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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Rymer v Director of Public Prosecutions [2010] EWHC 1848 (Admin) (21 July 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/1848.html Cite as: [2011] 1 WLR 188, [2010] EWHC 1848 (Admin), [2011] WLR 188, (2010) 174 JP 473, 174 JP 473

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/07/2010

LORD JUSTICE HOOPER:

This is the judgment of the Court

1. This is an appeal by way of case stated from the Justices for the County of Cheshire acting in and for the Local Justice Area of South Cheshire in respect of their adjudication as a Magistrates' Court ("MC") sitting at Crewe on 2 November 2009.
2. At the conclusion of the hearing we adjourned judgment. We asked for further submissions on two points and we have received them.
3. The question of law arises in the following circumstances:

i) a person has received in the post a requisition for a summary offence and has chosen to plead guilty by post;

ii) his written plea of guilty has been accepted at a hearing in his absence and a conviction has been recorded;

iii) the MC has then adjourned the case to consider whether the person should be disqualified from driving; and

iv) at the adjourned hearing before sentence the MC is informed that the person now wishes to plead not guilty.

4. The question of law is: "Does the person have an automatic right to plead not guilty or must he show the MC a good reason why he should be allowed to change his plea?"
5. The MC in this case held that he had no automatic right to plead not guilty at the adjourned hearing. The appellant disputes that relying, in particular, on section 12(9) of Magistrates' Courts Act 1980 ("MCA 1980").
6. The procedure for pleading guilty by post and for what happens thereafter is laid down in sections 12 and 12A of the MCA. Section 12A is only of marginal help in the resolution of the appeal.

Requisitions

7. We start by explaining what postal requisitions are.
8. Until recently a criminal case could only start in the MC by either the issue of a summons or a warrant. Summonses are issued by the MC. The Criminal Justice Act 2003 permits proceedings to be started by means of a requisition. Under section 29(1) of the Act:

A public prosecutor may institute criminal proceedings against a person by issuing a document (a "written charge") which charges the person with an offence.'

9. Section 29 is not yet fully in force. The procedure for which it provides so far is available only to some public prosecutors, and in some places. It was brought into force for use on and after 3^rd June, 2008, in cases instituted by a police force in the Magistrates' Court at Crewe (with which this appeal is concerned), by article 3 of the Criminal Justice Act 2003 (Commencement No. 21) Order 2008, SI 2008/1424.
10. By section 29(2):

Where a public prosecutor issues a written charge, it must at the same time issue a document (a "requisition") which requires the person to appear before a magistrates' court to answer the written charge.

11. The expression 'public prosecutor' is defined by section 29(5). It includes "a police force or a person authorised by a police force to institute criminal proceedings".
12. By section 30(1):

Criminal Procedure Rules may make—

(a) provision as to the form, content, recording, authentication and service of written charges or requisitions, and

(b) such other provision in relation to written charges or requisitions as appears to the Criminal Procedure Rule Committee to be necessary or expedient.

13. The relevant rules are contained in Part 7 of the Criminal Procedure Rules. Rule 7.4 provides, in so far as requisitions are concerned:

(1) ...

(2) A ... requisition may be issued in respect of more than one offence.

(3) A ... requisition must—

(a) contain notice of when and where the defendant is required to attend the court;

(b) specify each offence in respect of which it is issued; and

(c) identify the person under whose authority it is issued.

(4) ...

(5) A requisition may be contained in the same document as a written charge.

(6) ...

(7) Where a public prosecutor issues a requisition that prosecutor must—

(a) serve on the defendant—

(i) the requisition, and

(ii) the written charge; and

(iii) serve a copy of each on the court officer.

...

14. The effect of section 30(5) is to equate a "written charge" with an "information" and a "requisition" with a "summons". Section 30(5) provides:

Except where the context otherwise requires, in any enactment contained in an Act passed before this Act—

(a) any reference (however expressed) which is or includes a reference to an information within the meaning of section 1 of the Magistrates' Courts Act 1980 (c 43) (or to the laying of such an information) is to be read as including a reference to a written charge (or to the issue of a written charge),

(b) any reference (however expressed) which is or includes a reference to a summons under section 1 of the Magistrates' Courts Act 1980 (or to a justice of the peace issuing such a summons) is to be read as including a reference to a requisition (or to a public prosecutor issuing a requisition).

15. We turn now to section 12 of the MCA 1980 which permits in defined circumstances pleas of guilty by post and prescribes the procedure to be followed in the MC for dealing with such pleas.

Section 12 of the Magistrates' Courts Act 1980 and Rule 37.8 of the Criminal Procedure Rules

16. The original section 12 in the 1980 Act was repealed and replaced with a new section 12 by the Criminal Justice and Public Order Act 1994, s 45, Schedule 5, paragraph 1, which also inserted a new section 12A. There have been other amendments but we shall only identify them if relevant to this appeal.
17. Section 12 now reads as follows in so far as material to this appeal (in the light of section 30(5) of the Criminal Justice Act 2003 we have added in square brackets the words "written charge" "requisition" respectively where the words "information" and "summons" appears):

1)     This section shall apply where—

(a)     a summons [requisition] has been issued requiring a person to appear before a magistrates' court ... , to answer to an information [written charge] for a summary offence ...

(b)     the designated officer for the court is notified by or on behalf of the prosecutor that the documents mentioned in subparagraph (3) below have been served upon the accused with the summons [requisition].

(2)     ...

(3)     The documents referred to in subparagraph (1)(b) above are—

(a)     a notice containing such statement of the effect of this section as may be prescribed;

(b)     either of the following, namely—

(i)     a concise statement of such facts relating to the charge as will be placed before the court by the prosecutor if the accused pleads guilty without appearing before the court, or

(ii)     a copy of such written statement or statements complying with subparagraphs (2)(a) and (b) and (3) of section 9 of the Criminal Justice Act 1967 (proof by written statement) as will be so placed in those circumstances; and

(c)     if any information relating to the accused will or may, in those circumstances, be placed before the court by or on behalf of the prosecutor, a notice containing or describing that information.

(4)     Where the designated officer for the court receives a notification in writing purporting to be given by the accused or by a legal representative acting on his behalf that the accused desires to plead guilty without appearing before the court—

(a)     the designated officer for the court shall inform the prosecutor of the receipt of the notification; and

(b)     the following provisions of this section shall apply.

(5)     If at the time and place appointed for the trial or adjourned trial of the information [requisition]—

(a)     the accused does not appear; and

(b)     it is proved to the satisfaction of the court, on oath or in such manner as may be prescribed, that the documents mentioned in subparagraph (3) above have been served upon the accused with the summons [requisition],

the court may, subject to section 11(3) and (4)^[1] above and subparagraphs (6) to (8) below, proceed to hear and dispose of the case in the absence of the accused, whether or not the prosecutor is also absent, in like manner as if both parties had appeared and the accused had pleaded guilty.

(6)     If at any time before the hearing the designated officer for the court receives an indication in writing purporting to be given by or on behalf of the accused that he wishes to withdraw the notification—

(a)     the designated officer for the court shall inform the prosecutor of the withdrawal; and

(b)     the court shall deal with the information [written charge] as if the notification had not been given.

(7)     Before accepting the plea of guilty and convicting the accused under subparagraph (5) above, the court shall cause the following to be read out before the court by the clerk of the court, namely the information [written charge] sent by the police to the defendant:

...

(c)     the notification under subparagraph (4) above; and

(d)     any submission received with the notification which the accused wishes to be brought to the attention of the court with a view to mitigation of sentence.

...

(8)     If the court proceeds under subparagraph (5) above to hear and dispose of the case in the absence of the accused, the court shall not permit—

(a)     any other statement with respect to any facts relating to the offence charged; or

(b)     any other information relating to the accused,

to be made or placed before the court by or on behalf of the prosecutor except on a resumption of the trial after an adjournment under section 10(3) above.

(9)     If the court decides not to proceed under subparagraph (5) above to hear and dispose of the case in the absence of the accused, it shall adjourn or further adjourn the trial for the purpose of dealing with the information [written charge] as if the notification under subparagraph (4) above had not been given.

(10)     In relation to an adjournment on the occasion of the accused's conviction in his absence under subparagraph (5) above or to an adjournment required by subparagraph (9) above, the notice of the adjournment ... shall include notice of the reason for the adjournment.

... (Emphasis added)

18. It is the words which we have italicised which give rise to the problems raised by this appeal. Subsection 9 is not to be found in section 12 of the original Magistrates' Courts Act 1980 but was added for the first time (we believe) by the Criminal Justice and Public Order Act 1994.
19. Rule 37.8 of the Criminal Procedure Rules 2010 provides (footnotes omitted):

(1)  This rule applies where—

(a) the offence alleged—

(i) can be tried only in a magistrates' court, and

(ii) is not one specified under section 12(1)(a) of the Magistrates' Courts Act 1980;

(b) the defendant is at least 16 years old;

(c) the prosecutor has served on the defendant—

(i) the summons or requisition,

(ii) the material on which the prosecutor relies to set out the facts of the offence and to provide information relevant to sentence,

(iii) a notice that the procedure set out in this rule applies, and

(iv) a notice for the defendant's use if the defendant wants to plead guilty without attending court; and

(d) the prosecutor has served on the court officer—

(i) copies of those documents, and

(ii) a certificate of service of those documents on the defendant.

(2) A defendant who wants to plead guilty without attending court must, before the hearing date specified in the summons or requisition—

(i) serve a notice of guilty plea on the court officer; and

(ii) include with that notice any representations that the defendant wants the court to consider on that date.

(3) A defendant who wants to withdraw such a notice must notify the court officer in writing before the hearing date.

(4) The court may accept such a guilty plea on the hearing date, and if it does so must take account only of—

(i) the material served by the prosecutor on the defendant under this rule; and

(ii) any representations by the defendant.

(5) With the defendant's agreement, the court may deal with the case in the same way as under paragraph (4) where the defendant—

(i) is present; and

(ii) has served a notice of guilty plea under paragraph (2); or

(iii) pleads guilty there and then.

20. As can be seen from Rule 37.8(1)(c)(i), the Rule caters for requisitions as well as summonses.
21. We shall now look in more detail at the procedure for informing a person by a summons or requisition that he has been charged with an offence or offences and giving him the opportunity to plead guilty by post.

The procedure for informing a person of the charge(s) against him and of his right to plead guilty by post

22. The defendant ("D") receives in the post a summons issued by the MC or a requisition issued by the prosecutor alleging the commission of summary driving offences (or other summary offences).
23. With the summons or requisition D receives documentation explaining to him his choices. This is, as we have seen, required by section 12(3)(a) of the MCA 1980, which provides that he must receive "a notice containing such statement of the effect of this section as may be prescribed".
24. The note to Part 37.8 of the Criminal Procedure Rules states: "The Practice Direction sets out forms of notice for use in connection with this rule". Rule 5.1 provides:

 The forms set out in the Practice Direction shall be used as appropriate in connection with the rules to which they apply.

25. Paragraph I.14.2 of the Consolidated Criminal Practice Directions (to which Mr Watson has drawn our attention in further submissions) provides as follows:

The forms set out in Annex D, or forms to that effect, are to be used in the criminal courts on or after 4th April 2005, when the Criminal Procedure Rules come into force. Almost all are identical to those in use before that date, and accordingly a form in use before that date which corresponds with one set out in Annex D may still be used in connection with the rule to which it applies.

26. The current prescribed form for use with a summons is to be found in Amendment no 22 to the Consolidated Criminal Practice Direction (criminal proceedings: victim personal statements; pleas of guilty in the Crown Court; forms), handed down by the Lord Chief Justice in May 2009 and reported in [2009] 1 WLR 1396. The amendment includes what are described as:

forms for use in connection with:

... Part 37 of the Criminal Procedure Rules (trial and sentence in a magistrates' court), as substituted by the Criminal Procedure (Amendment No. 2) Rules ... .

27. The relevant form is for use with a summons and incorporates in one document the summons, the statement required by section 12(3)(a) and detailed instructions as to how to respond to the form. The form is not available on the Criminal Procedure Rules website because, we have been told by the Secretariat to the Committee, there is a fear that, if the form of the summons is readily available, it could be misused.
28. There is no similar prescribed form for use with a requisition. In our view it would be desirable to have a prescribed form for requisitions. There appears to be no reason why that part of the form for use with a summons which is the statement required by section 12(3)(a) should not be incorporated in the suggested new form.
29. In this case the defendant was sent two forms headed Form 27A and 28A. Forms 27A and 28A are not prescribed forms although they were "prescribed" by the Magistrates' Courts (Forms) (Amendment) Rules 1999 (SI 1999/1149), which amended the Magistrates Courts (Forms) Rules 1981 (SI 1981/553). Forms 27A and 28A were removed from the 1981 Rules by the Magistrates Courts (Miscellaneous Amendments) Rules 2003 (SI 2003/1236), with effect from 20 June 2003 (see rules 48 and 49 of the 2003 Rules). The Explanatory Note to the 2003 Rules states that they "de-prescribe and omit all criminal forms used in magistrates' courts and provide that the forms intended for use by applicants are voluntary".
30. We have looked at the form for use with a summons which is attached to the Practice Direction and compared it with Forms 27A and 28A. There seem to be no significant material differences in the information being conveyed to the defendant as to what he or she should do. On discovering that the forms used in this case were "out of date" we asked for further written submissions.
31. Mr Bell submits that the consequence of using Forms 27A and 28A is that the conviction must be quashed. We shall return to that argument later.
32. Given the absence of any significant material differences between the forms used in this case and the form attached to the Practice Direction, we shall refer only to the latter for the purposes of explaining the procedure.
33. D is informed what offence or offences which he is alleged to have committed and given some detail. He is told that he may plead guilty or not guilty by post or attend court on the day shown in the summons and plead guilty. Insofar as the first option is concerned, D is given further details in section 1:

If you admit the offences, you may plead guilty in writing without attending court. If this is your decision, tick those offences in Column 1 on the plea form, sign the form and return it to the court. You need not attend court on the date shown on this summons.

Fill in the enclosed statement of means form and send it to the court with your plea form. Giving these details helps the court decide the right amount of any fine. If you do not give these details you may be ordered to pay a fine which is more than you can afford. You should also tell the court anything about the offences or yourself that you feel the court should know when deciding what sentence to give you. To do this fill in the mitigating circumstances section of the plea form. Send the completed plea form to the court with your statement of means.

[You must send your driving licence and its counterpart to the court before the hearing date. If you do not do this, you will commit an offence and your licence will be suspended until the court has received it. You will not be allowed to drive while your licence is suspended.]

At the hearing the court will hear only

[the statement of facts]

the witness statements with these papers, or a summary of them

any other details (such as a claim for costs) which came with this summons

details of your driving record; and

anything you write on the plea and statement of means forms

If you want to plead guilty in writing you must act quickly. Fill in the plea form and the statement of means form and send them to the court so that they get there at least three days before the hearing date shown in this summons.

If you plead guilty by post, you will normally be convicted by the court on the date shown in the summons. The court may put the case back for up to four weeks without having to tell you. The court will write to you soon after the hearing to tell you what sentence the magistrates have given you.

If the court decides not to accept your guilty plea, it will tell you why in writing and give you a fresh hearing date.

Changing your plea

If you have sent the plea form to the court saying that you want to plead guilty, you can change your mind at any time before the hearing. If you do change your mind you must tell the court in writing as soon as possible that you want to plead not guilty. (Emphasis added)

34. D is asked to tick the appropriate box.

Offence	Column 1	Column 2	Column 3
	Guilty by post**	Guilty at court*	Not Guilty

35. We turn to the procedure to be followed upon the defendant informing the court on the form that he wishes to plead guilty.

Procedure upon receipt of a written plea of guilty

36. Section 12(1) provides that the section 12 procedure applies if (and only if):

(b) the designated officer for the court is notified by or on behalf of the prosecutor that the documents mentioned in subparagraph (3) below have been served upon the accused with the summons [requisition].

37. We have already set out the terms of subsection 12(3) (above paragraph 17)
38. On the hearing date, the MC reads through the form and the documents sent to D and decides whether to accept the plea of guilty. If it accepts the plea of guilty then the court records a conviction. We say that the court records a conviction because that is, as we understand it from enquiries which we have made, the normal procedure. It is certainly what happened in this case.
39. If the court, following the conviction, then decides, as it did in this case, that disqualification from driving has to be considered, then it adjourns the hearing because a person cannot be disqualified from driving without having been warned that he might be disqualified. The notice of adjournment gives a hearing date and tells D that the court is considering whether to disqualify him. This is the effect of sections 11(4) and 12(10) of the Magistrates' Courts Act 1980.
40. At the adjourned hearing on the attendance of D or his legal representative the court will consider whether to impose an order of disqualification.

What happened in this case on the adjourned hearing

41. In the instant case, Mr Bell informed the court that the appellant was pleading not guilty. Mr Bell submitted that, by reason of section 12(9) of the Magistrates' Courts Act 1980, the written plea of guilty was no longer effective and that the appellant had the right to enter a not guilty plea. The Bench was advised that the court had a discretion whether to allow a defendant to change his plea up until the point of sentence and declined to exercise that discretion in the appellant' s favour.
42. The question of law formulated by the court is as follows:

Should the court have taken account of Section 12(9) of the Magistrate's Court Act 1980 and therefore have proceeded on 2^nd November 2009 as if the guilty plea notification under Section 12(4) of the Magistrate's Court Act 1980 had not been given and therefore accepted the applicant's not guilty plea?

43. It is not an easy question to answer and involves a detailed look at section 12.

Section 12- in more detail

44. Subsection (5) provides that the court "may proceed to hear and dispose of the case in the absence of the accused ... in like manner as if ... the accused had pleaded guilty". A similar provision is to be found in the original section 12.
45. Section 9(1) states:

On the summary trial of an information, the court shall, if the accused appears, state to him the substance of the information and ask him whether he pleads guilty or not guilty.

46. Section 9(3) states:

If the accused pleads guilty, the court may convict him without hearing evidence.

47. It follows from section 12(5) and section 9 that the court, if it accepts the plea of guilty, may then convict the defendant. Confirmation of that may also be found in section 12A(5)(c).
48. Subsection (7) of section 12 directs the court as to what it must do before accepting the plea of guilty and convicting the defendant. A similar provision is to be found in the original section 12.
49. Subsection (10) is particularly important in the resolution of this appeal. Again a similar provision is to be found in the original Act (as subsection (4)). Subsection (10) envisages that the defendant has been convicted in his absence on the basis of his accepted plea of guilty, and that sentencing has been adjourned. It would, in our view, be quite inconsistent with subsection (10) to conclude that at the adjourned hearing the defendant had the automatic right to plead not guilty. Support for this conclusion comes also from section 10(3) which provides:

A magistrates' court may for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with the case, exercise its power to adjourn after convicting the accused and before sentencing him or otherwise dealing with him; and if it does so, the adjournment shall not be for more than 4 weeks at a time unless the court remands the accused in custody and, where it so remands him, the adjournment shall not be for more than 3 weeks.

50. Section 12(8) also provides that the limitation upon what material can be taken into account when sentencing the defendant in his absence ceases to have effect "on a resumption of a trial after an adjournment under section 10(3) above".
51. Mr Watson also points to section 11(4) which provides:

In proceedings to which this subsection applies, the court. shall not in a person's absence impose any disqualification on him, except on resumption of the hearing after an adjournment under section 10(3) above; and where a trial is adjourned in pursuance of this subsection the notice required by section 10(2) above shall include notice of the reason for the adjournment. [Emphasis added]

52. Mr Watson rightly points out that the "resumption" being referred to is a resumption following conviction.
53. Section 13(4) is also of some significance in this respect. Section 13 makes provision for the issue of a warrant on the non-appearance of the accused. Subsection (4) provides:

This section shall not apply to an adjournment on the occasion of the accused's conviction in his absence under subsection (5) of section 12 above or to an adjournment required by subsection (9) of that section.

54. The conclusion that at an adjourned hearing the defendant had the automatic right to plead not guilty would also be inconsistent with subsection (6) (a similar provision is to be found in the original section 12). If the defendant wants to withdraw his written plea, it must be before the section 12 hearing.
55. It follows that, in our view, prior to the addition in 1994 of subsection (9), the defendant did not have the automatic right to plead not guilty at the adjourned hearing.
56. Mr Bell submits that subsection (9) now makes it clear that unless the court hears and disposes of the case using the subsection (5) procedure, then the written plea of guilty has to be ignored, the conviction falls away and the defendant has the right to plead not guilty.
57. Mr Watson submits that the word "dispose" in subsection (9) (and presumably elsewhere in this section if not also elsewhere in the Act) means "convict". We do not accept that interpretation. For the purposes of section 12, at least, it seems clear that to "dispose" of a case means to finish the case, including sentencing the defendant.
58. During the course of argument we debated whether the word "trial" in subsection (9) helps in the resolution of the issue. We are grateful to counsel for their written submissions on the meaning of the word "trial" but, on reflection, we now feel that the use of the word "trial" does not help in the resolution of the issue.
59. We conclude that subsection (9) was not intended when added in 1994 to have the result for which Mr Bell contends. The subsection should be interpreted in a purposive way so that the words "as if the notification under subsection (4) above had not been given" have no application if the court has accepted the written guilty plea and convicted the defendant.
60. We add finally that our conclusion is also consistent with the words which we have underlined in the form sent with a summons (see paragraph 37 above).
61. Subsection (9) will come into play if the court declines for some reason or another to act on the written plea of guilty and adjourns the case for a further hearing.

What is the effect of the use in this case of Forms 27A and 28A?

62. This question does not arise from the stated case but we feel that we should deal with it given that the MC has to be satisfied that the documents mentioned in subsection (3) have been served. These include, as we have seen, "a notice containing such statement of the effect of this section as may be prescribed".
63. Mr Bell submits that the consequence of using Forms 27A and 28A rather than the prescribed forms is that the conviction must be quashed. He relies on: section 12(1)(b), 12)(3)(a) and 12(5). The court, so Mr Bell submits, could not in law have been satisfied that "a notice containing such statement of the effect of this section as may be prescribed" had been served, because the forms used, namely Forms 27A and 28A, were not prescribed.
64. There can be no doubt, in our view, that Forms 27A and 28A were notices containing a statement of the effect of the section. Mr Bell does not argue to the contrary.
65. Does "a notice containing such statement of the effect of this section" have to be prescribed before a MC is permitted to convict a person in his absence on the basis of a written plea, as section 12 permits? Those who drafted the explanatory note to the 2003 Rules (see paragraph 8 above) clearly did not think so. We agree, whilst accepting that it is desirable to have a prescribed form. The advantage of a prescribed form is that a court does not need to examine the form used in order to see whether it contains the necessary statement of the effect of this section.
66. In his written submissions Mr Bell (understandably) proceeded on the assumption that the prescribed form for as requisition was that laid down in the 2003 Amendment to the Practice Direction. Our researches now show (we believe) that no form has been prescribed for requisitions.
67. In the absence of a prescribed form, we must ask ourselves whether Forms 27A and 28A do contain a perfectly adequate statement of the effect of section 12. In our view they do, and Mr Bell has not sought to show otherwise.
68. We add that, in our view, even in a summons case, the failure to use the prescribed form is unlikely to result in a conviction based on a postal plea of guilty being quashed provided, at least, that the MC is (or would be) satisfied that the notice contained a sufficient statement of the effect of section 12.

Conclusion

69. For these reasons we dismiss the appeal. It is to be hoped that on the resumption of the hearing the Court will give the appellant a fresh opportunity to show that he should be permitted to withdraw his pleas under the well-established principles which permit a court in certain circumstances to allow a defendant to withdraw his plea. It is right to say that the Court gave Mr Bell an opportunity to explain why the appellant should be permitted to withdraw the pleas but, at that time, he was (wrongly as we have decided) of the view that the appellant had a right to withdraw the plea. The procedure for applying to withdraw a guilty plea is set out in Rule 37.9 of the Criminal Procedure Rules.
70. Given that the parties did not realise that there was (so we have found) no prescribed form for a requisition and given that in argument the original section 12 was not examined, we shall give them an opportunity, before we make the judgment final, to comment on any aspect of this judgment which has not been the subject of written or oral argument. Any comment must be with the court by 5.00 pm on Friday 16 July.

Note 1   The effect of section 11(3) and (4) is to prevent the court from imprisoning a defendant or disqualifying him from driving in the absence of a warning to the defendant that this is being considered.     [Back]