taking proceedings on indictment for that offence no summary proceedings for that offence shall be taken after the latest time for taking proceedings on indictment.” (1) Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates’ court shall not try an information The reference to “an information” in s.127(1) should now be read as referring to “a written charge (or to the issue of a written charge)”: see ss.29 and 30(5)(a) of the Criminal Justice Act 2003. or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose. (2) Nothing in — (a) subsection (1) above; or (b) subject to subsection (4) below, any other enactment (however framed or worded) which, as regards any offence to which it applies, would but for this section impose a time-limit on the power of a magistrates’ court to try an information summarily or impose a limitation on the time for taking summary proceedings, shall apply in relation to any indictable offence. (3) Without prejudice to the generality of paragraph (b) of subsection (2) above, that paragraph includes enactments which impose a time-limit that applies only in certain circumstances (for example, where the proceedings are not instituted by or with the consent of the Director of Public Prosecutions or some other specified authority). (4) Where, as regards any indictable offence, there is imposed by any enactment (however framed or worded, and whether falling within subsection (2) (b) above or not) a limitation on the time for taking proceedings on indictment for that offence no summary proceedings for that offence shall be taken after the latest time for taking proceedings on indictment.”
[11]Accordingly, there is a general time limit of six months for commencing proceedings in the Magistrates Court, except in relation to(i) offences for which a different time limit is expressly provided by any enactment; and(ii) “any indictable offence”; unless that offence has a time limit for proceeding on indictment, in which case that time limit applies also to summary proceedings for that offence. An offence of theft contrary to s.1 of the Theft Act 1968, in common with very many indictable offences, has no statutory time limit.[12]The MCA, s.22A makes provision about the mode of trial for low-value shoplifting, as follows: “22A Low-value shoplifting to be a summary offence(1) Low-value shoplifting is triable only summarily.(2) But where a person accused of low-value shoplifting is aged 18 or over, and appears or is brought before the court before the summary trial of the offence begins, the court must give the person the opportunity of electing to be tried by the Crown Court for the offence and, if the person elects to be so tried— (a) subsection (1) does not apply, and (b) the court must proceed in relation to the offence in accordance with section 51(1) of the Crime and Disorder Act 1998.(3) “Low-value shoplifting” means an offence under section 1 of the Theft Act 1968 in circumstances where— (a) the value of the stolen goods does not exceed £200, (b) the goods were being offered for sale in a shop or any other premises, stall, vehicle or place from which there is carried on a trade or business, and (c) at the time of the offence, the person accused of low-value shoplifting was, or was purporting to be, a customer or potential customer of the person offering the goods for sale.(4) For the purposes of subsection (3)(a)— (a) the value of the stolen goods is the price at which they were being offered for sale at the time of the offence, and (b) where the accused is charged on the same occasion with two or more offences of low-value shoplifting, the reference to the value involved has effect as if it were a reference to the aggregate of the values involved.(5) A person guilty of low-value shoplifting is liable on summary conviction to— (a) imprisonment for a period not exceeding 51 weeks (or 6 months, if the offence was committed before the commencement of section 281(4) and (5) of the Criminal Justice Act 2003), (b) a fine, or (c) both.(6) A person convicted of low-value shoplifting by a magistrates’ court may not appeal to the Crown Court against the conviction on the ground that the convicting court was mistaken as to whether the offence was one of low-value shoplifting.(7) For the purposes of this section, any reference to low-value shoplifting includes aiding, abetting, counselling or procuring the commission of low-value shoplifting”.[13]The effect of s.22A is to make shoplifting of items which in aggregate are priced at or below £200 triable only summarily unless the defendant elects to have them tried in the Crown Court.

Candlish v DPP [2022] EWHC 842 (Admin), [2022] 2 Cr App R 21

[14]The Appellant was accused of eight offences of shoplifting, between 29 July and 26 August 2018. The individual thefts were each of goods to the value of less than £200, but in total amounted to £442.57. On 16 April 2019 he was charged by a single postal charge and requisition with all eight thefts. The justices at Gateshead Magistrates Court determined that because the aggregate value exceeded £200 they were not bound by the six month time limit, and convicted Mr Candlish, but stated a case for the consideration of the High Court. The appeal came before a Divisional Court.[15]Jeremy Baker J (with whose judgment Thirlwall LJ agreed) recorded the second question in the stated case as: “Should ‘low value’ shop theft allegations be treated as summary stand-alone offences, notwithstanding their aggregate value, up to the point of plea and allocation; thereby instigating the six-month time limit to lay an information, imposed by virtue of Section 127 Magistrates’ Courts Act 1980?”: [10].[16]The central part of his judgment on this issue is as follows: “26. It is, to my mind, quite rightly a matter of agreement between the parties in this case that, in accordance with what was said in Harvey [[2020] EWCA Crim 354, [2020] 2 Cr App R 10], the phrase, “charged on the same occasion,” in s22A(4)(b) of the 1980 Act, refers to the stage at which the offender first appears before the justices to answer the charges, rather than any earlier stage. That being the situation, it seems to me that the issue for determination in this case is the status of the individual offences of theft prior to the appellant’s first appearance before the justices, which in turn is dependent upon the stage at which it is to be determined whether an offence of theft fulfils the criteria for being a low-level shoplifting offence.27. In this regard, although it would be possible to have regard to the provisions of s22A serially, as is implicit in the appellant’s submission, the better view is that they should be considered as a whole, and that in order to determine whether an offence of theft qualifies as a low-value shoplifting offence, it is necessary to have regard to both subsections (3) and (4), such that the stage at which an offence of theft may become a low-level shoplifting offence, because it fulfils the criteria set out in s22A, is on the occasion that the accused appears before the Magistrates Court to answer the charge. Until then the offence of theft is, like all other offences of theft, an indictable offence, in that it is triable either way.28. There is nothing to suggest otherwise in the provisions themselves, and the natural reading of s22A is for it to be construed as a whole. Moreover, the effect of the determination as to whether an offence of theft is a low-value shoplifting offence taking place at the stage when an accused appears before the magistrates to answer the charges, has an equivalence under subsection (2) with the stage at which, notwithstanding the determination that the accused is charged with a low-value shoplifting offence, they are nevertheless entitled to elect to be tried in the Crown Court.” [my emphasis][17]Accordingly, he concluded that the justices were correct in their determination that not only were the offences of theft alleged against the appellant not low-value shoplifting offences, due to the effect of aggregation of the value of the individual offences, but those offences were “not subject to the limitation of time in s127(1) of the 1980 Act, due to the fact that they had been and remained indictable offences throughout the course of the proceedings”: [31]. On that basis he answered the second question in the stated case “No”: [32].

Submissions and analysis

[18]The Respondent accepted that if the prosecution was time-barred by s.127, the District Judge should have acceded to the application under s.142 for the proceedings to be re-opened. The Appellant would then have been able to vacate her plea and the proceedings would have been brought to an end. Accordingly, the only issue that arises in this appeal is whether the District Judge was correct to rule as he did that the prosecution was not time-barred.

The ratio and underlying reasoning of Candlish

[19]Mr Cornberg for the Appellant submitted that this case could be distinguished from Candlish because the latter concerned aggregation: the judgment, he said, must be seen “through the lens” of cases where the items allegedly stolen had an aggregate value of over £200. Candlish was not a case where the court was seeking to make a general point about all low-value thefts: rather its findings were limited to those where the aggregate value was over £200. This was not such a case. Indeed, this was never a case that was going to come close to the £200 threshold.[20]I cannot accept this submission. The central issue in Candlish wasthe status of individual offences of theft prior to the appellant’s first appearance before the justices: [26], cited at [16] above. The conclusion reached was that the stage at which an offence of theft may become a low-value shoplifting offence within s.22A is the occasion when the accused appears before the Magistrates Court to answer the charge; and that “until then, the offence of theft is, like all other offences of theft, an indictable offence, in that it is triable either way”: [27], also cited at [16] above.[21]In my judgment the use of the phrase “like all other offences of theft” in this passage makes plain that the ratio of the judgment was not limited to cases about aggregation: rather this was a statement of general application to all theft offences, to the effect that they are all indictable or triable either way until the first appearance before the Magistrates. Accordingly, Candlish is not limited to aggregation cases. It applies to all theft offences, including those such as the Appellant’s case which did not involve any suggestion of aggregation.[22]I therefore accept the primary submission of Mr Scully for the Respondent, to the effect that the ratio in Candlish, or at least its underlying reasoning, is directly applicable to the scenario here where aggregation was never in issue.[23]On this analysis, based on the wording of Candlish, the District Judge was correct. I now turn to the further arguments advanced by Mr Cornberg to suggest that this analysis was wrong.

Pre-Candlish authorities

[24]Mr Cornberg cited several earlier authorities which he contended supported the proposition that Candlish did not apply to non-aggregation cases.[25]In Maxwell [2017] EWCA Crim 1233, [2018] 1 Cr App R 5 the appeal centred on whether three charges of low-value theft had been wrongly joined to an indictment. The Court of Appeal held that the aggregation provisions only applied as between the offences of low-value shoplifting, so the fact that one of the other offences reflected an alleged theft of over £200 could not assist the prosecution on the joinder issue. At [24] Treacy LJ concluded that a low-value shoplifting offence which “remains” summary only cannot be added to an indictment in these circumstances.[26]Similarly, in Burrows [2019] EWCA Crim 889 it had been wrongly recorded that the defendant had elected Crown Court trial for certain going equipped and theft charges when he had not in fact not done so. At [9] Sharp LJ (as she then was) observed that in those circumstances the theft offence “remained” summary only.[27]Mr Cornberg contended that the use of the verb “remain” in Maxwell and Burrows was important; and indicated that the low-value theft offences were summary only throughout, because their value had not reached the £200 threshold. He argued that these authorities contradict the proposition that low-value thefts are indictable until the point at which they reach the Magistrates’ Court and a determination is made as to their value. However, in my judgment that proposition is clear from the ratio and reasoning of Candlish for the reasons I have given at [20]-[21] above.[28]He also referred to Harvey [2020] EWCA Crim 354, where the Court of Appeal compared s.22A with the similar provision in s.22 concerning criminal damage. Cutts J observed that by enacting s.22A(4)(b), Parliament “intended that multiple offences of shoplifting, each involving theft of property worth less than £200, should no longer be seen as minor”. Further, the value of the offences should be assessed cumulatively and, if when taken cumulatively the value is over £200, each “becomes” an either-way offence with a consequent increase in the court’s sentencing powers: [22].[29]Mr Cornberg contended that the use of the verb “become” in Harvey was significant, and indicated that the low-value thefts were summary only until such point as they became indictable due to the aggregation provisions.[30]However, in common with Maxwell and Burrows, Harvey pre-dated Candlish. None of these cases considered the issue of the status of the individual offences of theft prior to the appellant’s first appearance before the justices, which was the specific issue in Candlish: see [15] above. Accordingly, the use of the verbs “remain” in Maxwell and Burrows and “become” in Harvey does not bear the significance Mr Cornberg sought to attach to them.[31]I do not therefore consider that these earlier authorities undermine my initial analysis of Candlish set out at [20]-[22] above.

The purpose of s.22A

[32]Mr Cornberg contended that to interpret Candlish as applying to non-aggregation cases would deprive s.22A of any real purpose, and that Parliament cannot have intended to pass a legislative provision without any practical application.[33]He is right that s.22A(1) states in terms that an offence of low-value shoplifting “is” triable only summarily. However, that sub-section cannot be read in isolation (as Candlish at [27] made clear: see [16] above); and s.22A(2) makes immediately clear that the proposition in s.22A(1) is not an absolute position. Rather, according to s.22A(2), an offence of low-value shoplifting can be tried by the Crown Court if the defendant so elects.[34]Moreover, as Mr Scully highlighted, s.22A does have some limited consequences: where it applies, no plea before venue hearings are required; and the Magistrates cannot deny a defendant who pleads not guilty a summary trial if they do not elect trial in the Crown Court. Accordingly s.22A may have speeded up proceedings for low-value shoplifting offences to some degree, which Mr Scully’s research indicated was the stated intention when the provision was introduced to Parliament.[35]It cannot therefore be said that interpreting Candlish as applying even when aggregation is not in issue deprives s.22A of any purpose, even if it perhaps does not achieve very much in practice. Accordingly, this argument does not show that the analysis of Candlish set out at [20]-[22] above is wrong.

Uncertainty in practice

[36]Mr Scully argued that to interpret Candlish as applying solely to aggregation cases would lead to unacceptable uncertainty. He posited the following example. An item worth £120 is stolen from a shop on 1 January 2023. On the Appellant’s interpretation of Candlish, that could be charged by itself up and until 30 June 2023 and no later. If, however, the hypothetical defendant committed another offence of theft to the value of £120 on 1 January 2024, then the first theft could be charged together with the second at any time (the scenario in Candlish). The Appellant’s interpretation therefore involves the possibility of an offence becoming statute-barred, but then becoming “un-barred” at a later date.[37]I do not accept that this scenario is unduly hypothetical, as Mr Cornberg contended. Rather, I agree with Mr Scully that it is realistic; and illustrates that the Appellant’s interpretation of Candlish would lead to the possibility of offences “drifting” in and out of a state of being capable of being prosecuted. Such a position is inconsistent with the need for certainty in the criminal law which the common law demands.[38]Moreover, such a position may amount to a breach of the prohibition on the retrospective application of the criminal law to an accused’s disadvantage derived from the European Convention on Human Rights, Article 7(1): see, for example, Advisory opinion on the applicability of statutes of limitation to prosecution, conviction and punishment in respect of an offence constituting, in substance, an act of torture P16-2021-001 (2022), where at [77] the Grand Chamber reiterated the Court’s finding that “where criminal responsibility has been revived after the expiry of a limitation period, it would be deemed incompatible with the overarching principles of legality (nullum crimen, nulla poena sine lege) and foreseeability enshrined in Article 7”. The position may be less stark if the revival of a time bar could have been foreseen, but there is no direct authority on that point.[39]The need for legal certainty and foreseeability therefore provides a further reason to adopt the interpretation of Candlish set out at [20]-[22] above.

Conclusion on the interpretation of Candlish and its effect on limitation

[40]For these reasons I conclude that the Respondent’s interpretation of Candlish is correct. All offences of theft from a shop, irrespective of value, are indictable up until the first appearance before the Magistrates Court, when the value and aggregate value are determined. Accordingly, when they charged, they are indictable offences, and s.127(1) does not apply by virtue of s.127(2). The fact that they later become triable only summarily does not affect the operation of s.127, which is concerned with whether charges were brought in time.[41]This means that the current CPS legal guidance to the following effect is correct:
“Although triable either way, shoplifting offences contrary to section 1 Theft Act 1968 involving goods of low value (currently no more than £200) are to be treated as summary only for the purposes of allocation subject to the defendant having the right to elect Crown Court trial…the 6 month time-limit to lay an information or to charge in section 127 MCA 1980 does not therefore apply when charging criminal damage or theft”
.

Conclusion

[42]Accordingly, the District Judge was right to decide this case as he did for the reasons he gave. Candlish is authority for the proposition that low-value shoplifting is an indictable offence unless and until the Magistrates’ Court decides it is not. The limitation provisions in s.127 do not apply. On that basis the answer to the question stated by the District Judge is “yes” and this appeal is dismissed.