White, R (on the application of) v The Justices of Barking Magistrates' Court

MR JUSTICE STANLEY BURNTON: I have before me an application by Carl White for judicial review of a decision made by Barking Magistrates' Court on 12th September 2003 to commit him to the Crown Court for sentence in respect of offences relating to the cultivation of cannabis on a commercial scale and the unlawful abstraction of electricity. The basis of the claim for judicial review is that at an earlier hearing before a differently constituted bench on 8th August 2003 an indication had been given that the magistrates themselves would deal with the matter of sentence for all of the offences before them; that the indication that was given was sufficient to give rise and did give rise to an expectation that he would not be committed for sentence; that that expectation was a legitimate expectation in the circumstances; that no facts arose between 8th August and 12th September, or were before the court on 12th September, such as to justify a departure from the indication given on 8th August 2003; in those circumstances, that Mr White is entitled to an order of this court ensuring that his legitimate expectation is fulfilled and that involves quashing the decision of 12th September 2003 to commit him for sentence.

Cases such as the present are by no means unprecedented and, in a number of respects, unfortunate. They are not unprecedented because, as has been seen in the authorities to which I have been referred, in the past magistrates have used expressions such as: 'We accept the jurisdiction' or 'We propose to exercise jurisdiction', 'but all options are open' in circumstances where they may intend to retain the option to commit for sentence, but where that particular option is one which is not retained according to the impression given to the defendant and those representing him. That is to say the impression they are given by what is said by the bench is that committal for sentence to the Crown Court has been ruled out. It has been pointed out in a number of authorities that magistrates who wish to leave open the option of committal for sentence should so state in terms, and expressly and specifically state that the possibility of committal for sentence is one which will be considered in due course or at a later date.

It has been suggested on at least one occasion that a clear formula should be devised which can be read by magistrates or of which they can be reminded by their legal advisor when questions such as those that arose in the present case arise on a first hearing of a case which may be tried either way and where there is an option to commit for sentence. That is a recommendation which I wholly endorse.

The case is unfortunate in another respect. Proceedings before the magistrates are not recorded. There is no transcript available of what was said to the magistrates on behalf of the prosecution or on behalf of the defence or what was said by the magistrates. The result is that on a judicial review application the court is left seeking to arrive at a probable version of what was said based on evidence which to some extent is not contemporaneous. That is an exercise which regrettably this court has to embark upon. As will be seen, in one respect at least there is a very real issue as to what the magistrates were told on the 8th August 2003 and the basis on which they stated what they did state on that occasion. Those considerations reinforce the importance of what is said to a defendant on occasions such as this being recorded at the time. It is clear from the evidence before me that there is no substantial record of any of the matters which I have had to consider, so far as the hearing of 8th August 2003 is concerned.

The essential facts of this matter are not in dispute. In December 1998 police executed a search warrant at an address in Barking which had been rented to the claimant by the local authority. The property was a ninth-floor council flat comprising of bedroom, bathroom, lounge, dinning room and a kitchen. There was no furniture in any of the rooms. The entire flat had been converted into premises for the cultivation of cannabis, which was indeed being cultivated there. Furthermore, the electricity supply to the flat had been interfered with so as to by-pass the metering system by which electricity was charged. According to the prosecution case there were sophisticated lighting rigs and irrigation systems powered by electricity, all of which was being unlawfully abstracted. On another occasion a total of 286 cannabis plants were seized.

On 8th November 1999 the applicant was stop-checked by police. He gave a false name, Mr Himpfen. However, the police managed to ascertain his true identity and it was discovered that he had been renting a cottage in Crediton, Devon, under another false name, namely Goddard. When this property was searched by the police they discovered another what is described as a 'cannabis factory'. Once again the electricity meters had been bypassed. On that occasion a total of 253 plants were seized.

The plants were examined by the forensic science laboratory who found that the plants had a yield of between 3,428 and 6,808 grammes, a projected yield of between 11.9 and 22.9 kilogrammes. A drugs liaison officer estimated the plants current yield as between approximately £12,000 and £24,000 at 1999 prices, with an anticipated full yield of somewhere between £40,000 and £80,000.

The claimant was not arrested until 10th July 2003 when he gave yet a further false name, that of Mr Cordingley. His true identity was discovered and he was arrested and charged with the Barking offences. No value of the cannabis plants was produced before the court on 8th August 2003, or any estimate of their yield.

The matter came before the magistrates on 8th August. The first question which arose according to the evidence was whether all the offences, namely both those committed in Barking and those in Devon, should be dealt with by the magistrates. Although that was an issue, in fact the magistrates had no discretion whether or not to deal with both sets of offences, at least so far as plea was concerned, they were so advised and they proceeded to do so.

It is not in dispute that on 8th August the facts of the cases were opened by the prosecution, and that the claimant, who was represented by Mr Kevin Lowry-Mullins, a solicitor, mitigated, seeking to obtain a decision by the magistrates that they would deal with sentence. He had advised Mr White that he should seek to do so; that was clearly correct advice in the circumstances, given the relatively limited powers of the magistrates so far as sentence was concerned compared with that available in the Crown Court. Mr Lowry-Mullins mitigated in detail. What he said on that occasion is summarised in section 8 of the claim form which has been the subject of further evidence in his subsequent witness statement of 23rd February. I shall have to refer to that in due course.

The question arises as to whether on that occasion the magistrates were given the impression that the plants in Devon were, at the time that Mr White was apprehended there, or the premises were searched, so diseased as to be devoid of commercial value. That, of course, was a matter which was relevant to sentence and therefore relevant to the decision whether or not to commit.

According to the statement of facts there was mitigation, the bench having heard of the defendant's previous convictions which were placed before them. They were asked to accept jurisdiction and they retired to consider. I quote from section 8 of the claim form:

The first question I have to consider is whether what was said by the magistrates on 8th August 2003 was such as to create an expectation that they would deal with him on the matter of sentence. It appears from the evidence of David Harris, who was one of the magistrates on the bench on 8th August, that he believed that the bench were retaining the option to remit the case to the Crown Court if it was thought appropriate when the matter next came before the magistrates. It is quite clear on the evidence before me, however, that that possibility was not expressly referred to.

The evidence of the advocate who appeared for the Crown Prosecution Service, namely Mary Tedeye, is that she did not appreciate that a decision concerning jurisdiction for sentencing had been made. She thought that the jurisdiction of the justices had been referred to only in the context of the decision as to whether both Devon and Barking offences would be dealt with by the court and, indeed, the file entries she made reflected that understanding. Quite rightly, however, she has disclosed the file note made by the justices' legal adviser on 8th August which reads:

When I put all the evidence before me together I am not surprised at the concession, effectively made by Mr Hall on behalf of the CPS, that the impression would have been given when the magistrates were deciding that they would exercise all the powers to sentence. The only issue as to jurisdiction that was live before the magistrates was as to whether or not they would exercise the sentencing powers of the court in relation to the offences which were before them. The question of jurisdiction in respect of the Devon matters had, effectively, already been decided, there having been a plea to those offences. If the magistrates wished to retain the option to commit to the Crown Court it was essential that they expressly state that they were doing so when deciding whether or not the matter would remain within the magistrates' court for any purpose at all. It follows that there was an expectation created in this case. The authorities are clear that in normal circumstances where such an expectation is created this court on judicial review will make such order as will ensure that the expectation which is treated to some extent as a promise is fulfilled.

In the present case there are two reasons given why that course should not be followed. The first is that the magistrates were on 8th August under a misapprehension as to the relevant facts. Two subsidiary questions arise in that connection, the first is: were the magistrates on 8th August under a misapprehension as to the facts? And, secondly: was it a relevant misapprehension?

I turn to the first question. The possibility of a misapprehension of the facts arises by virtue of what is said in section 8 of the claim form. Section 8 of the claim form gives the impression that in mitigating on behalf of the claimant Mr Lowry-Mullins gave the impression, to use as neutral an expression as possible, that the cannabis plants, both in Devon and in Barking had been diseased and had no commercial value. According to the statement of facts:

Those are unequivocal statements that the Devon plants were at all relevant times not of commercial value. The statement continues:

Mr Singer fairly accepts that those passages do give the impression that all the plants which were cultivated by the claimant were diseased and that no healthy plants were produced. Mr Lowry-Mullins has made a witness statement dated 23rd February 2004 in which he said this:

At the beginning of this judgment I referred to the difficulties which arise as a result of the lack of an accurate record of the proceedings before the magistrates' court. The issue in relation to the facts which were put before the magistrates on 8th August highlights the difficulties which may be produced in such circumstances. I have before me a statement of facts formally confirmed by Mr Lowry-Mullins which, if literally correct, must have given the impression to the magistrates that no cannabis plants were successfully cultivated. It is not suggested by the CPS, and indeed nor do I, that Mr Lowry-Mullins intended in any way to mislead the magistrates. What is said on behalf of the CPS is that on the assumption that the statement of facts relied on is accurate the magistrates would have been misled.

It seems to me that the statement of facts does show that there is, and may have been, some room for confusion as to what the condition of the cannabis plants in Devon was at the time that they were discovered by the police. It is, however, very difficult on the basis of the material before me to come to a decided view as to whether, unwittingly, the magistrates were misled, and I shall defer coming to a concluded view on that until I have considered the other questions which arise.

The further question which arises is: assuming that Mr Lowry-Mullins did unwittingly misrepresent the position to the magistrates, is that a relevant matter? In my judgment a misapprehension by the magistrates based, for example, on their misreading of documents put to them, where that misapprehension is not known to those acting for the defendant, cannot justify a departure from a legitimate expectation in the normal course. Where, however, that misapprehension is as to a fact material to the decision made by the magistrates and is caused by an advocate acting on behalf of a defendant then different questions arise. By material I do not mean decisive. In circumstances where different benches hear a case on different dates it is unrealistic to pose the question whether a fact is decisive or not. In my judgment it is sufficient that the fact in question is a material one which could effect the decision in question. If, therefore, the magistrates were misled, and if the facts were material then, in my judgment, the expectation created on 8th August would not have been one which this court should cause to be fulfilled in the exercise of its jurisdiction to grant judicial review.

That the facts in question were material is, in my judgment, clear; indeed were they not material they would not have been referred to; and it is the strength of the points made by the CPS in this regard that the condition of the plants at some historic date -- I refer to the plants in Devon -- would have been irrelevant to the sentencing exercise. The only point in referring to plants being diseased was to suggest to the magistrates that there had been little or no profit made or to be made from them.

In my judgment, in considering the exercise of the judicial review jurisdiction, the court should proceed on the basis that magistrates would normally accept representations made by advocates before them at their face value. It is no answer to a case, if established, that facts were misrepresented, that the magistrates or the prosecution could have intervened to correct the impression given. That is particularly the case in circumstances where the prosecution may not be aware, and indeed were not aware in this case, that the magistrates were making any final decision. It follows that the only question left in relation to what the magistrates were told on 8th August relates to the question: were they unwittingly misled by Mr Lowry-Mullins as to the state of health of the Devon plants?

I pass on to consider the next ground on which judicial review is resisted. It is submitted on behalf of the CPS that the decision, if made on 8th August, was outside the range of decisions which could properly be made by a reasonable bench of magistrates properly instructed as to the law; that is to say, the offences in question were so serious, having regards to the quantities involved, the manner of production, the abstraction illegally of electricity, that no sensible magistrate could think that the appropriate sentence in totality was within their jurisdiction. In considering the magistrates' decision one has to bear in mind not only the repetition of similar offences, but also the fact that the claimant gave false names thereby prolonging his period at liberty and giving himself the opportunity to repeat the offence.

A number of points are made on his behalf: the age of the offences and his frankness in interview with the Devon Police. So far as the age of the offences is concerned they were not proceeded with for some time, it would appear because of the false names he gave. But even apart from that, I have to say that I am clear that these offences were so serious that no reasonable bench of magistrates could have come to the conclusion that it was appropriate to retain jurisdiction over sentencing. I am fortified in that conclusion by the claimant's antecedents which include a sentence of two years' imprisonment passed in June 1995 for possession of a controlled drug with intent to supply. That sentence was passed some three years before the first of the offences which were before the magistrates. Does that consideration effect the decision to be made by the court today? I make it clear that in my judgment had there been a decision not to commit it was a decision which was so unreasonable as to be perverse. I have no doubt that had judicial review proceedings been brought by the CPS in respect of such a decision it would have been susceptible to judicial review and, indeed, judicial review would have been granted.

The availability of judicial review in such circumstances shows that the expectation created by a decision of the magistrates cannot be treated as unqualified. Just as other decisions made by magistrates which are unlawful for breach of a statutory provision may be set aside, so may a decision not to commit. The jurisdiction of the Criminal Division of the Court of Appeal to increase a sentence actually passed in the Crown Court on the ground that it is unduly lenient similarly points to a qualification of the principle of legitimate expectation in this context. Whether the court should, if judicial review proceedings are brought, grant judicial review, no doubt will depend on the circumstances of the case and the court will bear in mind any unfairness to the defendant who, in the hypothetical case on which I base my decision, may have been informed unequivocally and clearly that the sentence would be a matter for the magistrates. In my judgment judicial review is available in such circumstances.

It is to be borne in mind that sentencing is not a decision which effects only and necessarily a defendant. Other considerations often have to be taken into account, in particular the need to protect the public. Questions of rehabilitation of the defendant himself may arise. Pure punishment is not the only consideration which relates to sentencing. Furthermore the Crown Court should take into account the impression given to the claimant by the magistrates.

In the present case the point is taken, and well taken, that, in fact, there have been no judicial review proceedings brought by the CPS. In those circumstances it is submitted it is not open to this court to refuse the relief sought by Mr White because of a theoretical availability of judicial review.

This case differs from some other cases in that it is clear on the prosecution evidence (a) that the CPS were not aware that any decision had been made not to commit when the court announced its intentions on 8th August 2003; and (b) that the court itself did not appreciate that it was making any such decision. That a decision was, in effect, made, although not formally made, was not a matter which was resolved until this hearing and, indeed, until I so decided as I did in the earlier part of this judgment. It is difficult to see in those circumstances what proceedings could have been brought by the CPS. It would have been different had an unequivocal decision been made by the magistrates on that occasion, the nature of which was appreciated by the CPS.

In those circumstances it seems to me that the unreasonableness of the magistrates' decision and the availability of judicial review are matters I should take into account in deciding whether or not to grant judicial review at the behest of Mr White. In my judgment I should not grant judicial review. To do so would to be implement a decision which, had it been made, would have been unlawful by reason of its being unreasonable. In my judgment this case differs from the authorities to which I have been cited where the availability of judicial review was not considered. Here the decision of the magistrates, if it had been made, would have been outside the range of decisions open to them. Indeed, it is quite clear from what was said by Lord Bingham LCJ in the leading case of Davidson, to which I have been referred, that in that case the decision whether or not to commit was one which could sensibly have been made either way by a properly instructed bench of magistrates.

In my judgment I should refuse judicial review in the present case on the ground of the unreasonableness and unlawfulness of the indication given. I say indication because no decision was intended to be made on 8th August. In those circumstances I do not need to reach a final conclusion on the question whether the bench on that occasion misapprehended the facts. I would have been reluctant to decide the case on that basis given the absence of any contemporaneous documentation and given the fact that I have no doubt that Mr Lowry-Mullins would not have intended to mislead the court in any way. If there was any misapprehension created on that occasion it would have been unwitting in the same way that he unwittingly gave the impression in section 8 of the claim form that all of the plants which were concerned were diseased.

In those circumstances judicial review is dismissed on the grounds I have given.

MR HALL: Thank you, my Lord. There is no application for costs.

MR JUSTICE STANLEY BURNTON: Thank you both very much.