Tuplin, R. v

Where a summary offence is included in an indictment under Criminal Justice Act 1988, section 40, the Crown Court may sentence it only as a magistrates’ court could. That restriction includes the six-month aggregate limit for consecutive custodial sentences under Magistrates’ Courts Act 1980, section 133(1).

A low-value criminal-damage offence treated as summary under section 22(2) is subject to that limit. A guilty plea to the section 4 public-order alternative to affray is also subject to it. The court further observed that a purported guilty plea to section 4A in those circumstances would be outside the Crown Court’s jurisdiction.

The appellant was sentenced in the Crown Court at Great Grimsby for low-value criminal damage, common assault and threatening words or behaviour with intent. The criminal-damage and assault counts had been included in the indictment under section 40 of the Criminal Justice Act 1988. The public-order offence was the section 4 alternative to an affray count.

The judge imposed consecutive terms totalling eight months for those offences and added two months after revoking an earlier community order. The appellant contended that the Crown Court’s powers for the three summary matters were capped at six months under section 133(1) of the Magistrates’ Courts Act 1980.

The central issue was whether that aggregate cap applied to all three counts in the Crown Court.

Appeal allowed. The court reduced the total sentence from ten to eight months’ detention. The basic sentence for the three offences on the indictment had to be reduced from eight to six months.

1. Under section 40(2) of the Criminal Justice Act 1988, the Crown Court could deal with a qualifying summary offence only in a manner available to a magistrates’ court. That imports not merely the individual maximum for each offence but the aggregate six-month limit in section 133(1) of the Magistrates’ Courts Act 1980.

2. The criminal-damage count was on the indictment under section 40 and was necessarily one treated as summary under section 22(2) of the 1980 Act. It was therefore subject to the magistrates’ courts’ sentencing powers. The court declined to speculate that the justices had failed formally to make the low-value determination. The charge and evidence supported the natural inference that the damage was below £5,000.

3. The court followed R v Walker [1996] 1 Cr App R (S) 447, and treated R v Alden [2002] EWCA Crim 421 and Gwynn [2002] EWCA Crim 2951 as confirming the distinction between a low-value count properly treated as summary and an either-way count newly added to an indictment.

4. The section 4 public-order offence also fell within the six-month aggregate cap. The court relied on the analogous treatment of guilty pleas to alternative summary offences in R v Jones [2007] EWCA Crim 1906 and R v Armour [2007] EWCA 3294.

5. The court observed, obiter, that if the plea had instead been to a section 4A offence, as the parties had mistakenly assumed at the hearing, the conviction would have been unlawful because the offence was not within the Crown Court’s jurisdiction under the applicable alternative-verdict provisions.

The sentence for criminal damage remained two months. The consecutive sentences for common assault and threatening words or behaviour with intent were each reduced to two months. The separate two-month sentence following revocation of the community order was unaffected.

• Court of Appeal (Criminal Division) Allowed the appeal against sentence and reduced the total sentence to eight months’ detention: [2009] EWCA Crim 1572.

• Crown Court at Great Grimsby Imposed ten months’ detention, comprising eight months for the three indictment counts and a consecutive two months after revocation of a community order.