Criminal

Criminal damage - triable summarily only where value low - offence remaining classified as triable either way and Crown Court retaining jurisdiction to convictR v Fennell: CA (Rose LJ, Ian Kennedy and Hallett JJ): 9 May 2000

The defendant was charged, among other things, with racially aggravated criminal damage.

The judge left to the jury the lesser offence of criminal damage, of which the defendant was subsequently convicted.

He appealed against conviction on the ground that the judge should not have left the lesser offence to the jury because, the value of the damage having been less than 5,000, criminal damage was to be treated, by s.22 of the Magistrates' Courts Act 1980, as if it were triable only summarily notwithstanding that it was a 'triable either way' offence, and, as a summary offence, it did not fall within the jurisdiction of the Crown Court for the purposes of s.6 of the Criminal Law Act 1967, and it had not been added to the indictment, as it could have been, pursuant to s.40 of the Criminal Justice Act 1988.Charles Digby (assigned by the Registrar of Criminal Appeals) for the defendant.

Lynn Griffin (instructed by the Crown Prosecution Service, Central Casework) for the Crown.Held, dismissing the appeal, that in accordance with Sch.1 to the Interpretation Act 1978 (as amended by Sch.7 to the Magistrates' Courts Act 1980 and para.59 of Sch.15 to the Criminal Justice Act 1988), the definitions of indictable, summary and triable either way offences were 'to be construed without regard to the effect, if any, of s.22 of the Magistrates' Courts Act 1980 on the mode of trial in a particular case;' that, accordingly, s.22 did not affect the classification of offences into indictable, summary or either-way offences but related only to the mode of trial; that R v Burt (1996) 161 JP 77, [1996] Crim LR 660 had been decided per incuriam, notwithstanding the obiter dicta of Simon Brown LJ in R v Bristol Justices, ex parte E [1999] 1 WLR 390, 396, and should not be followed; and that, accordingly, the Crown Court retained jurisdiction to convict the defendant of the lesser offence.

(WLR)