Practice and Procedure


PUBLISHED February 3, 2003

Where a Magistrate's court committed for trial an offence triable either way it did not have jurisdiction to also commit for sentence, following a plea of guilty, a summary only offence, the plea of guilty should have been declined. A conviction for dangerous driving was not unsafe where the Crown relied on a plea of guilty to driving with excess alcohol when other evidence available was overwhelming.Appeal against conviction with leave of the single judge. On 6 June 2001 at Southampton Magistrate's Court the defendant ('H) pleaded guilty to driving with excess alcohol. The Crown indicated that it intended to add a second charge of dangerous driving. H was not present at the time and the case was adjourned for instructions to be taken. On 17 July 2001 before the Magistrates H guilty to driving with excess alcohol but not guilty to dangerous driving. The Magistrates declined jurisdiction and H was committed for trial for dangerous driving and to be sentenced for excess alcohol. H made an application for a stay for abuse of process which was refused and H changed his plea, in relation to the dangerous driving, to one of guilty. On 19 November 2001 at Southampton Crown Court, HH Judge Boggis QC sentenced H to a community punishment order of 200 hours and disqualified him from driving for three years. On 14 May 2001 a special constable, who was driving behind H, observed H driving in an erratic manner. H travelled excessively slowly and then sped up to excessive speeds. He pulled out in front of a van causing it to break sharply and rolled backward at a junction. H pulled into a lay-by, slumped in the driver's seat and was arrested and breath tested positive. He was charged with having consumed too much alcohol contrary to s.5(1)(a)Road Traffic Act 1988. H appealed the conviction, and relying on R v Forest of Dean Justices ex parte Farley 1990 RTAR 228, argued that for him to be tried for dangerous driving after entering a plea of guilty for driving with excess alcohol constituted either an abuse of process or double jeopardy. A third matter was referred to the court by the Registrar namely that the Magistrate's court had not had the jurisdiction to commit, for sentence, the charge of driving with excess alcohol to the Crown court.HELD: (1) The Magistrate's court had made the wrong decision when it committed the sentence for driving with excess alcohol to the Crown court. It had no jurisdiction to do so because the offence was a summary offence. Unfortunately that had not been appreciated by anyone who appeared for the defendant at the Magistrate's court. The Magistrates should have refused to accept the plea of guilty for driving with excess alcohol, they could then have sent the question of sentence to the Crown court which would have dealt with it at the same time as the dangerous driving offence. (2) The position in the present appeal was clearly and obviously distinct from the position in Farley (supra). In Farley the Crown wished to pursue a driving with excess alcohol charge and, if successful, to pursue a charge of causing death by reckless driving, the recklessness being proved by the excess alcohol. It was held that that offended the principle of double jeopardy and offences should be prosecuted in order of magnitude. (3) In Farley (supra) the Crown had had no other evidence. In the present case there was overwhelming evidence of dangerous driving from what was observed by the special constable. If there had been any unfairness involved because of the plea of guilty in the Magistrate's court then it could have been dealt with by the trial judge under s.78 Police and Criminal Evidence Act 1984 who could have ruled it unfair to rely on the evidence of driving with excess alcohol to prove the dangerous driving charge. (4) Whilst there had been a mistake in accepting the plea of guilty before committing the matter to Crown court, that mistake did not effect the fact that H chose to plea guilty. H had had the facts before him and it was not a case which involved abuse. (5) When the Crown were referred to Farley (supra) it originally decided that the appeal could not be opposed. H was no doubt overjoyed at that view and had every expectation that he would be successful. However, it was not for the Crown to decide whether an appeal was to be allowed or not, that was for the court to decide. When a matter comes before the Court of Appeal it had to be dealt with untrammelled by any advice from counsel.Appeal dismissed save for conviction on excess alcohol offence and committal for sentence which would be quashed.