Jessemey, R. v

Where an adult is committed for sentence under section 4 of the Powers of Criminal Courts (Sentencing) Act 2000, the Crown Court may be confined to magistrates’ sentencing powers if the statutory conditions preserving its wider powers are not met.

An indictment is preferred only when it is uploaded to the appropriate Indictment section of the digital case system. A draft uploaded elsewhere has no status as an indictment. Discontinuance under section 23A of the Prosecution of Offences Act 1985 is available only before an indictment is preferred and takes effect by notice, not by a court order.

The appellant pleaded guilty in the Magistrates’ Court to attempting to incite a child under 13 to engage in non-penetrative sexual activity. He was committed to the Crown Court for sentence while a related charge was sent for trial.

At the Crown Court, procedural errors led the parties and sentencing judge to proceed on the mistaken basis that the judge had unrestricted Crown Court sentencing powers. On 21 October 2020, the Crown Court at Oxford imposed three years’ imprisonment and an indefinite sexual harm prevention order.

The appeal concerned the legal effect of the committal, the status of two documents uploaded to the digital case system as indictments, and an ineffective purported discontinuance of the charge sent for trial.

1. The appeal was allowed to the stated extent. The three-year sentence was quashed and replaced by four months’ imprisonment. The appellant had already served that term. The sexual harm prevention order was reduced from an indefinite period to seven years.

2. The statement of the offence had described the attempted offence as contrary to section 8 of the Sexual Offences Act 2003, rather than section 1 of the Criminal Attempts Act 1981. That was a misdescription with no substantive consequence. A person charged with a substantive offence may be convicted instead of an attempt to commit it.

3. The Magistrates’ Court committed the appellant for sentence under section 4 of the Powers of Criminal Courts (Sentencing) Act 2000, but did not state that it also had the power to commit him under section 3(2). Since he was not convicted of the related offence sent for trial, section 4(4) restricted the Crown Court to magistrates’ sentencing powers. The maximum available custodial term was therefore six months.

4. Applying R v W(P) [2016] 2 Cr App R 27, an electronic draft becomes an indictment when properly entered on the digital case system. It must be uploaded to the Indictment section. The two-count document uploaded to Applications was only a draft. In light of R v MJ [2019] 1 Cr App R 10, no election between indictments was required because only one indictment had been preferred.

5. Section 23A of the Prosecution of Offences Act 1985 did not permit discontinuance after the single-count indictment had been preferred. The purported application was misconceived and required no judicial order. That indictment remained extant, but was ordered to lie on the file on the usual terms.

• Court of Appeal (Criminal Division): Leave to appeal against sentence was granted. The court allowed the appeal to the stated extent, quashed the three-year sentence, substituted four months’ imprisonment, reduced the sexual harm prevention order to seven years, and directed that the remaining indictment lie on the file.

• Crown Court at Oxford: On 21 October 2020, imposed three years’ imprisonment for attempting to incite a child under 13 to engage in non-penetrative sexual activity, and made an indefinite sexual harm prevention order.

• Oxford Magistrates’ Court: On 11 August 2020, accepted a guilty indication on the offence later committed for sentence, sent a related charge for trial, and committed the appellant for sentence under section 4 of the Powers of Criminal Courts (Sentencing) Act 2000.