Case No: 2012/01743
Neutral Citation Number: [2012] EWCA Crim 1761
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT BIRMINGHAM
HIS HONOUR JUDGE BURBIDGE QC
T2011/7776
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 31/07/2012
Before :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE MACKAY
and
MR JUSTICE SWEENEY
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Between :

	HAMESH GUL	Appellant	
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	R	Respondent	

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Mr G A Russell for the Appellant
Mr Duncan Penny for the Respondent

Hearing dates: 19th July 2012
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Judgment
The Lord Chief Justice of England and Wales: 
1.	On 6 June 2010, during the course of a visit to his nephew, Hamesh Gul (the appellant) attempted to smuggle a small package of heroin into prison.  On 15 April 2011 he was convicted of an offence of possession of a controlled drug of Class A with intent to supply and sentenced to 4 years imprisonment.  At the start of his sentence he smuggled a package containing drugs into HM Prison, Birmingham.  Four days later, on 19 April 2011, the package was discovered.  It contained substantial quantities of three different controlled drugs, methadone, diazepam and temazepam.  
2.	The appellant was charged with an offence contrary to s.40(1)(b) of the Prison Act 1952 of conveying “list A articles into a prison”.  This offence is an indictable only offence.  On 25 August 2011 he appeared before the Birmingham Magistrates Court.  He was sent for trial on that charge, pursuant to s.51 of the Crime and Disorder Act 1998 (the 1998 Act).
3.	On 16 December 2011 the draft indictment had been prepared.  It contained six counts. Three counts alleged possession of controlled drugs with intent to supply.  The drugs in count 1 were of Class A, and in counts 2 and 3 of Class C.  Three further counts alleged simple possession of the same drugs.  None of the offences was an indictable only offence.  Following amendment of the bill to correct errors in the appellant’s name and the classification of the controlled drugs particularised in the counts, the indictment was signed at a plea and case management hearing before HH Judge Thomas QC.  When the indictment was put to the appellant, he pleaded guilty to the three counts of simple possession, but not guilty to the remaining counts. The case was adjourned for trial.  
4.	On 23 February 2012 in the Crown Court at Birmingham before His Honour Judge Burbidge QC and a jury the appellant was convicted of the three counts of possessing controlled drugs with intent to supply.  He was sentenced to 4 years imprisonment on count 1 and 2½ years imprisonment on counts 2 and 3, the sentences to run concurrently.  A number of other orders were made, but they need no recital.
5.	The present appeal against conviction requires attention to be focused on events at the plea and case management hearing, and in particular, non- compliance with the procedural requirements laid down by paragraph 7 of Schedule 3 of the 1998 Act.  No other ground of appeal is advanced, and in particular no criticism is made of the trial judge, or any aspect of the trial.  The question is whether the proceedings which culminated in these convictions were a nullity with the inevitable consequence that convictions must be quashed.
6.	The submission that they were indeed a nullity, carefully advanced on behalf of the appellant by Mr Russell, starts with the undoubted fact that although the appellant was sent to the Crown Court for trial on an indictable-only offence, no indictable-only offence was included in the indictment when it was signed. At the plea and case management hearing the procedure to determine what is sometimes described as the mode of trial – that is trial on indictment or summary trial - as required by Schedule 3 to the 1998 Act was not followed.  That is why, he argues, the subsequent proceedings were a nullity. 
Paragraph 7 of Schedule 3 to the 1998 Act
7.	Paragraph 7(1) requires that (subject to cases involving children or young persons, which does not arise here)
“… where – 
(a) a person has been sent for trial under section 51 of this Act but has not been arraigned; and
(b) the person is charged on an indictment which (… for any … reason) includes no offence that is triable only on indictment”.
8.	When these conditions are present, as they were here, the relevant procedures are prescribed.  The accused must be present in court.  Each count of the indictment that charges an offence triable either way is to be read to the defendant.  Paragraph (4) then provides:
“The court shall then explain to the accused in ordinary language that, in relation to each of those offences, he may indicate whether (if it were to proceed to trial) he would plead guilty or not guilty, and that if he indicates that he would plead guilty the court must proceed as mentioned in sub-paragraph (6) below.”
Next, the defendant must be asked whether he would plead guilty or not guilty if the offence charged in the count in the indictment were to proceed to trial. 
9.	Paragraph 6 provides that:
“if he indicates that he would plead guilty, the court shall proceed as if he had been arraigned on the count in question and had pleaded guilty”
Where the accused indicates that he would plead not guilty, or fails to indicate how he will plead, paragraph 7 then requires that:
“… the court shall consider whether the offence is more suitable for summary trial or for trial on indictment.”
Paragraph 7 does not apply if the defendant has indicated a guilty plea to all counts: if so, paragraph 6 would apply and there would be no subsequent trial, whether summary or on indictment.
10.	The provisions in paragraph 7(7) are developed in paragraph 9.  When the court is considering the question whether an offence is more suitable for summary trial or for trial on indictment, paragraph 9(2) provides:
“Before considering the question, the court shall afford first the Prosecutor and then the accused an opportunity to make representations as to which mode of trial would be more suitable.”
11.	Assuming that has been done, the court addressing the question is required to have regard to, among other factors, “any representations made by the Prosecutor or the accused”.  It is also to have regard to the nature of the case; whether the circumstances make the offence one of a serious character; whether the punishment which a Magistrates Court would have power to impose for it would be adequate; and any other circumstances which appear to the court to make it more suitable for the offence to be tried in one way rather than the other.
12.	If, after appropriate reflection, the court considers that an offence is more suitable for summary trial rather than trial by jury, the defendant must be put to his election. It is perhaps worth noting that this stage in the process is not a matter of entitlement: the issue does not arise until the court itself has decided that the offence is appropriate for summary trial. If however the Crown Court considers that the offence is more suitable for trial on indictment, then the defendant is so informed, and the Crown Court retains its functions and proceeds accordingly.
13.	In the Crown Court at Birmingham on 16 December 2011 the plea and case management hearing did not address the issue whether summary trial or trial on indictment was not appropriate.  It followed that the appellant was not afforded the opportunity to make representations about the mode of trial, and the Crown Court did not explain whether it considered the case was suitable for summary trial or trial on indictment.  This non-compliance with the provisions of paragraph 7 of Schedule 3 was plainly inadvertent.  No one at the Crown Court spotted the omission, perhaps because the appellant had been committed for trial on a single indictment-only offence, perhaps because by pleading guilty to some of the offences in the indictment the case would have to remain in the Crown Court and perhaps, too, however one examined the facts alleged against him, they were plainly far too serious to be appropriate for summary trial.  Nevertheless, although it is not possible to discern, and Mr Russell did not suggest, that this non-compliance caused any prejudice to the appellant, if he is right that it resulted in a trial which was a nullity, the conviction cannot be allowed to stand. 
14.	The problems which arise in this case have already been considered in this court.  In Haye [2002] EWCA Crim. 2476 the procedure required by paragraph 7 of Schedule 3 was not complied with when the appellant, having been sent to the Crown Court under s.51 for an offence of robbery was indicted and convicted of a single count of theft.  It was conceded by the Crown that in consequence the proceedings were a nullity.  After reflecting on the equivalent provisions in the Magistrates Court Act 1980, on which Mr Russell focused our attention his argument, on the basis that the defendant should have been informed of his rights and was not, this court agreed.  The conviction was quashed.  Haye was followed in Gayle [2004] EWCA Crim. 2937 (where the defendant was convicted on an indictment containing a single count of assault occasioning actual bodily harm).  Counsel for the Crown agreed that the trial was a nullity, and the court endorsed his concession.
15.	There was no merit in either appeal.  The convictions were quashed on purely technical grounds.  Not long afterwards the approach of this court to procedural defects of a technical nature was examined, in the context of confiscation proceedings, by this court in Sekhon [2003] 1 WLR 1655 and in the House of Lords in Soneji [2006] 1 AC 340.  The essence of these decisions is encapsulated in the headnote to Soneji that:
“The correct approach to an alleged failure to comply with a provision prescribing the doing of some act before a power was exercised was to ask whether it was the purpose of the legislature that an act done in breach of that provision should be invalid … ”.
16.	The result was the adoption by the courts of a much looser or less rigid approach to procedural failures.  In Ashton and Others [2007] 1 WLR 181 this was explained in terms of defects which could fairly be described as procedural in contrast to those which went to jurisdiction.  Draz was one of the cases considered in the judgment.  The defendant was wrongly sent for trial under s.51 of the 1998 Act when he should have been committed for trial.  The procedure in paragraph 7 of Schedule 3 was followed, but the issue for the Court of Appeal arose from the decision of the judge that it was unnecessary for the indictment to be preferred, and that even if it should have been preferred, it would not have been fatal to the validity of the proceedings that the indictment had not been signed.  The court expressed the “confident” view that if Haye had been decided after Soneji and Sekhon the conviction would not have been quashed.  The same reasoning would have undoubtedly been applied to Gayle.
17.	In Thwaites [2006] EWCA Crim. 3235 this court considered a committal for trial for an indictable-only offence, followed by an indictment containing a number of counts all of which where either way offences.  The defendant pleaded not guilty to all the counts.  The procedure in paragraph 7 of Schedule 3 was not followed.  In short, it directly addressed the question which arises in this appeal.  The court took the view that it was bound not by the decisions in Haye and Gayle, but the decision in Ashton.  This approach was preferred, first, because Ashton had been decided in the light of the decisions subsequent to Haye and Gayle in the House in Lords in Soneji and this court in Sekhon, and second, by reference to the decision in this court in Clarke and McDaid [2006] EWCA Crim 1196 where, in the context of an unsigned indictment, and applying Ashton, it was held that the proceedings were not automatically to be regarded as invalid because the indictment had not been signed.  As everyone knows, the decision of the Court of Appeal in Clarke and McDaid was revisited in the House of Lords [2008] 1 WLR 338.
18.	The House of Lords decided that the Administration of Justice (Miscellaneous Provisions) Act 1933 led to the inexorable conclusion that a duly signed indictment was an essential pre-requirement to a valid trial.  The statutory provision indicated that without a properly signed indictment the subsequent trial and verdict were nullities.  When procedural errors (including failures or omissions) occurred, the answer to the question whether the processes subsequent to the errors were nullified depended on the intention of the legislation.  Thus it was “inescapable” that in the 1933 Act “Parliament intended that the bill should not become an indictment unless and until it was signed by a proper officer … (and) that there could be no valid trial on indictment if there were no indictment”.  Nevertheless a number of different cases arising from errors relating to indictments fell “squarely into the procedural category” without invalidating the subsequent trial.  Criticism of the decision in Draz did not arise from the fact that the procedure under s.51 of the 1998 Act was not followed, but it was underlined that, in effect as a matter of jurisdiction arising from an unequivocal statutory provision,  a signed indictment was an essential prerequisite to the trial.  The decision represented a salutary warning that not all procedural errors and omissions could be brushed aside merely because the defendant was unable to demonstrate some level of prejudice consequent on them.
19.	In our judgment, in view of the reasoning in Clarke and McDaid in the House of Lords and the observations about the way in which the decisions in Sekhon and Soneji should be approached, Hayes and Gayle require re-examination.  We cannot without further reflection rely on the approach taken in Thwaites, which at least in part, was based on Ashton, which it now emerges is no longer of the broad application suggested when Ashton was decided in this court.  We must, we believe, return to first principles and ask ourselves whether, when properly examined, there was non-compliance with paragraph 7 of Schedule 3, and if there was, we must then address the question whether Parliament intended the consequence of non-compliance with these provisions to render any subsequent proceedings a nullity.  
20.	This case was properly submitted to the Crown Court under s.51 of the 1998 Act.  The indictment was duly prepared and signed.  The counts in the indictment identified the offences with which the defendant was charged.  The offences arose from precisely the same facts and were based on the same evidence as the single indictable-only charge which founded the committal.  In effective accordance with paragraph 7 of Schedule 3, the defendant was asked whether he would plead guilty or not guilty to each of the counts in the indictment.  He indicated by his pleas that he would plead guilty to the three lesser counts.  That meant, in accordance with paragraph 6, that the court had to proceed in relation to those three counts as if he had been arraigned and pleaded guilty to them in the Crown Court.  There was no question of summary trial of these counts.
21.	Once the defendant had pleaded guilty to the lesser offences the case was bound to remain in the Crown Court.  Of itself, that brought any possibility of summary trial to an end and therefore had the same effect as the presence on the indictment of an indictable only offence.  The idea that proceedings in the same case, arising out of the same subject matter, should be addressed in separate jurisdictions (the Crown Court and the Magistrates Court) seems utterly remote.  In our judgment on these facts non-compliance with the objective of paragraph 7 of Schedule 3 is not established.
22.	We shall, however, assume for present purposes that this conclusion is wrong.  On their particular facts it would not in any event have applied to the decisions in Haye or Gayle or indeed Thwaites. 
23.	The responsibility for considering whether any counts in the indictment to which the appellant pleaded not guilty, or was treated as if he had so pleaded, were more suitable for summary trial or trial on indictment is vested exclusively in the court.  The entitlement of the defendant is to make submissions in support of summary trial if he wishes to do so, but the defendant does not enjoy an unfettered entitlement to summary trial.  The ultimate decision must be made by the court.  If however the defendant wishes to be tried summarily and the court has failed to give him the opportunity to ask for it, there is nothing in the procedure which prevents an application by him to that effect.  In short, in the final analysis it is for the court, not the defendant or the prosecution, to determine whether summary trial or trial on indictment seems most appropriate. What the defendant enjoys at that stage is a right to be heard when the issue is addressed. If the decision is made by the Crown Court that the case is more suitable for summary trial, only then does the defendant have the right to elect trial by jury.  He has no corresponding right to elect summary trial.
24.	Assuming, as we have done, that the option of summary trial was available, and therefore that its suitability should have been considered by the Crown Court, it was a failure of process for the court not to seek representations from the defendant or the prosecution on the issue.  If the omission had been a deliberate step, designed to circumvent the provisions in Schedule 3 and so deprive the defendant of summary trial which might realistically have been available, this might have constituted an abuse of process.  That however is not this case.  In the end, the complaint here is no more and no less than that the defendant, like the prosecution, was not invited to make representations about the mode of trial.  Thereafter no application to do so was made.  The omission of that procedural step did not vitiate the indictment or the process before the Crown Court.  In our judgment if Parliament had intended that the deprivation of the opportunity to a defendant sent to trial under s.51 of the opportunity to elect for summary trial for the either way offences included in the indictment, it would have left the choice of summary trial entirely to the defendant by vesting an unequivocal right in him.  It did not do so.  What is more, any defect in the process, which meant that the defendant was not invited to make submissions about the possible suitability of summary trial was readily curable: the defendant could and should have made an appropriate application.  In these circumstances, with a remedy available to the defendant, it is inconceivable that Parliament intended that the consequence of non-compliance would be to render subsequent proceedings in the Crown Court a nullity.
25.	Three serious offences of possession of drugs in prison with intent to supply plainly required trial in the Crown Court.  It has never been suggested that, given the option, either he or the prosecution, would have sought trial before the Magistrates Court, and he did not do so
26.	These proceedings were not nullified by the flaw in the process in the Crown Court on 16 December.  No further basis for setting aside the conviction has been suggested.  The appeal against conviction is dismissed.
Sentence
27.	There is a renewed application for leave to appeal against sentence.  In support of this application it is suggested that the order that the sentence to be served for the offence committed on 19 April 2011 should run consecutively to the sentence which the appellant started to serve on 15 April 2011 was excessive, both in itself, and in the light of a medical report about the appellant’s respiratory condition, which we have considered.
28.	The difficulty with this submission can be readily explained.  The applicant was sentenced to imprisonment for taking drugs into a prison.  On the day he was sentenced for this offence, presumably having obtained the drugs while on bail, pending verdict and sentence, he chose to take more drugs into a different prison.  The misuse of drugs in prison remains a very serious problem.  Sentences following conviction are severe.  The second offence was committed with full knowledge of the seriousness attached to it.  A consecutive sentence was rightly passed, and, given the circumstances, we cannot see that the four year additional sentence was arguably excessive.  Accordingly the application is refused.