Neutral Citation Number: [2009] EWHC 921 (Admin)
IN THE HIGH COURT OF JUSTICE  
CHANCERY DIVISION 
CO/6992/2008
 
Court 28
Royal Courts of Justice
The Strand
London WC2 A2U 
Thursday, 5 March 2009
Before:
MR JUSTICE DAVIS
________________________________________________________
DIRECTOR OF PUBLIC PROSECUTIONS  
Appellant
v 
HAMMERTON 
Respondent 
 
________________________________________________________
MR BENEDICT LEONARD (instructed by CPS West London)  Appeared on behalf of the Appellant. 
No counsel appeared on behalf of the Respondent. 
________________________________________________________
Thursday, 5 March 2009 
JUDGMENT 

MR JUSTICE DAVIS:  This is an odd case, although it may have implications for other cases.  It comes before the court for appeal by way of case stated.  
1.	The background, as summarised in the case stated, is this. On 5 June 2008 an information was laid against the respondent, Jason Hammerton, to the effect that on 2 June 2008 at Ravenscourt Avenue W6 he attempted to steal a Hewlett Packard laptop computer to the value of approximately £1,000 belonging to a Mr Owen Richards contrary to Section 1(1) of the Criminal Attempts Act 1981.
2.	I should add that, as was explained to me further today by Mr Leonard appearing on behalf of the appellant Crown Prosecution Service, the position was that Mr Hammerton was identified, along with certain other young people, as smashing the car window of the car belonging to Mr Richards and inside the car was the laptop computer.
3.	At all events, as the case stated then records, Mr Hammerton came before the courts and on 6 June 2008 in the magistrates' court he elected jury trial, having pleaded not guilty.  The case was adjourned until 11 June 2008 for the Crown to make enquiries regarding the other youths who allegedly had been involved in the incident and who at that stage had not been jointly charged.  Mr Hammerton, for his part, was remanded in custody.
4.	On 13 June 2008 Mr Hammerton was produced to court and granted bail until his committal hearing on 4 July 2008.  
5.	On 4 July 2008, which was the date scheduled for the committal hearing, the Crown applied to lay a new information, in substitution for that previously indicated, to this effect: that Mr Hammerton, on 2 June 2008 at Ravenscourt Avenue W6, interfered with a motor vehicle, namely, a Renault Laguna Estate [and the register number is given] with the intention of theft of the said motor vehicle or part of it or anything carried in or on the said motor vehicle or that an offence under 12(1) of the Theft Act should be committed.  The new proposed charge was thus brought pursuant to the provisions of section 9 of the Criminal Attempts Act 1981.  Such an information is only capable of being tried summarily and, as I was informed this morning, on my query, the maximum sentence available is one of three months' imprisonment.
6.	The Crown made submissions on the 4th July 2008 to the magistrates in order to explain why it was that at that particular stage they were seeking to substitute this lesser charge of motor vehicle interference in view of the previous charge of attempted theft.  
7.	What was stated to the magistrates, as recorded in the case stated, was that the Crown had recently reviewed the file and decided that motor vehicle interference was the more appropriate charge in the circumstances; second, that it had an unfettered discretion to review, amend and proceed on any appropriate charge unless it acted in bad faith; third, there were no new facts or evidence available; fourth, that Mr Hammerton would suffer no prejudice since the new charge was less serious than the attempted theft charge.
8.	The defence, as recorded in the case stated, made submissions to the contrary, amongst other things to the effect that: the Crown had reviewed the file before charge and further had had ample time also to review the charge before the date of committal; this appeared to be an attempt to prevent the defendant from obtaining a jury trial; the evidence was the same; there were no difficulties in proceeding on the original charge; the other youths involved in the incident, who had not themselves smashed the window (as had Mr Hammerton, allegedly) had been tried on the original charge of attempted theft from a motor vehicle; and the Crown had acted in bad faith.
9.	I should just add that Mr Leonard confirmed to me that it was indeed the case that others had been charged with attempted theft in respect of the same incident.  The case against them had proceeded in the Youth Court and, indeed, their trial had taken place on the preceding day, that is to say 3 July 2008, before the magistrates in the Youth Court.  That had been adjourned part‑heard.  Mr Leonard informed me that these individuals (who in effect, albeit in separate proceedings,were co‑accused) were subsequently convicted of attempted theft, although I was not told what sentence was imposed upon them.
10.	Having referred to an authority which had been cited to them then, as the case stated records, the magistrates declined to allow the new charge to be laid.  The case stated says this:
"We were of the opinion that: 
"(1) The Crown had acted in bad faith.
"(2) The file had already been reviewed before charge and after the first hearing when the potential for co‑defendants was to have been explored.
"(3) There had been ample time to review the files since.
"(4) The youths who were allegedly involved in this incident had been tried the day before on the original charge of attempted theft from a motor vehicle.  This trial had been adjourned part‑heard.  
"(5) The Crown had confirmed that there were no new facts or evidence.  In the light of this and the fact that the prosecution case was that Mr Hammerton had smashed a window to break into the car, the original charge of attempted theft from a motor vehicle was an appropriate charge and motor vehicle interference was not.  
"(6) The only reason to prefer the charge, given the youths remained on the original charge, appeared to be an attempt to prevent Mr Hammerton obtaining a jury trial."
11.	It is also worth noting what is recorded at paragraph 12 of the appeal by way of case stated: 
"The Crown then applied for an adjournment to prepare committal papers in relation to the original charge (which had been set down for committal that day).  We refused this application.  The committal date had been fixed on 6 June 2008 and the Crown confirmed that the committal papers had not been prepared on the assumption that the court would agree to the new charge being laid."
12.	So the clear inference from that is that the Crown had been proceeding on the assumption ‑ some people might view it as the arrogant assumption ‑ that their application to substitute was bound to succeed and, second, and perhaps in consequence, the Crown had not troubled to ensure that the committal papers were ready for the day which had long been set for committal.  
13.	At all events, the question posed for the opinion of the High Court was in these terms:
"Were we entitled, on the submissions made before us, to refuse to allow the Crown to lay the information for interference with a motor vehicle?"
14.	Mr Leonard, who was not himself involved in the magistrates' court proceedings, has today asserted that there were two motivations of the Crown in adopting the course that it did.  First, as he says and as is recorded as being the submission below, the Crown, on review of the file, had decided that motor interference was "more appropriate" as a charge than attempted theft.  Second, as Mr Leonard has asserted, the Crown had taken the view that a matter of this kind did not warrant a trial in the crown court.
15.	Mr Leonard's overall submission is that there was no proper basis on which the magistrates could reasonably refuse to allow substitution.  In short, he says that the discretion as exercised by the magistrates in declining to allow the fresh charge to be substituted was perverse or irrational; and he says also that there was here no bad faith. 
16.	In support of his submission Mr Leonard cites a number of authorities.    
17.	He first refers to the decision of the Divisional court in the case of R v Canterbury and St Augustine Justices, ex parte Klisiak [1982] QB 398.  In the course of his judgment Lord Lane CJ, with whom Webster J agreed, said, at page 259, that it was:
"A Gilbertian result ... of applicants complaining that they are now charged with lesser offences than those which they originally had to face."     
He then went on, at page 261, to say this:
"Providing that the offences are not grave ones and that the powers of the justices vis‑a‑vis sentence are appropriate, there was no reason why the prosecuting authority should not charge an offence which is not the gravest possible allegation on the facts.  There may be many reasons for choosing a lesser charge ‑ amongst other ones, speed of trial, sufficiency of proof and trial summarily rather than on indictment.  It is necessarily a matter of discretion and careful choice.  It is not easy for a prosecuting authority to steer between Scylla and Charybdis but it is a tolerably wide passage through which they have to navigate."
18.	I was then referred to the decision of the Divisional Court in the case of R v Liverpool Stipendiary Magistrate, ex parte Ellison [1990] RTR 220.  In the course of delivering his judgment Leggatt J, with whom Bingham LJ agreed, said this at page 226: 
"Where a prosecutor applies to withdraw one charge and substitute another, which on the face of it is less serious, the magistrates' court will ordinarily have no reason to object, and indeed no ground for doing so, provided that their powers of sentence remain sufficient.  Here it is said that the stipendiary magistrate should have required the prosecutor to proceed on the charge of attempted theft instead of the charge of interfering with a motor vehicle, because the effect of the substitution was, as it is put, to deprive the defendant of his right to trial by jury.  It is therefore said to have constituted an abuse of process, notwithstanding that the applicant was thereby rendered vulnerable to a less severe maximum punishment.  
The key to the determination of this case appears to me to be that a defendant arraigned in a magistrates' court has in truth no absolute right to trial by jury.  Whether he has such a right depends on the charge which is preferred against him.  Until the more serious charge ... was withdrawn the applicant enjoyed such a prospective right, but in relation to the less serious charge he did not.  To speak of depriving the applicant of his right to trial by jury is ... only a pejorative way of making the point that upon reduction of the charge he ceased to be confronted by a charge sufficiently serious to warrant a right to trial by jury.  In the absence of bad faith on the part of the prosecutor or of unfairness or prejudice to the accused, the prosecutor's motive in making the substitution was irrelevant.  The question is whether the substitution is in this sense a proper one."
Then a little later on Leggatt J said this:
"Whilst it is no doubt preferable that the charge ultimately made against a defendant should be correct in the first place that cannot always occur."
19.	There was also cited to me briefly by Mr Leonard the decision of the court in the case of R v Sheffield Justices, ex parte Director of Public Prosecutions (unreported, 9 July 1992) where the summary of the report as put before me indicates that it was held that it was a matter for the prosecution's discretion which charge to prefer, that its motive was irrelevant in the absence of bad faith and that in that particular case there was no evidence of manipulation of the system and the proposed substituted charge of common assault was appropriate on the facts as being substituted in place of the previous charge of assault occasioning actual bodily harm.
20.	Thus it is, basing himself on those authorities, that Mr Leonard submits that it was a matter for the Crown Prosecution Service in this case to decide which charge was at that stage appropriate; that it could not fairly be said that there was any bad faith here; that enquiry into the motive of the Crown was irrelevant; that no prejudice could  be said to be caused to the defendant; and thus that the magistrates in effect had no option but to accede to the request to substitute this lesser charge.
21.	I do not agree one little bit.  The first point that should be made is that there is a C				ode for the Crown Prosecution Service.  I referred that to Mr Leonard, who was not himself familiar with the potential applicability of it.  Whether the Crown prosecutor in the court below considered it I do not know.  At all events, by reference to selection of charges, under section 7 at paragraph 7.3 of the Code, it is said as follows:
"Crown prosecutors should not change the charge simply because of the decision made by the court or the defendant about where the case will be heard."
Of course, it is said here that in any event that was not the only motivation of the Crown; they had also decided, so it is asserted, that a lesser charge was appropriate.  It seems to me, all the same, that that provision of the Code is something to be borne in mind.
22.	The second point I would make is this. All the cases cited to me pre‑date the Criminal Procedure Rules.  The courts, including the magistrates' courts, now have the Criminal Procedure Rules to apply and in particular they have the overriding objective to consider.  That is something the magistrates clearly would have had in mind.  It is, therefore, not for the Crown Prosecution Service simply to assume to itself the way in which a proceeding will be conducted.  For example, as the magistrates here noted, there had been ample time for the Crown Prosecution Service to assess the position before the date of actual committal.  The magistrates' courts are concerned with the speedy and efficient administration of justice (also evidenced, for example, by the successful introduction of the CJSSS scheme throughout magistrates' courts in England and Wales).   It is wholly unsurprising, to my mind, that the magistrates here were thoroughly dissatisfied with the last minute nature of this application.  
23.	Mr Leonard blandly asserted to me that files are subject to "continuous review" by the Crown Prosecution Service.  The practical reality, I strongly suspect, is that (in relatively small cases at least)someone looks at the papers the day before the actual directions hearing and makes a decision as how then to conduct the matter.  Certainly there was no explanation put forward in this case as to why this particular attempt to substitute the charge was made at the last minute; and to my mind it is deplorable that when the application was refused the Crown was then exposed as not being in a position to submit committal papers so that the matter could be committed to the Crown Court as had been the original intention.
24.	I asked Mr Leonard in the course of argument, basing myself on the wording of Neill LJ in R v Redbridge Justices ex p. Whitehouse [1992] 94 CAR 332, whether it could be said that the substitution here in the circumstances of this case of the lesser charge of motor vehicle interference was "proper and appropriate" on the facts.  (His somewhat cautious answer was "not improper and not inappropriate".) It seems to me that the language of "proper and appropriate" better conveys the correct approach in cases of this kind, in the light of the Criminal Procedure Rules; and I doubt if it now needs be shown that bad faith as such needs be shown in all cases before an application to substitute a new charge can be disallowed.
25.	The fact is that in the instant case the justices also made a finding that the original charge of attempted theft from a motor vehicle was an appropriate charge and that of motor vehicle interference was not.  In my view that was a view the justices were entitled to take in the circumstances of this case.  
26.	Indeed, one important point appears from the decision of the justices, which, with all respect to Mr Leonard, is downplayed in his written grounds: and that relates to the others charged in respect of same matter. They, who on the Crown's case were lesser figures in the offending, had been charged with attempted theft.  Proceedings had carried on against them on that basis.  The Crown Prosecution Service had never sought to substitute a lesser charge of motor vehicle interference as against them.  What possible proper basis could there be, I ask rhetorically, for substituting a lesser offence as against Mr Hammerton, who was significantly older than the co‑accused and who, on the prosecution case, was the ringleader and the person who actually smashed the window?  In truth, it would, looking at the matter in wider terms, potentially be a thorough injustice if such a divergence was to be allowed to occur as between the (effective) co‑accused on the one hand and Mr Hammerton on the other hand.  
27.	Mr Leonard valiantly said that no prejudice was caused to Mr Hammerton in consequence.  Maybe that is right.  Mr Leonard also pointed out that Mr Hammerton faced separate proceedings.  That is also right, although that was more by way of happenstance than by anything else.  Overall, nevertheless, it seems to me that the justices were entitled to take into account the fact that the others had faced the more serious charge and now at the last minute it was proposed, without any proper explanation being put forward, to substitute a lesser charge as against the alleged principal.
28.	In such circumstances I am in no doubt that this appeal should be dismissed. The justices exercised their discretion in a way properly open to them and the question posed by the justices should be answered in the affirmative.  
29.	I should only add that the Crown Prosecution Service generally, or at least the West London Crown Prosecution Service, should consider long and hard whether or not it can carry on on an assumption that some of its representatives may have, namely that it can simply assume that at whatever stage of the proceedings before the magistrates it can, virtually as of right, substitute a lesser charge for a more serious charge.  There should be no presumption to that effect.  The magistrates have a discretion here: and the overriding objective must also be borne in mind. 
30.	Of course there are principles to be applied and of course in the vast majority of cases everyone concerned will be entirely content for a lesser charge to be substituted. But where a lesser charge is to be substituted, first, it must be proper and appropriate to the facts of the case; secondly the application should be made promptly and not left until the last minute, at all events without any proper explanation; and, thirdly, an eye should also be kept on considerations of the good administration of justice and the wider picture: as the facts of this case illustrate, by reason of the situation of any co‑accused.  
31.	So I hope some lessons can be learnt from this particular case.  
32.	This appeal, as I say, is dismissed.