Neutral Citation Number: [2009] EWHC 1504 (Admin)
 
CO/7982/2008 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Thursday, 11th June 2009
 
B e f o r e:

LORD JUSTICE STANLEY BURNTON 

MR JUSTICE WILKIE 
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Between: 
NICHOLAS 
Claimant

v 

CHESTER MAGISTRATES' COURT 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr B Treadwell (instructed by Ballam Delaney Hunt) appeared on behalf of the Claimant
The Defendant did not attend and was not represented
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J U D G M E N T
1.	MR JUSTICE WILKIE:  On 21st August of last year the claimant, Warren Nicholas, embarked on judicial review proceedings in a claim form which sought to review the decision of District Judge Sanders refusing to state a case, that decision being on 16th June 2008. 
2.	The underlying incident which gave rise to that request and refusal was on 1st November 2007 when there was an altercation followed by the commission by the claimant, along with at least one other, of a common assault.  The claimant was charged with that common assault on 13th February 2008.  On 5th March 2008 he appeared at court for the first time before District Judge Sanders.  On that occasion he pleaded not guilty.
3.	The circumstances of the assault were that the victim was assaulted by at least two people, both wearing horror masks, attacked from behind, punched to the floor and then kicked, whilst on the floor, to his upper body and possibly his head.
4.	On 5th March the District Judge emphasised to the claimant that an early guilty plea could make all the difference and that, after a trial of such an offence, the starting point would be custody.  The trial was fixed for 29th and 30th May 2008.
5.	On 12th March the claimant signed what was at that stage a draft basis of plea.  In its original form it made no admission on his part that he kicked anyone.  Subsequently, it was altered by the addition in handwriting of an acknowledgment that there had been some kicking, though not by him.  On 25th March the case was listed before a bench of lay Magistrates for a change of plea.  The claimant pleaded guilty on the basis of what was apparently by then the amended basis of plea, and on the basis of an acknowledgment that he was accepting joint responsibility for the kicking which had taken place, though he himself had not engaged in any kicking.  On that occasion, his co‑defendant indicated that he might wish to plead guilty on a basis of plea.  The case was adjourned until 9th April for that co‑defendant so to do, at which point there would be consideration of whether a Newton hearing was required.
6.	On 9th April, again before a lay bench, the co‑defendant changed his plea.  On that occasion there was consideration of whether or not a Newton hearing was required.  We have no hesitation in accepting the witness statement of Christopher Hunt, the solicitor to the claimant, that on that occasion there was full argument and mitigation, which included the information given to the Magistrates that there was an element of kicking, for which he was accepting joint responsibility though not having kicked himself, and also that he had a criminal record which included a previous custodial sentence, for which at the time of the offence he was still on licence, in relation to a similar assault.  We accept, for the purpose of this argument, that on that occasion that bench did wish a Pre‑Sentence Report to be obtained for this claimant before they sentenced him, and that in so doing they indicated a high community penalty.  In the notes of the hearing, they emphasise that there was a group attack and that alcohol had been involved.
7.	The co‑defendant was dealt with more expeditiously, because the Magistrates indicated that they would be prepared to sentence for a community penalty and obtain, for that purpose, a fast track report which would enable him to be sentenced that afternoon.  
8.	That lay bench did not reserve to themselves the sentencing of either the claimant or the co‑defendant, which is a matter, in our judgment, of some significance.  Indeed, that lay bench was not sitting the same afternoon.  The co‑defendant accordingly appeared before District Judge Sanders on the afternoon of 9th April.  The claimant was in court, though not before the court.  On that occasion, District Judge Sanders, having observed what the lay bench had done, indicated that in his view the indication in respect of the claimant was unreasonable, and he had the matter in respect of the claimant listed before him very shortly afterwards on 17th April.
9.	On 17th April there was full argument, in the course of which the solicitor for the claimant raised the question of the legitimate expectation which had been raised by the lay bench that the claimant would only receive a high community penalty, and on that basis the PSR would be prepared.  On that occasion the District Judge was only considering whether or not he required a Newton hearing before sentencing the claimant.  He concluded that a Newton hearing was not necessary because, although maintaining the position that he himself had not kicked the victim, the claimant did accept that the assault by the group on the victim involved kicking and he accepted guilt on the basis of that joint enterprise.
10.	The judge had available to him two decisions of this court in the case of ex parte White [2004] EWHC 417 (Admin) and the case of Sumner [2005] EWHC 3166 (Admin).  In the judgment of the court on those occasions, Stanley Burnton J (as he then was) dealt with the situation where one bench gave a certain indication in those cases ‑‑ an indication of willingness to accept jurisdiction as to sentence rather than commit to the Crown Court ‑‑ which was subsequently superseded by a different bench which committed the cases to the Crown Court.  The court in those cases indicated that no judicial review would lie on the basis of legitimate expectation if the legitimate expectation was founded on a decision of a bench which was so unreasonable as to be perverse or such that no reasonable bench properly directing itself could have reached.
11.	District Judge Sanders, on 17th April, relying on those authorities, indicated that in his view the indication which had been given by the lay bench, in all the circumstances of the case, had been so unreasonable as to be perverse.  Accordingly, he made it clear that when the claimant was sentenced by him on 14th May 2008, he would expect a Pre‑Sentence Report to be prepared which addressed all sentencing options, which would include a custodial sentence.  Accordingly, on 14th May the claimant appeared before District Judge Sanders for sentence.  There was a Pre‑Sentence Report prepared on an all‑options basis, and indeed the judge did conclude that the case crossed the custody threshold, but he was persuaded that the personal mitigation of the claimant was such that he should suspend that sentence.
12.	On 3rd June the solicitors acting for the claimant wrote a letter to the court which, in our judgment, is a perfectly sensible letter.  It raises the issue of legitimate expectation which had been confounded and posed a question: 
"Did the District Judge err in failing to impose a community based penalty in light of the indication given in open court by the Justices on 9th April 2008 that a community based penalty was suitable?"
That gave rise to a response from the court received by the claimant's solicitors on 16th June in which the District Judge said as follows: 
"I regret that I am not prepared to state a case since the application is misconceived.  The question which Ballam Delaney Hunt invite me to raise with the Administrative Court is not a question of law but one of fact.  The issue they are raising, I think, is whether or not I was justified in reaching my conclusion that the decision of the lay bench to restrict sentence to a community based penalty was one which any bench, properly directed on the facts of the case, could have reached, or whether it was 'Wednesbury unreasonable'.  I applied the law as set out in . . . ."
He then referred to the case of White, approved in the case of Sumner, and indicated that the solicitors did not appear to have considered those cases.  He then goes on: 
"I considered that the decision was one which no bench could properly have reached.  In making that decision, I noted the serious nature of the case, which involved allegations of a group attack on a victim in the city centre at night involving the kicking to the head of the victim by one or more of the group of which Nicholas was part.  In addition, both Nicholas and another perpetrator were wearing frightening 'Scream' type masks.  I also noted that Nicholas did not enter a guilty plea at the earliest occasion, despite being represented by solicitors and given ample opportunity so to do at the initial CJSSS court before me in which I specifically warned him that a sentence of imprisonment was inevitable.  Finally, at the time of the offence, Nicholas was the subject of an unexpired sentence of imprisonment imposed only a matter of months before this offence for a matter of affray.  In particular, I noted that the lay bench had not considered the impact that this latter matter should have on any sentence." 
13.	In our judgment, it is unfortunate that the District Judge expressed himself so trenchantly.  The request for a case to be stated was not misconceived.  In our judgment, the letter was a proper one to have been written and raised a legitimate question based on an intelligible and coherent account of what underlay it.  It is unfortunate that the District Judge refused to state a case.  However, we have had the benefit of a witness statement both by the District Judge himself and the claimant's solicitor, and we are therefore in a position where we are fully appraised of the underlying facts of the case and of the matters which persuaded the District Judge that the expression of intent, or the indication given by the Magistrates' Court, was a perverse one.  We thoroughly deprecate the practice, if such it be, of one bench to adjourn sentencing for reports and in so doing giving an indication as to the type of sentence which it would be appropriate to pass where that bench is not reserving sentence to itself.  By so doing, as is indicated in the authorities, and save in an exceptional case, the effect of that is to fetter the discretion of the sentencing court.  In our judgment, that should only be done where the bench reserves to itself the sentence, or in a case where it is absolutely obvious that a certain type of sentence should be considered or should not be considered.  This case is very far from being that.  
14.	We agree with the assessment of the DJMC that, in all the circumstances of this case, to give such an indication was perverse and was so unreasonable that in effect it was an unlawful indication.  The DJMC, in our judgment, sensibly made clear the position, for the claimant, at a very early stage so as to limit the effect of the expectation which had been raised improperly by the Magistrates.  He dealt with the matter speedily.  He had it brought back before him speedily.  He made clear to the author of the PSR the options which would be open to the sentencing court and should be addressed by the report.  The fact that ultimately he was persuaded to suspend the custodial sentence does not, in our judgment, amount to any indication that the Magistrates were anything other than perverse in all the circumstances in indicating that only a non‑custodial sentence could be appropriate in this case.
15.	Accordingly, we refuse the claim for judicial review. 
16.	LORD JUSTICE STANLEY BURNTON:  I agree.  Thank you very much.
17.	MR TREADWELL:  My Lord, I would ask for an assessment of our Legal Aid costs. 
18.	LORD JUSTICE STANLEY BURNTON:  Yes, you may have that.