White, R (on the application of) v The Justices of Barking Magistrates' Court

An indication by magistrates that they accept sentencing jurisdiction may create a legitimate expectation that they will sentence the defendant. The expectation is conditional, however. It need not be fulfilled where the indication was outside the range of decisions reasonably open to a properly instructed bench, particularly where the offences were plainly too serious for summary sentencing. A material misapprehension caused by the defendant’s advocate may also justify departure from the expectation, although a fact need only be capable of affecting the decision; it need not be decisive. Judicial review may therefore be refused where enforcing the expectation would give effect to an unlawful and unreasonable indication.

The claimant sought judicial review of Barking Magistrates’ Court’s decision on 12 September 2003 to commit him to the Crown Court for sentence. At an earlier hearing on 8 August, the magistrates had said that they accepted jurisdiction and ordered a pre-sentence report, without expressly reserving the possibility of committal for sentence. The claimant argued that this created a legitimate expectation that the magistrates would sentence him.

The prosecution contended that the earlier indication was based on a possible misunderstanding of the facts and that, given the seriousness of the offences, no reasonable bench could have retained sentencing jurisdiction. The central issue was whether the expectation should be enforced by judicial review.

1. Legitimate expectation. The words used by the magistrates on 8 August 2003 created an expectation that they would deal with sentence. Where magistrates intend to retain the option of committal for sentence, they should state that expressly and specifically. A clear standard formula for such occasions was endorsed.
2. Qualification of the expectation. The court will normally make an order securing an expectation created by a magistrates’ indication. That expectation is not unqualified. A material misapprehension caused by an advocate for the defendant may justify departure from it. “Material” means capable of affecting the decision; it need not be decisive. A misapprehension arising from the magistrates’ own reading of documents, and unknown to the defendant’s representatives, would not ordinarily justify departure.
3. Unreasonableness. The offences involved substantial cannabis cultivation, repeated offending, unlawful abstraction of electricity and relevant previous convictions. They were so serious that no reasonable bench could have concluded that sentencing should remain within its jurisdiction. A decision not to commit in those circumstances would have been perverse and susceptible to judicial review.
4. Relief. Judicial review is available to challenge an unlawful decision not to commit for sentence. The availability of that remedy, together with the unreasonableness of enforcing the indication, was relevant even though the prosecution had brought no separate challenge. Sentencing also engages public protection and rehabilitation, and the Crown Court should take account of the impression given to the defendant.
5. The claim was dismissed. The court did not need to reach a final conclusion on whether the magistrates had been misled about the condition of the plants.

This was a first-instance judicial review of the decision of Barking Magistrates’ Court dated 12 September 2003. The Administrative Court dismissed the claim.