Dodson, R. v

Criminal Justice Act 1988, section 41 permits a summary-only offence to be committed to the Crown Court only with an associated either-way offence committed at the same time. A prior committal of the associated offences does not satisfy that condition.

An invalid committal gives the Crown Court no power to deal with the summary offence. The committal is a nullity and the resulting sentence is unlawful. A challenge to rulings made by a judge sitting as a district judge lies by judicial review in the Divisional Court, rather than by appeal to the Criminal Division.

The appellant and two others entered a family home seeking a resident. The Crown initially proceeded on charges of affray, criminal damage and common assault. After evidential difficulties arose, it accepted pleas to the summary-only offence of using or threatening violence to secure entry to premises.

At Lewes Crown Court, the trial judge purported to sit as a district judge, add that summary-only offence, and commit it to the Crown Court as a new count. The appellant pleaded guilty to that count. The Crown offered no evidence on the original counts, on which not-guilty verdicts were entered. The judge imposed a community order and compensation order on 31 January 2008.

The appellant obtained leave to appeal against conviction. The central issue was whether the summary-only offence had lawfully been committed to the Crown Court and, if not, which court had jurisdiction to correct the error.

Lady Justice Hallett, giving the court’s judgment, held that the purported committal and the ensuing sentence could not stand.

1. Section 41 of the Criminal Justice Act 1988 allows a summary offence to be committed to the Crown Court only when it is committed with an associated either-way offence. The associated offence must be committed at the same time.

2. Here, the original either-way offences had already been committed to the Crown Court. They could not therefore supply the statutory connection required for the later committal of the summary-only offence. The procedure adopted to add and commit count 6 was invalid.

3. The court applied R v Avery [1994] RTR 419. That authority made clear that the Crown Court’s power to deal with a summary offence committed under section 41 depends on the pursuit of, and conviction on, an indictment charge. The committal in this case was consequently a nullity, as was the sentence imposed upon it.

4. The Court of Appeal (Criminal Division) had no jurisdiction to determine an appeal from decisions made by the judge while sitting as a district judge. The proper route was judicial review in the Divisional Court. Lady Justice Hallett and Teare J reconstituted themselves accordingly, granted permission, dispensed with issue and service requirements, and quashed the committal and sentence.

5. The summary-only charge could not be returned to the magistrates’ court because the prosecution was out of time, and the original either-way charges had ended in not-guilty verdicts. The appellant would therefore not be tried further for the incident.

• Court of Appeal (Criminal Division) / Divisional Court: The appellant obtained leave to appeal against conviction. The court held that the Criminal Division lacked jurisdiction over rulings made by the judge sitting as a district judge. Reconstituted as a Divisional Court, it granted judicial review and quashed the committal and sentence in [2009] EWCA Crim 1830.

• Lewes Crown Court: The judge purported to add and commit a summary-only offence to the Crown Court. The appellant pleaded guilty, and on 31 January 2008 received a community order and compensation order. The original counts ended in not-guilty verdicts after the Crown offered no evidence.

• Eastbourne Magistrates’ Court: On 22 August 2007, the appellant was committed for trial on charges of affray, criminal damage and common assault.