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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Nicholas, R (on the application of) v Chester Magistrates' Court [2009] EWHC 1504 (Admin) (11 June 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/1504.html Cite as: [2009] EWHC 1504 (Admin), (2009) 173 JP 542 |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand London WC2A 2LL |
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B e f o r e :
MR JUSTICE WILKIE
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NICHOLAS | Claimant | |
v | ||
CHESTER MAGISTRATES' COURT | Defendant |
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The Defendant did not attend and was not represented
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"Did the District Judge err in failing to impose a community based penalty in light of the indication given in open court by the Justices on 9th April 2008 that a community based penalty was suitable?"
That gave rise to a response from the court received by the claimant's solicitors on 16th June in which the District Judge said as follows:
"I regret that I am not prepared to state a case since the application is misconceived. The question which Ballam Delaney Hunt invite me to raise with the Administrative Court is not a question of law but one of fact. The issue they are raising, I think, is whether or not I was justified in reaching my conclusion that the decision of the lay bench to restrict sentence to a community based penalty was one which any bench, properly directed on the facts of the case, could have reached, or whether it was 'Wednesbury unreasonable'. I applied the law as set out in . . . ."
He then referred to the case of White, approved in the case of Sumner, and indicated that the solicitors did not appear to have considered those cases. He then goes on:
"I considered that the decision was one which no bench could properly have reached. In making that decision, I noted the serious nature of the case, which involved allegations of a group attack on a victim in the city centre at night involving the kicking to the head of the victim by one or more of the group of which Nicholas was part. In addition, both Nicholas and another perpetrator were wearing frightening 'Scream' type masks. I also noted that Nicholas did not enter a guilty plea at the earliest occasion, despite being represented by solicitors and given ample opportunity so to do at the initial CJSSS court before me in which I specifically warned him that a sentence of imprisonment was inevitable. Finally, at the time of the offence, Nicholas was the subject of an unexpired sentence of imprisonment imposed only a matter of months before this offence for a matter of affray. In particular, I noted that the lay bench had not considered the impact that this latter matter should have on any sentence."