R v Barry Anthony Drain
[2024] EWCA Crim 945
R v Christopher Clark
28 February 2023
[2023] EWCA Crim 309
Court of Appeal
A man was wrongly sent to the higher court for a crime he admitted to, causing a legal mess. The higher court fixed the mistake and kept the original punishment: 2 years in jail for breaking an order to stay away from his ex and 3 months extra for hitting her.
Key Facts
- •Christopher Clark breached a restraining order (six previous breaches) and assaulted Emma Westwood (his on-off partner of four years).
- •The Magistrates' Court incorrectly sent the breach of restraining order case to the Crown Court for trial instead of for sentencing after Clark pleaded guilty.
- •In the Crown Court, Clark pleaded guilty to common assault and was sentenced to two years' imprisonment for the breach and three months concurrently for the assault.
- •The incident involved Clark contacting Westwood, visiting her home twice, and assaulting her, lasting approximately 20 minutes.
Legal Principles
Section 17A of the Magistrates' Courts Act 1980 mandates a specific procedure for either-way offences, ensuring understanding of the process and consequences of a guilty plea.
Magistrates' Courts Act 1980, Section 17A
Failure to follow the procedure in Section 17A renders subsequent actions a nullity.
R v Gould [2021] EWCA Crim 447
Section 66 of the Courts Act 2003 allows Crown Court judges to deal with cases normally reserved for Magistrates' Courts in related cases, but this power is limited; it cannot correct errors where the Magistrates' Court is functus officio.
Courts Act 2003, Section 66; R v Gould [2021] EWCA Crim 447
The Crown Court should not be unduly concerned about mistakes in recording the statutory basis for sending a case unless the sending is obviously invalid.
R v Duigan [2022] EWCA Crim 1452
Sentencing guidelines for breach of restraining orders consider culpability and harm to determine the appropriate sentence.
Sentencing Council Guidelines for breach of restraining order
Outcomes
The Court of Appeal quashed the original sending of the breach of restraining order case to the Crown Court.
The Magistrates' Court lacked jurisdiction to send the case for trial after Clark pleaded guilty; the sending was a nullity.
The Court of Appeal, sitting as a Divisional Court, exercised its power under Section 66 of the Courts Act 2003 to correct the procedural error.
A lawful guilty plea was entered, and the error was an omission in the committal process; the court acted as a DJ(MC) to commit the case for sentencing.
The appeal against sentence was dismissed.
The original two-year sentence was deemed just and proportionate considering the seriousness of the breach, the persistent nature of Clark's offending, and aggravating factors.
A new two-year sentence for breach of the restraining order (concurrent with a three-month sentence for common assault) was imposed.
The court confirmed the original sentencing judge’s decision was correct.