England and Wales Court of Appeal (Criminal Division) Decisions

		Neutral Citation Number: [2002] EWCA Crim 1857
		Case No: 2002/01981/W2

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BRADFORD CROWN COURT
(His Honour Judge Gullick)

		Royal Courts of Justice Strand, London, WC2A 2LL
		19th July 2002

B e f o r e :

LORD JUSTICE DYSON
MR JUSTICE SILBER
and
HER HONOUR JUDGE GODDARD QC
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Between:


	IMRAN GHAFOOR	Appellant
	- and -
	THE CROWN	Respondent

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(Transcript of the Handed Down Judgment of
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Mr B. Emmerson QC and Mr T. Khan (instructed by John Kelly and Co) for the Appellant
Mr N. Campbell QC and Mr J. Gibson (instructed by the Crown Prosecution Service) for the Crown
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Lord Justice Dyson : This is the judgment of the Court:

1. On 11 February 2002, the appellant, who was born on 14 September 1983, pleaded guilty to an offence of riot contrary to section 1(1) of the Public Order Act 1986. The offence had been committed on 7 July 2001, when he was 17. On 14 March 2002, he was sentenced by HH Judge Gullick to four and a half years detention in a young offenders institution pursuant to section 96 of the Powers of the Criminal Courts Sentencing Act 2000 (“PCCSA”). On 4 April, the defence applied to the judge to vary the sentence under section 155 of the PCCSA on the grounds that he had erred in principle in passing a sentence that was heavier than he would have had power to impose at the date when the offence was committed. The judge said that the application raised an issue of incompatibility between Article 7 of the European Convention on Human Rights (“ECHR”) and section 164(1) of the PCCSA, and that this could only be resolved by the grant of a declaration of incompatibility by this court under section 4 of the Human Rights Act 1998 (“HRA”). Accordingly, he refused the application to vary the sentence, but subsequently issued a certificate under section 11(1A) of the Criminal Appeal Act 1968 that the case was fit for appeal. The certificate was in these terms:

“The appellant, an 18 year old came before the Crown Court for an offence of riot committed when he was 17. He was sentenced to four and a half years YOI in view of his age at the date of conviction (per Section 96 PCC(S) A 2000. Article 7 of the European Convention prohibits retrospective legislation and the second limb provides “Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. In the case of the appellant, is it a breach of his Convention rights under Article 7 for him to have been sentenced as an 18 year old and is the Court required to restrict itself to the maximum sentence (2 years detention) that could be imposed on a 17 year old appearing in the Youth Court?”

2. On 10 July, we allowed the appeal. We quashed the sentence of four and a half years, and substituted one of 18 months detention in a young offenders institution. We now give our reasons.

The statutory provisions

3. Section 96 of the PCCSA (‘Detention in a young offender institution for other case where offender at least 18 but under 21’) provides:

“96. Subject to sections 90,93 and 94 above, where-

(a) a person aged at least 18 but under 21 is convicted of an offence which is punishable with imprisonment in the case of a person aged 21 or over, and

(b) the court is of the opinion that either or both of paragraphs (a) and (b) of section 79(2) above apply or the case falls within section 79(3),

the sentence that the court is to pass is a sentence of detention in a young offender institution.”

4. Section 97(1) provides that “the maximum term of detention in a young offender institution that a court may impose for an offence is the same as the maximum term of imprisonment that it may impose for that offence”.
5. Section 100(1) of the PCCSA (‘Offenders under 18: detention and training orders’) provides:

“100. (1) Subject to sections 90,91 and 93 above and subsection (2) below, where-

(a) a child or young person (that is to say, any person aged under 18) is convicted of an offence which is punishable with imprisonment in the case of a person aged 21 or over, and

(b) the court is of the opinion that either or both of paragraphs (a) and (b) of section 79(2) above apply or the case falls within section 79(3),

the sentence that the court is to pass is a detention and training order.”

6. The maximum term of such an order is prescribed by section 101(1) and (2) which provide:

“(a)...the term of a detention and training order made in respect of an offence (whether by a magistrates’ court or otherwise) shall be 4, 6, 8, 10, 12, 18 or 24 months” (section 101(1)); and

“(b) the term of such an order “may not exceed the maximum term of imprisonment that the Crown Court could (in the case of an offender aged 18 or over) impose for the offence” (section 101(2)).

7. Section 164(1) (‘Further interpretative provisions’) provides that:

“164(1) For the purposes of any provision of this Act which requires the determination of the age of a person by the court or the Secretary of State, his age shall be deemed to be that which it appears to the court or (as the case may be) the Secretary of State to be after considering any available evidence.”

Article 7 of the ECHR

8. Article 7.1 provides:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

The facts

9. The appellant pleaded guilty to participating in the riot that took place in Bradford on 7 July 2001. Although he was present at the scene of the disorder for several hours he remained an onlooker for most of that time. He was captured on video in the city centre in the afternoon behaving peaceably. He was filmed again between about 8.44pm and 9.35pm throwing stones at police officers on six or seven separate occasions, amongst a hostile crowd of other people who were doing exactly the same. There was no evidence that he had participated in the more serious incidents of violence that occurred later that evening. He handed himself in to the police after his photograph appeared in the press.
10. When interviewed by the police six weeks later the appellant was shown the video extract. He made full admissions and expressed remorse. He said that he had left the area voluntarily at about 10.30pm when he realised the violence was escalating.
11. The appellant had no previous convictions. In the pre-sentence report, the probation officer said that, although the appellant had displayed a significant lack of maturity and understanding in his involvement in the riots, he had also expressed regret and shame for what he had done. The risk of further offending was assessed as low. The probation officer proposed that, in dealing with length of sentence, the Court take into account the fact that the appellant was a young man of previous good character, who had handed himself in to the police on two occasions, had been dismissed from his employment and had expressed remorse.

Sentencing remarks

12. In passing sentence, the judge said that the facts of the offence were so serious that only a custodial sentence could be justified. Over a period of about twelve hours, there had been public disorder on a massive scale which involved burning, looting and destruction, and also sustained and ferocious violence, directed principally at the police. The judge had to have regard to that total picture, as well as the appellant’s specific acts. It had to be made clear to those who chose to take part in activities of this type that the court would have no hesitation in marking the seriousness of what had occurred and would do so in the present case. It would be a wholly wrong approach to take the acts of any individual participant in isolation. The acts were not committed in isolation and it was that fact that constituted the gravity of the offence. The court had to pay regard to the level and nature of the violence used, the scale of the riot, the extent to which it was premeditated, the number of persons engaged in its execution and finally, in the context of the overall picture, the specific acts of the individual defendant. The video extract showed the appellant throwing missiles at police officers on six or seven separate occasions between 8.44pm and 9.35pm, amongst a hostile crowd of other people who were doing exactly the same. The judge took into account his plea of guilty at an early stage; his good character, his personal mitigation; his character references; the pre-sentence report and the fact of his remorse and responsible behaviour in handing himself in to the police on two occasions.

The submissions

13. On behalf of the appellant, Mr Emmerson QC submits as follows. The sentencing regime applicable to an offender is that current at the date of conviction: see Danga [1992] 94 Cr App Rep 252 and subsequent authorities. But it is wrong in principle, a breach of Article 7 of the ECHR and, therefore, a breach of section 6(1) of the HRA for a sentencing court to impose on an offender a sentence which is in substance more severe than the sentence which could lawfully have been imposed at the time when the offence was committed. Sections 96, 100 and 164(1) of the PCCSA are not, in themselves, incompatible with article 7. Nor are they rendered incompatible by the approach to interpretation established by this court in Danga and subsequent authorities. The incompatibility in the present case arises only because the judge decided to impose a sentence which was heavier than could lawfully have been imposed when the offence was committed. A declaration of incompatibility is, therefore, unnecessary.
14. The word “applicable” in the second sentence of Article 7 of the Convention (“Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed”) means “applicable to the offence and the offender”. Thus, on the facts of the present case, Mr Emmerson submits that the maximum penalty for the offence of riot on 7 July 2001 was 10 years imprisonment: see section 1(6) of the Public Order Act 1986; and the maximum penalty for this offender for an offence committed on that date was 24 months detention and training order. Accordingly, on the facts of this case, the maximum penalty “applicable” on 7 July was 24 months detention and training order.
15. Mr Emmerson submits that the effect of section 6 of the HRA, read in conjunction with Article 7, is to elevate the guidance given by the authorities such as Danga and the later cases to a generally applicable rule of law, such that it is now unlawful for a court to pass a sentence which is in substance heavier than the sentence that could lawfully have been imposed at the date of commission (unless the court is bound by statute to impose a fixed or minimum sentence).
16. The date of commission of the offence should be adopted as the operative date for determining the appropriate sentence, since it provides a fixed point in time directly referable to the accused’s culpability when the offence was committed. By contrast, the approach adopted by the judge is inconsistent with the principles of foreseeability and legal certainty inherent in Article 7, since (a) the court’s sentencing powers may increase according to the length of time that the proceedings take to get to trial, and (b) that in turn will be determined by a range of imponderables including the complexity of the investigation; whether the accused is immediately apprehended and brought to trial, or whether there is a substantial delay prior to arrest; the pressure on the court’s list and other such factors.
17. The philosophy of restricted sentencing powers for juveniles reflects society’s acceptance that young offenders are less responsible for their actions and therefore less culpable. The culpability of a young offender should not be affected by the date of trial or conviction.
18. Having regard to the appellant’s age at the date of the commission of the offence, as well as the other mitigating factors relied on before the judge, a sentence of four and a half years detention in a young offender institution was manifestly excessive.
19. On behalf of the Crown, Mr Campbell QC agrees that the sentencing regime is that applicable to an offender on the basis of his age at the date of conviction. But he takes issue with Mr Emmerson’s submissions in relation to Article 7. He submits that the word “applicable” in the second sentence means “applicable to the offence”, and does not mean “applicable to the offence and the offender”. It follows that the sentence passed in this case does not involve any violation of Article 7. The law did not change between the date of the offence and the date of conviction. It was at all material times clear and predictable. It permitted a change in the sentencing scheme when an offender was convicted after his or her 18^th birthday. Accordingly, the judge was under no obligation to pass a sentence which did not exceed that which could lawfully have been passed in the Youth Court. He should, however, have had regard to the age of the appellant at the date of the offence, and the maximum penalty permissible at that time, especially since there had been no delay attributable to the defendant.
20. Mr Campbell does, however, accept that the sentencing tribunal should have regard to the defendant’s age at the time of commission as a powerful factor in determining the sentence, and that matters such as maximum penalties available at that time should be taken into account, especially where there has been no delay attributable to the defendant.
21. The authorities relied on by Mr Emmerson are dealing with the particular problems of sentencing defendants convicted as adults for sexual offences committed years earlier when they were juveniles. They are far removed from the present case, and do not yield any principles that are relevant to this appeal.

Discussion

22. It is, therefore, common ground that the relevant date for determining a defendant’s age when the court is about to exercise its powers of sentence is the date of conviction. The form of sentence is dictated by the defendant’s age at that date. Thus, for example, a defendant who is 21 at the date of conviction will be sentenced to imprisonment rather than detention in a young offender institution even if the offence was committed before he was 21. That is what this court decided in Danga when construing section 1(3A) and (4) of the Criminal Justice Act 1982. That approach has been consistently applied ever since in cases where the court is called upon to determine which statutory regime is applicable in the case of a young offender: see, for example, R v McGlynn (unreported, 21 April 1999); R v Ball and Bingham (unreported, 1 May 2001); and R v Cassidy (unreported, 14 September 2000). In the latter case, this court applied the principle in Danga in relation to a detention and training order made under section 73 of the Crime and Disorder Act 1998, the predecessor to section 100 of the PCCSA. The present case illustrates the potential significance of the relevant date for determining the defendant’s age for purposes of sentence. Since the appellant had passed his 18^th birthday before he pleaded guilty, the sentencing powers available to the court permitted the judge to pass a sentence of up to a maximum of 10 years detention in a young offender institution. If he had pleaded guilty when he was still only 17, the maximum available custodial sentence would have been a term of 24 months detention and training order. We leave out of account for present purposes section 91(1) of the PCSSA.
23. Sentencing problems arise whenever a defendant crosses a relevant age threshold between the date of the commission of the offence and the date of conviction. The court in Danga was alive to this. In delivering the judgment of the court, May J said:

“It is, however, important to say that the broad conceptual approach of a sentencing court does not undergo a fundamental change simply because the offender passes his 21^st birthday. If all factors were identical an offender aged 21 years and a few days is likely to receive in substance much the same punishment as one who is 20 years and 11 months, and the court will in substance take account, for instance, of the criteria of section 1(4) and (5) of the 1982 Act for the slightly older person although not in terms strictly required by statute to do so.”

24. This approach has been applied with varying degrees of emphasis in subsequent decisions of this court. Thus in Cuddington [1995] 16 Cr App R (S) 246:

“The most telling point raised before us seems to be the point made that, had the matters been discovered and timeously dealt with, the appellant would have been entitled to be treated as a juvenile and detained for no more than 12 months. Whilst that is not in itself definitive of any sentence which should later be imposed upon him, it is a powerful factor to be taken into account.”

25. In Divisi [1994] Crim LR 699, the appellant was convicted of causing death by dangerous driving and sentenced to two years detention. He was 16 at the time of the offence but 18 at the time of conviction. Since the offence had been committed, the maximum sentence for causing death by dangerous driving had been extended from five to ten years, and the power to order detention under section 53(2) of the Children and Young Persons Act 1933 had been extended to include causing death by dangerous driving (see now section 91(2)(a) of the PCCSA). Moreover, the maximum sentence that could have been imposed on 16 year olds who committed this offence had been increased from one to 2 years. This court said that “the law being as it was at the time when he committed the offence and as it remained until 2 weeks before his trial, it would be wrong and unjust to make this young man serve the sentence which was in fact passed.” The sentence was accordingly reduced to 12 months detention in a young offender institution.
26. In Dashwood [1995] 16 Cr App R (S) 733, the Court suggested a more flexible approach to this question. The appellant was convicted at the age of 29 of sexual offences against children (his step-sisters) committed when he was aged 14 and 15 but not reported until 15 years after the event. He appealed against sentences totalling three and a half years imprisonment. Lord Taylor CJ noted (at 735) that if the offences had been brought immediately to trial, the sentencing court’s powers would have been severely restricted. He pointed out, however, that the guiding principle was that laid down in Danga, namely that the sentencing powers of the court are those that the court has at the date of conviction. Accordingly, the court had power to sentence the appellant as an adult. In determining the appropriate approach, the Court examined the sentence which the appellant would in all likelihood have received if he had been convicted at the time when the offences were committed; and the sentence which a boy of 14 or 15 might receive for the same offences today (given that the maximum sentence for the offences had increased in the intervening period):

“We take the view that there is no axiomatic approach to a problem of this kind which would entitle the Court to say that the right sentencing approach is to look at the matter as at a particular date. We consider that the matter has to be looked at in the round. The fact that the series of offences was committed when the offender was 14 to 15 is, as was said in Cuddington, a powerful factor in affecting the appropriate sentence to pass as at today. On the other hand, it is not the sole and determinative factor. We also have to look at how a 14 to 15 year old might be dealt with today, and we have to look at all the circumstances of the case, including the way in which the appellant chose to conduct his defence.”

27. In Bowers [1999] 2 Cr App R (S) 97, the appellant pleaded guilty to five counts of buggery committed against young boys. The offences had been committed 25 years earlier when the appellant was aged between 15 and 18. He was sentenced to a total of seven years imprisonment. The Court said that the proper approach was that set out in Cuddington. “We then ask ourselves what is the likely sentence that would have been passed at the time of these offences. That sentence is a useful starting point and will be a ‘powerful factor’ in deciding the proper sentence.” If the appellant had been sentenced at the time, it was likely (on contemporary authorities) that he would have been sentenced to Borstal Training. In that event, he would have served about 12 months in custody. Making allowances for early release, the correct sentence was two years imprisonment.
28. In Fowler [2002] EWCA Crim 260; [2002] Crim LR 521 the appellant, aged 44, was sentenced to an aggregate of six years in respect of various sexual offences, including rape, committed when he was aged between 14 and 17 on a family friend aged between 8 and 11. Giving the judgment of the court, Aikens J said at paragraph 16:

“We think that we are bound, (and the sentencing judge was bound), in the light of Bowers, to conduct the same process as was performed by the Court in that case, based upon the principle as stated by Potter J (as he then was) in Cuddington. In other words, first: we have to consider what is the likely sentence that the appellant would have been given had he been dealt with at the time that these offences occurred. Secondly, having considered what that sentence might have been, that will then be “a powerful factor” in deciding the proper sentence at this stage when we come now to consider the sentence of this appellant, who is now aged 44. Thirdly, we must then fix the sentence which we consider appropriate in all the circumstances as they are now.”

29. The court decided that, if sentenced at the time of the offence, the appellant would have been sentenced to a term of 2 years Borstal Training. That was, therefore, the “starting point”. Aikens J continued at paragraph 21:

“That is not the end of the matter, however. We have to take into account the several factors that were also before the sentencing judge. First of all there is the effect that these events had on the victim. As we have pointed out, the offences do seem to have had a considerable effect upon him. Secondly, we have to take into account the fact that the psychiatric report suggested that there was a substantial risk of further offences against male and female children, both in the long and short term. We do not give too much weight to that, bearing in mind the fact that this appellant has not committed any offences of a sexual nature on young people, (other than that to which we have referred), during the intervening period. We also have to take account of the fact that today courts and society in general regard abuse of young children more seriously than the courts and society did 28 or 30 years ago.”

The court allowed the appeal and substituted concurrent sentences of 2 years imprisonment.

30. For reasons that we shall explain, we are quite satisfied, without considering the impact (if any) of Article 7, that the sentence passed by the judge was wrong in principle. If he had applied the guidance given in the line of cases to which we have referred, he could not properly have passed a sentence in excess of 18 months on the facts of this case. We do not, therefore, find it necessary to decide the interesting and difficult question of the true interpretation of Article 7, and to what extent (if any) it requires the approach articulated in our domestic law to be modified. In saying this, we are conscious of the fact that Mr Emmerson has addressed detailed and elaborate arguments to us for which we are grateful to him. But on reflection, we have decided not to determine the Article 7 issues for three reasons. First, a decision is not necessary for the disposal of this appeal, so that anything that we said would be obiter dicta. Secondly, we are conscious of the fact that Mr Campbell had very little time to consider Mr Emmerson’s arguments. If we were to accept them, we would want to be sure that we had fully considered all the implications of doing so. We are not satisfied that Mr Campbell has been able to assist us sufficiently to enable us to make a proper assessment of them. Finally, we are not persuaded that there is a pressing need to decide the Article 7 issue. Mr Emmerson concedes that, for practical purposes, the guidance given in the decisions of this court achieves substantially the same result as that which he submits is compelled as a matter of law by the application of Article 7. His point is that the effect of section 6(1) of the HRA, read in conjunction with Article 7, is to elevate the guidance given by the decisions of this court into a generally applicable rule of law. But in substance, the guidance given by these decisions should in almost all cases yield the same result as a strict application of Article 7. In other words, there is no need for this court to express obiter dicta on the point.
31. The approach to be adopted where a defendant crosses a relevant age threshold between the date of the commission of the offence and the date of conviction should now be clear. The starting point is the sentence that the defendant would have been likely to receive if he had been sentenced at the date of the commission of the offence. It has been described as “a powerful factor”. That is for the obvious reason that, as Mr Emmerson points out, the philosophy of restricting sentencing powers in relation to young persons reflects both (a) society’s acceptance that young offenders are less responsible for their actions and therefore less culpable than adults, and (b) the recognition that, in consequence, sentencing them should place greater emphasis on rehabilitation, and less on retribution and deterrence than in the case of adults. It should be noted that the “starting point” is not the maximum sentence that could lawfully have been imposed, but the sentence that the offender would have been likely to receive.
32. So the sentence that would have been passed at the date of the commission of the offence is a “powerful factor”. It is the starting point, and other factors may have to be considered. But in our judgment, there have to be good reasons for departing from the starting point. An examination of the authorities to which we have been referred shows that, although the court has looked at other factors to see whether there should be a departure from the starting point, it is not obvious that there has in fact been a departure in any of them. This serves to demonstrate how powerful a factor the starting point is. That is because justice requires there to be good reason to pass a sentence higher than would have been passed at the date of the commission of the offence.
33. That is not to say that the starting point may not be tempered somewhat in certain cases. We have in mind in particular cases where there is a long interval between the date of commission of the offence and the date of conviction. By the date of conviction, circumstances may have changed significantly. The offender may now have been revealed as a dangerous criminal, whereas at the date of the offence that was not so. By the date of conviction, the tariff for the offence in question may have increased. These are factors that can be taken into account, and can, in an appropriate case, properly lead to the passing of a sentence somewhat higher than the sentence that would have been passed at the date of the commission of the offence. It will rarely be necessary for a court even to consider passing a sentence that is more severe than the maximum that it would have had jurisdiction to pass at the date of commission of the offence.
34. But in a case such as the present where the date of conviction is only a few months after the date of the offence, we think that it would rarely be appropriate to pass a longer sentence than that which would have been passed at the date of the offence. In this case, then, if the appellant had been sentenced at the time of the offence, having regard to his plea of guilty, he should have received a sentence of 18 months detention and training. The maximum permissible sentence would have been 24 months: he would have been entitled to credit for his plea of guilty which could not have been less than 6 months (see section 101(1) of the PCCSA). The equivalent sentence for an 18 year old is 18 months detention in a young offender institution. The judge should, therefore, have arrived at this sentence as the correct starting point. He should then have considered whether there were any good reasons for departing from it. In our view, there were plainly none. The interval of time between the date of the offence and the date of conviction was relatively short. The judge identified no reasons for passing a higher sentence than the starting point sentence, let alone one which was three times as long.
35. It is for these reasons that we allowed the appeal and substituted a sentence of 18 months detention in a young offender institution.