Divisional Court’s Power to Quash Invalid Crown Court Indictments and Aggregate Sentencing Reform: Cummings, R v [2025] EWCA Crim 508

Introduction

The Court of Appeal (Criminal Division) decision in R v Cummings ([2025] EWCA Crim 508) addresses two interrelated but distinct questions of criminal procedure and criminal sentencing. First, it clarifies the appellate court’s power to deal with a nullity in indictment where a summary‐only offence (low‐value shoplifting under £200) had been wrongly sent for trial in the Crown Court without the requisite election by the accused (Magistrates’ Courts Act 1980, s. 22A). Second, it scrutinizes the approach to aggregate sentencing for a prolific offender convicted on multiple counts of burglary, theft, fraud and handling stolen goods, refining the application of guideline principles and the totality principle in high‐volume multiple offending cases. The appellant, Mr Cummings, pleaded guilty in the Crown Court at Bournemouth to a large catalogue of offences committed over ten months, was sentenced to an effective four-year term, and appeals against sentence with leave.

Summary of the Judgment

The Court of Appeal delivered a two‐part judgment on 26 March 2025:

1. Procedural Nullity: The appeal court identified that one count of low‐value theft (URN55CH0540223) was triable only summarily and had been sent to the Crown Court without the appellant’s election—rendering the indictment a nullity. Invoking R v Gould [2021] EWCA Crim 447, the court reconstituted itself as a Divisional Court for judicial review, quashed the erroneous committal, and directed that the case be remitted to the Magistrates’ Court. There, sitting as a District Judge (Magistrates’ Court), Stuart-Smith LJ imposed 7 days’ custody concurrent, thus concluding the procedural issue.
2. Sentencing Appeal: On the substantive appeal against a four-year aggregate custodial term (reduced one-third for guilty pleas from a notional six years), the court accepted that the sentencing judge had applied guideline starting points for each offence, selected two “lead” offences to run consecutively, and then applied the totality principle to reach an overall figure. Although this approach was not criticised in principle, the appellate court found the pre-credit aggregate (six years) to be excessive. It recalibrated the aggregate sentence to 4½ years before discount, resulting in a three-year custody term after applying a one-third guilty-plea reduction. The court gave effect to this by reducing the two lead sentences (from 2½ to 2 years, and from 1½ to 1 year) on specified counts.

Analysis

Precedents Cited

R v Gould [2021] EWCA Crim 447 was the principal authority on dealing with a nullity in indictment. In Gould, the court held that where a summary‐only offence has been improperly committed to the Crown Court, the appellate court may reconstitute itself as a Divisional Court and grant relief by way of judicial review, quashing the sending‐order and remitting the matter to the proper forum. The judgment in Cummings applies that guidance precisely, confirming the availability of summary judicial review even when the Crown Court has embarked on trial and sentencing.

The court also referred to the Magistrates’ Courts Act 1980 (s. 22A) which confines low‐value shoplifting (<£200) to summary trial unless an election to Crown Court trial is made. This statutory provision underpinned the finding of nullity.

In the sentencing section, the court engaged with the Criminal Justice Act 2003 guideline framework for multiple offences, and the longstanding principle of totality as explained in authorities such as R v Parker [1977] QB 421 and R v Smith [2020] EWCA Crim 23, though those cases were not cited by name. The decision demonstrates how guideline starting points, adjustments for aggravating and mitigating factors, and totality are woven together.

Legal Reasoning

1. Nullity and Divisional Court Remedy
The court recognised that the shoplifting count in URN55CH0540223 was triable only summarily. No valid election by the accused having been made, the indictment was void. Rather than dismiss the appeal or remit the point, the court invoked its supervisory jurisdiction: it reconstituted as a Divisional Court, granted permission for judicial review without formalities, quashed the improper sending, and then—invoking s. 66 of the Courts Act 2003—nominated one of its members to sit as a District Judge in the Magistrates’ Court to dispose of the outstanding matter. This comprehensive remedy avoided multiple procedural steps and unnecessary delay.

2. Aggregate Sentencing
The sentencing challenge centred on whether a notional aggregate of six years (pre-credit) was excessive. The appellate court endorsed the sentencing judge’s methodology in principle—applying guideline categories (B2 for non-domestic burglary, threshold analysis for theft, fraud and handling offences), selecting two leads for consecutive terms to reflect the course of offending, and then applying totality and a one-third reduction for guilty pleas. However, the court found the overall figure too high. In contemporary sentencing of prolific, low-level persistent offenders, guideline indications can cumulatively produce unduly heavy sentences unless calibrated. The court therefore exercised its residual appellate power to substitute a lower aggregate—4½ years pre-credit—arrived at by shaving six months off one lead and six months off the other lead sentence bands, and making similar adjustments to related counts.

Impact

The Cummings judgment has two key implications:

• Procedure for Nullity: Criminal practitioners and appellate courts are reminded that summary‐only offences improperly sent to the Crown Court can be corrected swiftly by a Divisional Court reconstitution and limited judicial review, without the need for protracted interlocutory applications.
• Aggregate Sentencing Practice: The case illustrates the challenges of applying guideline starting points to multiple offences and provides a practical example of how appellate courts can fine-tune aggregate outcomes to ensure proportionality—acknowledging the “imprecise art” of multiple sentencing without undermining guideline structure.

Complex Concepts Simplified

• Nullity: An indictment is a “nullity” when it is fundamentally defective—here because the statute restricted the offence to summary court and no valid Crown Court election was made.
• Divisional Court Reconstitution: The Court of Appeal can sit as a Divisional Court—an administrative device enabling it to supervise lower tribunals, grant judicial review relief, and correct procedural defects.
• Guideline Starting Points: The Sentencing Council sets ranges for each offence category (e.g. B2 burglaries start at 6 months). Sentencers must pick a point within the range after assessing aggravating and mitigating features.
• Totality Principle: When an offender is convicted of multiple offences, the total sentence must reflect the overall criminality—avoiding crushing sentences while ensuring that additional offences attract additional punishment.
• Guilty-Plea Reduction: A one-third discount is standard in England & Wales when a guilty plea is entered at the earliest opportunity, calibrated by seriousness and timing of plea.

Conclusion

R v Cummings clarifies and reinforces two areas of criminal law procedure and sentencing: first, that appellate courts may swiftly cure procedural nullities arising from improper committal of summary-only offences by reconstituting as a Divisional Court and exercising judicial review powers; second, that in sentencing prolific multiple offenders, courts must balance guideline fidelity with the totality principle, ensuring that the aggregate term is neither spuriouslȳ inflated nor disproportionately lenient. The decision will guide practitioners in challenging invalid indictments and in structuring appeals against excessive aggregate custodial terms.