Abstract
Facts
On 15 October 2018 at around 6:20 pm, M stole confectionary valued at £16 from a shop at Newcastle train station. The incident was reported to the police, who identified M from CCTV footage and arrested him at 10:10 pm the same day. M was abusive and aggressive upon arrest and his ‘disruptive behaviour’ continued at the police station (at [6]). He repeatedly referred to one police officer as ‘fucking Paki’ (at [6]). M was kept in custody overnight. The following morning, he urinated into a porridge carton and threw the contents through his cell hatch, hitting another officer on the face and body. Later that day, while being interviewed in his cell, M spat at a third police officer.
M was charged with theft, racially aggravated harassment and two counts of common assault. On 17 October, he elected Crown Court trial for the racially aggravated public order offence and that matter was sent to the Crown Court in accordance with ss 51(1) and 51(2)(b) of the Crime and Disorder Act (CDA) 1998. The offences of theft and common assault were sent under s 51(3)(b), as ‘related’ summary offences.
All four offences were ultimately included in the indictment on which M was arraigned on 21 November 2018. M entered guilty pleas to all counts. The offences placed M in breach of a 16-week suspended sentence. When M returned for sentence on 19 March 2019, the Recorder activated three months of the suspended sentence and imposed consecutive sentences of 12 months’ imprisonment for the racially aggravated offence, two months for the theft and four months for the first common assault. A concurrent sentence of two months’ imprisonment was imposed for the second common assault, making a total sentence of 21 months’ imprisonment.
The theft was a low-value shoplifting offence under s 22A of the Magistrates’ Court Act 1980. M appealed against conviction for this offence on the ground that it was not ‘related to’ the racially aggravated public order offence, so there had been no power to send it to the Crown Court under s 51(3)(b) of the 1998 Act. He appealed against sentence in respect of all four matters on the indictment.
M also appealed against the activation of the suspended sentence. At the time of sentence, neither the Recorder nor the advocates were aware that, after arraignment but before sentence in the Crown Court, M had appeared before a magistrates’ court and pleaded guilty to a further offence of theft. The magistrates had imposed a sentence of two weeks’ imprisonment and activated the suspended sentence on that occasion.
As the theft was a low-value shoplifting offence and M had not elected trial on that matter, it remained a summary only offence. However, it was not ‘related’ to the racially aggravated harassment under s 51(3)(b), as ‘the offences did not arise out of circumstances that were the same or connected’ (at [18]). Accordingly, ‘the Crown Court should not have assumed jurisdiction over the offence of theft because there had been no valid sending’ (at [19]). The solution was for the Court of Appeal to reconstitute itself as a Divisional Court of the Administrative Court, judicially review the proceedings and quash the sending of the theft offence. McGowan J, sitting as a judge of the magistrates’ court, then accepted M’s guilty plea to theft and sentenced him to two months’ imprisonment, to be served consecutively to both the Crown Court sentences and the activated suspended sentence.
Comment
The theft offence was ‘low-value shoplifting’, as defined in s 22A of the Magistrates’ Court Act 1980. This provision was inserted into the 1980 Act by the Anti-Social Behaviour, Crime and Policing Act 2014 and it continues to generate confusion (see, for example, R v Burrows [2019] EWCA Crim 889; R v Maxwell [2017] EWCA Crim 1233; R v Osman [2017] EWCA Crim 2178; R v McDermott-Mullane [2016] EWCA Crim 2239). Section 22A provides that where a defendant is charged on the same occasion with shop theft(s) of goods valued at £200 or less, the offence(s) are summary only but the defendant has the right to elect Crown Court trial. Low-value shoplifting therefore differs from low-value criminal damage. The latter is an indictable offence which must be tried summarily if the value of the damage is less than £5,000, whereas low-value shop theft is triable only summarily unless and until the defendant elects. As M had not elected trial for the shop theft, it remained a summary only offence.
When a magistrates’ court sends an adult to the Crown Court for trial, s 51(3)(b) of the CDA 1998 requires the court to send any ‘related’ summary offence that is punishable with imprisonment or disqualification from driving. (If the defendant appears for a related offence on a subsequent occasion, the court is not required to send him to the Crown Court but it ‘may’ do so (s 51(4)).) The judgment in the present case clarifies the circumstances in which offences can be said to be ‘related’.
Section 51E of the 1998 Act provides that a summary offence is related to an indictable offence ‘if it arises out of circumstances which are the same as or connected with those giving rise to the indictable offence’. In R v Osman [2017] EWCA Crim 2178, the defendant had been sent to the Crown Court under s 51(1) CDA 1998 for an offence of affray. The Court of Appeal held that the magistrates’ court had erred in sending Bail Act offences under s 51(3)(b) because, although the offences were ‘obviously connect[ed]…in that it was for the substantive offences that he had been granted bail and failed to surrender…the circumstances giving rise to the substantive offence had no connection with the circumstances out of which the Bail Act offence arose’ (Osman at [22], emphasis added).
In the present case, the Court of Appeal held that the shop theft for which the defendant was arrested was not ‘related’ to the offences in the custody suite, for which he was sent for trial under s 51(1), because ‘the “circumstances” giving rise to the offence of theft at Newcastle Central Train Station had no connection with the circumstances of the racially aggravated harassment…at the police station approximately 4 hours later’ (at [18]). Accordingly, s 51(3) was not engaged and the shop theft should have remained in the magistrates’ court.
The Crown Court had also fallen into error by permitting the shop theft to be included in the indictment. Where a summary offence is validly sent to the Crown Court under s 51(3)(b), it cannot be joined to the indictment unless it is one of the offences listed in s 40 of the Criminal Justice Act 1988. Instead it should be dealt with at the conclusion of the trial in the following way. If the defendant is convicted on the indictment, the Crown Court must consider afresh whether the summary offence is ‘related’ (CDA 1998, sch 3, para 6(4)). If the Crown Court does so consider, and the defendant pleads guilty to the summary offence, the Crown Court ‘may deal with him…only in a manner in which a magistrates’ court could have dealt with him’. If the defendant pleads not guilty to the summary offence, it will be remitted to the magistrates’ court (unless the prosecution decides to offer no evidence in respect of the summary offence, in which case the Crown Court will dismiss it).
As the shop theft in the present case was a summary only matter that could not be included in the indictment, the Court of Appeal had no power to deal with it. To resolve this ‘procedural impasse’ (at [24]), the Court reconstituted itself as a Divisional Court, to quash the sending. One member of the Court then sat as a District Judge to take the defendant’s plea and pass sentence, mirroring the approach taken in R v Osman (above). This convoluted approach, which is permitted by s 66 of the Courts Act 2003, had the advantage of ensuring no further time or costs were wasted in rectifying the magistrates’ court’s initial error.