Case No: 2002/4665/Z4

Neutral Citation No: [2003] EWCA Crim 1271

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 8 May 2003

Before :

LORD JUSTICE ROSE
MR JUSTICE MITCHELL
and 
MR JUSTICE EADY
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	REGINA		
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	CRAIG WHITEHEAD		

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Mr S Ball appeared on behalf of the CROWN
Mr S Knapp appeared on behalf of the APPLICANT

Hearing date : 16 April 2003
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JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Mr Justice Eady  : 

1.	On 18 June 2002 the applicant, now aged 30, pleaded to five “either way” offences, as well as to two summary offences of common assault and two offences under the Bail Act (themselves classified as summary offences).  On 19 July 2002 he was sentenced at the Crown Court in Liverpool in respect of the nine offences as follows (we shall refer to the offences throughout, for convenience, by way of this numbering):
1)	Theft (“either way”): 6 months imprisonment
2)	Handling (“either way”): 3 months imprisonment concurrent
3)	Possessing a bladed article (“either way”): 9 months imprisonment consecutive
4)	Absconding (summary): 3 months imprisonment consecutive
5)	Absconding (summary): 2 months imprisonment consecutive
6)	Theft (“either way”): 6 months imprisonment consecutive
7)	Common Assault (summary): 4 months imprisonment consecutive
8)	Common Assault (summary): 4 months imprisonment concurrent
9)	Possessing a prohibited weapon (“either way”): 4 months imprisonment concurrent.
Thus the total sentence imposed was one of 30 months imprisonment. (In addition, forfeiture orders were made in respect of a blade and a canister but these matters do not rise for consideration before this court.)
2.	The memorandum of conviction purported to record that the offences which we have numbered 1, 2, 6 and 9 were committed pursuant to s.4 of the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”).  It also purported to record that those offences numbered 3, 7 and 8 were committed under s.6 of the 2000 Act.  As to the offences numbered 4 and 5 (the Bail Act matters), the memorandum also refers to s.6 of the 2000 Act.  It is conceivable that in these instances it was intended to refer to s.6 of the Bail Act 1976, but we shall return to this in due course.
3.	Before the court is an application for leave to appeal against sentence (and for a representation order) which has been referred to the full court by the Registrar, who also invited the Crown to be represented.  When the matter was heard on 16 April, Mr Ball appeared for the Crown and Mr Knapp for the applicant.
4.	The reason for the Registrar’s reference was the need to consider carefully the legality of the sentences passed in the light of the statutory provisions governing committal to the Crown Court and the corresponding limits upon sentencing powers.  It is for that reason clearly important to determine the basis upon which the magistrates committed for sentence.  First, however, it is necessary to recite the factual background.
5.	The offences numbered 5 to 9 relate to events on 12 April 2002.  On that day, the applicant took two DVD players (valued together at £350) from a store in Southport.  He was followed out by staff and, when they challenged him, he struggled and sprayed CS gas in their faces.  He was arrested and interviewed.  He admitted what he had done, but said that he did not know that the canister contained CS gas.  He was bailed but failed to appear at Southport police station on 5 June.
6.	The offences numbered 1 to 4 were committed on 4 May 2002.  On that day police officers had occasion to speak to the applicant.  He then produced to them a lock-knife, saying that he had not realised that he had it in his possession.  He was searched and a stolen cash card and £170 in cash were found on him.  The cash had been withdrawn from a nearby cash machine.  He was bailed on two occasions.  The second occasion was on 22 May.  He also failed to surrender at the Southport Magistrates’ Court on 5 June as required.
7.	The basis of the application for leave to appeal turned on the contention that the overall sentence was manifestly excessive.  It was also suggested that insufficient credit had been allowed for the applicant’s early pleas of guilty.  That contention does not commend itself to this court.  Against the background we have briefly summarised, it does not seem to us that the sentences imposed were manifestly excessive – subject to the question of legality.
8.	As we have noted above, the memorandum of conviction purports to record four out of five of the “either way” offences as having  been committed for sentence under s.4 of the 2000 Act.  The other “either way” offence (having a bladed article) is recorded as having been committed under s.6 of the same statute, as are the two absconding offences.
9.	For the sake of completeness, we should at least address the possibility that the reference to “s.6” in relation to the two absconding offences might have been intended to refer to s.6 of the Bail Act 1976.  Since the magistrates appear to have thought their sentencing powers insufficient, it would not be unreasonable to suppose that they had in mind the difference provided for in the Bail Act between the maximum sentences available in the Crown Court and those in the Magistrates’ Court.  
10.	Under s.6 of the Bail Act, the Crown Court can impose twelve months imprisonment, whereas the justices are confined to three months.  By contrast, if the matter was committed under s.6 of the 2000 Act, the sentencing powers of the Crown Court would be no greater than those available to the justices.  Yet there is no doubt that the memorandum refers to the 2000 Act, and it would be artificial to treat those references as having been “misrecorded” (as contemplated in Folkestone & Hythe Justices, ex parte R, 74 Cr. App. Rep. 58).  There is no doubt that the magistrates had the power to commit under s.6 of the 2000 Act, and they said that this was what they were doing.
11.	On the other hand, with regard to the offences we have numbered 1, 2, 6 and 9, although the memorandum records them as having been committed under s.4 of the 2000 Act, that provision would not under the circumstances of this case have conferred the necessary power.  It is a condition precedent for the use of s.4 that a “related offence” has to be committed to the Crown Court for trial.  That has no application here.  Accordingly, to give effect to what the magistrates must have intended, it seems to this Court right to treat the reference to “s.4” of the 2000 Act as being a “misrecording” in accordance with the reasoning of Lord Lane CJ in the Folkestone & Hythe Justices case.  The magistrates would have had the power to commit for sentence under s.3 of the 2000 Act and it is entirely reasonable to proceed on the basis that this is what they intended to achieve.  As for s.3 of the 2000 Act, it would appear to be a re-enactment of s.38 of the Magistrates’ Courts Act 1980.  Where magistrates have validly committed in accordance with those powers, the Crown Court has the same sentencing powers as would be available if the relevant offence or offences had come before it by way of indictment.
12.	There was a tentative suggestion made by counsel that this court should take steps to re-constitute itself as an Administrative or Divisional Court with a view to quashing the magistrates’ purported but invalid committal under s.4 of the 2000 Act.  It does not seem to us necessary to do so, since the matter can be rectified by the means we have suggested.
13.	On that basis, the committal by the magistrates in respect of sentences for offences 1, 2, 6 and 9 may be treated as lawful and valid.  Likewise the sentences imposed in the Crown Court. 
14.	We turn, therefore, to consider the effect of the committals under s.6 of the 2000 Act in respect of the remaining offences (Nos. 3, 4, 5, 7 and 8) which can all be regarded (in accordance with the memorandum of conviction) as having been validly so committed.  The provision, in effect, re-enacts s.56 of the Criminal Justice Act 1967.  In such cases, there is a restriction on the Crown Court’s powers of sentencing by virtue of s.7.  Those powers are confined so as to correspond to those of the magistrates.
15.	It is thus necessary to consider whether the sentencing powers were exceeded either in respect of any individual offence of offences or having regard to the aggregate.  If the Crown Court has imposed any unlawful sentence, this court would be obliged to quash and make any necessary adjustments.
16.	By virtue of s.78 of the 2000 Act, magistrates are restricted to a maximum of six months in respect of any one offence.  There is also a limit with regard to two or more “either way” offences, such that no more than twelve months may be imposed in aggregate.  Also, for summary offences the aggregate is not to exceed six months.  See s.133 (2) of the Magistrates’ Courts Act 1980.
17.	It is therefore clear that the nine months sentence imposed in the Crown Court for the “either way” offence of possessing a bladed article exceeds the limit for any one such offence and is accordingly unlawful.  It must be quashed and a sentence of six months substituted.
18.	There also appears to be a problem over the aggregate limit in respect of those offences committed under s.6 (consisting of  four summary offences and only one “either way” offence, i.e. the one for which we have quashed the sentence).
19.	Following our substitution in respect of offence No.3, the aggregate appears to stand currently at 15 months.  That is not permitted by reason of s.133 (2) of the 1980 Act.  The aggregate for summary offences is confined to six months, and the aggregate permitted for magistrates may only reach twelve months if there are “two or more of the terms imposed by the Court” which can be classified as “imposed in respect of an offence triable either way”.
20.	The technical limit with which we are now concerned arises only in respect of the offences committed under s.6 of the 2000 Act.  Among those, only No.3 is an “either way” offence.  Magistrates would therefore be confined to the six months aggregate. So, correspondingly, is the Crown Court.  Yet it will be observed that of the total of 30 months which the Crown Court purported to impose, no less than 18 months was attributed to the offences committed under s.6.  It will accordingly be necessary for us to make all the sentences concurrent with the result that the sentences imposed for those offences numbered 4, 5, 7 and 8 will stand, but run concurrently with the six month sentence we have substituted in respect of offence No. 3.
21.	The overall effect of this, without further adjustment, would be to reduce the total sentence from 30 months to 18 months.  We consider that this would not sufficiently mark the criminality of the conduct before the court. 
22.	 Accordingly, we propose to make appropriate adjustments to those “either way” offences which we have treated as having been committed under s.3 of the 2000 Act.  In respect of offence No. 1 we shall substitute a sentence of twelve months (instead of six months).  For offence No.2 we shall say that the sentence of three months is to run consecutively (instead of concurrently).  Finally, for offence No. 6, the sentence shall be one of nine months imprisonment (instead of six months).
23.	The overall result is that the total sentence will stand at 30 months, as before, but comprising individual sentences which have been imposed in accordance with the technical requirements of the various statutory provisions which happen to interact with one another on the facts of this case.
24.	We have therefore granted leave to appeal, but the appeal succeeds only to the extent we have described.