McDermott-Mullane, R. v

A charge of low-value shoplifting remains triable only summarily unless the accused elects Crown Court trial under section 22A of the Magistrates' Courts Act 1980. It cannot be included as the sole count on a Crown Court indictment, because it is not among the summary offences which section 40 of the Criminal Justice Act 1988 permits to be indicted.

Where the main offence which justified sending related summary matters to the Crown Court has been withdrawn, Schedule 3 to the Crime and Disorder Act 1998 does not confer power to try, convict or sentence the remaining low-value shoplifting charge. Any resulting indictment, conviction and sentence are a nullity.

The applicant was sent from Bromley Magistrates' Court to the Crown Court with a charge of possessing an offensive weapon. At the same time, a related low-value shoplifting charge and an assault charge were sent to the Crown Court.

The offensive-weapon charge was discontinued before the first Crown Court hearing and the assault charge was withdrawn. The applicant had not elected Crown Court trial for the shoplifting charge. Nevertheless, she pleaded guilty to that charge on an indictment containing it as the sole count. Woolwich Crown Court imposed 15 months' imprisonment and activated three months of an earlier suspended sentence consecutively.

Her application challenged the Crown Court's jurisdiction to sentence the summary-only offence after the main offence had fallen away.

1. The court held that the Crown Court had no jurisdiction to convict or sentence the applicant for the low-value shoplifting charge. The indictment was a nullity. It quashed the conviction and both components of the 18-month sentence.

2. Absent an election under section 22A(2) of the Magistrates' Courts Act 1980, the theft remained a summary offence. Section 40 of the Criminal Justice Act 1988 did not authorise its inclusion on an indictment. The court treated the observation in R v Arnold [2016] EWCA Crim. 1267 as consistent with that conclusion.

3. Schedule 3 paragraph 6(4) of the Crime and Disorder Act 1998 could have enabled the Crown Court to deal with a related summary offence, within magistrates' sentencing powers, only after conviction on the indictment for the main offence sent under section 51(1). That condition was not met because the offensive-weapon charge had been withdrawn. Paragraph 7 could not assist: there was no valid indictment containing a main offence and its procedure concerned remaining either-way, not summary-only, counts.

4. The proper course at the Crown Court would have been to remit the theft to the Magistrates' Court or to proceed under section 66 of the Courts Act 2003 as a District Judge. Since the purported Crown Court proceedings were without jurisdiction, the Court of Appeal had no appellate jurisdiction under the Criminal Appeal Act 1968. It therefore reconstituted itself as a Divisional Court, granted judicial review and made the quashing order.

5. The court then reconstituted itself as a Magistrates' Court. After a guilty plea, it imposed four months' imprisonment for theft and activated three months of the suspended sentence consecutively, a total of seven months. As that period had been served, the applicant was released immediately.

• Court of Appeal (Criminal Division): The court held that it lacked appellate jurisdiction because the Crown Court proceedings were a nullity. Reconstituting itself as a Divisional Court, it quashed the conviction and sentence; reconstituting itself as a Magistrates' Court, it accepted a guilty plea and imposed a lawful sentence.
• Crown Court at Woolwich: On 19 April 2016, following a guilty plea to low-value shoplifting, the court imposed 15 months' imprisonment and activated three months of a suspended sentence consecutively.
• Magistrates' Court at Bromley: On 22 February 2016, the applicant was sent to the Crown Court with an either-way offensive-weapon charge and related summary charges, including low-value shoplifting.