Bentham, R (on the application of) v HM Prison Wandsworth

A defective notice under section 51(7) of the Crime and Disorder Act 1998 does not invalidate an otherwise valid decision by magistrates to send an accused to the Crown Court under section 51(1). The notice is consequential and administrative. Its adequacy must be considered with the charge and supporting documents supplied to the Crown Court. A technical defect in the notice does not, without prejudice or unfairness, require dismissal of the charges. Good practice nevertheless requires a careful summary of the offences or a cross-reference to the relevant documents.

The applicant challenged his detention following orders made by the Kingston upon Thames Magistrates’ Court and Crown Court. He had initially been sent to the Crown Court under section 51 of the Crime and Disorder Act 1998, but the section 51(7) notice described the conspiracy charge only as “Conspiracy”. The Crown Court held that the sending was invalid and declined jurisdiction to hear an application to dismiss. The magistrates subsequently purported to send the applicant to the Crown Court again, where he was remanded in custody. The issue was whether the defective first notice invalidated the original sending and the later remands.

1. The habeas corpus application succeeded. The applicant had been validly sent to the Crown Court on 25 August 2005 under section 51(1) of the Crime and Disorder Act 1998. The defects in the section 51(7) notice did not invalidate that sending.

2. The substantive decision was the magistrates’ decision to send the accused for trial. The notice was prepared afterwards as an administrative act. No particular form was prescribed, and the legislation provided no consequence whereby a defective notice would nullify an otherwise valid sending.

3. The notice could not properly be considered in isolation when determining an application to dismiss. The relevant material included the charges and evidence served under Schedule 3 to the Act and rule 12.1 of the Criminal Procedure Rules 2005. The charge sheet and Memorandum supplied to the Crown Court made the nature and details of the alleged conspiracy clear. A dismissal application based solely on the notice’s drafting would therefore have failed.

4. The reasoning was supported by the procedural approach in R v Home Secretary, ex parte Jeyeanthan [2000] 1 WLR 354, the Divisional Court’s decision in R v Fehily [2002] EWHC 1295 (Admin), and the decisions in R v McGrath [2003] EWCA Crim 2062 and R v Carey (1983) 76 Cr App R 152.

5. The later remands by the magistrates and Crown Court were consequently unsustainable, and the applicant was entitled to habeas corpus. As a matter of good practice, a section 51(7) notice should either summarise the offences carefully or cross-refer to the charge sheet or Memorandum. The applicant was directed to appear before the Crown Court for the scheduled hearing.

The judgment records that the applicant challenged the Crown Court ruling of 28 November 2005 and subsequent remand orders. The High Court held that the original sending was valid, granted habeas corpus and directed the applicant’s appearance before the Crown Court.