Practice and Procedure


PUBLISHED June 30, 2003

An offence of burglary became an indictable only offence, under para.28 sch.1 Magistrates' Court Act 1980, where any level of violence was used, and had to be transferred to the Crown Court under s.51 Crime and Disorder Act 1998.Appeal, with leave of the single judge, against conviction on 14 February 2002 at Oxford Crown Court before HH Judge Corrie for handling stolen goods and burglary. The defendant ('M') was sentenced to four years' imprisonment and ordered to serve 300 days of a six year sentence, imposed at Lewes Crown Court on 11 December 1997, for burglary. On 8 January 2002 M was apprehended in the bedroom of a house by the home owner. It was the Crown's case that M had attended the house in order to steal. M's defence was that he had been invited to the house by a woman who left before he was confronted by the home owners who attacked him. M was charged with burglary under s.9(1)(a) Theft Act 1968, he appeared before the Magistrates' Court on 7 January 2002 and the case was transferred to the crown court under s.51(1) Crime and Disorder Act 1998. A notice was served which stated M had been sent for trial on an indictable only offence of "burglary, aggravated". The notice was only received by solicitors acting for M on 20 March 2002. M appealed conviction on the grounds that: (i) he was charged with offences that were triable either way. There was no evidence for the Magistrates' Court to make out a charge of aggravated burglary or any other indictable only offence, the only violence involved was when the home owner tried to prevent M from escaping and did not form part of the burglary; and (ii) the notice served was deficient.HELD: (1) The Magistrates were right to transfer the case. Under para.28 sch.1 Magistrate's Court Act 1980 where violence formed part of an offence of burglary the offence was indictable only. Para.28 clearly referred to any case where violence occurred and the words of para.28 were wide enough to cover the facts of the present case. The scale of the violence played no part in the operation of para.28. (2) A notice, under s.51(7) of the 1998 Act, should be served promptly, however, the fact it was not served until March could not invalidate the transfer. The notice was incompetently drawn but it could not be said that there was no notice served. The duty under s.51(1) of the 1998 Act was not dependant on fulfilment of the s.51(7) duty. However, that did not mean that failure to comply with s.51(7) of the 1998 Act may not give rise to a complaint of prejudice, in different cases.Appeal dismissed.

[2003] EWCA Crim 2062