Case No: 201305507 A7
Neutral Citation Number: [2014] EWCA Crim 546
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT EXETER
His Honour Judge Gilbert Q.C.
T20137099, S20130317
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28/03/2014
Before :

LORD JUSTICE McCOMBE
MR JUSTICE SPENCER 
and
SIR DAVID MADDISON 
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Between :

	Tobias Daniel RUTH	Appellant	
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	REGINA	Respondent	

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Kevin Hopper, Solicitor Advocate of Phoenix Solicitors & Advocates Ltd. for the Appellant
Rebekah Hummerstone (instructed by Crown Prosecution Service) for the Respondent

Hearing date: 18 March 2014
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Judgment
Lord Justice McCombe: 
1.	On 23 August 2013 in the Crown Court at Exeter, before HHJ Gilbert QC, this Appellant, now aged 20, pleaded guilty to two offences charged under Indictment No. T20137099, Count 1 (conspiracy to cause criminal damage) and count 2 (conspiracy to send malicious communications). There was a co-accused on the indictment, one John Roddy, who alone was charged (in addition to counts 1 and 2) on count 3 of the indictment with possession of information of a kind likely to be of use to a person committing or preparing to commit an act of terrorism.  
2.	On 13 September 2013 the Appellant appeared before the South and West Devon Magistrates’ Court in respect of two further offences of possessing an offensive weapon, contrary to s.1(1) of the Prevention of Crime Act 1953. The offences alleged in this respect concerned a knuckleduster and a ball and chain. In respect of the former, the Appellant indicated that, if the offence were to proceed to trial, he would plead guilty; in respect of the latter he indicated that he would plead not guilty. 
3.	By its formal order the court proceeded to send the ball and chain charge for trial to the Crown Court under s.51(1) and (2)(b) of the Crime and Disorder Act 1998. It also purported to send the knuckleduster offence to the Crown Court for trial as a related offence under s.51(3) of the 1998 Act. There was no memorandum of conviction and no order made for committal to the Crown Court for sentence.  That latter course is said by Miss Hummerstone for the Crown to have been a procedural error. For the Appellant, Mr Hopper submits that the “sending” of both charges to the Crown Court was proper and indeed mandatory. However, he argues that thereafter the Appellant was never indicted or arraigned on the knuckleduster charge and that there was, therefore, no conviction for which he could be sentenced.
4.	We must interpolate here the information that we have about what happened at the Crown Court after the Magistrates’ Court made the order it did. It appears that the administration at the Crown Court took the view that the Magistrates’ Court had acted in error in “sending” the knuckleduster charge for trial to the Crown Court and that the Appellant should have been committed for sentence. As a result, the case was allocated an “S” number (S20130317) in the Crown Court to indicate that it was a sentence matter only; no indictment was preferred.
5.	Mr Hopper informed us that neither he nor the Crown Prosecutor (not Miss Hummerstone), who appeared before Judge Gilbert on 20 September 2013, had appeared in the Magistrates’ Court and were both in ignorance of the order that had been made in that court “sending” the Appellant for trial, rather than committing him for sentence. This was an ignorance shared by the learned judge. On that day, therefore, all concerned (both advocates and the judge) worked on the basis that they were dealing with a quite normal committal for sentence in respect of the knuckleduster offence. 
6.	The Appellant was sentenced by the judge to  15 months detention in a Young Offender Institution, on count 1, to a 4 further months detention on count 2 (to be served consecutively to the sentence on count 1) and to 10 months further detention (again consecutive) in respect of the knuckleduster offence. Having been supposedly convicted of an offence (i.e. the knuckleduster offence) committed during the period of a 12 month conditional discharge imposed by magistrates on 14 March 2013 for an offence of burglary, the judge re-sentenced the Appellant on the burglary offence and imposed a further 4 months detention, again to be served consecutively to the other sentences. As a result the total sentence passed was one of 33 months detention. Sixty-one days spent in custody on remand were directed to count towards sentence under s.240A of the CJA 2003.
7.	The co-accused, Roddy, was sentenced to a total of 23 months imprisonment, suspended for 2 years.
8.	The Appellant now appeals against sentence by leave of the Single Judge. 
9.	The original grounds of appeal, still maintained by Mr Hopper for the Appellant, contend that the sentences imposed were excessive and we will return to that. Following submission of those grounds, it was appreciated by an astute lawyer in this Court’s office, to whom we pay tribute, that the sentence passed for the offensive weapon might have been unlawful.  Thereafter, supplementary grounds were advanced to the effect that the Appellant was never properly arraigned and convicted; accordingly, the sentence passed in respect of the knuckleduster offence was unlawful and must be quashed. Further, as that offence was the one in respect of which the breach of the conditional discharge arose, it was submitted that the sentence for that offence should also be quashed. 
10.	The underlying facts of the charges were these. The offences charged in counts 1 and 2 occurred in the Torbay area between July 2012 and January 2013.  The appellant and the co-accused developed an interest in the so called ideology of Anders Breivik, the Norwegian mass murderer.  They carried out their activities under the name “Knights Templar”, a name taken from documents published by Breivik.  Both defendants branded each other on the upper arm with hot metal in the shape of a cross as some kind of initiation.
11.	The criminal damage involved the use of red spray paint.  The initials “KT” were sprayed on a number of properties, vehicles and signs.  There were 72 such incidents of criminal damage.  This included spray painting along the front of a dwelling, over a garage door and on a commercial sign.  A council owned building, the Islamic Centre in Torquay and even Brixham Police Station were targeted.  The prosecution did not have a total value for the cost of the criminal damage but put the figure in the thousands of pounds.
12.	The malicious communication conspiracy started a few months after the criminal damage began.  On 3 November 2012 a letter, using cut out letters from newspapers and magazines, was sent to the Torquay Islamic Centre.  It stated “Leave this town today or there will be hell to pay”; it was signed “KT”.  On 16 November a similar letter was sent to the Piety Centre in Plymouth, which was a predominantly Muslim worship centre.  The envelope in which the letter had been sent had been addressed by the co-accused.  On 21 November, four days after it had been targeted by spray painting, another letter was received at the Torquay Islamic Centre which read “Enjoy the clean-up you dirty scumbag.”  On 18 December a mosque in Brighton received another letter stating “Leave this town today or there will be hell to pay.”
13.	At the time of the offending the appellant was attending South Devon College.  On 8 October 2012 he was heard boasting to other students about his activities.  On 3 January 2013 the appellant and the co-accused were arrested.  The police analysed their Facebook accounts and discovered that they had sent messages to each other discussing the criminal damage and congratulating one another when their graffiti was reported locally.  Following their arrests the co-accused’s home address was searched.  Officers found material relating to Breivik and the Knights Templar and a list of ingredients for explosives.  Also found were cut out letters from newspapers, a list of addresses of Islamic places of worship and addressed envelopes.  On the co-accused’s laptop two files were found entitled “The Al-Qaeda Training manual” and “2083 a European Declaration of Independence” – more commonly known as Breivik’s manifesto.
14.	On 23 August 2013 the appellant pleaded guilty to the above offences and was bailed.  On 12 September 2013 he was seen to be causing a disturbance outside a club in Torquay.  Officers attended and the appellant was arrested.  He was found to be possession of a knuckleduster.
15.	The offence of burglary for which the appellant had received a conditional discharge on 14 March 2013 occurred overnight between 7 and 8 March 2012.  The appellant burgled a Chinese Restaurant.
16.	As we have said the Appellant is now aged 20, having been born on 17 January 1994. He had two previous convictions, on 14 March and 9 April 2013 respectively, for burglary and theft and for a further theft and battery.
17.	There was a Pre-Sentence Report (“PSR”) before the judge indicating something of the background to this offending and to the Appellant. The Appellant was described as socially isolated and looking for identity and meaning.  He connected with Roddy as they had similar beliefs.  He told the probation service that Roddy initiated him into the Knights Templar.  The appellant liked to present himself as complex and superior but merely repeated what he had read or had been told.  It was said that group control may have made him more willing to offend and that he felt justified in his actions and did not see them as criminal.  The Appellant held racially discriminatory views.  The offences were part of an established pattern of anti-social behaviour.  The Appellant was unemployed and had been excluded from a college course due to racist language and threats to other students.  As a child he had been diagnosed with ADHD.  He had limited social skills and appeared to be susceptible to influence from others.  The likelihood of re-conviction was assessed as medium. It was thought that he was unlikely to engage in any extremist related offence but he continued to show racist attitudes.  There was no evidence he was likely to use weapons such as a knuckleduster.  A community order or suspended sentence was proposed. 
18.	There was also a medical report, dated 7 November 2012 (and so nearly a year old at the date of sentence) which reported a number of disturbing traits of character. It recommended further assessment/treatment for ADHD, multi-agency assessment and anger-management training, and possibly a referral to a personality disorder/psychotherapy unit. The PSR reported that the Appellant had been assessed further by a consultant psychiatrist on 2 July 2013, but that no mental illness was diagnosed nor was medication prescribed. 
19.	In passing sentence the judge indicated that he would give full credit for the pleas of guilty. The damage had been inflicted on random targets and at least one of the acts concerned was motivated by racial hatred, an aggravating feature increasing the appropriate sentence by 50%. There were 72 incidents in all. It was found that there was a clear intention to cause well in excess of £5000 damage, making the maximum available sentence (on count 1) 10 years imprisonment. The judge observed that the malicious communications offence included threatening messages sent to places of worship, the intention being to cause fear of racial violence. The offence was a summary offence for which the maximum sentence was, therefore, 6 months imprisonment. The knuckleduster offence had been committed while on bail pending sentence for the other offences, a matter of considerable significance. As already indicated the judge also re-sentenced the Appellant for the burglary offence for which he had previously been conditionally discharged.
20.	In the original grounds of appeal, it is argued that the sentences passed were manifestly excessive on a number of grounds. It is said that the judge failed to give sufficient credit for the plea; he failed to take account of the Appellant’s age and mitigation; the starting points on counts 1 and 2 were too high; there were no aggravating features about the knuckleduster offence; the new sentence for the burglary was too high as the judge took the maximum within the guidelines as a starting point; and finally, it is submitted that the sentence as a whole offended against the principle of “totality”.
21.	We have already set out the gist of the supplementary grounds.
22.	It is convenient to consider at the outset the supplementary grounds and the technical point going to the validity or otherwise of the sentences purportedly passed for the knuckleduster offence and for the breach of the conditional discharge. 
23.	We feel that we must observe that the legislation concerned is of a needless complexity, now common in legislation affecting the administration of criminal justice. Its wholesale revision, into a more readily comprehensible form, would be welcome. 
24.	Possession of an offensive weapon is what is somewhat inelegantly called an “either way offence”, i.e. an offence triable either summarily in the Magistrates’ Court or on indictment in the Crown Court. The first step, as it seems to us, therefore, was for the Magistrates’ Court to consider section 50A of the 1998 Act. Section 50A(1) provides as follows:
“50A.-(1) Where an adult appears or is brought before a magistrates’ court charged with an either-way offence (the “relevant offence”), the court shall proceed in the manner described in this section.”
(On consulting Stone’s Justices Manual 2013 Vol. 1 (at paragraph.1.502), after the hearing, we were concerned to check that section 50A was indeed in force in all “local justice areas” in September 2013. It seems that it was so (at latest) by 28 May 2013.)
25.	Section 50A(2) provides for cases where notice is given in respect of the offence under section 51B or 51C. Those sections concern children or young persons and do not apply here. Section 50A(3)(a) applies where an adult is or has been sent for trial under section 51(2)(a) or (c). This leads, by reference, to section 51 which provides in (1) and (2)(a) and (c) as follows:
“51.-(1) Where an adult appears or is brought before a magistrates’ court (“the court”) charged with an offence and any of the conditions mentioned in subsection (2) below is satisfied, the court shall send him forthwith to the Crown Court for trial for the offence.
(2) Those conditions are-
(a) that the offence is an offence triable only on indictment other than one in respect of which notice has been given under section 51B or 51C below…
(c) that notice is given to the court under section 51B or 51C below in respect of the offence.”
26.	While this Appellant was awaiting sentence for the matters to which he had pleaded guilty on 23 August 2013, he was not (on 13 September 2013) appearing before the court charged with an offence within the descriptions set out in either paragraph (a) or (c) of Section 51(2). Thus, as we see it, section 50A(3)(a) did not apply. This leads to section 50A(3)(b) which provides this, in paragraphs (i) and (ii):
“(b) in all other cases-
(i) the court shall first consider the relevant offence under sections 17A to 20 (excluding subsections (8) and (9) of section 20) of the 1980 Act;
(ii) if, by virtue of sub-paragraph (i) above, the court would be required to proceed in relation to the offence as mentioned in section 17A(6), 17B(2)(c) or 20(7) of that Act (indication of guilty plea), it shall proceed, as so required (and, accordingly, shall not consider the offence under section 51 or 51A below);”
27.	So the paper chase next continues with sections 17A to 20 of the 1980 Act. Section 17A provides this, in subsections (1) to (5):
“17A. (1) This section shall have effect where a person who has attained the age of 18 years appears or is brought before a  magistrates’ court on an information charging him with an offence triable either way.
(2) Everything that the court is required to do under the following provisions of this section must be done with the accused present in court.
(3) The court shall cause the charge to be written down, if this has not already been done, and to be read to the accused.
(4) The court shall then explain to the accused in ordinary language that he may indicate whether (if the offence were to proceed to trial) he would plead guilty or not guilty, and that if he indicates that he would plead guilty –
(a) the court must proceed as mentioned in subsection (6) below; and 
(b) he may … be committed for sentence to the Crown Court under section 3 or (if applicable) section 3A of the Powers of Criminal Courts (Sentencing) Act 2000 if the court is of such opinion as is mentioned in subsection (2) of the applicable section.
(5) The court shall then ask the accused whether (if the offence were to proceed to trial) he would plead guilty or not guilty. ”
28.	In the present case, the Appellant indicated a plea of guilty to the knuckleduster charge and a not guilty plea in respect of the ball and chain charge. Thus, section 17A(6) and (7) applied. They read as follows:
“(6) If the accused indicates that he would plead guilty the court shall proceed as if –
(a) the proceedings constituted from the beginning the summary trial of the information; and
(b) section 9(1) above was compiled with and he pleaded guilty under it.
  (7) If the accused indicates that he would plead not guilty section 18(1) below shall apply.”
In respect of the knuckleduster offence, therefore, on we go to section 9 of the 1980 Act. This reads as follows: 
“9 Procedure on trial.
(1) On the summary trial of an information, the court shall, if the accused appears, state to him the substance of the information and ask him whether he pleads guilty or not guilty. 
“(2) The court, after hearing the evidence and the parties, shall convict the accused or dismiss the information. 
“(3) If the accused pleads guilty, the court may convict him without hearing evidence” (our emphasis).
29.	 Thus, in the light of what happened in this case, it was open to the Magistrates’ Court to convict of the knuckleduster offence. Miss Hummerstone submits that this, in reality, is what happened and the Appellant was duly convicted of the offence. However, that does not appear to be the case; there was no conviction recorded. Quite to the contrary, the court took the view that it would not try the “ball and chain” charge and sent it to the Crown Court under section 51(1) and (2) as it was entitled to do and it sent the knuckleduster offence for trial as a related offence under section 51(3). So much seems to be clear from the note received from the Legal Adviser who attended that hearing and from the court’s order. It is clear that the Legal Adviser regarded the matter as governed entirely by section 51.
30.	At the Crown Court no indictment was preferred and nothing was added to the existing indictment. In the circumstances, it seems to us that the Appellant was not convicted of the knuckleduster offence and the sentence passed must be quashed.  If he had been convicted there would have been a memorandum of that conviction made by the Magistrates’ Court. Although there was a deemed “guilty plea” by virtue of section 9 of the Act, the Magistrates did not exercise the option, provided by subsection (3) of that section, to convict. Instead, they sent both charges for trial at the Crown Court, but no indictment in respect of them was ever preferred. Thus, there was no indictment, no arraignment, no plea and no prior conviction before the Magistrates’ Court and no committal for sentence. It follows there could be no sentence passed by the judge for this offence.
31.	Miss Hummerstone relies also on section 4 of the Powers of Criminal Courts (Sentencing) Act 2000, conferring the power to commit for sentence where an accused indicates that he would plead guilty if committed for trial. However, that section requires as a condition of any such power that it applies where “…(c) proceeding as if section 9(1) of the Act were complied with and he pleaded guilty under it, the court convicts him of the offence” (emphasis added). However, here there is nothing to indicate that the court did convict: see again the Legal Adviser’s note and the court’s order indicating quite to the contrary.
32.	In the circumstances, there was nothing on which the Crown Court could proceed to sentence and the appeal must be allowed to the extent of quashing that sentence in toto.
33.	It follows that there was no conviction for an offence committed during the period of the conditional discharge and the sentence passed in that respect must also be quashed. That leaves the sentences on counts 1 and 2 of the indictment.
34.	In respect of the conspiracy to cause criminal damage, we are told that the submission was made to the judge that these were “merely” graffiti offences and should be sentenced accordingly. The judge was referred, we are told, to the cases of Verdi [2005] 1 Cr App R (S) at p. 197, Dolan & Whittaker [2008] 2 Cr App R(S) p.67 and Pease & ors [2008] EWCA Crim 2515. It is accepted before us that there was clearly a racial element to the offence in that 5 of the incidents involved explicitly racist slogans, and that even though no racially aggravated offence was charged, the judge was entitled to treat this as an aggravating feature of the offence on the indictment. 
35.	Reviewing the cases to which the learned judge was referred, we do not consider that this sentence can be criticised in the light of them, even having regard to the guilty plea. This was a conspiracy that led to significant damage to property, with the aggravating overtones to some of the daubs created which the judge clearly had in mind.
36.	The malicious communications offence was particularly serious in the light of the victims targeted and the nature of the threats used. We cannot see that the judge’s implicit arrival at the maximum sentence as a starting point after trial can be criticised.
37.	In the result, however, we quash the sentences imposed by the judge in respect of the knuckleduster charge and on the re-sentence for the assumed breach of conditional discharge. The sentences on counts 1 and 2 of the indictment will remain. Accordingly, the total sentence will now be one of 19 months in substitution for the 33 months imposed in the Crown Court. To that extent, the appeal is allowed.