27 April 2019
Summary of judgment - McNamara v PPS
COURT DELIVERS JUDGMENT ON POWER OF DISTRICT JUDGE
(MAGISTRATES’ COURTS)
Summary of
Judgment
The Court of Appeal
today held that a District Judge (Magistrates’ Courts) did not have power to
refuse jurisdiction and attempt to commit the accused to the Crown Court where
he had already elected for summary prosecution and had entered guilty pleas to
the offences.
Background
James McNamara (“the
appellant”) was arrested in April 2017 and charged with 20 offences including
burglary, theft, attempted theft, criminal damage and handling stolen
goods. The offences were a mixture of
ones that could be dealt with summarily, hybrid offences and indictable
offences. Following an appearance at
Lisburn Magistrates’ Court on 8 May 2017 his solicitor applied to have him
arraigned and sentenced. The appellant
was put on his election and plea for the indictable triable summarily
offences. He consented to be dealt with
summarily and entered guilty pleas. His
solicitor entered guilty pleas to the remaining hybrid offences.
The District Judge
(Magistrates’ Courts) (“DJMC”) had not heard the facts prior to the appellant
being arraigned. She only had the charge
sheet and was not provided with a file or statements. After the hearing of the facts, the DJMC
formed the view that the offences coupled with the appellant’s record meant
that this was too serious a matter for the Magistrates’ Court given that the
maximum sentence at this tier under the Theft Act (NI) 1969 is 12 months. The DJMC informed the parties of her concern
that she believed her powers were insufficient to deal with the case and
adjourned the matter to afford the prosecution and the defence time to address
her on her power to refuse jurisdiction in the Magistrates’ Court. Both the prosecution and defence contended
that the matter should remain in the Magistrates’ Court stating that once a
defendant had been convicted the power to reconsider a decision to deal
summarily with Theft Act offences lapsed by virtue of Article 46(2) of the Magistrates’
Courts (NI) Order 1981 (“the 1981 Order”).
The DJMC, however, stated that she had no opportunity to assess the case
as the full facts of cases in the Magistrates’ Courts are not outlined in open
court until a plea of guilty is entered.
She refused jurisdiction and further remanded the appellant for
preliminary enquiry papers to be prepared.
The DJMC stated the
following question for the opinion of the Court of Appeal: “Was I correct in law that I had the power to
refuse jurisdiction under Article 46(1) of the [1981 Order] in the
circumstances whereby the appellant had elected for summary prosecution and had
entered guilty pleas to the offences before the court?”
The Statutory Background
The Court of Appeal set out
the power of the Magistrates’ Courts when dealing summarily with indictable
offences and hybrid offences in paragraphs [14] – [23] of its judgment. It said the provisions provide a clear
statutory sequence so that where:
- An
adult is charged with an indictable offence specified in Schedule 2 to the
1981 Order; and
- The
DJMC, having regard to the matters set out in Article 45(1)(b) of the 1981
Order thinks it expedient to deal summarily with the charges; and
- In
accordance with Article 45(1)(c), the accused consents to be dealt with
summarily, the DJMC may, subject to the provisions of Article 45 and
Article 46, deal summarily with the charge and convict and sentence the
accused whether upon the charge being read to him he pleads guilty or not
guilty.
The Court commented:
“In short, the DJMC must
first appraise himself of the case having regard to the matters set out in
Article 45(1)(b)(i)-(v) and, having done so, decide whether he thinks it
expedient to deal summarily with the charge.
After deciding that it is expedient to deal with the case summarily the
accused, following the requisite notice in writing of his right to be tried
with a jury, must consent to the matter being dealt with summarily. If the accused so consents the DJMC must then
ask him “do you plead guilty or not guilty”.
Did the DJMC have power to refuse jurisdiction?
Article 46(2) of the 1981
Order provides that a DJMC may reconsider their decision to deal summarily with
an offence under Schedule 2 at any time prior to convicting a defendant. Case law clarifies that once the DJMC has
pronounced a finding of guilt or accepted a plea of guilty he cannot reconsider
his decision to try summarily but this is without prejudice to the power to
allow a defendant to withdraw his plea of guilty at any time before sentence. The Court commented:
“We consider that it is
clear from the express terms of Article 46(2) of the 1981 Order that once the
issue of guilt has been determined it is not open to a magistrate to reconsider
a decision to deal with Schedule 2 offences summarily. The authorities and commentaries reinforce
what, in our view, is already plain from the express terms of the statutory
provision. The prosecution and the
defence were correct to have submitted to the District Judge that she did not
have the power to refuse jurisdiction under Article 46(2) of the 1981 Order.”
It said that DJMCs have a
plain duty to make sufficient enquiry into the facts of the case to satisfy
themselves that, so far as the facts are concerned, their powers of punishment
are adequate. The duty of sufficient
inquiry must be discharged prior to conviction otherwise the power to
reconsider the decision to deal with the matter summarily will have lapsed by
virtue of Article 46(2). The prosecution
has an obligation to bring any relevant matters to the attention of the DJMC so
that she can discharge her obligation to make sufficient enquiry.
Conclusion
The Court of Appeal
concluded that the DJMC did not have the power to refuse jurisdiction where the
appellant had already elected for summary prosecution and had entered guilty
pleas.
NOTES TO
EDITORS
This
summary should be read together with the judgment and should not be read in
isolation. Nothing said in this summary adds to or amends the
judgment. The full judgment will be available on the Judiciary NI
website (https://judiciaryni.uk).
ENDS