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Fatima Jama analyses the reasoning and implications of the Court of Appeal’s judgment in Canatar [2025] EWCA Crim 611.
The Court of Appeal in Canatar [2025] EWCA Crim 611 exposed a series of procedural irregularities where Crown Court judges had exercised powers reserved to the Magistrates’ Court. Lord Justice Lewis’ judgment serves as a cautionary tale on the proper boundaries between judicial roles in our layered court system.
On 12 March 2021, Mr Yashar Canatar was driving in Woolwich when police officers signalled for him to stop. Rather than complying, he accelerated away, initiating a high-speed chase through residential areas that lasted approximately ten minutes, with speeds reaching 58 miles per hour. The pursuit ended when Mr Canatar hit a bus stop.
Upon exiting his vehicle, Mr Canatar grabbed a metal bar from a nearby garden and brandished it at a police constable, causing the officer to fall over. After a struggle, officers eventually arrested him.
A search of Mr Canatar’s vehicle revealed five plastic packages containing a total of 11 grams of cannabis, and one clear plastic package containing 13 wraps of cocaine. In the passenger footwell, a cigarette packet was found which contained a crack pipe and a single wrap of crack cocaine. The approximate street value of the cocaine found was £400. £300 in cash was also found. Two mobile phones were found: a Nokia “burner” and an iPhone. The Nokia was downloaded and messages relating to drug supply were found.
What should have been a straightforward prosecution became a complex procedural matter. On 23 June 2022, at his first appearance at Bromley Magistrates’ Court, Mr Canatar pleaded guilty to the offences with which he was charged – simple possession of a Class A drug (cocaine), possession of a Class B drug (cannabis), possession of another Class A drug (crack cocaine) and dangerous driving.
The Magistrates’ Court considered these offences sufficiently serious and committed Mr Canatar to the Crown Court for sentencing under section 14 of the Sentencing Act 2000. This applies where a person is convicted summarily in the Magistrates’ Court of an offence or offences, and the court is of the opinion that the offence, or the combination of offences, is so serious that the Crown Court should deal with the offender.
On 14 July 2022, the case came before His Honour Judge Miller at Woolwich Crown Court. Mr Canatar attended but was unrepresented due to the then ongoing industrial action by the Bar. Both the judge and prosecution expressed concern that the charges did not adequately represent the seriousness of the offending. By 25 July 2022, the prosecution indicated their intention to bring new charges for possession of cocaine with intent to supply and assault of an emergency worker. Various hearings were held to give procedural directions for the filing of skeleton arguments by the prosecution and defence.
The critical error occurred on 17 October 2022, when His Honour Judge Mann KC was tasked with deciding whether the new charges were an abuse of process on the basis that they arose out of substantially the same facts as the offences to which Mr Canatar had already pleaded guilty. Crucially, Mr Canatar was absent from this hearing.
After deciding it would not be an abuse of process, His Honour Judge Mann KC exercised powers under section 66 of the Courts Act 2003 to sit as a District Judge in the Magistrates’ Court. This provision allows certain judicial office holders, including Recorders and Circuit Judges, to exercise the powers of a District Judge in relation to criminal matters.
His Honour Judge Mann KC then considered, in the absence of Mr Canatar, whether the charges should be dealt with in the Magistrates’ Court or in the Crown Court.
Section 17A of the Magistrates’ Court Act 1980, provides a structure for handling pleas for either way offences (such as those that Mr Canatar was charged with) when the accused is at least 18 years old. One of the requirements for the plea before venue procedure to be effective is that the accused must be physically present in court throughout. The court must ensure the charge is written down and read aloud to the accused. The court must explain in ordinary language that the accused can indicate their intended plea if the case were to proceed to trial. The explanation must include information that if the accused indicates a guilty plea, the court will proceed as if it were a summary trial, and the accused might be committed to Crown Court for sentencing. The court must then directly ask the accused whether they would plead guilty or not guilty if the case proceeded to trial. If the accused indicates a guilty plea, the court proceeds as if conducting a summary trial from the beginning. If the accused indicates a not guilty plea, section 18(1) of the Magistrates’ Court Act 1980 applies to the case. If the accused fails to indicate any plea, they are treated as if they had pleaded not guilty for procedural purposes.
Lord Justice Lewis noted: “His Honour Judge Mann did not comply with the provisions of section 17A of the 1980 Act. The appellant was not present when this procedure took place, as required by section 17A(2) of the 1980 Act. Second, the charges (including the new charge of assault of an emergency worker) and the possession of cocaine with intent to supply to others were not read to him, as required by section 17A(3). Third, the appellant was not asked to indicate whether he intended to plead guilty or not guilty if matters went to trial.”
The judgment emphasised that the section 17A procedure is mandatory, citing the court’s previous decision in R v Gould [2021] EWCA Crim 447, “As this court held in Gould the procedure in section 17A is mandatory and the failure to follow the procedure in this case renders what followed a nullity and liable to be quashed: see [102], [103], [106] and [144]. See also R v Weekes [2022] 2 Cr App R(S) 35. Here, the offences were different from those that had previously been charged in the Magistrates’ Court. Here it was an assault of an emergency worker and possession of cocaine with intent to supply. The section 17A requirements had never been complied with in relation to those offences at any stage. Furthermore, that did cause prejudice to the appellant.”
This procedural failure had real consequences for Mr Canatar. As Lord Justice Lewis explained: “He was ultimately sentenced on the basis that he had indicated his intention to plead guilty for the first time on the day of trial in the Crown Court, and had received a ten per cent reduction in his sentence. If the section 17 procedure had been followed, he would have been asked whether he intended to plead guilty to the offences when His Honour Judge Mann was sitting as a District Judge in the Magistrates’ Court. An indication at that stage that he would plead guilty would have entitled him to a reduction of one third of the sentence in accordance with the relevant Sentencing Council guideline.”
Following the hearing in front of HHJ Mann KC, the case was then sent for trial. Mr Canatar was eventually produced and pleaded guilty. The matter was adjourned for sentence.
The second issue arose before Mr Recorder Stephen Smith at the sentencing hearing on 06 July 2023. He attempted to resolve the overlapping charges of simple possession and possession with intent to supply by declaring: “I am going to sit as a District Judge, which means that I have the powers of the Magistrates’ Court, and I am going to vacate your plea, Mr Canatar, in relation to possession of cocaine.”
The Court of Appeal ruled this action was legally impermissible. “The Recorder here sought to exercise the powers of a District Judge in the Magistrates’ Court conferred on him under section 66 of the 2003 Act. The Magistrates’ Court, however, had no further powers in respect of the matters that they had committed to the Crown Court for sentence; they were functus. The Recorder could not have exercised the powers of a District Judge to order that the plea be vacated, as a District Judge no longer had such powers.” The court had exhausted its jurisdiction.
The Court of Appeal also addressed whether it was an abuse of process to proceed with charges of possession with intent to supply cocaine and assault of an emergency worker when Mr Canatar had already been convicted of simple possession based on the same facts. The starting point for consideration was R v Elrington (1861) 1 B & S 688: “We must bear in mind the well-established principle of our criminal law that a series of charges shall not be preferred, and, whether a party accused of a minor offence is acquitted or convicted he shall not be charged again on the same set of facts.” The court examined subsequent cases including R v Beedie [1998], R v Phipps [2005], DPP v Connelly [1964] AC 1254, R v Wangige [2020], and R v Dwyer [2012], which all reinforced this principle. The court was not referred to the more recent case of R v Nuh Bihe [2022] EWCA Crim 939 which also supports that line of authorities. The judgment distinguished the case of R v Antoine [2014] EWCA Crim 1971, [2015] 1 Cr App R 8, which had reached a different conclusion in very specific circumstances.
The Court of Appeal concluded: “It would have been an abuse of process for the prosecution to institute proceedings for an offence of possession of a Class A drug with intent to supply to others in respect of the events that occurred on 12 March 2021, given that the appellant had been convicted of an offence of possession of cocaine on the same facts and had been committed to the Crown Court for sentence and should already have been sentenced for that matter.”
The court did find that the assault of an emergency worker charge could potentially have proceeded as a separate matter as it “involved an assault on a policeman” and “did not directly arise out of the offence of dangerous driving, or the possession of Class A or Class B drugs.”
The Court of Appeal reconstituted itself as a Divisional Court in order to properly address the resolution of the case: “We consider that the appropriate course of action is to do that which was done in Gould (as described at [121] and [122]). We reconstitute ourselves as a Divisional Court. We dispense with the need to serve a judicial review claim form and an acknowledgement of service. We abridge all necessary time limits. We grant leave to apply for judicial review of the decision of Mr Recorder Smith, sitting as a District Judge in the Magistrates’ Court, directing that the appellant’s plea of guilty to the offence of possession of a Class A drug (cocaine) be vacated. We quash that decision.” The Court then had Mrs Justice Yip, who was part of both the Court of Appeal and Divisional Court panels, sit as a Crown Court judge to sentence Mr Canatar.
The Court quashed the convictions and sentences for possession with intent to supply and assault of an emergency worker. For dangerous driving, the Court maintained the 12-month imprisonment sentence but reduced the driving disqualification from 23 to 20 months. For the drugs offences, it reduced the sentence for possession of crack cocaine from eight months to four months and for cannabis from four months to two months. The court arranged the remaining sentences to run concurrently with each other but consecutively to the dangerous driving sentence. In respect of the reconstituted offence of simple possession of cocaine, the court recognised that Mr Canatar had already served his sentence and been released on licence. It was concluded: “In those circumstances it would be wholly unjust to sentence him for a further term of imprisonment today, or indeed to impose any further penalty.” Accordingly, it was ordered that there be no separate penalty for this offence.
The case underscores that section 66 of the Courts Act 2003 cannot be exercised informally or as a procedural shortcut. All mandatory requirements must be followed. The prosecution must decide at the outset what charges to bring, and the court emphasised the necessity for early charging decisions: “The principle is that the Crown should decide at the outset, or at the latest before the conclusion of the first set of proceedings, what charges it wishes to bring arising out of the same incident.” The judgment also clarifies that a Crown Court’s power to direct that a plea be vacated “should only be used sparingly, where the interests of justice require it, and not in order to enable the prosecution to avoid the consequences of its own mistakes.
As noted previously in R v Gould [2021] EWCA Crim 447, Edis LJ observed that “judges of the Crown Court may often have little experience of procedure in the Magistrates’ Court” and their staff may have “even less” expertise in ensuring the work is “conducted and recorded properly.” This lack of familiarity with Magistrates’ Court procedure is “a reason for restraint in the exercise of the section 66 powers.” The judgment advises that if a judge is “unsure about any of what he or she is being asked to do, then the safe course will sometimes be to decline to deal with anything which requires a Magistrates’ Court to deal with it.” While acknowledging this may cause “cost and delay,” the Court noted that attempting to use section 66 of the Courts Act 2003 without proper understanding had similarly caused problems in the cases under appeal. The Court concluded that section 66 of the Courts Act 2003 should only be used when “it is quite clear that the case should be dealt with by the Crown Court” or when the exercise is “only designed to tie up loose ends and avoid hearings in the Magistrates’ Court which are clearly unnecessary.”
For legal practitioners, Canatar [2025] EWCA Crim 611 serves as a warning, a reminder and a guide. It reminds Crown Court judges to be cautious when considering the exercise of Magistrates’ Court powers and clarifies that procedural rules in our criminal justice system exist for substantive reasons– procedural integrity is fundamental to justice itself, not merely an inconvenient obstacle to be overcome.
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