Flaherty, R (on the application of) v Stoke-On-Trent Magistrates' Court

MR JUSTICE HENRIQUES: The claimant challenges the decision of District Judge (Magistrates' Court) Harte sitting at Stoke-on-Trent Magistrates Court on 31st March 2004 to commit him to the Crown Court for sentence in respect of two charges of handling stolen goods and one charge of affray. On 18th February 2004 the claimant appeared before a lay bench at Stoke-on-Trent Magistrates' Court where he pleaded guilty in the terms stated. The case was adjourned for a pre-sentence report, the justices indicating that all options would be considered.

On the adjourned date, 10th March 2004, the case came before District Judge (Magistrates' Court) Richards. The pre-sentence report recommended the case be adjourned for assessment for a drug treatment and testing order to 31st March 2004. Significantly, District Judge Richards reserved sentence to himself. According to District Judge Richards' statement he indicated that at that stage he had not made up his mind as to how the defendant should be sentenced, and said words to the effect that he was not committing himself to any particular option when adjourning the case for a drug treatment and testing order assessment. He states: "It was clear to all in open court that I was keeping my options open".

That assertion does not accord with the statement of Mr Lichfield, the solicitor who then appeared for Mr Flaherty. According to him the district judge did not indicate that he was keeping any sentencing option open when adjourning the case for the assessment for the drug treatment and testing order.

When the case came before District Judge Harte on 31st March 2004 the advocate on that date was unaware that District Judge Richards had reserved the case to himself, as apparently was the court. District Judge Harte had before her a pre-sentence report which at its conclusion suggested a drug treatment and testing order. That assessment confirmed the defendant's suitability for a DTTO. However, District Judge Harte took the view that the extreme gravity of the offences, taken along with the defendant's previous record, demanded that the claimant be committed for sentence to the Crown Court.

The advocate then appearing objected to that course indicating that a committal for sentence had not been specifically ruled in when the pre-sentence report was first ordered by the lay bench. The clerk to the court or legal adviser referred to the court file and indicated that all sentencing options had been left available to the court, referring apparently not to District Judge Richards' adjournment, but to the previous adjournment by the lay bench.

The claimant does not rely upon anything said or done by the lay bench, but upon what transpired before District Judge Richards who both adjourned so that an assessment could be made for a DTTO and also reserved the case to himself.

There remains the issue, which we are in no position to resolve, as to whether he gave no indication that he was keeping any sentencing option open or whether, as the district judge asserts, he said he had not made up his mind. Difficulties of this nature need not arise if courts make their views clearly known to defendants by using a prescribed form of words which should be automatic in a busy court and which should be noted on the court file.

It is argued in this case that the claimant had a legitimate expectation that he would be made the subject of a DTTO if the adjournment produced a favourable assessment. That submission is based on a line of authorities beginning with Gillam [1982] Cr. App. R (S) 267 where a Crown Court judge adjourned sentence to obtain a pre-sentence report on the appellant's suitability for a community service order. It was said in the Court of Appeal Criminal Division that this created in the appellant's mind the expectation of such an order if this course were recommended. When a judge in those circumstances purposely postpones sentence so that an alternative to prison can be examined, and that alternative is found to be satisfactory one, in all respects the court ought to adopt the alternative, as a feeling of injustice is otherwise aroused.

That line of authority was developed in the case of Chamberlain [1995] 16 Cr. App. R (S) 473 where a similar outcome followed an adjournment for a pre-sentence report, followed by a further adjournment for investigation and assessment of the defendant's suitability for a specific form of requirement. Wright J, giving judgment, stated:

This same principle was extended in the case of Rennes 7 Cr. App. R. (S) 343 to an adjournment by a magistrates' court which was followed by a committal to the Crown Court for sentence where a custodial sentence was imposed. The principle, however, in Gillam has no application if the circumstances in which the case was adjourned was such that nobody present in court could have had an expectation that there would be a non-custodial penalty even if the reports were favourable. In R v Horton and Alexander 7 Cr. App. R. (S) 299 both appellants were convicted of robbery and the sentencer made it clear that a custodial sentence would be imposed.

Another exception to the legitimate expectation principle arises where the court that created the expectation was labouring under a relevant misapprehension as to the facts as found by my Lord, Stanley Burnton J, in White v Barking Magistrates' Court [2004] EWHC 417 (Admin).

In the present case I must ask: did District Judge Richards create a legitimate expectation that in the event of a positive assessment he would make a DTTO? It seems to me that the clue lies in the fact that having adjourned the case for an assessment he reserved the case to himself.

For my part, I do not find it necessary to attempt to resolve the factual issue as between District Judge Richards and Mr Lichfield, even if it were possible. It is a fact that no clear and identifiable form of words was used by District Judge Richards informing the claimant that all sentencing options remained open, nor can it be said that the fact of reserving the case to himself was likely to have had no impact upon the claimant. The only rational explanation for the fact of reservation was that the district judge in the particular circumstances of this case had in mind the making of an order should the assessment be positive.

I would quash the order committing the claimant to the Crown Court for sentence and remit the case to the justices with a view to their making a DTTO, provided such a course is still open to them; that is provided the claimant remains eligible for such a sentence.

MR JUSTICE STANLEY BURNTON: I agree.

MR JUSTICE HENRIQUES: Thank you very much.

MISS WALBANKS: I would wish to apply for costs. We are acting at the present time under a----

MR JUSTICE HENRIQUES: It would be an order for cost from Central Funds, I take it?

MISS WALBANKS: Yes.

MR JUSTICE HENRIQUES: Yes, so be it. We are grateful for your assistance.