R v Yashar Leon Canatar

A Crown Court judge using powers under the Courts Act 2003 to sit as a District Judge must comply with the mandatory procedure in section 17A of the Magistrates’ Court Act 1980. The accused must be present, the charge must be read, and the accused must be asked about the intended plea. Failure renders the subsequent proceedings a nullity. A later prosecution arising from the same or substantially the same facts as an earlier conviction is abusive, absent special or exceptional circumstances. That principle applied although sentence had not yet been passed, because the accused had been convicted and committed for sentence. A distinct offence arising from a different part of the incident may be prosecuted separately, provided the proper procedure is followed.

The appellant pleaded guilty in the Magistrates’ Court to simple possession of cocaine, possession of cannabis, possession of crack cocaine and dangerous driving. He was committed to the Crown Court for sentence. Later, the prosecution sought proceedings for possession of cocaine with intent to supply and assault of an emergency worker. A Crown Court judge sitting as a District Judge sent those charges for trial in the appellant’s absence. The appellant pleaded guilty in the Crown Court. At sentence, the Recorder purported to vacate the earlier guilty plea to simple possession and sentenced him for the more serious drug offence instead.

The appeal concerned the validity of the committal procedure, abuse of process, the Recorder’s power to vacate the Magistrates’ Court conviction, and sentence.

Decision

1. Convictions. The appeals against conviction were allowed. The convictions for possession of cocaine with intent to supply and assault of an emergency worker, together with the sentences imposed for them, were quashed.
2. Mandatory committal procedure. Section 17A of the Magistrates’ Court Act 1980 required the appellant to be present, required the charges to be read to him, and required him to be asked whether he intended to plead guilty or not guilty. Those requirements were mandatory. The failures meant that the decision to send the charges to the Crown Court was a nullity. They also caused prejudice because the appellant lost the opportunity to obtain the one-third guilty-plea reduction available at that stage. The court applied R v Gould [2021] EWCA Crim 447, [2021] 2 Cr App R 7.
3. Abuse of process. The principle in R v Elrington (1861) 1 B & S 688, applied in authorities including R v Phipps [2005] EWCA Crim 33, prevented a second prosecution based on the same or substantially the same facts, save in special or exceptional circumstances. The drug charge with intent to supply arose from the same facts as the Magistrates’ Court conviction for simple possession. It would therefore have been abusive, notwithstanding that sentence had not yet been imposed. The circumstances were materially different from those in R v Antoine [2014] EWCA Crim 1971.
4. The assault charge arose from a different part of the incident and was a materially different offence. It would not itself have been abusive if properly instituted. However, the failure to comply with section 17A made the proceedings a nullity.
5. Vacating the earlier plea. After committal for sentence, the Magistrates’ Court was functus. The Recorder could not use section 66 of the Courts Act 2003 to vacate the guilty plea or conviction for simple possession in order to sentence for a different offence that was not properly before the Crown Court. The attempt to do so was a nullity. Following the procedural course in R v Gould, the court reconstituted as a Divisional Court and quashed the Recorder’s decision.
6. Sentence. The sentence for dangerous driving remained 12 months. The sentence for crack cocaine was reduced to four months and that for cannabis to two months, concurrent with each other but consecutive to the driving sentence. The total sentence was 16 months, less eight days’ credit. Disqualification was reduced to 20 months, with an extended driving test. On the reinstated simple-possession conviction, Yip J imposed no separate penalty because the appellant had effectively served the original sentence.

• Court of Appeal (Criminal Division). Extension of time and leave to appeal were granted. The convictions for possession with intent to supply and assault of an emergency worker were quashed. Sentences for the remaining offences were varied.
• Divisional Court. The court reconstituted itself, granted judicial review permission, and quashed the Recorder’s decision vacating the guilty plea to simple possession. The matter was determined by sentencing the appellant with no separate penalty.