Elliott Cuciurean v Crown Prosecution Service

A defendant convicted by a magistrates’ court may choose between an appeal to the Crown Court by way of rehearing and an appeal to the High Court by way of case stated on law or jurisdiction. The statutory bar in section 111(4) of the Magistrates’ Courts Act 1980 operates only against the applicant who makes the case-stated application. A prosecution appeal by case stated, followed by a direction to convict, does not remove the defendant’s separate right of appeal to the Crown Court under section 108. The Crown Court may reconsider the facts on rehearing, while remaining bound by the Divisional Court’s determinations of law. The form of the Divisional Court’s order, whether a direction to convict or substitution of a conviction with sentence remitted, does not alter that right.

The appellant was acquitted by magistrates of aggravated trespass contrary to section 68 of the Criminal Justice and Public Order Act 1994. The DPP successfully appealed by case stated. The Divisional Court quashed the acquittal and remitted the matter with a direction to convict: [2022] EWHC 736 (Admin), [2022] QB 888. The magistrates then convicted and sentenced the appellant.

The appellant appealed against conviction and sentence to the Crown Court under section 108 of the Magistrates’ Courts Act 1980. The Recorder held that the Crown Court lacked jurisdiction to hear the conviction appeal because of sections 111(1) and 111(4). The central questions were whether the earlier prosecution appeal by case stated had extinguished the appellant’s Crown Court appeal, and whether the answer would differ if the Divisional Court had substituted a conviction and remitted sentence only.

1. Appeal allowed. The appellant retained a right of appeal against conviction to the Crown Court, and the case was remitted for that appeal to be listed.
2. Section 111(1) of the Magistrates’ Courts Act 1980 permits a party or person aggrieved to apply to the High Court to state a case concerning an error of law or excess of jurisdiction. Under section 111(4), the applicant is the person who makes that application. Only that applicant loses any right which they possess to appeal the relevant decision to the Crown Court.
3. The statutory language does not support a distinction based on the eventual outcome of the case-stated appeal. The loss of the Crown Court right occurs on making the application, before its outcome is known. The principle applies even where the application is later abandoned, as illustrated by R v Winchester Crown Court Ex p Lewington (1982) 4 Cr App R (S) 224, DC.
4. The statutory scheme imposes a choice between a Crown Court rehearing on fact and law and a High Court case stated on law or jurisdiction. In this case the appellant had made neither application. The DPP’s application could not extinguish the appellant’s separate Crown Court right. A contrary construction would deprive a defendant of all appeal rights following a prosecution appeal which resulted in a direction to convict.
5. The Crown Court appeal would not contradict the Divisional Court. The Crown Court may reach a different conclusion on the facts on rehearing, but remains bound by the Divisional Court’s determinations of law, including the legal interpretation of section 68 of the Criminal Justice and Public Order Act 1994.
6. Question 2 was answered in the negative. Whether the Divisional Court remitted the case with a direction to convict or substituted a conviction and remitted sentence only was immaterial to the jurisdictional issue. In either event, the conviction was a conviction by the magistrates’ court.

• High Court, Divisional Court: The DPP’s case-stated appeal against the magistrates’ acquittal was allowed, the acquittal was quashed, and the case was remitted with a direction to convict: [2022] EWHC 736 (Admin), [2022] QB 888.
• Recorder of London: The Crown Court was held to lack jurisdiction to hear the appellant’s appeal against conviction; the sentence appeal proceeded.
• High Court, Divisional Court: The Recorder’s decision was reversed. The appellant’s Crown Court appeal against conviction remained available.