Enforcing Section 17A’s Mandatory Procedure: Nullity of Section 66 Transfers and Limits on Crown Court’s Power

1. Introduction

In R v Canatar ([2025] EWCA Crim 611) the England and Wales Court of Appeal (Criminal Division) considered whether a Crown Court judge, sitting under section 66 of the Courts Act 2003 as a District Judge in the Magistrates’ Court, may validly send offences for trial or vacate pleas without complying with the mandatory procedure set out in section 17A of the Magistrates’ Court Act 1980. The applicant, Mr Canatar, had originally pleaded guilty to simple possession of cocaine and other offences in Bromley Magistrates’ Court and been committed for sentence. Subsequent steps by the Crown Court judge led to convictions for possession with intent to supply and assault of an emergency worker—charges that had not been properly put to him under section 17A. Mr Canatar challenged both conviction and sentence.

Key issues:

Is section 17A’s procedure mandatory when a judge sitting under section 66 transfers or commits way-way triable offences?
Can a Crown Court judge validly vacate a plea entered in a Magistrates’ Court after committal for sentence?
Does a second prosecution for a more serious offence arising from the same facts amount to an abuse of process?

Parties: Appellant: Mr Canatar
Respondent: Crown Prosecution Service
Court: Court of Appeal (Criminal Division)
Date: 31 January 2025

2. Summary of the Judgment

The Court of Appeal:

Granted an extension of time and leave to appeal.
Held that section 17A’s procedural requirements (presence of the accused, reading of the charge, and invitation to indicate plea) are mandatory. Non-compliance renders subsequent proceedings a nullity (per R v Gould [2021] EWCA Crim 447).
Concluded that Judge Mann’s transfer of two charges (possession with intent; assault of an emergency worker) without following section 17A was void, and that the Recorder’s later vacating of the simple possession plea was invalid, since the Magistrates’ Court was functus officio.
Applied the abuse-of-process principle (Elrington (1861); Phipps [2005] EWCA Crim 33; Wangige [2020] EWCA Crim 1319; Dwyer [2012] EWCA Crim 10) to bar prosecution for possession with intent, but allowed separate proceedings for the assault if properly instituted.
Quashed convictions and sentences for possession with intent and assault of an emergency worker.
Reconstituted as a Divisional Court to quash the Recorder’s order vacating the simple possession plea and to remit that offence for sentence by Yip J.
On appeal against sentence for the remaining offences, adjusted drug possession and driving sentences to reflect guideline ranges, and reduced driving disqualification.
Yip J finally held that, in light of time already served under a vacated conviction, no further penalty should be imposed for simple possession.

3. Analysis

3.1 Precedents Cited

R v Gould [2021] EWCA Crim 447: Firmly established that section 17A’s procedure is mandatory; failure to comply renders later committal or transfer a nullity.
R v Weekes [2022] 2 Cr App R(S) 35: Reinforced the mandatory nature of section 17A.
R v Antoine [2014] EWCA Crim 1971: Special circumstances (“wrong offence in wrong court”) can justify a second prosecution without amounting to abuse of process.
R v Wangige [2020] EWCA Crim 1319: Clarified abuse-of-process principles in second-charge scenarios; highlighted need for “special circumstances.”
R v Dwyer [2012] EWCA Crim 10: Held it abusive to charge conspiracy after sentence for possession with intent on same facts.
R v Beedie [1998] QB 356 and R v Phipps [2005] EWCA Crim 33: Applied the “same or substantially the same facts” test to stay second prosecutions.
R v Elrington (1861) 1 B & S 688: Foundational statement against multiple charges from same facts.

3.2 Legal Reasoning

The court’s reasoning unfolded in three interlinked strands:

Mandatory Section 17A Procedure: Section 17A(2)–(5) requires the accused’s personal presence, reading of charges, explanation of plea options, and a question as to plea before any way-way offence can be committed or sent to Crown Court. Judge Mann’s failure to comply rendered his transfer decision a nullity.
Limits on Section 66 Powers: While section 66 of the Courts Act 2003 enables recorders and circuit judges to exercise Mags’ Court powers, that delegation does not override substantive procedural statutory safeguards. The Recorder’s later attempt to vacate the simple possession plea was void because the Magistrates’ Court had no ongoing power (“functus officio”) once committal for sentence was effected.
Abuse of Process Principle: Applying Elrington and its progeny, the court held that once Mr Canatar had been convicted of simple possession and committed for sentence on that basis, it was abusive to prosecute him for possession with intent to supply arising from the same transaction. The only exception would have been “special circumstances” (Antoine), which were not present here.

3.3 Impact of the Judgment

This decision strengthens procedural safeguards in several respects:

Reaffirms the mandatory nature of section 17A and places an onus on judges to ensure strict compliance before transferring or committing way-way triable offences.
Clarifies that section 66’s delegation of Mags’ powers does not permit judges to bypass statutory safeguards or to revive pleas after committal.
Reiterates the abuse-of-process principle as a check on prosecutorial discretion in charging multiple offences from the same facts.
Offers guidance on appropriate use of judicial review within an appeal context to quash nullities arising from procedural failures.
Alerts practitioners and crown courts to the risk of convictions or convictions vacated contrary to statutory procedure being overturned on appeal, with attendant resource and sentencing uncertainty.

4. Complex Concepts Simplified

Section 17A MCA 1980: An “initial procedure” requiring the presence of the accused, reading of the charge, explanation of plea options, and invitation to indicate a plea before any way-way offence is sent to or tried in Crown Court.
Section 66 Courts Act 2003: Empowers circuit judges, recorders, and deputy circuit judges to exercise the powers of a District Judge (Magistrates’ Courts). Does not abrogate mandatory statutory procedures governing mode of trial hearings.
Functus Officio: Once a court has completed its function (e.g., committal for sentence), it has no further jurisdiction in respect of that matter; it cannot revisit or reverse its own decision except in extremely limited circumstances.
Abuse of Process / “Same or Substantially the Same Facts”: The principle that a defendant should not face successive prosecutions arising from the same incident, absent special circumstances, to avoid oppression and injustice.

5. Conclusion

R v Canatar crystallises three key principles:

Mandatory Compliance with Section 17A: Any transfer or committal of way-way offences without following its provisions is a legal nullity.
Limits on Section 66 Delegation: A Crown Court judge sitting as a Magistrates’ District Judge cannot override fundamental procedural safeguards or revive pleas once committal is complete.
Abuse of Process Doctrine: Prosecutors must identify and bring all charges arising from the same facts at the outset; subsequent attempts to prosecute more serious offences on identical facts will generally be stayed.

The judgment will guide practitioners in ensuring rigorous adherence to statutory procedures in magistrates’ and Crown Court proceedings, and will serve as a watchword against procedural shortcuts that compromise the fairness and integrity of the criminal justice process.