Think Twice Before Taking a Second Bite of the Magistrates’ Cherry

Introduction

In the recent case of R v Canatar [2025] EWCA Crim 611, the Court of Appeal allowed an appeal against conviction in circumstances where the Crown Court had contrived in the appellant’s absence to permit the prosecution to bring new charges arising out of the same incident as offences the appellant had already pleaded guilty to, whilst riding roughshod over magistrates’ court procedure.

Background

The appellant failed to stop his BMW car for police, instead making off at high speed through residential streets, only stopping when he hit a bus stop. He then got out, picked up a metal bar and brandished it at a police officer, who was scared and fell over. After a failed attempt to drive off in the police car, the appellant was arrested, and the BMW was searched. 14g of cannabis and 13 wraps of cocaine were found in the vehicle, together with £300 cash and a Nokia burner phone with text messages relating to drug supply.

The appellant was charged with dangerous driving, possession of cocaine and possession of cannabis. He pleaded guilty in the Magistrates’ Court to all these offences and was committed to the Crown Court for sentence. However, when the matter came before the Crown Court, the prosecution was permitted to bring two new charges – possession of cocaine with intent to supply and assault of an emergency worker. In the absence of the appellant, the Crown Court judge exercised his powers under Section 66 of the Courts Act 2003 to sit as a District Judge in the Magistrates’ Court. The judge dealt with allocation and sent the charges for trial in the Crown Court. He then directed that not guilty pleas be entered on behalf of the absent appellant.

When the case was listed for trial, the appellant pleaded guilty to both of the new charges. The Crown Court judge at sentence, out of concern that the appellant was before the court for possession and supply of the same drug, said that he would exercise his powers as a District Judge in the Magistrates’ Court and vacate the appellant’s plea to simple possession. The appellant was sentenced for dangerous driving, assaulting an emergency worker, possession of cocaine with intent to supply and possession of cannabis.

The appellant’s convictions for possession of cocaine with intent to supply and assault of an emergency worker were referred to the full court by the Registrar.

The Court of Appeal Judgment

Having rehearsed the background, the Court of Appeal held the following:

(i) Prosecution for fresh offences

It was an abuse of process to prosecute the appellant for supplying drugs he had already pleaded guilty to possessing. The charge of possession with intent to supply was based on the same facts as the offence of simple possession. However, it was not an abuse of process to prosecute the appellant for assaulting an emergency worker. Whilst that offence arose out of the same incident as the other offences, it was based on different facts. The assault was a discrete part of the incident separate from the dangerous driving and the seizure of drugs from the BMW.

(ii) Allocation procedure

The sending of the fresh charges to the Crown Court was a nullity. The appellant was not present, did not have the charges read to him and had no opportunity to indicate his pleas to them, all of which are required under Section 17A of the Magistrates’ Court Act 1980. This failure prejudiced the appellant as he did not receive the one third credit he would have received had he been present and pleaded guilty.

(iii) Vacation of plea

The Crown Court judge at sentence had no power to sit as a District Judge and vacate the appellant’s plea to simple possession. The Magistrates’ Court was by that stage functus officio as the charge of simple possession had already been committed to the Crown Court for sentence.

Conclusion

This case reminds us that there are limits to the powers of Crown Court judges when exercising their power to sit as District Judges in the Magistrates’ Court.

The key points are these:

1. Offences based on the same facts can be distinguished from those arising out of merely the same incident. It is likely to be an abuse of process to prosecute the former but not the latter.
2. It is mandatory for a defendant to be present during the allocation procedure (s.17A Magistrates Court Act 1980), even when a Crown Court judge is exercising their powers as a District Judge under Section 66 of the Courts Act 2003.
3. A Crown Court judge can only exercise their powers as a District Judge in matters in which the Magistrates’ Court has power to act.