Sentences not lawful? (From Gazette Series)

Sentences not lawful?

HUNDREDS of sentences recently passed by Crown Court judges using new powers to sit as magistrates could be unlawful, a junior barrister has revealed.

If Oliver Willmott, 30, is right in his reading of the law, many recent sentences passed by judges in their new JP capacity will have to be reconsidered.

Mr Willmott, of the Queen Square Chambers in Bristol, raised the issue while dealing with a case before Judge Jamie Tabor QC at Gloucester Crown Court. On several occasions Judge Tabor has made use of new powers to sit as a JP and deal with a case which would previously have had to be remitted to the magistrates' court.

It is believed that if Mr Willmott is correct, hundreds of such sentencings since the new clause was introduced could be invalid.

If sentences are found to be illegitimate they may have to be reconsidered costing the public hundreds of thousands of pounds in extra court time. Judges and Recorders at crown courts in Plymouth, Exeter, Bristol and Gloucester as well as further afield are thought to have dealt with cases which would previously have been in the magistrates court jurisdiction.

The judges have done so in the believe that they are entitled to act as JPs under Section 66 of the Court Act 2003.

But Mr Willmott told the court his reading of the section meant Crown Court judiciary did not have the power to sentence magistrate matters if not sitting in a magistrates' courtroom rather than a crown court building.

He told Judge Tabor QC: "The Act allows Your Honour to have district judge powers but it does not turn a crown court into a magistrates court. "It is not Your Honour's powers that are the difficulty - it is the court they are used in."

Judge Tabor conceded to Mr Willmott that he seemed to have a case and that sources of law the barrister had produced supported his argument. He added that in no circumstances could his court act unlawfully saying: "This may be of national importance.

"It's an interesting point. I have always dealt with any transfer matters with the agreement of counsel in the past.

"It will affect the way that we deal with things here and double the cost of many hearings but it's an important point and one that we need to get right." He said that he had employed what he considered to be lawful "powers" because they "saved money and were helpful."

And he added that defendants could end up facing harsher penalties from magistrates than would have been handed out by crown court judges.

Adrian Foster of the Crown Prosecution Service, said: "My understanding is that when Your Honour sits as a district judge (the new name for a stipendiary magistrate) the court immediately becomes a magistrates' court."

Judge Tabor told Mr Willmott to draw up a skeleton argument based on his interpretation of the new law so that he and a barrister instructed by the Crown Prosecution Service could argue the matter before him on September 8.