Whitehead, R. v

A court may correct a memorandum of conviction which wrongly identifies the statutory power for committal for sentence, where the correction gives effect to the magistrates’ clear intention and to a power they possessed. A committal expressly and validly made under section 6 of the Powers of Criminal Courts (Sentencing) Act 2000 cannot be recast as a different committal merely to enlarge sentencing powers.

Following a section 6 committal, the Crown Court’s sentencing powers are limited to those of the magistrates. The aggregate limit depends on the statutory character and number of the offences. Unlawful consecutive terms must be corrected, while lawful sentences for separately committed offences may be adjusted to reflect the overall criminality.

The applicant pleaded guilty at Liverpool Crown Court to five either-way offences, two common assaults and two failures to surrender. He received a total of 30 months’ imprisonment.

He sought leave to appeal on the grounds that the sentence was manifestly excessive and that insufficient credit had been given for his guilty pleas. The Registrar referred the application to the full court because the memorandum of conviction identified different statutory bases for the magistrates’ committals for sentence. The central issue was whether the Crown Court had exceeded the sentencing powers available following those committals.

1. Leave to appeal was granted and the appeal was allowed in part. The original total of 30 months was not manifestly excessive, but parts of the sentence were unlawful because the Crown Court’s powers depended on the statutory basis of each committal.
2. The purported section 4 committals for offences 1, 2, 6 and 9 could not literally stand. Section 4 of the Powers of Criminal Courts (Sentencing) Act 2000 required a related offence to have been committed to the Crown Court for trial, which had not occurred. Applying the reasoning in Folkestone & Hythe Justices, ex parte R, 74 Cr. App. Rep. 58, the court treated the references to section 4 as misrecordings of section 3. That reflected the magistrates’ evident intention and a power they could lawfully exercise.
3. The recorded section 6 committals for offences 3, 4, 5, 7 and 8 were valid. It was artificial to treat the references as mistaken references to section 6 of the Bail Act 1976. Under sections 6 and 7 of the 2000 Act, the Crown Court’s powers therefore corresponded to those of the magistrates.
4. The nine-month sentence for possession of a bladed article exceeded the six-month maximum for one either-way offence under section 78 of the 2000 Act. It was quashed and replaced with six months. Moreover, among the section 6 committals there was only one either-way offence. Section 133(2) of the Magistrates’ Courts Act 1980 therefore confined the aggregate to six months. The sentences for offences 4, 5, 7 and 8 were ordered to run concurrently with the substituted six-month sentence.
5. To preserve a proportionate overall sentence, the court lawfully increased the sentences for offences committed under section 3: 12 months for offence 1, three months consecutive for offence 2, and nine months for offence 6. The total sentence accordingly remained 30 months, composed of lawful individual sentences.

• Court of Appeal (Criminal Division): Leave to appeal was granted. The appeal was allowed to correct unlawful component sentences, while maintaining the total term of 30 months’ imprisonment: [2003] EWCA Crim 1271.
• Crown Court at Liverpool: On 19 July 2002, the applicant was sentenced for nine offences to a total of 30 months’ imprisonment.