CW and MM, R. v

CW and MM are charged with others on counts 1 and 2 of an 8 count indictment, to be tried in the Crown Court sitting at Liverpool. Counts 1 and 2 plead conspiracy to supply diamorphine and cocaine to persons unknown outside England and Wales, contrary to s1, 1A and 3 of the Criminal Law Act 1977. Such requires the consent of the Attorney General (“the AG”) by virtue of S4 Criminal Law Act 1977.

Those reading should remind themselves that reporting restrictions are in place.

There were preliminary hearings, for MM on 31^st October 2014 and for CW on 13^th November 2014 albeit he did not appear. All parties were aware consent had not been obtained and no indictment was preferred. Notwithstanding that, his counsel said CW would be interested in negotiation with the Crown so as to avoid a trial in respect of the heroin allegation.

An application for consent was received by the Attorney on 6^th November 2014 and granted on 1^st December 2014. The indictment and evidence were served on 12^th December 2014.

At a plea and case management hearing (“PCMH”) on 23^rd January 2015 MM pleaded guilty to both counts and CW guilty to count 1, not guilty to count 2. Others arraigned entered guilty pleas. The issue of the timing of the Attorney General’s consent was again raised.

On 13^th April 2015 at a preparatory hearing after argument the Judge ruled that the indictment and proceedings were null and void because consent had not been obtained in time. S4 of the Criminal Law Act 1977 (“S4”) and S25 Prosecution of Offences Act 1985 were considered.

On 15^th April 2015 he refused the Crown leave to appeal.

The Crown’s application for leave to appeal his ruling as to CW and Count 2 has been referred by the Registrar. For reasons which need not trouble us the application in respect of MM, and of CW as to Count 1, has fallen away. The syntax of the ruling, and the transcript of earlier appearances, is couched in the plural, reflecting the position until shortly before we sat.

We have been assisted for the Crown and for the Attorney General, an interested party, by Miss Sarah Whitehouse QC, who did not appear below, with Mr Reid who did, and for the Respondent CW by Mr Barraclough who also appeared below.

The Criminal Law Act 1977 S4 Restrictions on the institution of proceedings for conspiracy, reads where relevant as follows:

“(1)

Subject to subsection (2) below proceedings under section 1 above for conspiracy to commit any offence or offences shall not be instituted against any person except by or with the consent of the Director of Public Prosecutions if the offence or (as the case may be) each of the offences in question is a summary offence.

(2)

In relation to the institution of proceedings under section 1 above for conspiracy to commit—

(a)

an offence which is subject to a prohibition by or under any enactment on the institution of proceedings otherwise than by, or on behalf or with the consent of, the Attorney General, ….

[F1(5)Subject to subsection (6) below, no proceedings for an offence triable by virtue of section 1A above may be instituted except by or with the consent of the Attorney General.”

S25 Prosecution of Offences Act 1985 reads where relevant as follows:

“25 Consents to prosecutions etc.

(1)

This section applies to any enactment which prohibits the institution or carrying on of proceedings for any offence except—

(a)

with the consent (however expressed)— of a Law Officer of the Crown or the Director; …..

(2)

An enactment to which this section applies—

(a)

shall not prevent the arrest without warrant, or the issue or execution of a warrant for the arrest, of a person for any offence, or the remand in custody or on bail of a person charged with any offence; …”

R v Lambert [2009] EWCA Crim 700 reads where relevant as follows:

“The analysis of the statutory language:…

16.……..there are two questions.

i)

When were the proceedings instituted?

ii)

If the permission of the Attorney General was not given before the proceedings were instituted, was the plea before venue hearing within the scope of s.25(2)?

(i)

When were proceedings instituted?

17.

The appellant was charged by the police on 27 June 2007 and brought before the Court on 28 June 2007. The charge would have been entered onto the Court record on 28 June 2007.

18.

S.25(2) of the Prosecution of Offences Act 1985 provides that

"for the purposes of this Part, proceedings in relation to an offence are instituted … (c) where a person is charged with the offence after being taken into custody without a warrant, when he is informed of the particulars of charge."

The judge took the view that this provision was not directly relevant as the subsection was by its express terms relevant only to Part 1 of the Prosecution of Offences Act and s.25(2) is not in Part 1. It was also argued by the Crown that the phrase "the institution or carrying on of proceedings" in s.25(1) must have a wider meaning than the ordinary meaning of the institution of proceedings and signify something of substance happening in respect of the charge. We can see no warrant in the language for so concluding.

19.

The word "institute" is commonly used to mean commence; that is its ordinary meaning and there is ample authority to support that view. However, as Saville LJ observed in DPP v Cottier [1996] 2 Cr App R 410 at 416, the answer to the question when proceedings are begun or instituted depends on the context in which the words are used and the purpose of the provision. ……In the context of the Terrorism Act 2000 it could well be that in the light of s.15(1) (sic) of the Prosecution of Offences Act 1985 and the ordinary meaning of the term institute, that proceedings were instituted when the appellant was charged. However, there can be no reason for contending, as a matter of language and context, that the time at which proceedings were instituted in respect of the appellant for the offence under the Terrorism Act 2000 was any later than the time at which the appellant was brought to court following the charging and when the charge was entered onto the court register. In any sense of the word, the proceedings must have been instituted when the charge was entered into the court register…..

20.

It follows, therefore, that the proceedings against the appellant were instituted before the Attorney General's permission was given to enable the Director to consent.

(ii)

Was the plea before venue hearing within the scope of s.25(2)?

21.

We therefore turn to the second question. The language of s.25 is clear. The purpose is to enable the arrest, charging and remand in custody or bail of a person against whom proceedings may have been commenced without the consent of the Attorney General or Director; it covers action that needs to be taken to apprehend the offender and detain him if there is not time to obtain permission. It does not in our judgment permit anything more to be done. Applying the analysis from Bull, it is clear that the decisions in Elliott and Whale and Lockton would have been the same.

22.

If by reason of a wider reading of s.25(1) as contended by the Crown, something of substance was required to happen in the proceedings, a plea before venue is for the reasons we have already set out a hearing of substance.

Conclusion

23.

The appeal is allowed as the permission of the Attorney General was not obtained before proceedings were instituted. We do not need to decide what consequences our decision has on proceedings begun without consent. In the present case, the Crown Court can reconstitute itself as a Magistrates' Court and hold a new plea before venue hearing. If the issue arises in other proceedings, it is desirable that the consequences be argued in a case where the decision on the issue will have practical significance.”

The following extracts from the Criminal Procedure Rules (“CrimProcRules”) read as follows:

“9.5

Duty of magistrates’ court officer.

(1)

The magistrates’ court officer must –

(b)

in that notice record –

(ii)

any indication of intended guilty plea given by the defendant under rule 9.7 (Sending for Crown Court Trial).

9.7

Sending for Crown Court Trial

(1)

This rule applies where a magistrates’ court must, or can, send a defendant to the Crown Court for trial without first allocating the case for trial there…

(4)…the court must then…

(b)

invite the defendant to make representation about-

(i)

the courts power to send the defendant to the Crown Court, and…

(5)

if the court sends the defendant to the Crown Court for trial, it must-

(a)

ask whether the defendant intends to plead guilty in the Crown Court and-

(i)

if the answer is “yes” make arrangements for the Crown Court to take the defendants plea as soon as possible, or

(ii)

if the defendant does not answer, or the answer is “no”, make arrangements for a case management hearing in the Crown Court…”

It was not in issue that proceedings were instituted prior to consent. The question raised at the preparatory hearing was:

“Should the Attorney General’s consent to institute proceedings have been obtained before the preliminary hearing in the Crown Court?”

If the answer were yes, proceedings would be a nullity.

The judge reminded himself that consent had been obtained “after the proceedings had been instituted” within the meaning of s4. It was argued by CW that as the preliminary hearings were prior to consent, the case had proceeded beyond the formalities of charging and of ensuring remands: Lambert

The Crown sought to distinguish Lambert. It submitted that a preliminary hearing did not involve the defendants “coming to court to answer the charges” because they were not at that stage required to indicate pleas. In addition, even on a narrow reading of the legislation, the obtaining of consent after a preliminary hearing did not offend against the saving provisions of S25(2)(a) of the Prosecution of Offences Act 1985.

The Judge reminded himself of the relevant CrimProcRules and ruled that although Lambert was dealing with a differently constituted framework (plea before venue at the magistrates court, which required the question of plea to be asked, rather than a preliminary hearing where the court may inquire as to plea with an eye to case management) that was a distinction without a difference. The case was “instituted” within the meaning of s4, prior to consent. It was not possible to strain the language of s25 to say that a preliminary hearing could be saved from the requirement of consent by its date.

The Judge erred in holding that consent was obtained too late: R v Lambert [2009] EWCA Crim 700.

Miss Whitehouse added that though the defect can be cured (a Crown Court judge may exercise the powers of a District Judge and send the case back to the Crown Court) it would be of substantial benefit if it were cured before trial.

There was a limited number of what the Crown described as inaccuracies in what was said below. In the Judge's ruling it was suggested that the AG expects to be consulted where cases are sensitive and in other limited circumstances and retains control of the case. Miss Whitehouse explained that to the contrary, control remains vested in the CPS. As to the chronology, no matter the custom and practice in Liverpool, the Criminal Procedure and Investigations Act 1996 gives the Crown 50 days where the defendant is remanded in custody or 70 days where he is on bail in which to serve its case. It then has a further 28 days in which to serve the indictment. The narrow point which might arise, Miss Whitehouse feared, was a misapprehension that a PCMH can' be arranged as early as possible. In truth there exists quite some time available to the Crown to do its duty. Next, a suggestion in dialogue included the availability for securing consent of a five-minute procedure by use of a hotline. To the contrary, the AG's lawyer informed the court that the AG asks for 2-3 weeks after application and makes the decision personally. Last calendar year, for example, he considered in the hundreds of applications for consent. Finally, as to the application of Criminal Procedure Rule14.1 (the details of which need not trouble us) Miss Whitehouse explained that often the indictment is served after service of the case papers.

Her submissions began with a consideration of Lambert. The court there found that proceedings were instituted when the charge was entered onto the register. However it went on to say that the language of S25 allows procedural matters to be effected before the grant of consent. That Miss Whitehouse argued was difficult to reconcile with its decision on “instituted”. Entry onto the register could be within hours of arrest. On one reading of Lambert, therefore, anything post-entry would be null.

We do not see any inconsistency between section 4 of the 1977 Act and section 25 of the 1985 Act.  Section 4 is the primary provision.  As Lambert makes clear, consent must be obtained before proceedings are instituted and, if it is not, the proceedings are null and void.  Section 25 cannot override section 4, and "save" proceedings.  It simply enables the lawful arrest, charging and remand in custody or on bail of a person in circumstances in which the relevant consent has not been obtained.

The question for this court is thus extremely simply expressed. Are the steps taken at the hearings before consent is given protected by S25?

CW had two hearings. The first, on 7th November, saw him sent by the magistrates for trial, to join others. It was no more than an administrative step and he was remanded in custody. The Criminal Procedure Rules allow, or more accurately contemplate, a question about plea but there is no statutory requirement that it should be posed. Were a defendant at this stage to indicate, or in counsels’ discussions to signal an intention to plead guilty, he would be likely to attract appropriately calculated credit when if he did he later entered it, but the exchange could not bind him.

CW was not asked about his intention and need not have answered had he been. Compare and contrast a plea before venue hearing, which has the effect of starting his trial, when he must be asked his intention. The sending hearing is thus, the Crown suggests, purely administrative, the plea before venue procedural.

CW’s second scheduled appearance was set for a preliminary hearing on 13^th November 2014. Appearances of this type attract, currently, different epithets circuit by circuit but their function is common nationwide.

It may be that CW was unwell and did not come to court so that there was no opportunity for him to be asked whether he intended to plead guilty. In any event none of the defendants was asked, formally or informally. The hearing was no more than a timetable-setting exercise.

Miss Whitehouse showed us the CPS Guidance, Consents to Prosecute which tells the reader that consent should normally be secured in indictable only cases before service of the case or if that is not possible then before the effective PCMH.

The CPS, also in accordance with its own Guidance, must before an indictment is prepared let alone served be satisfied of a realistic prospect of conviction and that prosecution would be in the public interest. Miss Whitehouse told us that no matter how self-evidently strong the case and obvious the public interest counsel is obliged to rehearse in a comprehensive Advice the evidence founding and any relevant considerations affecting even the most unchallenging of conclusions. This is a necessarily time-consuming task and some would say an oddly blunt instrument when applied without discretion. In any event, no formal pleas were possible at CW’s preliminary hearing as no indictment was in existence.

However, Miss Whitehouse conceded that had CW indicated that he wished the hearing to be listed for a plea the Crown would either have attempted expedition in securing the Attorney’s consent (for which it had already applied) or sought an adjournment until its application was resolved.

The primary point of a preliminary, or early guilty plea (“EGP”), hearing is to achieve the earliest possible clarity in the Crown Court as to whether a defendant will plead guilty or not guilty. Though local practices may diverge somewhat in form and/or epithet, the EGP scheme shortly to be introduced nationwide has at its core recognition of the need to eliminate waste of and to insist upon conservation of resource.

On each Circuit in every case there will be a preliminary (EGP) hearing no later than 28 days after sending. We were grateful to Miss Whitehouse for confirming that such an arrangement affords sufficient time for consent, if it were to be granted, to be sought and issued. Currently in Liverpool at preliminary hearings the defendant is told that it is an opportunity to enter a plea and that credit would follow. The purpose of the preliminary hearing, as the Judge said, is to move matters along and see the entry of a plea where appropriate at an early stage.

It follows that by the EGP hearing an indictment will have to have been served, otherwise the aims of the scheme would be fatally undermined.

They would also be undermined were the Crown’s contentions in this case to find favour. In our view the mandatory requirement to secure consent before entry onto the court record is only to a strictly limited extent moderated by the provisions of S25.

Certain steps during the conduct of a criminal case must be taken. It would risk an injustice were their place in the chronology to found, without more, a successful submission that proceedings were null and void. That potential injustice is all S25 seeks to address, and by its language it does no more than protect against the law of unintended consequences. It does not provide an escape route which cures deficiencies in the Crown’s adherence to the terms of S4.

The position is clear. There were three occasions upon which proceedings could have been, or were, instituted. First, when the charge was entered in the court register. If not at that point then, second, on a sending, in this case on 7^th November 2014, as a reading of the subordinate legislation, the CrimProcRules, makes plain. If not by that stage, then, third, at the preliminary hearing on 13^th November 2014, when identifying the plea intentions of a defendant were, as they always are, of the essence, whether s/he be present, or absent but represented.

In this case the delay is puzzling. CW was serving a long sentence for conspiracy committed at least in part in Scotland for which consent had also been secured. He was in prison when arrested for the index offences. The CPS thus knew at an early stage that consent was necessary, leaving aside the several mentions of it by counsel for CW. Quite why, thus alerted, it did not pre-arrest seek it was never satisfactorily explained. Reference to its own Guidance was unnecessary for the understanding of the position. The “loophole”, as Mr Barraclough for CW described it, in S25 was obviously limited, as a reading of paragraph 21 of Lambert demonstrates.

We agree. The Judge was astute to the problems the Crown had created for itself and unmoved by a last-ditch attempt to bend the language of S25 to accommodate that failure.

Good husbandry of resource, identified in the President of the Queen’s Bench Division’s Review of Efficiency in Criminal Proceedings, 2015, and echoed in the EGP scheme must remain unimpeded by wholly avoidable inattention. Still more must it be protected from the erosive effects of a cavalier attitude to statutory requirement.

We do not wish to leave this matter without recognising the change in the statutory and procedural landscape since S4 and S25 went onto the statute book. By now, in 2015, the desirable abridgement of time from arrest to disposition is uncontroversial and familiar to all parties in the criminal justice system. The days of arrest, followed by an appearance before the magistrates, followed by a remand in custody, often another remand in custody, or admission to bail, followed by committal to the Crown Court, where a Plea and Directions Hearing might be held, then a trial, are long gone.

They did however allow what would now be seen as a generous period between first appearance (and thus entry on the court register) and service of the indictment. Within those weeks, and more often months, the timeous securing of consent imposed far less of a constraint than does the current and contemplated scheme, in which an individual might be arrested on Day One, before the magistrates (his case entered onto the record) on Day Two on which he would be sent to the Crown Court, and an EGP hearing within 28 days of sending.

It is not the business of this court to do more than apply whatever statutory regime remains in place, as we have on these facts sought to do. However, the absolute necessity of reflecting the recommendations within the President’s Efficiency Review and the terms of the EGP scheme might merit attention to where the statutory scheme now sits when consent from the AG must be secured. The speed of progress from arrest to disposition in 2015 as compared to that when S4 and for that matter S25 went onto the statute book no longer provides that “middle period” during which it could conveniently be sought.

This application is rejected.