Gould & Ors v R.

Section 66 of the Courts Act 2003 gives the judicial office holders listed in it the original jurisdiction of a District Judge (Magistrates’ Courts) in criminal matters. A Crown Court judge may therefore sit as a magistrates’ court, without a formal deployment as a matter of law.

The power does not displace the statutory division between the magistrates’ court and the Crown Court. A judge exercising it must observe the mandatory procedures and jurisdictional limits that bind a magistrates’ court. Once a valid committal or sending has made the magistrates’ court functus officio, neither it nor a Crown Court judge acting under section 66 can alter it. Procedural defects require the analysis in Ashton, but failures affecting jurisdiction or mandatory safeguards may render the resulting proceedings a nullity.

Four unrelated criminal matters were heard together because each involved an attempt by a Crown Court judge to cure charging or committal errors by exercising powers under section 66 of the Courts Act 2003.

• Gould had pleaded guilty to serious sexual offences after defective charges were replaced in the Crown Court, including a new indictable-only allegation.
• Moffat was sentenced for burglaries after erroneous sendings based on the third-strike burglary provisions.
• Brown was sentenced for alleged breaches of sexual harm prevention orders and a suspended sentence order after defective charges were replaced or altered.
• Mugenzi was sentenced for fraud after the Crown Court purported to correct an obvious date error in a charge already committed for sentence.

The central issue was the extent and lawful procedure for using section 66 while preserving the separate jurisdictions of the magistrates’ court and the Crown Court.

1. Section 66 construed. The court held that section 66 of the Courts Act 2003 confers original jurisdiction. A listed judicial office holder may sit as a magistrates’ court and exercise all powers of a District Judge (Magistrates’ Courts) in criminal causes or matters. No formal deployment, training or ticket is legally required for Crown Court or Criminal Division judges to do so. Earlier observations to the contrary were not binding.
2. Limits on the power. The power does not permit a judge to ignore the statutory scheme. A magistrates’ court becomes functus officio after a valid sending or committal. The Crown Court cannot quash, amend or remit that order; only the Divisional Court can quash it. A Crown Court judge acting under section 66 cannot exercise a power which the magistrates’ court no longer possesses.
3. Procedure and invalidity. A judge using section 66 must follow the procedure required of a magistrates’ court, including section 17A of the Magistrates’ Courts Act 1980 for either-way offences. Applying R v Ashton, Draz and O’Reilly [2006] EWCA Crim 794, a procedural failure is assessed by Parliament’s intention and the interests of justice, particularly prejudice. Jurisdictional defects and failures of mandatory safeguards remain capable of nullifying the proceedings.
4. Guidance. Use of section 66 requires restraint, clear reasons, a record of the capacity in which the judge acts, and notification to the magistrates’ court. It is generally suitable only where Crown Court disposal is plainly appropriate or the exercise merely resolves unnecessary procedural loose ends.
5. Individual outcomes. Gould’s replacement convictions and sentence were quashed because the new indictable-only and either-way charges were not lawfully sent. Moffat’s first group of convictions remained valid, but the second unlawful sending and resulting proceedings were quashed. Brown’s conviction for breach of the expired February order, the related sentence, and the new sexual harm prevention order were quashed; the remaining sentence stood, subject to a surcharge variation. Mugenzi’s purported corrective process was void but unnecessary because the original committal was valid; his sentence appeal was dismissed.

• Court of Appeal (Criminal Division): determined the appeals, applications for leave, and related judicial review issues arising from the use of section 66 of the Courts Act 2003.
• Crown Court at Basildon: sentenced Gould on 30 January 2019 following the purported replacement of charges.
• Crown Court at Worcester: sentenced Moffat on 27 January 2020 following two routes by which burglary allegations reached the Crown Court.
• Crown Court at Isleworth: sentenced Brown on 5 February 2020 for alleged breaches of sexual harm prevention orders and a suspended sentence order.
• Crown Court at Norwich: sentenced Mugenzi on 23 October 2020 for fraud.