Neutral Citation Number: [2016] EWCA Crim 1405
Case No. 201601982 B5
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Thursday  11th  August  2016

B e f o r e:
LORD  JUSTICE  BEAN

MR  JUSTICE  FOSKETT

and

MR  JUSTICE  HICKINBOTTOM
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R E G I N A
 
 v 

JESSE  ADGYEI
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Miss H Valley appeared on behalf of the Appellant

Mr D  Baird appeared on behalf of the Crown
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J U D G M E N T(Approved)
LORD JUSTICE BEAN:  
1.  This is an appeal against conviction by the unusual route of a certificate of the trial judge under section 1(2) of the Criminal Appeal Act 1968.  
2.  In February 2016, in the Crown Court at Harrow, the appellant stood trial before His Honour Judge John Anderson and a jury on an indictment containing two counts.  Count 1 was a charge of having a bladed article.  Count 2, which was added by way of amendment at the start of the trial, was a charge of resisting a police constable in the execution of his duty, contrary to section 89(2) of the Police Act 1996.  Both allegations arose out of the same incident.

3.  The offence of resisting a police constable in the execution of his duty is a summary only offence.  It had been sent to the Crown Court by the Magistrates' Court, pursuant to section 51(3) of the Crime and Disorder Act 1998.  

4.  When the prosecution applied to add it to the indictment to go before the jury, the defence did not object.  Unsurprisingly, the judge granted the application.  The case then proceeded.  The jury acquitted the appellant of the bladed article charge, but convicted him of the offence of resisting the police constable.  He was sentenced by the judge to a community penalty.

5.  However, at the conclusion of the trial the judge realised that there had not been jurisdiction for the jury to consider the offence of resisting a police constable.  This is a surprising conclusion, but it arises from the terms of section 40(3) of the Criminal Justice Act 1988.  This permits a count charging a person with a summary offence to be included in an indictment if the charges founded on the same facts or evidence as a count charging an indictable offence or is part of a series of offences of the same or similar character as an indictable offence which is also charged: so far so good.  But there is a further condition, which is that section 40 of the 1988 Act only applies to offences listed in subsection (3).  Those offences include common assault, assault on a prison custody officer and various other types of custody officer, but not assault on a police constable, or resisting a police constable in the execution of his duty.  It is pointless to speculate on why Parliament drew that distinction.  The fact is that Parliament did, and therefore it is not a matter of discretion but of jurisdiction.  The offence of resisting a police constable could not be placed before the jury.

6.  The offence was properly sent to the Crown Court; but, by virtue of the provisions of paragraph 6 of Schedule 3 to the Crime and Disorder Act 1998, as soon as the appellant had pleaded not guilty, the Crown Court ceased to have power to deal with the case.  Had the appellant pleaded guilty to the summary only offence, the judge would have been perfectly entitled to proceed to sentence, as he did.  However, once the appellant pleaded not guilty, that should have been the end of the matter in the Crown Court.

7.  Mr Baird for the prosecution accepts, inevitably, that the point raised in the judge's certificate is a good one and he does not resist, therefore, the quashing of the conviction.

8.  Accordingly, we allow the appeal and quash the conviction.

9.  The defendant is not present in court today.  It is, therefore, not possible for us to suggest a short-cut by inviting him to plead before one of my Lords as a judge of the Crown Court.  We will therefore remit the charge of resisting a police constable to the Crown Court at Harrow, where it should, if this is practicable without undue delay, be listed before His Honour Judge Anderson who has previously had conduct of the case.

10.  The defendant will then be required to plead guilty or not guilty before Judge Anderson.  If he wishes to contest the charge, there will be no alternative to it being sent back to the Magistrates' Court for trial.  If he pleads guilty, then Judge Anderson can no doubt deal with the matter there and then.

11.  This appeal accordingly succeeds.

12.  We grant the defendant unconditional bail.