Bromley, R (on the application of) v Secretary of State for Justice & Anor

A procedural irregularity in the constitution of the Crown Court does not automatically invalidate its decision or render resulting detention unlawful. The court must construe the relevant legislation and ask whether Parliament intended non-compliance to produce invalidity. It must then consider the interests of justice and whether the irregularity caused a real possibility of prejudice. A warrant need not state its statutory source where the governing legislation imposes no such requirement. Where an appeal and committal for sentence are listed together, a notice may require surrender for both matters if that is its natural meaning in context.

The claimant brought two judicial review claims arising from proceedings at Maidstone Crown Court. The first challenged a warrant issued after she failed to attend a hearing listed as an appeal against conviction and sentence. She argued that she had not been required to surrender for the committal for sentence, that the court was improperly constituted, and that the warrant was defective because it did not cite its statutory authority.

The second claim challenged a sentence imposed by a Crown Court judge sitting with two lay magistrates, although a committal for sentence under section 3 of the Powers of the Criminal Courts (Sentencing) Act 2000 should have been dealt with by a judge sitting alone. The central issues were the effect of those procedural irregularities and whether they made the warrant, sentence or resulting detention unlawful.

1. The two claims were dismissed.
2. The notice of hearing informed the claimant of both the appeal against conviction and the committal for sentence. Read in context, she was required to surrender to bail for the committal for sentence. The warrant therefore had a lawful substantive basis.
3. Although the application for the warrant should have been dealt with by a judge sitting alone under sections 8(1) and 73(1) of the Senior Courts Act 1981, the presence of two magistrates was an irregularity rather than a defect making the warrant automatically void. The distinction between jurisdictional and procedural error should not be applied rigidly.
4. Following the approach in R v Sekhon, [2003] 1 WLR 1655, R v Soneji, [2006] 1 AC 340, and R v Clarke, [2008] 1 WLR 338, the question was whether Parliament intended the failure to comply with section 73(1) to invalidate the warrant. It did not. The interests of justice favoured bringing a person who had failed to surrender before the court, and no real possibility of prejudice was shown.
5. The same analysis applied to the sentence. The failure to constitute the court with a single judge did not invalidate the sentence. Applying the approach in R v Ashton, [2007] 1 WLR 181, the sentence was not excessive or inappropriate and the procedural failure caused no prejudice.
6. The warrant was not unlawful merely because it did not identify section 7 of the Bail Act 1976. The observations in R v Inland Revenue Commissioners, ex parte Rossminster Ltd and others, [1980] AC 952, concerned good practice in the context of the warrant there under consideration and did not establish a general rule that every warrant lacking a statutory reference is invalid.