Mitchell, R v

Where an offender is committed to the Crown Court under section 6 of the Powers of Criminal Courts (Sentencing) Act 2000, section 7 confines the Crown Court to the sentence which the magistrates could have imposed. A committal concerning a suspended sentence under paragraph 11 of Schedule 12 to the Criminal Justice Act 2003 does not engage the exception for a suspended-sentence committal under section 6. The Crown Court must give effect to the committal certificate unless there is evidence permitting a different conclusion, even if a different route of committal was probably intended.

The appellant had received a seven-month suspended sentence for assault occasioning actual bodily harm. Ten days later he committed a racially aggravated public-order offence, and subsequently committed a further public-order offence.

At the magistrates’ court he admitted breach of the suspended sentence and was committed to Winchester Crown Court in respect of the new offences under section 6 of the Powers of Criminal Courts (Sentencing) Act 2000. The Recorder activated the suspended sentence and imposed 12 months’ imprisonment consecutively for the racially aggravated offence.

The appellant applied for leave to appeal against sentence. The issue was whether the Crown Court’s sentencing power was confined to the magistrates’ maximum because of the stated basis of committal.

1. Appeal allowed. The court quashed the 12-month sentence for the racially aggravated offence and substituted five months’ imprisonment, consecutive to the activated seven-month suspended sentence. The total sentence was therefore 12 months’ imprisonment.

2. Under sections 6 and 7(1) of the Powers of Criminal Courts (Sentencing) Act 2000, a Crown Court dealing with an offender committed under section 6 may impose only a sentence which the magistrates’ court could have imposed. Since only one of the two new offences was triable either way, the magistrates’ aggregate custodial power for them was six months. The Recorder consequently lacked power to impose 12 months for the racially aggravated offence.

3. The exception in section 7(2), concerning a suspended sentence committed under section 6, did not apply. The suspended sentence had instead been committed under paragraph 11 of Schedule 12 to the Criminal Justice Act 2003. That did not alter the statutory limit applicable to the fresh offences committed under section 6.

4. The court considered that the magistrates were probably wrongly advised and would likely have used section 3 of the Powers of Criminal Courts (Sentencing) Act 2000, which permits committal where their sentencing powers are inadequate. However, without evidence to the contrary, both the Recorder and the Court of Appeal were bound by the certificate recording a section 6 committal.

5. Although the original 12-month sentence was well merited, it was unlawful for technical statutory reasons. The appellant received only one-sixth credit for his guilty plea because the statutory limitation had fortuitously benefited him and no viable defence was apparent.

• Court of Appeal (Criminal Division): In [2011] EWCA Crim 2030, leave was granted and the appeal against sentence was allowed. The 12-month sentence for the racially aggravated offence was quashed and replaced with five months’ imprisonment consecutive to the activated suspended sentence.
• Winchester Crown Court: On 17 May 2011, the Recorder activated the appellant’s seven-month suspended sentence and imposed 12 months’ imprisonment consecutively for the racially aggravated offence.
• North East Hampshire Magistrates’ Court: On 4 March 2011, the appellant admitted breach of the suspended sentence and was committed to the Crown Court in respect of the new offences under section 6 of the Powers of Criminal Courts (Sentencing) Act 2000.