R v Clark [2023] EWCA Crim 309: a mere administrative error or an invalid committal?

08/09/2023

1. This case found its way to the Court of Appeal by way of an appeal against sentence. Before considering that sentence, the Court had to resolve a question raised by the Registrar of Criminal Appeals about the lawfulness of the sentence passed in the Crown Court because of procedural errors at the first hearing in the magistrates’ court.

Factual Background

2. On 4 July 2022, the defendant pleaded guilty in the Greater Manchester Magistrates’ Court to an offence of breach of a restraining order. At the same hearing, he pleaded not guilty to an offence of assault occasioning actual bodily harm.

3. The sending sheet failed to record the guilty plea to the offence of breach of a restraining order and showed that both offences were then sent for trial pursuant to section 51(1) and (2)(b) of the Crime and Disorder Act 1998.

4.This error was later identified and there was an attempt to correct the error by amending the paperwork to give rise to a committal for sentence.

5. On 18 August 2022, at Manchester Crown Court (Minshull Street), the defendant pleaded guilty to common assault.

6. On 21 November 2022, the defendant was sentenced for both offences. A sentence of two years’ immediate imprisonment was imposed for the breach offence with a concurrent sentence of three months’ imprisonment for the common assault.

An Administrative Error?

7. In the Court of Appeal, both Counsel submitted the failure to accurately record the guilty plea and the correct statutory basis on which the offence was sent to the Crown Court was simply an administrative error.

8. Specifically, Counsel submitted:

• The magistrates’ court had the requisite power to commit the matter for sentence either alone or with the ABH matter to which the defendant had pleaded not guilty. The error was not fundamental but was simply administrative.
• The Better Case Management form demonstrated that a guilty plea was entered to the offence of breach of a restraining order. The magistrates’ failure to properly record that plea did not alter the fact of the plea.
• There was no doubt that it was the intention of the magistrates’ court to commit the defendant for sentence in respect of the breach of a restraining order following his guilty plea. In the circumstances this error could be treated as a mere error in recording so that the sentences passed in the Crown Court were valid and passed with the jurisdiction to do so.
• In R v Dunigan [2022] EWCA Crim 1452, the Court of Appeal held that unless the sending is obviously invalid, the Crown Court should not be unduly concerned about a mistake in recording the statutory basis for sending. The court in this case should proceed on that basis.

An Invalid Committal

9. The Court of Appeal disagreed that this was a case in which a mere administrative error had occurred:

• An example of what can be considered an administrative error would be where a committal for sentence is made under the wrong statutory provision. In these sorts of cases, the Crown Court need not be unduly concerned by the error and can proceed by treating the error as an administrative one.
• In this case, the sending by the magistrates’ court was a sending for trial. That was obviously invalid as a guilty plea had been entered and therefore there was no jurisdiction in the magistrates’ court to send the breach offence for trial.
• The only evidence of what the magistrates did is the sending sheet, the Better Case Management form does not assist the higher court. The sending sheet is the primary record.
• Having made the decision to send the matter for trial and recorded that decision in the sending sheet, the magistrates’ court was functus officio and subsequent attempts by the magistrates’ court to correct the error were a nullity.
• Any attempt by the Crown Court to exercise the section 66 powers would be equally invalid as that power does not extend to correcting errors in committal for sentence once the magistrates’ court is functus officio and no longer has jurisdiction to act.
• The sending for trial by the magistrates’ court had to be quashed and a lawful committal effected before the Crown Court could sentence the defendant. A quashing order could only be made by the Divisional Court. Once the sending is quashed, the case would in effect never have left the magistrates’ court and the magistrates’ court’s jurisdiction would remain.
• The lawful guilty plea was entered in the magistrates’ court to the breach offence which conveyed the defendant’s desire to admit what he had done. The failure in sending that charge for trial when there should have been a committal for sentence meant that there was no valid committal.

10. Accordingly, the Court of Appeal:

Going Forward

11. This case provides welcome guidance on where an error made in the magistrates’ court can be properly considered an administrative error and therefore, with the agreement of the parties, need not concern the Crown Court when the case reaches sentencing. A common example is where cases are sent under section 18 of the Sentencing Act 2020 that should have been sent under section 14 of that Act.

12. However, practitioners will need to be prepared to assist the court in identifying where an error in the magistrates’ court has resulted in an invalid committal of the kind which cannot be properly ignored in the Crown Court. In these circumstances:

• Any attempts to correct the error by the magistrates’ court or the Crown Court under section 66 will have no effect as the magistrates’ court no longer has jurisdiction to act.
• A quashing order can only be made in the Divisional Court, no such order is available in the Crown Court. The Crown Court cannot use section 66 to make an order that the magistrates’ court cannot make (as was emphasised in R v Gould [2021] EWCA Crim 447).
• Only once the invalid committal is quashed and a lawful committal is effected can the Crown Court sentence the defendant.
• In assessing whether an error in the magistrates’ court is a mere administrative one or an invalid committal, the sending sheet is the primary record and the record that matters.

13. Perhaps most obviously, this case also highlights the importance of the magistrates’ court getting it right the first time, particularly to avoid further delays and expense in requiring the intervention of the Divisional Court to rectify the position. Ideally, errors should not occur in the first place. However, once an error has occurred, advocates and judges in the Crown Court must take care not to compound the error by assuming what should have occurred did in fact occur when that is contradicted by the sending sheet from the magistrates’ court.