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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gillan v Director of Public Prosecutions [2007] EWHC 380 (Admin) (15 February 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/380.html Cite as: [2007] 1 WLR 2214, [2007] EWHC 380 (Admin), [2007] WLR 2214

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		15 February 2007

1. MR JUSTICE FORBES: This is an appeal by way of case stated from the Crown Court at Winchester that raises directly, and it seems for the first time, the question of whether the Crown Court has, on committal for sentence of an either-way offence, the power to hold a fresh Newton Hearing when the committing justices have already held one and made a decision upon it.
2. The brief facts are these. The appellant pleaded guilty to a charge of assault occasioning actual bodily harm before the Basingstoke Magistrates' Court on 17 January 2006. The Crown alleged that the assault comprised repeated punching, followed by kicking to the head whilst the victim was on the floor. The appellant pleaded guilty on the basis that the victim had attempted to head-butt him (the appellant) before he struck him. The appellant denied that he had stamped on the victim's head, asserting that he had merely put his foot on the victim's shoulders and neck to prevent him from getting up.
3. The appellant's basis of plea was not accepted by the Crown and the justices rightly decided that a Newton Hearing was required to establish the facts for sentencing. The Newton Hearing was held before a district judge on 5 May 2006. The district judge found for the prosecution and determined that the appellant should be sentenced on the basis of the Crown's case. The case was adjourned to 1 June 2006 for the preparation of a pre-sentence report when, the power to do so having been specifically reserved by the district judge, the appellant was committed to the Crown Court for sentence.
4. On 23 June 2006, the appellant appeared before Winchester Crown Court, when it was indicated that he wished again to dispute the factual basis upon which he was to be sentenced. Accordingly, the case was adjourned for a further Newton Hearing. However, on 26 August 2006, having heard legal submissions on the matter, HHJ Hooton concluded that he did not have the power to conduct a further Newton Hearing in the Crown Court, the factual basis of the Crown's case having previously been determined by a district judge at such a hearing in the Magistrates' Court. Sentencing was then adjourned pending the outcome of this appeal in respect of the judge's ruling.
5. Initially the judge contemplated that there would be an application for judicial review of his decision. However, as I have already indicated, he later stated a case for the opinion of this court. The question posed for the opinion of the High Court is in the following terms:

"Where magistrates have determined the factual basis for sentencing at a Newton Hearing and then commit the defendant for sentence in the Crown Court, in the absence of some significant development such as the discovery of important further evidence, does the duty of the Crown Court to enquire into the circumstances of the case include a power to hear evidence in a second Newton Hearing to determine afresh the factual basis on which the defendant shall be sentenced?"

6. In my view, the central part of that question tends to cloud the issue and the question would be more appropriately phrased so as to omit those words and read as follows:

"Where magistrates have determined the factual basis for sentencing at a Newton Hearing, and then commit the defendant for sentence in the Crown Court, does the duty of the Crown Court to enquire into the circumstances of the case include a power to hear evidence in a second Newton Hearing to determine afresh the factual basis on which the defendant shall be sentenced?"

Hereafter I will refer to the question posed in the case stated as "the modified question" and state my conclusion with regard to the "modified question" rather than the original one.

7. In addition to the modified question, an issue of jurisdiction and procedure arises because, as is apparent from my recital of the facts, this is not an appeal from a final decision of the Crown Court, rather it is an appeal in respect of a judge's ruling as to whether he should conduct a further Newton Hearing before proceeding to deal with sentence. Therefore, this appeal is more in the nature of an interlocutory appeal.
8. In my view, it is convenient to consider first the question of this court's jurisdiction to hear an appeal by way of case stated in relation to an interlocutory decision. In Loade v Director of Public Prosecutions [1990] 1 QB 1052, this court (differently constituted) held that there is either no jurisdiction to entertain such an appeal in criminal proceedings or that it is the court's invariable practice not to entertain one. The court in that case was, however, willing to express an opinion on the question posed, but stated that, in future, a court might simply dismiss the appeal.
9. In giving the first judgment in that case, Neill LJ set out the terms of section 28 of the Supreme Court Act 1981, so far as material, as follows:

"(1) Subject to subsection (2), any order, judgment or other decision of the Crown Court may be questioned by any party to the proceedings, on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the Crown Court to have a case stated by that court for the opinion of the High Court.

(2) Subsection (1) shall not apply to - (a) a judgment or other decision of the Crown Court relating to trial on indictment ..."

10. Neill LJ went on to observe:

"There is no definition of the word 'decision' in the Act of 1981. The use of the word in conjunction with the words 'judgment' and 'order' is some indication that appeals by way of case stated are meant to be confined to appeals from final decisions rather than preliminary rulings."

11. Neill LJ then reviewed the earlier legislation and the history of appeals by way of case stated to the High Court, before concluding as follows:

"I must now return to the words used in section 28(1) of the Act of 1981. I have come to the conclusion that looking at the word 'decision' in its context and also in the light of the history of appeals by way of case stated before 1971 and the parallel history of appeals by way of case stated direct from the justices there is a very powerful argument for construing the word 'decision' as meaning final decision. Indeed, in the case of criminal proceedings I am satisfied that the word should be so construed and that, whether regarded as a matter of jurisdiction or of invariable practice, the High Court will not entertain an appeal by way of case stated in a criminal case unless the Crown Court has reached a final determination."

Turning to page 1065 at letter F, Neill LJ said this:

"Nevertheless, the matter has been fully argued before us and I think it would be helpful if I were to express an opinion on the merits of the appeal even though it must be appreciated that what I say is obiter. I would, however, add a warning that it should not be assumed that in other cases the High Court will be prepared to express any opinion, however informal. The appeal may simply be dismissed."

12. Pill J (as he then was) delivered a short judgment in which he agreed with the judgment of Neill LJ.
13. I also agree with the judgment of Neill LJ and, for the reasons he gave, I am of the view that the word "decision" in section 28(1) of the 1981 Act means "final decision". It therefore does not include an interlocutory decision in criminal proceedings, such as the one under challenge in this case. However, the Crown Court is amenable to judicial review except in matters relating to trial on indictment (see section 29(3) of the 1981 Act) which this is not. Accordingly, in my view, the correct procedure for challenging the lawfulness of an interlocutory decision in criminal proceedings such as the present one is by way of an appropriate application for judicial review, although the circumstances in which that is likely to be necessary will, as it seems to me, be relatively rare and exceptional.
14. Strictly speaking, therefore, this appeal is at risk of being dismissed as indicated and for the reasons given by Neill LJ in Loade. However, the point raised is an interesting and important one, and we have been told that the Crown Court would welcome this court's guidance.
15. As Mr Lofthouse submitted on behalf of the appellant, it is open to this court to give appropriate directions to enable this matter to proceed by way of judicial review and to treat this hearing as the substantive application, emulating the approach adopted in Sunworld Limited v Hammersmith and Fulham LBC [2000] 1 WLR 2102 (see the judgment of Simon Brown LJ (as he then was) at pages 2106E to 2107B). As it seems to me, that is the obvious and sensible way of dealing with this particular matter and, as I indicated earlier, it is plainly one that was in the contemplation of the judge (see his observations at page 18 of the transcript of the hearing). Furthermore, this approach will enable the matter to be considered and decided on its merits.
16. I therefore turn to consider the issue raised by these proceedings on the basis that the appellant or applicant seeks appropriate relief by way of judicial review of the judge's decision that he was bound by the factual findings of the district judge, the grounds of challenge in effect being the same as the grounds put forward by way of appeal.
17. I turn first to refer to the relevant legislative provisions. The Magistrates' Courts powers to commit for sentence, so far as relevant, are contained in section 3(2) of the Powers of Criminal Courts (Sentencing) Act 2000 ("the 2000 Act") as follows:

"(2) If the court is of the opinion that-

(a) the offence; or

(b) the combination of the offence and one or more offences associated with it,

was so serious that the Crown Court should, in the court's opinion, have the power to deal with the offender in any way it could deal with him if he had been convicted on indictment, the court may commit him ... to the Crown Court for sentence in accordance with section 5(1) below."

18. Section 5(1) of the 2000 Act provides, so far as material, as follows:

"Where an offender is committed by a magistrates' court for sentence under section 3 or 4 above, the Crown Court shall inquire into the circumstances of the case and may deal with the offender in any way in which it could deal with him if he had just been convicted of the offence on indictment before the court."

19. Two authorities were cited to the judge below, namely R v Warley Justices ex parte DPP [1999] 1 WLR 216 (hereafter the Warley Justices case) and Munroe v DPP [1988] 152 JP 567 (hereafter Munroe). However, as Mr Lofthouse observed, neither of those two cases was a decision as to whether a Newton Hearing could be held in the circumstances that apply in this case. The Warley Justices case was a challenge by the prosecution to a failure by the magistrates to commit for sentence. The Divisional Court held that magistrates should conduct a Newton Hearing before deciding whether to commit for sentence, if that decision turns or may turn on the outcome of such a hearing (see the judgment of Kennedy LJ at page 224 letter C to D). Having so held, Kennedy LJ then continued at page 224, letter E, as follows:

" Obviously if a magistrates' court does conduct a Newton hearing and then commits to the Crown Court it must in some way record its findings for the benefit of the Crown Court, and it may be that the defendant will seek to challenge those findings in the Crown Court. I would not expect him to be allowed to do so unless he could point to some significant development - such as the discovery of important further evidence - having occurred since the magistrates' court reached its conclusion."

20. Mr Lofthouse submitted that the observations of Kennedy LJ are consistent only with the proposition that there is jurisdiction to hold a further Newton Hearing, subject to his obiter observations as to how that jurisdiction would be exercised in practice.
21. The case of Munroe also appears to accept that there is jurisdiction, but stated that the Crown Court should not normally allow the dispute as to facts to be reopened -- in this respect, apparently expressing a somewhat stricter view than that stated in the Warley Justices case. In Munroe, the magistrates had not conducted a Newton Hearing. There was an appeal by a defendant against the Crown Court's decision to conduct the necessary Newton Hearing itself and not to remit the matter for that purpose to the magistrates. At page 661, Glidewell LJ said this:

"In our view, if the magistrates do hear evidence in order to decide the facts, and thereafter under section 38 commit the accused to the Crown Court for sentence, the magistrates should ensure that the Crown Court is informed of the facts they have so found. The Crown Court should then normally proceed to sentence upon the version of the facts found by the magistrates and should not allow the dispute as to the facts to be reopened. But if, on the other hand, the accused does not raise an issue as to the facts until he reaches the Crown Court, while, as we have said, the court has a discretion to remit the issue to the magistrates, we think that the discretion should normally be exercised by the Crown Court following the course advised by Watkins LJ, that is, by determining the issue itself, after hearing any necessary evidence before proceeding to sentence."

22. Mr Lofthouse therefore submitted that neither case decides that the Crown Court does not have jurisdiction to conduct a further Newton Hearing following a committal for sentence by the magistrates. Mr Lofthouse suggested that the Crown Court has a duty to consider all the circumstances, and that this includes forming its own view, when appropriate, on the factual basis for sentence. He argued that the principles set out in Newton should be applied as part of the Crown Court's fulfilment of that duty and that, as a general rule therefore, the Crown Court should carry out a fresh Newton Hearing.
23. Mr Lofthouse then referred to and relied on the wording of section 3 of the 2000 Act, which contemplates the Magistrates' Courts passing responsibility for sentence as if on indictment to the Crown Court. It would, he suggested, be inconsistent to have a rule or practice which could fetter the Crown Court's appropriate exercise of its sentencing function in such circumstances.
24. Mr Lofthouse also drew attention to the words "as if he had just been convicted ... before the [Crown Court]" in section 5 of the 2000 Act. It was Mr Lofthouse's submission that the use of the word "just" must have a meaning. He submitted that it points in favour of his submission that there is jurisdiction to hold a Newton Hearing, because if the appellant had just been convicted, the appellant would not have had a Newton Hearing before the Magistrates' Court.
25. Mr Lofthouse also pointed out that the wording of section 5 of the 2000 Act imposes a duty on the Crown Court to "enquire into the circumstances of the case". Mr Lofthouse submitted that those circumstances included the factual basis of the offence or offences in question. He further contended that the need not to fetter the Crown Court's jurisdiction is all the more important now since sentencing has become even more complex in recent years. He suggested that a particularly important example of the complexity of sentencing today is the assessment of dangerousness under sections 224 to 229 of the Criminal Justice Act 2003. It would, Mr Lofthouse submitted, be inappropriate for the Crown Court to be prevented by the findings made by magistrates from forming its own view on such an important aspect of the case; or put another way, that the Crown Court should be not bound by the conclusions reached on the factual circumstances of the case by the magistrates -- the magistrates not being the sentencing court.
26. For her part, on behalf of the respondent, Ms Hyland emphasised that in the Warley Justices case the court had held that magistrates should conduct a Newton Hearing before deciding whether to commit for sentence, if the decision to commit for sentence turns or may turn on the outcome of such a hearing. Ms Hyland submitted that this principle appears to have been reproduced in the Adult Court Bench Book prepared by and provided to magistrates by the Judicial Studies Board. Thus, page 1-33 of that book makes it clear that magistrates should establish the facts of a case prior to committal for sentence to the Crown Court.
27. Ms Hyland submitted that the Magistrates' Court is clearly the most appropriate venue for conducting Newton hearings in such circumstances. She submitted that to allow for a second hearing before the Crown Court would remove that advantage and lead to a potential backlog within the court system. Furthermore, she argued it would necessitate the victim and witnesses being required to give evidence twice following a guilty plea from the defendant. Ms Hyland was at pains to point out that to allow fresh Newton Hearings to take place in the Crown Court would greatly increase the workload of the Crown Court and also render of little or no value the work that had been done in that respect in the Magistrates' Court.
28. I acknowledge the force of Ms Hyland's submissions. However, I am completely satisfied that the Crown Court does have jurisdiction to hold a further Newton Hearing if it is in the interests of fairness and justice to do so. In my view, that much is clear from the express terms of section 5(1) of the 2000 Act and the Crown Court's obligation to enquire into the circumstances of the case. However, the fact that the Crown Court has jurisdiction or a power to hold a further Newton Hearing does not mean, ipso facto, that it should accede to an application to do so in any case where it is apparent that the magistrates have already conducted such a hearing and made clear findings of fact as part of their perfectly proper decision-making with regard to committing the defendant to the Crown Court for sentence. Essentially, the matter is a question for the discretion of the judge, in the proper exercise of which he or she must be fully mindful of his or her obligation to carry out a proper inquiry into the circumstances of the case.
29. In my view, the observations of Kennedy LJ in the Warley Justices case still remain very much in point, and I would adopt them with gratitude. It must be borne in mind that those observations were not intended to lay down an absolute or strict formula as to how the judge's discretion should be exercised in the Crown Court in such matters. In the ordinary way, I would not expect the judge in the Crown Court to exercise his discretion in favour of allowing a defendant to re-open the magistrates' findings of fact unless the defendant was able to point to some significant development or matter, such as (but not confined to) the discovery of important further evidence having occurred since the Magistrates' Court reached its conclusion on the facts. In saying that, I would not wish it to be thought that I was laying down any absolute or strict formula as to how the judge should exercise his or her discretion in any particular case. Everything will depend upon the facts and circumstances of the particular case; each case must be considered individually.
30. Insofar as I consider there to be any touchstone with regard to the exercise of the judge's discretion in such cases, it is that the judge should do whatever is necessary in the interests of fairness and justice. In my view, there is no feature or circumstance in the present case which would have made it necessary in the interests of fairness and justice for the judge to re-open the factual issues which had been determined in the Magistrates' Court.
31. I am therefore satisfied that, although the judge did have jurisdiction to conduct a fresh Newton Hearing, his decision not to do so in this particular case was the correct decision, although reached for the wrong reasons.
32. I would therefore dismiss the application by way of judicial review. However, it may be helpful if I were to state what my answer would be to the modified question posed in the case stated. For the reasons I have already given, my answer to the modified question would be "Yes" and I would have dismissed the appeal.
33. LORD JUSTICE LATHAM: I agree.
34. Thank you very much.
35. MR LOFTHOUSE: I am grateful. There is one matter in your Lordship's judgment where I think I have led the court astray with the wording I put in my skeleton argument. I put in my summary that Munroe set out a stricter test. I was taking the wording from the Criminal Law Review where it missed out "normally".
36. MR JUSTICE FORBES: I saw that. I decided to quote from Glidewell LJ's judgment, where the word is "normally", and I modified what you said by inserting the word "somewhat". But having regard to what you have said, I will look at it again when I approve the transcript.
37. MR LOFTHOUSE: My Lords, may I ask your Lordships' guidance on one aspect of the case, and it is simply this: when the matter returns to the Crown Court -- and this court may not wish to say anything on the matter -- would it still be open to the defendant to seek to persuade the court there to exercise its jurisdiction by presenting an argument that perhaps they had not got around to arguing the matter, in a sense.
38. LORD JUSTICE LATHAM: The position is, it seems to me, to be determined by the extent to which there is an argument which we have not heard as to why the judge should proceed to a Newton Hearing.
39. MR LOFTHOUSE: My Lord, I did not understand that your Lordships were expecting me, as it were, to argue that aspect.
40. MR JUSTICE FORBES: Mr Lofthouse, the judgment says that whatever is necessary in the interests of fairness and justice, and I do not think anything I have said or my Lord has said will prevent you from making whatever application you consider appropriate to the judge, and he will now have the benefit of our observations and he will deal with your application in whatever way he considers appropriate.
41. MR LOFTHOUSE: My only concern was that I had not, with the greatest of respect, anticipated that there would be a finding that his exercise -- he did not exercise a discretion about Newton Hearings at all. He decided he could not do it.
42. MR JUSTICE FORBES: As I said, as it seems to me at the moment, his decision was correct, but for the wrong reasons, that is to say, his decision not to hold a fresh Newton Hearing was correct, but not for the right reasons. As my Lord has indicated, if there is some aspect of the matter which we have not considered which you feel it would be appropriate to put before the judge and present arguments and submissions to him, then that is a matter for you.
43. MR LOFTHOUSE: My only concern --
44. MR JUSTICE FORBES: Nothing in my judgment or my Lord's judgment precludes you from making any application you wish to make to the judge, and it is for him to decide how to deal with the matter in the light of our judgments.
45. MR LOFTHOUSE: My Lords, my concern is that when -- I do not know whether it will be me. I was not in the court below in this matter. I do not know whether I will be there -- but whoever appears for the defendant were to say: we would ask you to hold a Newton Hearing, I might be told: well, what is new that was not before the Divisional Court?
46. MR JUSTICE FORBES: I am sure you will be asked that.
47. MR LOFTHOUSE: But, my Lord, I have not in fact argued that aspect before this court. I was arguing only the point of law. If this court is to cut me off from that, I would seek simply to persuade the court in a couple of words that there is a case to leave it to that court completely, and that is because that court has not yet been addressed on the issue, on the substantive issue, as to whether there should be a Newton Hearing, and we should have the benefit of that court's view.
48. MR JUSTICE FORBES: Speaking for myself, I have given my judgment in the matter, and again speaking for myself, it is up to you to deal with the matter in the Crown Court in whatever way you think appropriate, and it will be for the judge to decide what to do in the light of such submissions and applications as you make to him.
49. MR LOFTHOUSE: For example, If I were to persuade him not to have regard to the findings, having regard to the fact there was no oral evidence in the court below, or to re-open the question of hearsay evidence -- I am slightly troubled --
50. LORD JUSTICE LATHAM: The problem, Mr Lofthouse, seems to be this: as far as the material which we know about is concerned, that is all the material such as the fact that it was dealt with by oral evidence, by written evidence and partly oral evidence, all that material, speaking for myself, was taken into account when determining whether the decision of the judge not to re-open the hearing seemed to be correct: in other words, that is the material which was on the face of these documents. I do not know whether you are going to argue, or somebody might argue, that, if the court is to consider the issue of the applicability of section 5 of the 2003 Act to your client, that would add a new dimension to the question of whether or not the issue should be revisited on the basis that the court might feel that it was not satisfied or could not be satisfied as to dangerousness unless it had solved the problem of the facts itself, then that is a new matter which is capable of being argued, it seems to me. But there is no argument available to you, in my judgment, on the facts as we have them: in other words, the simple finding on the one hand by the magistrate below.
51. MR LOFTHOUSE: My Lords, I am very grateful indeed. In fact, I am instructed that on the first time the matter was adjourned over for a full Newton Hearing, HHJ Brodrick, the Recorder of Winchester, indicated that had he did not think dangerousness would be in issue. But whether that is going to be the case -- of course, we do not know what the next court might say.
52. LORD JUSTICE LATHAM: No, but I think you see what I am saying. On the facts as we see it here, this judge could not be faulted for having said, had he applied his mind to it: "I really do not think a Newton Hearing before me is necessary". So his decision is perfectly justifiable for that reason. As I say, if the question of dangerousness starts to creep into it, which it does not on these papers at the moment, then that is a new factor which would justify the court being asked to look at it again.
53. MR LOFTHOUSE: My Lords, may I just trouble you for one other aspect of the matter, which is that I have instructions that there has been no alleged threat to the aggrieved since the earlier hearing, within the ambit of your Lordships -- would the absence be something again that we would be entitled to put to the court to consider the question of hearsay evidence? I am merely concerned that -- I am here, I know that --
54. LORD JUSTICE LATHAM: Mr Lofthouse, that seems to me like mitigation and nothing to do with a Newton Hearing.
55. MR LOFTHOUSE: I did not suggest that --
56. LORD JUSTICE LATHAM: And I do not think that we are involved in that exercise.
57. MR LOFTHOUSE: My Lords, your Lordships are not attracted by the fact that originally it was adjourned for a Newton Hearing by the Crown Court? Any suggestion that we might suggest there was -- it might have given a suggestion that he was entitled to a Newton Hearing at the Crown Court before argument decided that.
58. LORD JUSTICE LATHAM: Mr Lofthouse, I think we better leave it now. We have given you the assistance that we think you are entitled to, and perhaps even more.
59. MR LOFTHOUSE: My Lord, I am very grateful. I am sorry to trouble the court. I was only concerned --
60. LORD JUSTICE LATHAM: I understand your concern in the sense that you wanted to know, and the court might want to know, what is open to either you or anybody appearing for the defendant to argue. We have given that indication.
61. MR LOFTHOUSE: My Lord, I am very grateful.