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Section 66 Courts Act 2003 – Where are we after R v Gould

The Court of Appeal decision in R v Gould [2021] EWCA Crim 447 (‘Gould’) aimed to provide clarity as to the use of section 66 of the Courts Act 2003 (‘section 66’). This article does not aim to fully analyse that case – a thorough review by Joe Hudson can be accessed here – but it does aim to consider the cases that have followed.

Section 66 of the Courts Act 2003:

Under section 66 Circuit Judges, Recorders, Deputy Circuit Judges etc, have the power to exercise the same powers of a District Judge sitting in the Magistrates’ Court. As the explanatory notes provides – this section enables Crown Court Judges to make orders/sentence in relation to cases normally reserved to Magistrates’ Courts when disposing of related cases in the Crown.

The section was introduced to further greater flexibility in judicial deployment. The aim was to make it possible for a Circuit Judge in the Crown Court to deal with a summary offence without the case having to go back to a Magistrates’ Court. For example, section 66 was envisaged to be used where an individual does not plead Guilty to summary only schedule offences which are linked to an indictment.

The Decision in Gould:

The principles expressed by the COA in Gould may be reduced to the following:

Section 66 in general:

  • Whilst section 66 confers a broad power it is limited to those powers that a DJ in the Magistrates’ Court may hold – these powers are expressly set out in legislation.
  • It is open to the Judge in the Crown Court, under section 66, to lay and commit a new charge in the correct form.
  • Where the Crown Court acts under section 66 it must follow the rules which District Judges acting in the Magistrates’ Court are bound to follow. [An obvious example is the rules governing the election of venue under section 17A Magistrates’ Courts Act 1980 (‘MCA 1980’)].
  • The Prosecution must be in a position to assist the Judge in any circumstance where it seeks for the Judge to exercise their power under section 66.
  • If a Judge is unsure about the correct course, then the “safe course” may be to decline to act under section 66 and require the Prosecution to go back to the Magistrates’ Court.

Valid committal:

  • Where the Magistrates’ Court makes a valid committal to the Crown Court the Magistrates’ Court ceases to have jurisdiction of the case and, thus, the Crown Court cannot use section 66 to make an order that the Magistrates’ Court could not make.
  • The Crown Court has no power to quash an irregular order.

Invalid committal:

  • Where, at first instance, the Magistrates’ Court makes an invalid committal which is ‘obviously bad on the face of it’ (such as where the Magistrates’ purports to commit for trial a summary only offence) then the Crown Court has no jurisdiction to hear the case and the Magistrates’ Court retains jurisdiction.
  • It follows that the Crown Court has no jurisdiction to remit the case back to the Magistrates’ Court.
  • In such cases it will normally be for the Prosecution to have the case re-listed at the Magistrates’ Court to redress the error.
  • However, a Crown Court Judge may elect to act under section 66 to deal with the matter from scratch. Such cases will be rare and likely limited to cases where it is inevitable that the Magistrates’ Court would have committed the matter for sentence (see [127]).

Vacation of guilty pleas:

  • The Court has an inherent power to direct that a guilty plea can be vacated. The exercise of this power is constrained by the interests of justice (see [112]).
  • Such a circumstance may arise where “an important element has been misdescribed in the charge, to the adventitious advantage of the defendant”.

Section 66 on appeal:

  • Where it is raised on appeal that the Crown Court acting under section 66 fails to follow the rules a District Judge is obliged by then the Appeal Court will have to determine “whether the procedural flaws are so bad that they go to the root of the exercise of the section 66 power requiring the quashing of the orders, or whether they can either be overlooked or remedied if this causes no prejudice.” (see [82]).
  • In cases where this is prejudice to the Appellant or the procedural error is of a kind that parliament intended to invalidate all that follows, then the Appeal Court will quash the offending decision.

 

Subsequent cases:

R v Reed and others [2021] EWCA Crim 572:

In one of the cases there had been a typographical error as the name of the complainant was incorrect. At the sentence hearing the Crown Court Judge sought to remit the case back to the Magistrates’ Court, then exercise their powers under section 66 to amend the name of the complainant and then commit the case back for sentence.

The COA held that following Gould this was an instance where the error could simply be ignored by agreement; and as the charge was not bad on its face (i.e. it had been validly committed) the Crown Court Judge had acted unlawfully in remitting the case to the Magistrates’ court and seeking to use section 66.

 

R (Ogunsola) v Crown Court at Aylesbury [2021] EWHC 1062:

The Claimant (who was the Defendant in the criminal proceedings) had faced an indictment containing indictable offences (those offences had been laid by an information which was greater than 6 months after the offence date). He subsequently pleaded to a summary-only offence of harassment which was laid and permitted by the Crown Court Judge under section 66. More than 21 days after the guilty plea the Defendant asked the Judge to state a case, the Judge refused to do so. The Claimant then sought judicial review of that decision but more substantively, that the Crown Court lacked jurisdiction for the charge of harassment.

The Court held, in line with previous authority, that because the six-month time limit had passed the Court had no jurisdiction to lay the harassment offence. The High Court noted the decision in Gould in support of that analysis – it appears seemingly referring to the limit of the Magistrates Courts’ powers under section 127 MCA 1980 (limitation of time). Likewise, the Court held that as the Judge was exercising the powers of a District Judge in the Magistrates’ Court there was no power to state a case in the Claimant’s case as the fixed 21-day time limit which applies to the Magistrates’ Court had expired when he sought this.

 

R v Jex and others [2021] EWCA Crim 1708:

In the case of Johnson, the Magistrates’ Court committed the Defendant for breach of a SSO which, in fact, the Defendant had not been subject to a SSO at the relevant time. The committal was therefore held to be “bad on its face” (see [66]). The effect, therefore, following Gould was that the case remained in the Magistrates’ Court and the sentences subsequently made in the Crown Court were quashed: they were imposed without jurisdiction.

 

R v Chalk and others [2022] EWCA Crim 433:

Chalk:

Section 66 was used by the Crown Court Judge following the submission from prosecution counsel that the charge which the Defendant had indicated a guilty plea to, should have been sent for trial rather than committed for sentence.

The COA confirmed that the submission by the prosecution was wrong: the matter had been rightly committed for sentence. In any event, following Gould they held that as the Magistrates’ Court has ceased to have jurisdiction, there was no basis for the Crown Court Judge to use section 66 and make an order that the Magistrates’ Court could not. The Court held that the effect of the Crown Court Judge using section 66 was that the steps then taken thereafter, i.e. sentence passed, was unlawful. The sentence was quashed.

 

Chaplin:

The Defendant was wrongly charged with substantive offences of meeting a child following sexual grooming and sexual communication with a child. In fact, he should have been charged with attempt in relation to both of those offences. The Defendant had pleaded guilty at the Magistrates’ Court and the matters were committed for sentence. The prosecution sought to remedy the error by laying charges for attempt ahead of the sentence. At the sentence hearing the substantive charges were ‘withdrawn’ and the Judge accepted guilty pleas to the attempt charges which he committed under section 66. He then passed sentence.

The issue arising under section 66 was that the original charges had been validly committed. Following Gould the Magistrates’ Court had no jurisdiction. Thus, the Court held that, whilst the Crown Court Judge had acted correctly in acting under section 66 in taking pleas to the attempt offences and committing these for sentence, the Judge had erred in his dealing with the substantive offences which had already been pleaded to: the guilty pleas on these charges should have been vacated, the offences remitted to the Magistrates’ Court and the Crown then issue a notice of discontinuance in relation to those charges.

 

London Borough of Barking and Dagenham v Argos Ltd [2022] EWHC 1398:

The High Court noted the decision in Gould when considering the ambit of section 69 of the Courts Act 2003 which governs the power to make Criminal Procedural Rules. The Court noted the power under section 69 is in relation to “rules which govern the practice and procedure to be followed in the criminal Courts” but not those on whether the Court has jurisdiction (see [49]).

The High Court noted that the decision in Gould concerned itself with the correct approach to take where a party had failed to comply with a requirement of primary legislation; and that the Court in Gould had focused on the distinction between whether there had been a procedural or a jurisdictional failure.

 

R v Wilkes [2022] EWCA Crim 525:

The Defendant pleaded guilty at the Magistrates Court in 2018 to breaches of a SOPO and of notification requirements. Those charges were erroneously particularised. This was sought to be remedied at the Crown Court after the matter had been committed for sentence by redrafting the three charges. The Crown Court acceded and the original guilty pleas were vacated, the Judge used their power under section 66 and the new charges were put to the Defendant without any reference to any election of venue. He was then sentenced.

In 2021, the Defendant then faced further charges in relation to the breach of the SHPO imposed in 2018. He pleaded guilty to defective charges at the Magistrates’ Court – the charges referred to the SHPO been made by a different Court and particularised erroneous dates. The matter was committed and sentence was passed at the Crown Court without notice of the defects.

On appeal the appellant raised that the SHPO made in 2018, and which formed the basis for the subsequent charges, was made without jurisdiction. The COA noted the decision in Gould and that the power under section 66 “brings with it the responsibility of ensuring that any decisions which are taken when so sitting properly conform to the statutory constraints, requirements and rules governing procedure in the Magistrates’ Court” (see [14]).

The Court held that in line with Gould, where there are defective charges on the face of the committal, the first question which the Court must ask is whether “those defects are so fundamental that the committal is fatally flawed and therefore a nullity” – a reiteration of the ‘obviously bad on its face’ test from Gould. If it is so fundamental, then the Crown Court has no jurisdiction; and the Judge may use section 66 “to take such steps as are open to a Magistrates’ Court to rectify the matter” (see [15]).

Applying this to the index circumstances, the Court held that two of the defective charges subject to the 2018 proceedings were bad on their face as the facts averred in these charges were incapable of amounting to a breach of the SOPO or notification requirements. Thus, the committal for these charges was null and the Magistrates’ Court retained jurisdiction. The Judge was entitled to use section 66 to rectify these defects by vacating the Defendant’s guilty pleas and laying the new charges.

However, the Judge had fallen into error by failing to adopt the procedure under section 17A of the Magistrates’ Courts Act 1980 (procedure for offences triable either way). Yet, the COA concluded that this did not affect the legality of the sentences passed: in line with Gould, “the charge was substantially the same as that upon which the defendant had been committed and the section 17A procedure had been properly followed when the defendant was first before the Magistrates’ Court, that all the necessary safeguards would have been observed and will not have been undermined by the corrections required to the charges (see [24]).”

The third charge (relating to the 2018 conviction) which was defective due to the dates particularised, was not bad on its face and was a minor typographical error. This offence had been properly committed and it was, therefore, unnecessary for the Judge to have used section 66 in relation to this charge and the sentence passed on this charge remained lawful.

In relation the defective charges which formed the basis for the 2021 conviction the Court held that again the error in relation to the dates and the identification of the Court were insufficient to render the committal a nullity. They were matters “which could have quite permissibly been ignored by agreement” (see [26]).

 

Conclusion:

Since Gould the Courts have reiterated the need to distinguish between defects which are fundamental (i.e. which are bad on their face and render the committal null) and mere procedural defects. In the former case the use of section 66 to rectify the errors in the lower Court remains available but the strict procedure that would apply in the Magistrates’ Court should be adhered to.

In the latter case, the error may be of such a nature that the use of section 66 would be otiose – i.e. where the error is merely typographical and does not affect the validity of the charge.

 

Nathan Davis

Nathan is a Grade 2 prosecutor and prosecutes and defends in the Crown Court.

 

Contact Nathan’s clerks

Andrew Thornton on 0113 213 5202

Gina Hawkins on 0113 213 5205

Rebecca Wilson on 0113 213 5203

Hannah Dempsey on 0113 213 5211

Elaine Foster-Morgan on 0113 213 5217

Robyn Nichol on 0113 213 5253