Maxwell v R

Low-value shoplifting remains triable only summarily unless an adult defendant elects Crown Court trial. In deciding whether the £200 threshold is exceeded, only offences that are themselves low-value shoplifting may be aggregated. A summary-only low-value shoplifting charge is not among the summary offences which Criminal Justice Act 1988 section 40 permits to be added to an indictment. Any indictment, plea and sentence on such a count are therefore a nullity.

A summary offence may nevertheless have been properly sent to the Crown Court under Crime and Disorder Act 1998 section 51(3)(b). The magistrates’ assessment that it appears related to an indictable offence allows latitude. The Crown Court must then use the statutory procedure for dealing with the summary offence, rather than include it in the indictment.

Maxwell v R was an appeal against conviction and sentence from Cardiff Crown Court. The appellant had pleaded guilty to a series of theft, burglary, aggravated vehicle-taking, robbery, attempted robbery, driving and insurance offences. On 29 February 2016 he received a total of seven years and four months’ imprisonment, together with driving orders.

The appeal raised whether three shoplifting counts, whose individual and aggregate values were below £200, could lawfully appear on the indictment. It also challenged the overall length and legality of the sentencing exercise, including a sentence above the statutory maximum for aggravated vehicle-taking and errors concerning disqualification and an extended re-test.

1. The appeal against conviction was allowed. Counts 1, 16 and 18 were low-value shoplifting offences. The appellant had not elected Crown Court trial. Count 2, valued at £240, could not be included in the aggregation exercise because it was not itself low-value shoplifting. The remaining relevant shoplifting values did not exceed £200 in aggregate. The three offences therefore remained summary-only under Magistrates’ Courts Act 1980 section 22A.

2. Such offences were not listed in Criminal Justice Act 1988 section 40(3), and could not be included in an indictment under section 40(1). The court agreed with the analysis in R v McDermott-Mullane [2016] EWCA Crim 2239. The joinder, guilty pleas and sentences on those counts were nullities. Their invalidity did not affect the remaining indictment counts.

3. The offences had nevertheless been properly sent to the Crown Court under Crime and Disorder Act 1998 section 51(3)(b). The magistrates could regard the similar thefts, committed by the same offenders in the same locality and period, as apparently related to the either-way Count 2 theft. The correct Crown Court procedure was that in Schedule 3 paragraph 6, not indictment and trial. The convictions on Counts 1, 16 and 18 were quashed.

4. The appeal against sentence was allowed to the stated extent. The consecutive six months imposed for the quashed theft counts was removed. The burglary term was reduced to two years and six months after guilty-plea credit. The two-year sentence for aggravated vehicle-taking was unlawful; it was replaced by four months concurrent. The consecutive driving-disqualified sentences on Counts 3 and 19 were made concurrent to give effect to totality. The total sentence was reduced from seven years and four months to six years.

5. The driving disqualification was amended in accordance with R v Needham [2016] 2 Cr App R (S) 26, so that its discretionary period would operate while the appellant was at liberty. It became a six-year disqualification comprising the statutory elements identified by the court. The extended re-test order was quashed because an earlier such order remained in force. The purported no-separate-penalty sentences on Count 15 and four insurance charges were also quashed, as the judge had not passed them. Those outstanding matters remained before the Crown Court.

• Court of Appeal (Criminal Division): In Maxwell v R [2017] EWCA Crim 1233, the court allowed the conviction appeal on three low-value shoplifting counts and allowed the sentence appeal to the extent indicated.
• Cardiff Crown Court: On 29 February 2016, following guilty pleas, the appellant was sentenced to seven years and four months’ imprisonment, with driving disqualification and related orders.