R v Gould and others [2021] EWCA Crim 447

April 29, 2021

Andrew Jebb

This judgment was handed down on the 30^th March 2021 by a strong Liverpool Court of Appeal (Edis LJ and Holroyde LJ on the wings). It deals with the use and all too frequent misunderstanding and misuse of Section 66 of the Courts Act 2003. It is a long and detailed judgment and, I make no apology for saying this, needs to be fully read by all Crown Court practitioners.

Section 66 is considered by many practitioners and some Judges to be something of a panacea for all the problems which can arise when cases are sent to the Crown Court. “If we ask the Judge to sit as a DJ, then he/she can simply [insert suggested remedy here]”. This judgment should act as a warning to anyone still of that view. Section 66 raises complex issues which must be negotiated with care.

The Court considered four conjoined appeals – Gould, Moffat, Brown and Mugenzi. Each of the four cases was very different on its facts but in each one the Crown Court judge had ended up trying to cure technical issues which had arisen in the case by sitting as a DJ(MC) under section 66. In each case that procedure had been adopted with the consent of both the prosecution and defence.

Edis LJ began by saying [2]:

“The central issue is how far Crown Court judges can lawfully go to try and alleviate the unfortunate consequences of serious failures by the prosecution in charging criminal offences.”

He went on to say [3]:

“The first point which must be made is that it is the duty of the prosecution to stop making basic procedural errors. The quality of decision making revealed by the first three of these four cases is extremely poor. In the fourth the problem was created by what appears to have been a single typographical error which went unnoticed and is rather less culpable. We have no reason to think that they are examples of a rare problem. It is the duty of the Crown Prosecution Service to identify the cause of the problem and to solve it.”

In the case of Gould, the Crown Court judge was trying to correct a failure by the prosecution to lay the appropriate charges before the Magistrates’ Court to deal with serious sexual offences involving children.

In the case of Moffat, the Crown Court judge was dealing with an error by both the prosecution and the Magistrates’ Court who had wrongly thought that Moffat’s previous convictions meant that the current offences of dwelling house burglary were indictable only.

In the case of Brown the Crown Court judge was trying to correct the error by the police or CPS in charging breaches of SHPOs as breaches of the notification requirements.

In the case of Mugenzi the Crown Court judge attempted to correct a typographical error in the charge by changing the date of the start of the offending from March 2018 to March 2016.

The Court began by considering section 66 in detail both in its original form and as then amended by the Crime and Courts Act 2013.

The Court moved on to consider the fundamental construction issue of whether Section 66 is (a) a power exercisable by a judge of the Crown Court which is only exercisable in order to facilitate the power of the Crown Court to deal with the cases before it, or (b) whether it is an original jurisdiction which enables a holder of one of the judicial offices identified in it to sit as a Magistrates’ Court.

The details of the Court’s considerations are not set out here but the Court decided in favour of (b) above (perhaps unsurprisingly). It found that a judge of the Crown Court (or of the Court of Appeal Criminal Division) is vested with all the powers of a DJ(MC) in relation to criminal matters.

The Court indicated that this conclusion is not immediately consistent with a number of earlier decisions [76], two of which are worth mentioning here:

(oao “W” a minor) v. Leeds Crown Court [2011] EWHC 2326 (Admin) – the present Court was of the view that this case is authority for the proposition that there is no power in either the Crown Court or the Magistrates’ Court to remit a young person after a valid committal to the Crown Court to the Youth Court.

R v. Sheffield Crown Court ex.p. DPP (1994) 15 Cr App R. (S.) 768 – the Crown Court has no power to quash a committal even if it is invalid. This decision and its implications was revisited later in the judgment.

The Court observed [80]:

“These important parameters within which the section 66 powers may be used have been overlooked in some of the present cases and perhaps elsewhere.

It is worth restating them:-

1. When the Magistrates’ Court make an order which gives jurisdiction in the case to the Crown Court, whether by committal for sentence or sending for trial, that is the end of their jurisdiction in the case. In technical language they are functus officio. The Crown Court judge cannot use section 66 to make any order which the Magistrates’ Court could no longer make.
2. There is no power in the Crown Court to quash an irregular order. Where it is plainly bad on its face, the Crown Court may hold that nothing has occurred which is capable of conferring any jurisdiction to deal with it.”

The Court pointed out [82] that the powers of the Magistrates’ Court are set out in a scheme which is “complex, prescriptive and restrictive” and that “it was not the intention of Parliament in enacting …. Section 66 …. to allow judicial office holders to ignore the rules which the DJs(MC) would be obliged to follow”.

The Court warned [88] that the exercise of those powers will result in an ineffective order if the judge acts beyond the jurisdiction of the Magistrates’ Court and may do so if the judge is responsible for procedural errors.

“If errors are made which are of a kind which do not undermine the jurisdiction of the court, but which mean that there has been prejudice or a substantial risk of unfairness then the same result will follow. Correction of errors of this kind is the province of the Divisional Court and where appeals to this court have been brought which involve such errors it has often been necessary for the judges in the Court of Appeal Criminal Division to sit as a Divisional Court. The usual method is to dispense with service of a claim form, to extend time if necessary, to grant permission to seek judicial review and then to quash the offending decision and make any further necessary orders. This is the procedure which we will adopt when necessary in dealing with the present cases.”

The Court said [90] that if the prosecution asks a judge of the Crown Court to sit as a DJ(MC) using section 66 then it must provide the judge with procedural assistance to make sure it is done correctly. If the judge is unsure about what should be done, then the safe course might be for the judge to refuse and for the prosecution then to take the case to a Magistrates’ Court [91].

A judge of the Crown Court always needs to bear in mind that a Magistrates’ Court might have decided not to commit an either way offence for sentence and that Youth Courts may have a very different approach to sentencing.

“We consider that it is only in cases where it is quite clear that the case should be dealt with by the Crown Court, or where the exercise which is being contemplated is only designed to tie up loose ends and avoid hearings in the Magistrates’ Court which are clearly unnecessary, that the section 66 power should be used.”

A judge of the Crown Court does not need to ‘reconstitute’ himself or herself when exercising this power. It is however necessary to explain what powers are being exercised and why. A judge must be ‘explicit and clear’ about which sentences are being imposed as a DJ(MC) and which as a judge of the Crown Court. That must appear in the Order and must also appear in the records of the Magistrates’ Court.

Before then moving on to deal with the individual appeals, the Court considered a number of points of general application.

A. Quashing committals and ‘remitting’ cases from the Crown Court to the Magistrates’ Court

The Court then returned to the decision in R v. Sheffield Crown Court ex.p. DPP (1994) 15 Cr App R. (S.) 768 which it felt “may have been misunderstood on occasions”

The Court pointed out that “if there is an obviously bad committal, the Crown Court has no power to do anything because the origin of its jurisdiction is a committal which is at least valid on its face. If there is no such committal the case has never left the Magistrates’ Court where jurisdiction remains.”

In that situation the prosecution should have the case listed in the Magistrates’ Court so that the problem can be sorted out there and the Crown Court will tell the Magistrates’ Court what has happened.

It would technically be open to a judge of the Crown Court, acting under Section 66, to deal with the matter but it may not be appropriate to do so.

B. Mode of Trial

The Court then restated the importance of correctly undertaking mode of trial (Section 17A Magistrates’ Courts Act 1980). It explained that the procedure is mandatory because “it contains important safeguards for a person appearing in the Magistrates’ Court on an offence which is triable either way”. It referred to a long line of authority holding that a failure to follow correctly the mode of trial procedure renders what follows a nullity and liable to be quashed.

C. Vacating Pleas

The Court found that “we are prepared to accept that the [Crown] court has a power to direct that a guilty plea be vacated even when the person who entered it does not seek that course, or even opposes it”. [112]

“Such a power, though, must obviously only be exercised sparingly and when the interests of justice so require. It is unlikely to be appropriately used in order to rescue the prosecution from a muddle of their own making. More usually in cases where it appears that an important element has been misdescribed in the charge, to the adventitious advantage of the defendant, powers of amendment are more likely to be deployed, when available. That may cause a defendant to seek to be allowed to vacate a plea, which would no doubt often be allowed.”

D. Proving a committal for sentence

The Court stated that “where there is no doubt that the person before the court is the person who was committed for sentence in respect of the charge which the court is about to deal with, the failure to establish that by asking him to confirm it is not a jurisdictional failure rendering the sentencing process invalid”.

The Court then moved on to untangle the various problems which arose in the four individual appeals. I don’t set out here how that was done.

This case is obviously important and of major practical significance. It will be remembered for many reasons but one highlight is the withering observation by Edis LJ that “the sight of the prosecution [in the appeal of Gould] relying on the depths of its incompetence to extricate a serious and distressing case from the procedural nonsense it has created is not attractive. It is also misconceived.”