Burbridge & Anor

Where an offender breaches a Crown Court suspended sentence by committing a further offence, paragraph 8(6) of Schedule 12 to the Criminal Justice Act 2003 is not the route for committal. Paragraph 11(2) brings the breach before the Crown Court; it does not itself confer power on that court to sentence the new offences.

The new offences must be dealt with under the appropriate committal provisions of the Powers of Criminal Courts (Sentencing) Act 2000. Where committal is on the basis of magistrates’ sentencing powers, the Crown Court is limited to those powers when sentencing the new offences. The court may nevertheless activate the suspended sentence in accordance with its separate enforcement jurisdiction.

Three related applications for leave to appeal against sentence raised the effect of defective committals from the magistrates’ courts.

Burbridge and Parkes pleaded guilty to five shoplifting offences committed during the operational period of Crown Court suspended sentences. The Crown Court imposed total terms of 18 months. Majury pleaded guilty to criminal damage, threats to kill and two assaults, also committed during the operational period of a Crown Court suspended sentence. His total sentence, including activation of the suspended term, was 124 weeks’ detention in a young offender institution.

In each case, the magistrates had considered their sentencing powers sufficient but committed the offenders under Schedule 12 to the Criminal Justice Act 2003. The Registrar referred the applications because the Crown Court’s sentencing powers for the new offences might have been exceeded. The central issue was the lawful basis and consequence of committal in those circumstances.

1. Appeals allowed to the stated extent. The magistrates had used the wrong provisions when committing all three appellants. Paragraph 8(6) of Schedule 12 to the Criminal Justice Act 2003 applies only to breaches which magistrates may themselves deal with. It does not apply where a Crown Court suspended sentence is breached by the commission of a further offence.

2. Paragraph 11(2) is a mechanism for bringing that breach before the Crown Court. It does not confer on the Crown Court a power to sentence the further offences. If the offender is committed under that paragraph, the Crown Court may deal with the breach under paragraph 8(1)(b). If the offender is not committed, the Crown Court may take enforcement action after receiving notice.

3. Where magistrates wish the Crown Court to sentence the new either-way offences with its own powers, committal must be under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. Where, as here, they consider their own powers sufficient but leave the sentencing exercise to the Crown Court because of the suspended sentence, the committal is to be treated as one under section 6. The Crown Court’s powers for the new offences are then restricted to magistrates’ powers.

4. Burbridge and Parkes received substituted concurrent terms of six months for the new offences, with 12 weeks consecutive for breach, giving total sentences of nine months. The court considered custody justified despite the mitigation.

5. In Majury’s case, the judge could activate the 32-week suspended sentence in full, but could impose no more than 24 weeks for the new offences. The court quashed the excessive sentences and substituted terms totalling six months for those offences, consecutive to the activated sentence, producing a total of 58 weeks’ detention in a young offender institution.

• Court of Appeal (Criminal Division): Leave to appeal against sentence was granted and the appeals were allowed to the extent of substituting lawful reduced sentences: [2007] EWCA Crim 2968.
• Crown Court: Wolverhampton Crown Court imposed total sentences of 18 months on Burbridge and Parkes. Preston Crown Court imposed a total of 124 weeks’ detention on Majury, including activation of his suspended sentence.
• Magistrates’ Court: Wolverhampton and Preston Magistrates’ Courts committed the appellants to the Crown Court under provisions of Schedule 12 to the Criminal Justice Act 2003, although they considered their own sentencing powers sufficient for the new offences.