Director of Public Prosecutions, R (on the application of) v Devizes Magistrates' Court

MR JUSTICE TUGENDHAT: This is an application for judicial review of a decision by the South-East Wiltshire Magistrates' Court sitting at Devizes to retain jurisdiction in the case of Gary Smalling. He had pleaded guilty to two offences of possession of drugs, both class A and class C drugs, when entering Erlestoke Prison. He was then serving a sentence of imprisonment.

The two offences were committed on 8 April 2005. The first offence to which he pleaded was possession of 6.07 grammes of diamorphine (heroin) and the second was possession of 26.6 grammes of cannabis resin. Each offence is a contravention of section 5(1) of the Misuse of Drugs Act 1971.

The matter proceeded pursuant to the Magistrates' Courts Act 1980 section 17A. Under the Powers of Criminal Courts (Sentencing) Act 2000, section 3 provides as follows:

The facts can be briefly summarised as follows. Mr Smalling is aged 37. On 16 July 2001 he had been sentenced to a term of six years' imprisonment for attempted murder. On his return from temporary release, officers at the prison took him to conduct a strip search in accordance with prison policy. A package was found attached to his penis by an elastic band. This contained substances identified and weighed on forensic analysis, and found to be as described in the charges. We are told that it is estimated that the value of the heroin was about £303 and that the value of the cannabis was about £66.

It was on 9 June 2005 that Mr Smalling was arrested, and on 20 July that he was charged with the two offences mentioned above. On 2 August Mr Smalling appeared before the Magistrates' Court. Miss Davies appeared for the Crown. It is accepted that she referred the Magistrates to the passage in Stone's Justices’ Manual which contains a reference to the case of R. v. Roberts [1997] 2 Cr.App.R. (S) 187. As described in Stone’s, the reference is as follows:

The full report of that case shows that he pleaded guilty to possession of 0.188 grammes of class A drug, namely, heroin, and that he did so at an early stage. The Court of Appeal held that the sentence of 15 months imposed by the sentencing Judge was entirely appropriate where a serving prisoner pleads guilty to possession of that amount of drug. Accordingly, the application for permission to appeal which was being made in that case was refused. The Court of Appeal repeated the words of the Judge to the effect that the possession of drugs in prison is a more serious offence than the serious offence of possession of drugs outside prison.

The Magistrates retired to consider what course they should take. When they returned to court they accepted jurisdiction and gave an indication that they were considering a low to medium custodial sentence. They adjourned the case until 5 September 2005 for the preparation of a pre-sentence report.

The Magistrates' Courts Act, section 17A was introduced with effect from 1 October 1997 pursuant to the Criminal Procedure and Investigations Act 1996, section 49. The effect of the amendment was considered in R. v. Warley Magistrates' Court, ex p Director of Public Prosecutions [1998] 2 Cr.App.R. 307. Kennedy LJ stated at page 313G that he saw nothing in the amended wording of the Statute to indicate that it was intended to alter the jurisdiction of either the Magistrates’ Court or the Crown Court to any significant extent, and so, generally speaking, the Mode of Trial Guidelines relevant before 1997 remained relevant.

He said that section 19(3) of the 1980 Act was still relevant. That section provides that the matters to which the court is to have regard: “are the nature of the case; whether the circumstance make the offence one of a serious character; whether the punishment which a Magistrates' Court would have power to inflict for it would be adequate; and any other circumstances which appear to the court to make it more suitable for the offence to be tried in one way rather than the other.”

The Magistrates filled in, while they were retired, the standard form, headed "Structured Sentencing Form". It includes a guideline entry point, which they inserted as "Community Order" on the basis that that is the appropriate entry point given in the Guidelines of the Sentencing Guidelines Council.

They record that the defendant, Mr Smalling, was in prison at the time of the offence; that there was a significant amount of drugs; and that there was breach of trust; and each of these they annotated as having a “High Significance”. They record no mitigating features, but they do record that he had no relevant previous convictions. Under "Mitigating Offender Features”, they record "Delayed charges at court (three months)", and the “Adjusted Seriousness” they annotate as "Low Custody".

The Magistrates are not represented in this court today, but we do have a detailed skeleton argument settled on their behalf by the Deputy Clerk. In that skeleton argument, it is submitted that the sentencing indication filled in the form was in accordance with the Guidelines.

Our attention is directed to the case of R. (On the Application of Director of Public Prosecutions) v. Salisbury Justices [2003] Cr.App.R. (S) 560, which is a case in which this court declined to quash an apparently very lenient sentence imposed by Magistrates. Mr Moorhouse, who appears before us today, submits that the reference that was undoubtedly made to the case of Roberts before the Magistrates can only have been made in the context of a specific submission to the Magistrates that they should commit to the Crown Court.

It certainly was submitted that, unlike Roberts, Mr Smalling was not serving a sentence for a drugs-related matter. That submission on his behalf was accompanied by the further submission that the hearing was in August whereas the offences had been in April, and that he had been released from prison in the meanwhile. That is the submission which succeeded, as appears from the form which was completed by the Magistrates.

In the skeleton argument on behalf of the Magistrates it is submitted that the case of Roberts would support an adjustment of the seriousness to the position indicating a committal to the Crown Court, and that would not have been unreasonable. But it is not accepted that there is no reason for departing from the Guidelines. One of the consequences of the delay, it is submitted, was that by the time of the hearing Mr Smalling had been released from prison, settled back into life in the community, and had not re-offended.

It is said that Mr Smalling was caught red-handed in circumstances where detection was inevitable; that he immediately volunteered evidence of the knowledge and possession of the drugs; that no further evidence was necessary; and in particular that forensic analysis would not be necessary for such a case which proceeds as a guilty plea.

Mr Moorhouse submits that that is not a justified submission; that the prison officers having found such a large quantity of drugs were entitled to carry out the investigations that they did; and that the delay was therefore not excessive.

At page 318 of the Warley Justices case, Kennedy LJ turned to consider the function of the Divisional Court.

Salisbury, to which the defendants' skeleton argument directs our attention, is an example of this court declining to intervene. In that case, the mitigation available to the defendant was very exceptional indeed. The submission made by Mr Moorhouse is that the Magistrates must have misunderstood Roberts, or disregarded it. Although it is not truly a guideline case, it is not the only one in which the sentence for possession of drugs by a serving prison has attracted a substantial sentence of imprisonment, in some cases in excess of the 15 months in that case.

Mr Moorhouse further submits that this is unlikely to be a case where it could be said that consecutive sentences would be appropriate, with the result that the Magistrates have effectively limited their sentencing powers, or the powers of the Magistrates who had come to exercise the sentencing power, to a maximum of six months' imprisonment. It is also submitted that by indicating that they had in mind a low to medium sentence of imprisonment, which means about four months, the Magistrates raised an expectation as to sentence. Accordingly, he submitted that the indication would be binding at any subsequent sentencing or appeal against sentence if the matter proceeds without the decision as to venue being quashed.

It is submitted that the matters referred to above, which were raised on Mr Smalling's behalf before the Magistrates, namely, that his then current imprisonment was not for a drugs offence and that there had been a lapse of some four months between the discovery of the drugs and the guilty plea, could be a proper basis for a sentence of less than six months' imprisonment in this case, and, accordingly, that the decision of the Magistrates not to commit to the Crown Court was unreasonable in the Wednesbury sense or perverse.

With the benefit of the submissions of Mr Moorhouse and the written skeleton argument on behalf of the Magistrates, we have come to the conclusion that the submissions of Mr Moorhouse must be correct. The Magistrates must have misunderstood the appropriate range of sentencing which the Court of Appeal has approved for possession of class A drugs by a serving prisoner. Accordingly, we have concluded that the decision of the Magistrates should be quashed. Since the implication of this is that there is only one order that the Magistrates could properly have made in this case, namely, that Mr Smalling should be committed to the Crown Court for sentence, we direct that they should so order.

In their skeleton argument, the Magistrates ask for guidance from this Court as to the level of sentence that would be appropriate. That is not an invitation which we can accede to.

Accordingly, in my judgement, the order of the Magistrates should be quashed and they be directed to commit Mr Smalling to the Crown Court for sentence.

LORD JUSTICE MAURICE KAY: I agree. The last thing that this court would wish to do would be to encourage applications for judicial review of the sentencing decisions of Magistrates. As my Lord has demonstrated on the authorities, this court will only interfere with such decisions where they are properly categorised as "truly astonishing". In the Salisbury Justices case, to which my Lord has referred, it is plain that this court in declining to interfere was of the view expressed by Latham LJ in paragraph 10 of his judgment that that case was:

“...one which is close to a decision which is outside the limit of the discretion which Justices have in such circumstances."

What kept it just within that discretion was the exceptional mitigation that was there apparent. For my part, I do not disagree at all with the conclusion reached by this court on those facts and circumstances in that case. It fell just on one side of the line. In my judgment, this case falls on the other side of that line.

There is no such exceptional mitigation disclosed by the consideration of the case in the Magistrates' Court. The previous decisions of the Court of Appeal, Criminal Division on possession of drugs in prison by serving prisoners all point to significantly more substantial custodial sentences being appropriate than that which was contemplated by the Magistrates in the present case.

Accordingly, although it behoves us to be very slow to interfere with sentencing decisions by Magistrates, in this case I regret to say that we cannot avoid doing so.

I agree that the decision should be quashed, with the direction to which my Lord has referred.