Abstract
Theft, contrary to s 1 Theft Act (TA) 1968, as an either-way offence is subject to the usual rules relating to allocation. However, under the Magistrates’ Courts Act (MCA) 1980, the allocation of certain theft offences, namely shoplifting, are subject to exceptions. By way of s 22A MCA 1980, if the property which has been stolen was being offered for sale in a shop, stall, vehicle or other premises where trade or business is conducted; the accused was purporting to be a customer or potential customer at the time of the alleged offences were committed; and the aggregate value of the stolen goods does not exceed £200, then the offence will be categorised as ‘low value’. Where such an offence is deemed to be of low value, the theft can only be tried summarily; the issue becomes: at what point in time is shoplifting treated as being of low value (and thus triable summary only)?
In the instant case, Christopher Candlish (C) was charged with eight counts of theft in a shoplifting context, which were alleged to have been committed at various stores between July and August 2018. Individually, the thefts were valued between £7.66 and £163, but the aggregate value of the goods stolen was £442.57. C was charged with these offences by postal requisition dated 16 April 2019 to attend the magistrates’ court on 1 May 2019.
The matter was adjourned by the justices to allow legal argument to take place as to whether they had jurisdiction to hear the case. C submitted that the offences were ‘low value’ within the meaning of s 22A(1) MCA 1980, making the case summary only, as the value of the stolen items did not exceed £200. Accordingly, as C had not been charged within 6 months from the date of the commission of the offences (having, in fact, been charged around 8 months after the commission of the offences), the prosecution could not proceed per s 127(1) MCA 1980. In response, the Crown argued that the offences were not ‘low value’ as the aggregate value of the goods which were stolen exceeded £200, in accordance with s 22A(4)(b). As such, the case was not one of a summary-only character, and therefore the offences were not subject to the 6-month time bar.
After considering both arguments and consulting their legal advisor, the justices concluded (at [8] of Jeremy Baker J's judgment): Applying s22A(3) and s22A(4) Magistrates’ Court Act 1980, we did not find that the offences detailed on the charge fell under the definition of 'low value' due to their aggregate value being in excess of the statutory threshold of £200. We found that the offences, when considered in aggregate, were either way and not bound by the time limits imposed by s127 Magistrates’ Courts Act 1980.
The justices thus retained jurisdiction, convicted C based on the evidence before them, and proceeded to sentence.
On the application of C, the justices agreed to state a case for the determination of the Divisional Court with the justices posing the two following questions:
Was the Court's interpretation of Section 22A MCA 1980 correct in determining that this case was not one of ‘low value’ shop theft, due to the aggregate value of charges exceeding £200. 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 6-month time limit to lay an information, imposed by virtue of Section 127 MCA 1980?
On appeal, both C and the Crown agreed that a determination of whether the offence is one of low value is made at a defendant's first appearance before the magistrates’ court. This was the judgment of Cutts J in the Court of Appeal in R v Harvey [2020] EWCA Crim 354, [2020] 2 Cr App R 10. Her Ladyship concluded that the phrase ‘charged on the same occasion’ in s 22A(4)(b) should be construed as (at [15] of Harvey) ‘referring to when the accused appears before the magistrates’ court to answer the charges’, rather than any earlier occasion (e.g. upon charge). Notably, the judgment in Harvey was decided only after the justices made their determination and proceeded to convict C in the instant case. As a result, Counsel for C conceded on appeal that the justices had correctly determined that the offences were not of ‘low value’ due to the aggregate value of the charges.
As a result of Harvey, the appeal in Candlish turned solely on the status of shoplifting offences prior to a defendant's first appearance.
Counsel for C argued that unless and until the justices had determined otherwise at a defendant's first appearance, individual offences of shoplifting remain triable summary-only. Counsel for C justified this submission on the basis that aggregation is only determined at the first appearance and, until then and without any determination, the offences were legally of low value because they were each under £200 in value. Counsel for C expressed concern that should such offences not be treated as summary-only, the police would be permitted to circumvent the time limitation in s 127 MCA 1980, which would result in ‘unwarranted and ungovernable delays’ (at [17]). If C's submissions were correct, the offences would be time-barred, and the justices would thus lack jurisdiction to try them.
Counsel for the Crown, on the other hand, argued that offences of theft are triable on indictment (either-way) and remain as such unless and until the justices decide otherwise. More specifically, offences of shoplifting remain triable either-way unless the justices’ rule that a particular offence, or series of offences, is (or are on aggregate) low value. If the Crown's submissions were correct, the offences would not be time-barred, and the justices would have the jurisdiction to properly try them.
[I]t 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.
Turning to this issue immediately, Jeremy Baker J ruled (at [27]): [A]lthough 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. (emphasis added)
In summary, his Lordship ruled that ‘low value’ cases should continue to be regarded as either-way offences unless and until the justices at the plea and allocation stage of proceedings determined otherwise. Putting it another way, ‘low value’ cases should not be treated as summary stand-alone offences up to the point of plea and allocation.
His Lordship continued at [28] to comment on s 22A MCA 1980: 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.
On a separate note, his Lordship did observe that if there was an ‘egregious delay’ (at [30]) in charging such offences, particularly if there was unfair manipulation from the authorities, a legitimate basis for an application to stay proceedings may arise.
In conclusion, Jeremy Baker J answered the first question in the affirmative and the second question in the negative. For these reasons, the appeal was dismissed with Thirwall LJ agreeing at [33].
Commentary
Candlish is an important authority on the status of shoplifting offences prior to a defendant's first appearance in the magistrates’ court. Amongst other things, the judgment of the Divisional Court, that such offences remain triable either-way until determined otherwise, is of vital importance to the time frame of charging decisions.
The ‘Offence’ of Shoplifting
‘Low-value shoplifting’ was introduced by s 176(3) of the Anti-social Behaviour, Crime and Policing Act 2014 (‘the 2014 Act’), which inserted s 22A into the MCA 1980. The effect of s 22A is that offences of low-value shoplifting cannot be sent to the Crown Court for trial, nor can they be committed there for sentence. As a summary-only offence, low-value shoplifting permits a defendant to plead guilty by post (s 12 MCA 1980), or for the court to proceed in the defendant's absence should they not attend (s 11 MCA 1980), thereby avoiding the need to issue an arrest warrant before conviction. Lastly, the offence attracts a maximum penalty of 6 months’ imprisonment. As is evident from Hansard (Anti-social Behaviour, Crime and Policing Bill Deb 30 January 2007, col 470), the purpose of the introduction of s 22A was to (per Damian Green, Minister for Police and Criminal Justice): speed up the prosecution in such cases and thus provide swifter justice for the victims — the retailers… The provision will enable shop thieves to be dealt with in court faster than before.
Importantly, however, ‘shoplifting’ is not an offence in its own right; a defendant continues to be charged with theft, contrary to the TA 1968. ‘Shoplifting’, therefore, is merely a term used to describe the particular circumstances or context within which a theft can be committed.
The Status of Shoplifting Offences Prior to a Defendant's First Appearance
The Divisional Court has clarified that shoplifting offences remain triable either-way until the justices have determined otherwise. What is interesting about Candlish is the lack of authorities relied on by the court to show or disprove this proposition. Rather, the case focuses on the interpretation of s 22A (with Jeremy Baker J referring to the need to construe s 22A ‘as a whole’ (at [28])). Whilst there was no strict necessity for authorities to have been relied upon, reference to s 176(5) and (6) of the 2014 Act may have offered assistance to the cases for both C and the Crown, and the judgment of the Divisional Court.
First, s 176(5) amends s 1 Criminal Attempts Act 1981, by inserting s 1(5), to include the offence of low-value shoplifting as an offence that is capable of being attempted. This is important as s 1(4) makes clear that only offences that are triable on indictment (which includes either-way offences), are capable of being attempted; summary-only offences cannot be attempted. One potential argument here is that s 1(5) treats low-value shoplifting as summary-only from the outset, allowing a charge to be brought against a defendant for attempted shoplifting without having first had such a determination from the magistrates’ court. Indeed, weight can be added to this argument given that (as has been discussed already) shoplifting is not an offence in its own right; the offence that a defendant would be charged with is one of theft. Theft, as an indictable offence, is therefore capable of being attempted. Accordingly, C could have argued that s 1(5) would otherwise be an unnecessary provision unless the legislature intended for low-value shoplifting to be treated as triable summary-only from the outset. On the other hand, the Crown could have argued that s 1(5) is designed to act as a safety net preventing further complications from arising at a later stage in the proceedings. For example, a defendant is charged with attempted theft; the theft is then determined to be of low value (and thus summary-only); the defendant then argues, with the offence being summary-only, that the theft cannot be attempted. It is this transition from an indictable offence to a summary-only offence which s 1(5) aims to protect from absurd results.
Furthermore, s 176(6) of the 2014 Act provides that any reference in the Police and Criminal Evidence Act (PACE) 1984 to an ‘indictable offence’ ‘has effect as if it included a reference to low-value shoplifting’. This means that low-value shoplifting may be treated, for all investigatory purposes, as an indictable offence. The powers concerned include a power of arrest exercisable by a person other than a constable (e.g. a store detective), powers enabling police officers to enter and search premises and vehicles in various circumstances for the purposes of searching for evidence in connection with an investigation or arresting individuals suspected of committing offences, and powers enabling a magistrate to authorise such entry and search. Counsel for C may have argued that the explicit use of ‘as if it included’ suggests that low-value shoplifting is not an indictable offence from the outset. Indeed, this may have been strengthened with reference to para 513 of the Explanatory Notes to the 2014 Act which provides that low-value shoplifting has been ‘reclassified as summary-only’. Counsel for the Crown, on the other hand, may have simply argued that s 176(6) was designed to ensure that investigatory powers were not curtailed or hampered by the introduction of this new scheme.
The outcome of Candlish is straightforward, as was the mechanism by which the court reached its conclusion. Perhaps, the arguments above would have simply clouded, confused or complicated the matters in issue. It is hoped that the above arguments show that Candlish may have resolved more legal issues of uncertainty than may first appear.
Comparison to Other Offences Involving Low Value
As discussed above, s 22A was added to the MCA as a means of expediating criminal cases involving retail theft. Shoplifting is not, however, the only offence that is treated differently because of the value involved. Section 22 MCA 1980 provides for a special procedure where a defendant is charged with a ‘scheduled offence’ (i.e. criminal damage). Specifically, s 22 requires the normal allocation procedure undertaken for either-way offences to be preceded by a consideration, involving the court and the parties, as to the value involved. In accordance with s 22(1), the prosecution and defence are required to make representations as to whether the value involved (i.e. value of repair if the property is damaged or value of replacement if the property is destroyed) exceeds the relevant sum (£5000). If it does not, the court must ‘proceed as if the offence were triable only summarily’ (s 22(2)). This means that the defendant cannot elect trial on indictment, nor can he be committed for sentence. If it does, the court shall proceed with allocation in the normal way (s 22(3)). In essence, low-value criminal damage remains an either way offence unless and until the court determines that the value involved does not exceed £5000.
What is most striking about Candlish is that s 22 was not referred to at any point in the judgment of the Divisional Court. Given the legislature's express recognition that a scheduled offence only becomes low value following a determination by the court, it is difficult to see how this could not have been used in Candlish to show Parliament's intention for s 22A. This is compounded by the similarities between the provisions. For instance, s 22(11) provides that ‘where the defendant is charged on the same occasion with two or more scheduled offences…this section shall have effect as if any reference in it to the value involved were a reference to the aggregate of the values involved.’ The identical use of ‘on the same occasion’ and ‘aggregate of the values’ in both s 22(11) and s 22A(4)(b) would surely suggest the intrinsic value that s 22 may have had to the determination of the Divisional Court.
Perhaps, the answer to this lies in the right retained by a defendant charged with low-value shoplifting. By s 22A(2), where a defendant, who has attained the age of 18, is charged with low-value shoplifting, the court must give him the opportunity to elect trial in the Crown Court trial for the offence. If the defendant so chooses trial in the Crown Court, he must be sent by the magistrates’ court. This right does not exist for individuals charged with scheduled offences under s 22, however. Whilst peculiar and worthy of note, the retention of this right in low-value shoplifting is not the issue of this case note. Regardless, the Divisional Court reached a decision which is entirely in line with the procedure undertaken for low-value criminal damage cases, without the need to utilise s 22; its reference would therefore have made no difference to the Court's determination.
Leaving the Door Open for Abuse of Process?
The final feature of the Candlish judgment worth considering is the matter of ‘egregious delays’ identified by Jeremy Baker J (at [30]). His Lordship quite rightly issued an implied notice to practitioners in the criminal justice system that whilst such offences were not subject to the s 127 MCA 1980 time bar, summary offences should be charged and tried ‘as soon as reasonably possible after their alleged commission’ (per May J in R v Newcastle-upon-Tyne Justices, ex parte John Bryce (Contractors) Ltd [1976] 1 WLR 517 at 520). It can be said that the door has been left open (or at least ajar) for defence counsel to seek a stay of proceedings in cases involving unwarranted delays.
Conclusion
Candlish is a welcome clarification on the law of low-value shoplifting. The Divisional Court has clarified that all shoplifting offences remain triable either-way until a determination is made by the magistrates’ court at a defendant's first appearance. That determination may be either that the offence(s) is low value, and may only be tried summarily, or that the offence(s) is not low value, and the normal allocation procedure is required to be undertaken. In essence, shoplifting is theft; theft is an either-way offence. This judgment settles the minds of practitioners as to whether offences charged 6 months after an alleged offence would be time-barred. However, Candlish is also authority for the point that unwarranted and egregious delays may result in a successful application for stay of proceedings as an abuse of process.