The Court of Appeal (CA) in R v Clark [2023] EWCA Crim 309 was faced with what seemed to be a fairly trivial issue – what happens when a clerical issue occurs on the Sending Sheet in the Magistrates’ Court (MC)?

In Clark, the appellant was charged with two either-way offences, namely, ABH and breach of a restraining order. As a result, both offences are subject to the procedure contained within s.17A of the Magistrates’ Court 1980. The procedure is designed to safeguard defendants appearing in the MC in respect of either-way offences as it requires the court to clearly communicate, in open court, the procedure and consequences of indicating a guilty plea. Furthermore, in the event that a defendant is committed for sentence, the Crown Court (CC) can be assured that a watertight procedure has taken place and subsequently, no issues should arise.  However, despite pleading guilty to the breach of restraining order, the MC’s sending sheet recorded that both offences were sent for trial pursuant to s.51(1) and (2)(b) of the Crime and Disorder Act 1998 – a clerical error.

Having now sent both offences for trial, in error, the MC is considered functus officio – having performed the office[1]. Therefore, the MC are unable to use their powers under s.142 Magistrates’ Court Act 1980 to attempt to correct the issue in respect of the breach offence. Equally, a Judge sitting in the CC is equally powerless when sitting as a District Judge (s.66 Courts Act 2003) for the same reasons. This effectively left the breach of the restraining order charge in limbo. The CA did however provide a solution – although not a straightforward one.

In her judgement, LJ Simler, at paragraphs 22-23 states, that in the above circumstance, the case should be appealed to the Divisional Court and be granted permission to apply for judicial review. Once granted, the court should quash the original sending by the MC in respect of the breach offence. Having quashed the sending, the Divisional Court should sit as a DJ(MC) to correct the simple error on the sending sheet and correctly commit the case for sentence as per s.14 of the Sentencing Act 2020.

This may be a disproportionate corrective response, considering that the original issue may have been caused by the simple mistake of ticking the wrong box. This is what the joint appeals of R v Butt and Jenkins [2023] EWCA Crim 1131 were concerned with. In summary, the CA were critical of Clark in that they held that given the weight of long-standing authorities (R v Ayhan [2011] EWCA Crim 3184 and R v Gould [2021] EWCA Crim 447) they were unable to follow the precedent in Clark.

In paragraph 91, i-ii, LJ Edis stated that when confronted with an apparently defective sending sheet, “the Crown Court:-

1. May hold that the defect is so fundamental that nothing has happened which gives jurisdiction to the Crown Court … If that is so, the case has not left the Magistrates Court and the Crown Court judge may lawfully have recourse to section 66 of the Courts Act 2003 and deal with the case as a DJ(MC) … If the Crown Court judge sitting as a DJ (MC), corrects the original order under section 142 of the Magistrates Court 1980 and then the problem does not arise.
2. May apply Ayhan and other cases and deal with the case as validly committed if the magistrates’ court had the power to commit and the Court Extract or sending sheet has failed to identify the power.”

For the purpose of clarity, in Ayhan, the LCJ succinctly stated in paragraph 22 of the judgement that:

“[P]rovided the power of the magistrates’ court to commit for sentence was properly exercised in respect of one or more either way offences in accordance with section 3 of the 2000 Act, a mistake in recording the statutory basis for a committal of summary only offences does not invalidate the committal.”

Gould was concerned with once again very similar issues to Clark. The CA however interpreted the jurisprudence in a much more pragmatic way. Gould provides that the court should ask itself:

“Whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue.” Paragraph 82(4).

The approach in Butt and Jenkins was affirmed in DPP v Crown Court at Luton [2023] EWHC 2464 (Admin), citing the previous authorities of Ayhan and Gould. At paragraph 19, LJ Edis stated:

“The sending of these … charges for trial was bad on its face and it was open to the Crown Court to hold that nothing had occurred which was capable of conferring any jurisdiction to deal with them.”

To conclude, through the appeals of Butt and Jenkins and CC at Luton the CA has made strong attempts to distance itself from the judgement in Clark. Ultimately, providing a more pragmatic way of dealing with clerical errors in the MC.

Casey Chard

Pump Court Chambers

[1] (Functus officio | Practical law) <https://uk.practicallaw.thomsonreuters.com/3-581-9126?contextData=(sc.Default)> accessed 12 October 2023