England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MAIDSTONE CROWN COURT
HHJ SIMPSON (IN CASE OF FIELD)
WOLVERHAMPTON CROWN COURT
HHJ MITCHELL (IN CASE OF YOUNG)

		Royal Courts of Justice Strand, London, WC2A 2LL
		Thursday 12th December 2002

Lord Justice Kay:

1. The court has before it two cases that raise the same point of law in relation to Section 28 of the Criminal Justice and Court Services Act 2000 ("the 2000 Act"). The question is whether a disqualification order can be made under Section 28, disqualifying an adult from working with children, based on an offence committed before the 2000 Act came into force.
2. In the first case, on 6 April 2001 Brian John Field was convicted at Maidstone Crown Court on 5 counts of indecent assault and 1 count of indecency with a child. The offences had been committed between the 1 July and 3 September 2000, which was before the 2000 Act came into force on 11 January 2001. On 11 May 2001, he was sentenced by His Honour Judge Simpson to four years imprisonment on each count, such sentences to be concurrent with one another. In addition the judge made an order under Section 28 of the 2000 Act disqualifying him from working with children indefinitely.
3. He sought leave to appeal against conviction and sentence. Leave to appeal against conviction was refused by the single judge and on 17 January 2002 the court rejected his renewed application. The application for leave to appeal against sentence, which was confined to the order under Section 28, was referred to the court by the Registrar and leave was granted. In view of the difficult issues raised, the court required assistance from the crown and the matter was adjourned. The Secretary of State for the Home Department sought and was granted leave to intervene, and it is the appeal against that aspect of the sentence with which we are now concerned.
4. In the second case, on 15 October 2001 Alfred Young pleaded guilty at the Wolverhampton Crown Court to two offences of indecent assault. He was sentenced on 16 November by His Honour Judge Mitchell to an extended term of five years imprisonment of which the custodial part was two years. He too was disqualified indefinitely under Section 28 of the 2000 Act from working with children. In his case the two offences were committed between the 21 August 1999 and 20 August 2000, again before the coming into force of the relevant part of the 2000 Act.
5. Alfred Young sought leave to appeal against his sentence. His grounds challenged both the extended prison sentence and the disqualification order. The application was referred directly to the full court by the Registrar and on 14 March 2002 the court considered his application. It refused the application in respect of the extended sentence but adjourned consideration of the application relating to the disqualification order for it to be heard together with Field's case. Arrangements were made for the skeleton arguments in Field's case to be made available to Young's counsel so that he could, if he wished, make representations to the court to add to the arguments advanced. No such representations have been made and since the point is an identical one, determination of Field's appeal will be determinative of the decision in Young's application.
6. It is wholly unnecessary to record the facts of either case because nothing turns upon the circumstances of the convictions already set out. In any event they are recorded in the earlier judgments of this court to which reference has already been made.
7. Two issues arise:

1) Whether a disqualification order under Section 28 of the 2000 Act constitutes "a penalty" such that Article 7 of the European Convention on Human Rights ("ECHR") precludes any such order being made in relation to an offence committed before the section came into force, and

2) Whether on its true interpretation the 2000 Act was intended to apply to pre-enactment offences.

8. As Mr Crow, on behalf of the Secretary of State comments, these issues are potentially of great significance. Largely because of the age and the vulnerability of the victims, sexual offences relating to children are often reported and prosecuted many years after the offences in question were committed. Accordingly these questions will arise not merely in the short term but for many years to come.
9. The arguments advanced on behalf of the appellant and the applicant are acknowledged by the Secretary of State to be arguments that have received significant support in the past. When the 2000 Act was enacted, the Home Office view was that such a disqualification order could not be made relating to a pre-enactment offence. This view was thereafter expressed in circulars issued by the Crown Prosecution Service to prosecutors and by the Lord Chancellor's Department to the Court Service. However, both the Home Office and the Circulars recognised that interpretation of the Statute was ultimately a matter for decision by the courts.
10. The 2001 edition of Archbold "Criminal Pleading Evidence and Practice" lent further support at paragraph 5-562a stating that the 2000 Act "has been drafted in such a way as to make it clear that it has no application to an offence committed before the commencement date". Both the 2002 and 2003 editions are in less emphatic terms but maintain the same standpoint saying, "it appears that (section 28) can apply only to persons convicted of offences committed on or after" the commencement date. An article in Criminal Law Week, issue 41, reached a similar conclusion.

The relevant legislation

11. Section 28 of the 2000 Act provides:

1) This section applies where either of the conditions set out below is satisfied in the case of an individual.

2) The first condition is that –

a) the individual is convicted of an offence against a child committed when he was 18 or over, and

b) a qualifying sentence is imposed by a senior Court in respect of the conviction.

3) The second condition is that –

a) the individual is charged with an offence against a child committed when he was aged 18 or over, and

b) a relevant order is made by a senior Court in respect of the act or omission charged against him as the offence.

4) Subject to subsection (5), the court must order the individual to be disqualified from working with children.

5) An order shall not be made under this section if the court is satisfied, having regard to all the circumstances, that it is unlikely that the individual will commit any further offence against a child.

6) If the court does not make an order under this section, it must state its reasons for not doing so and cause those reasons to be included in the record of the proceedings.

12. An "offence against a child" is defined in Section 26 and Schedule 4 and includes various specified sexual and violent offences against children. A "qualifying sentence" is defined by Section 30 to be a sentence of imprisonment for a term of 12 months or more in the case of an adult. A "relevant order" for the purpose of the condition contained in subsection (3) is defined by Section 30 as either "an order made by the Crown Court…that the individual in question be admitted to hospital" or "a guardianship order".
13. By Section 35, it is an offence for a person who has been disqualified under Section 28 to seek or engage in a defined range of work with children. The areas of work are extensive covering not only those that might immediately come to mind but also such activities as baby sitting and being on a school's governing body. The prohibition applies to both paid and unpaid work. It is further an offence for any other person to offer or provide work to a disqualified person.
14. Section 31(1) provides for a right of appeal against the disqualification order imposed following conviction "as if the order were a sentence". Section 38 provides that a disqualification order "is not a sentence for the purposes of" the Rehabilitation of Offenders Act 1974.
15. An order under Section 28 is of indefinite duration. Provision is made by Section 32 for review of the disqualification. An adult who is subject to a disqualification order may apply after a minimum of 10 years to the Tribunal established by Section 9 of The Protection of Children Act 1999 for the order to cease to have effect. Section 32(3) provides:

"If the Tribunal is satisfied that the individual is suitable to work with children, it must direct that the order is to cease to have effect; otherwise it must dismiss the application."

16. Section 34 provides for a Chief Officer of Police or a Director of Social Services of a local authority to apply to the High Court for restoration of an order that has ceased to have effect when:

"the individual has acted in such a way (whether before or after the order ceased to be in force) as to give reasonable cause to believe that an order under this section is necessary to protect children in general, or any children in particular, from serious harm from him."

17. The relevant parts of the 2000 Act were brought into effect on 11 January 2001 by the Criminal Justice and Court Services Act 2000 (Commencement No. 1) order 2000 (SI 2000 No. 3302). The order made no transitional provisions and provides no assistance on the issues that the court has to determine.

The ECHR issue

18. The argument advanced on behalf of the appellant and the applicant is that a disqualification order is a penalty within the meaning of Article 7 of the ECHR and thus if imposed in respect of an offence committed before the relevant statutory provisions came into effect would amount to a breach of Article 7(1) being the imposition of "a heavier penalty than the one that was applicable at the time the criminal offence was committed". Since under Section 3 of the Human Rights Act 1998, the court is required to read and give effect to primary and subordinate legislation in a way which is compatible with convention rights so far as it is possible so to do, it is submitted that Section 28 of the 2000 Act should be interpreted as only applying to convictions in respect of offences committed on or after the day when the relevant part of the Act came into force.
19. On behalf of the Secretary of State it is accepted that the argument is valid provided that a disqualification order is a penalty for the purposes of Article 7. Thus the issue turns on the meaning of the word "penalty" in Article 7.
20. It is common ground between the parties that this is an autonomous concept under the ECHR defined by reference to criteria closely analogous to those applicable to the concept of a "criminal charge" under Article 6. Both counsel have drawn attention to the leading case in the European Court of Human Rights concerning the determination of whether an order is or is not a penalty, Welch v UK (1995) 20 EHRR 247. Mr Crow on behalf of the Secretary of State has distilled from that judgment the following criteria:

i) The starting point is whether the measure is imposed following a criminal conviction (see paragraphs 28 and 29 of the judgment);

ii) The nature and purpose of the measure are also relevant (see paragraphs 28 and 30);

iii) Its characterisation under national law is relevant (see paragraphs 28 and 31);

iv) The procedures involved in the making and implementation of the measure are relevant (see paragraph 28);

v) Its severity is relevant (see paragraphs 28 and 32); and

vi) The court will look at the substance, rather than the form, in determining whether the measure forms part of a "regime of punishment" (see paragraphs 27, 33 and 34)

21. Mr Bendall for the appellant agrees that this list properly reflects the considerations indicated by the court and thus the task facing this court is to apply each of these criteria to Section 28 of the 2000 Act.
22. Mr Crow in his submissions to the court was minded to concede that a disqualification order was an order which could only be imposed following a criminal conviction. However, when the court invited his assistance on Section 28(3), he recognised that his argument in this respect was stronger than he suggested. Section 28(1) and (3) effectively require the making of an order, subject to Section 28(5), where either a jury returns a special verdict of "not guilty by reason of insanity" or where a person has been found to be under a disability under Section 4 of the Criminal Procedure (Insanity) Act 1964 and it is determined on the available evidence that he did the act or made the omission charged against him pursuant to Section 4A of the same Act, and in either case the court makes an order that he be admitted to hospital or a guardianship order. Whilst there are purposes for which such an order is treated as if it was a conviction (see Section 25 of the Criminal Justice and Public Order Act 1994, restrictions on the grant of bail for serious offences), such a finding is not a conviction and cannot justify the imposition of a penalty although it may require the making of an order for the protection of the public. An order made because the condition under Section 28(3) is satisfied is indistinguishable in its terms from an order made following conviction.
23. In Gough v Chief Constable of Derbyshire Constabulary [2001] EWHC Admin 554, [2001] 3 WLR 1392, the Divisional Court considered whether football banning orders under Section 14A of the Football Spectators Act 1989 were a penalty. Section 14A provided for the making of an order where a person was convicted of a relevant offence. Section 14B made further provision for a Chief Officer of Police to apply for such an order where a person had at any time "caused or contributed to any violence or disorder in the United Kingdom or elsewhere". There was no requirement that a conviction should precede the making of an order under Section 14B.
24. In his judgment, Laws LJ at paragraph 42(2) said:

"The order is not made as part of the process of distributive criminal justice. Under Section 14B there is no requirement of a criminal conviction, so that the starting point in Welch v United Kingdom 20 EHRR 247 is not met. In Section 14A, the existence of a relevant conviction is in my judgment no more than a gateway criterion for the making of the order, equivalent to the provision in Section 14B(4)(a) when no conviction is involved."

25. Laws LJ went on to point to the fact that Section 14A(4)(a) provided that a football banning order could only be made "in addition" to a sentence thereby contrasting the banning order with the sentence. That is to an extent mirrored in the 2000 Act, which provides for an appeal against a disqualification order under Section 28 "as if it were a sentence imposed following conviction".
26. The conclusions of Laws LJ in this regard were specifically endorsed on appeal by the Court of Appeal (see [2002] EWCA Civ 351, [2002] 3 WLR 289 at paragraph 89).
27. Under Section 28 of the 2000 Act, a conviction is "a gateway criterion" in the sense described by Laws LJ for the making of a disqualification order but it is not the only such criterion: a special verdict or a finding in respect of a person under a disability that they did the act or made the omission charged against them will require the making of a disqualification order subject to Section 28(5).
28. Mr Bendall contended in argument that these other circumstances give rise to an "analogous situation". We do not accept that this is so. In neither of these other cases is there a conclusion that would merit the imposition of any penal provision even though restriction of the right of the individual may be demonstrated to be necessary in order to protect others. This view gains the strongest possible support from a decision which Mr Bendall very properly thought ought to be drawn to the court's attention following the hearing as it bore upon these issues but had not been referred to in argument.
29. In R v M and others [2001] EWCA Crim 2024; [2002] 1 Cr. App. R. 283, this court had to consider whether following a finding that a defendant was unfit to plead, proceedings to determine whether he did the act charged against him were incompatible with Article 6. The court thus had to determine whether such proceedings were criminal proceedings within the meaning of Article 6. The court concluded that they were not because they could not result in a conviction or the imposition of a penalty. Giving the judgment of the court, the Vice-President, Rose LJ, said:

"19. In our judgment the criminal charge provisions of Article 6 do not apply to proceedings which cannot result in conviction. The object of the convention is to protect the citizen against abuse of his right by the state. The protection afforded by Article 6 is unnecessary if the proceedings in question cannot lead to the conviction and punishment of the accused. A procedure that can lead only to a acquittal of a criminal charge is not within Article 6. …We find some support for this approach in that, as mentioned below, the European Court of Human Rights has never held proceedings to be criminal if they cannot result in the imposition of a penalty. Proceedings that can only result in an acquittal cannot result in a penalty. If, therefore, proceedings under Sections 4 and 4A are to be held to be criminal, it must be some reason other than that an acquittal may result from them.

20. …If an accused is found to have committed the act the verdict is not one of guilty but a finding that he did the act or made the omission charged against him…The finding of a jury that an accused person has committed the act lacks a finding as to intent. It cannot, therefore, be a finding of guilt of the offence. Expressions such as "guilty" and "convicted" are noticeably absent from these provisions. Significantly, if an accused is found to be unfit and to have committed the act charged against him, and subsequently recovers, he may be tried for the criminal offence in question…As was held in Antoine [2000] 2 Cr App R 94, once it has been determined under Section 4(5) that the accused person is under a disability, the trial terminates and he is no longer liable to be convicted.

21. Furthermore the orders available to the court under Section 5(2) do not include any punishment or any order that can be seen as retributive or deterrent. With the exception of an absolute discharge, they are concerned with the treatment and care of the accused. …

26. Lastly, although proceedings under Section 4A involve the determination of facts which may constitute a criminal offence, this, in our judgment, is irrelevant. Civil and disciplinary proceedings often involve allegations that a person has committed acts which constitute a criminal offence. That does not transform such proceedings into criminal proceedings…"

30. The court in M and others thus concluded that such a finding was not a conviction and that an order made in consequence of the finding was not a penalty. For these reasons the court concluded that the proceedings were not criminal proceedings within the meaning of Article 6. Since under Section 28, an identical order is made following such a finding to that made following conviction, it suggests strongly that this provision is not penal within the meaning of Article 7.
31. Mr Crow points to the fact that when an order has ceased to have effect as a result of a review by the Tribunal under Section 32, it can be restored under Section 34 without any requirement for a further conviction. It is sufficient that the court concludes that the conduct of the person gives "reasonable cause to believe that an order…is necessary to protect children in general, or any children in particular from serious harm from him". Since the restriction can be re-imposed without the necessity of there being any further conviction, it is suggested that this again supports the view that it is not a penalty.
32. The next element to be considered is the nature and purpose of the order. Mr Bendall submits that the nature of the measure is an indefinite disqualification from working with children which carries with it up to five years imprisonment or a fine for breach of the order. He accepts that the purpose is "presumably the protection of children" but submits that this is not conclusive. He points to the fact that in Welch the purpose of the Drug Trafficking Offences Act 1968 was to prevent future trafficking but this did not prevent it from being a penalty. He refers to paragraph 30 of the judgment and that part which reads:

"The preventive purpose of confiscating property that might be available for use in future drug trafficking operations as well as the purpose of ensuring that crime does not pay are evident from the ministerial statements that were made to Parliament at the time of the introduction of the legislation…However it cannot be excluded that legislation which confers such broad powers of confiscation on the courts also pursues the aim of punishing the offender. Indeed the aims of prevention and reparation are consistent with a punitive purpose and may be seen as constituent elements of the very notion of punishment."

33. He also draws attention to Jamil v France 21 EHRR 65 where the European Court of Human Rights rejected arguments that prison terms in default of payment of customs fines were not punitive because they were not intended to punish but to compel discharge of a civil obligation, and that they were not classified as penalties under French law. The court reiterated that it must remain free to go behind appearance and detect the substance of the provision.
34. Mr Crow submits that an order under Section 28 is plainly not penal in its nature since it neither restricts the offender's liberty, nor involves any fine or confiscation of property. It merely involves a restriction on certain activities in relation to children.
35. It does not seem to us that a matter is not penal in nature merely because it does not restrict liberty or impose a fine or other financial consequence. By way of example, a disqualification from driving a motorcar does no more than restrict a persons right to a particular form of activity and it does have a preventive element to it. Nonetheless we should have thought that it was clearly penal in its nature. It is imposed by reference to the conduct that led to the conviction and without necessarily any relationship to the danger a person may represent when driving a motorcar.
36. It is difficult to divorce the nature of the measure from its purpose and Mr Crow submits that the purpose of an order under Section 28 is plainly preventive and not punitive. He points to the acceptance of this by Mr Bendall and suggests that the factors which cause that concession are important to the overall conclusion in this matter. He highlights the following specific points:

i) The long title to the 2000 Act expressly recites that one of its purposes is "to make further provision for the protection of children".

ii) Part 2 of the 2000 Act, in which Section 28 appears, is itself headed "protection of children".

iii) The effect of a disqualification order is plainly to minimise an offender's ability to work with children in certain defined circumstances, in order to reduce the risk of re-offending.

iv) It is submitted that it also significant that, under Section 28(5), the court is not required to make an order if, having regard to all the circumstances, it concludes that it is unlikely that the individual will commit any further offence against a child. In other words, the grounds for making, or refraining from making, a disqualification order are based not on the gravity of the offence for which the individual has been sentenced, but on the risk of his re-offending in the future. This, it is submitted, is the hallmark of a preventive, rather than a punitive measure.

v) The effect of Section 28(5) in relation to adults is complementary to the provisions contained within Section 29 which relates to juveniles who have been convicted. In respect of a juvenile, under Section 29(4) an order is only to be made if it is likely that he will commit another offence against a child. Once again, it is submitted the whole basis for making an order is the risk of re-offending, not punishment for past offences.

vi) The power of the Tribunal to direct the disqualification order be set aside can only be exercised if it considers that the individual "is suitable to work with children". Once again it is submitted that this emphasises the preventive nature of the order.

vii) Finally, the duty of the court to restore a disqualification order under Section 34 is triggered if the individual has acted in such a way as to give reasonable cause to believe that an order under the section is "necessary to protect children in general, or any children in particular, from serious harm from him". Yet again, the purely protective purposes of the disqualification regime under the 2000 Act are said to be clear.

37. Mr Crow suggests that a confiscation order under the Drugs Trafficking Offences Act 1986 is clearly distinguishable from an order under Section 28. He submits that the passage from the judgment quoted above merely illustrates a self-evident truth, namely that a punitive sanction may also contain a protective element and that a protective measure may also contain a punitive sanction. However this, he suggests, does not assist the court in determining the specific issue in a particular case.
38. The decision in Welch that the measure in question was a penalty was, it is submitted, prompted by a number of considerations not in any way present in the making of a disqualification order under Section 28:

i) The legislative presumption that all property passing through the defendant's hands in a 6 year period was the proceeds of drug trafficking unless proved otherwise;

ii) the confiscation order was not limited to the element of enrichment or profit;

iii) the discretion of the trial judge in fixing the amount of confiscation to take into account the degree of culpability of the accused;

iv) the possibility of automatic imprisonment in the event of a failure to pay.

39. Next we consider characterisation under domestic law and the procedure involved in the making and implementation of the order. Mr Bendall contends that a disqualification order is characterised under domestic law as a criminal measure because it can only be imposed by a criminal court.
40. Mr Crow submits that the reason why it is initially imposed by a criminal court is simply one of administrative convenience. He points to the fact that the triggering event for making such an order is a criminal conviction or one of the other orders that require the making of such an order. There would be no administrative purpose to be served in referring the matter to some other tribunal at that stage since the criminal court has just made the necessary determination and is best placed to consider any issue under Section 28(5). He submits that it is also for the same reason that a disqualification order is treated "as if it were a part of the sentence passed on him" for the purposes of an appeal. He then contrasts the position from that stage later on when the setting aside of an order is to be considered by the Tribunal rather than a criminal court and the possible restoration of the order once it has been set aside is to be considered by the High Court rather than a criminal court. In addition he points to the fact that the purposes of the Rehabilitation of Offenders Act 1974 the order is not treated as part of the sentence. For these reasons he submits that a disqualification order is not characterised as a criminal sanction under domestic law.
41. We are further bound to have regard to the severity of the order. There is no doubt that the order can have a major impact upon a person's life. It may prevent that person from pursuing the only employment for which they have been trained. The order runs indefinitely and no application can be made for 10 years to discharge it.
42. However many orders that are undoubtedly civil in nature and not a penalty can have severe consequences and whilst this element must be borne in mind in assessing the true nature of the order, it cannot be the only factor to be considered.
43. In R (McCann) v Crown Court at Manchester [2001] EWCA Civ 281, [2001] 1 WLR 1084 (quoted with approval on appeal to the House of Lords by Lord Steyn [2002] UKHL 39, [2002] 3 WLR 1313 at paragraph 10) Lord Phillips of Worth Maltravers, M. R. observed:

"Many injunctions in civil proceedings operate severely upon those against whom they are ordered. In matrimonial proceedings a husband may be ordered to leave his home and not to have contact with his children. Such an order may be made as a consequence of violence which amounted to criminal conduct. But such an order is imposed not for the purpose of punishment but for protection of the family. This demonstrates that, when considering whether an order imposes a penalty or punishment, it is necessary to look beyond its consequence and to consider its purpose."

44. In addition to these submissions on the criteria as explained in Welch, our attention has been drawn to a number of authorities relating to other comparable legislative regimes. It is not suggested by either side that they can be determinative of this matter but Mr Crow submits that they provide strong support for the Secretary of State's argument that a Section 28 disqualification order is a penalty.
45. We have already made reference to Gough's case in which both the Divisional Court and the Court of Appeal concluded that a football banning order was not a penalty within the meaning of Article 7 whether or not the order had been made following a conviction. Thus such an order can be made even where the conduct relied upon occurred before the relevant date.
46. Mr Bendall seeks to distinguish a disqualification order under Section 28 from a football banning order because a football banning order under Section 14B of the Football Spectators Act 1989 can be imposed without any prior conviction. However, following M and Others this distinction cannot be maintained because a Section 28 disqualification order can be made in circumstances where the Court of Appeal has clearly determined that there is no conviction following a finding that a person who is not fit to stand trial did the act or made the omission charged. In each of these cases where there is no conviction, there will need to be a determination of the facts to satisfy the relevant condition and hence no significant distinction is to be found between the two in this regard.
47. Mr Bendall next suggests there is a distinction to be drawn because a football banning order can only be made if there are reasonable grounds for believing that the making of an order will help to prevent violence or disorder in connection with regulated football matches. A Section 28 disqualification order, he suggests, is mandatory save in limited circumstances. However it is the qualification that there are limited circumstances that has to be considered. An order will not be made if the court is satisfied that the individual will not commit further offences against a child. Thus the only distinction is that there is a rebuttable presumption in favour of an order in the case of a disqualification under Section 28, which is not to be found in considering a football banning order. But, as Mr Crow submits, the substance of the court's decision in each case is the same, namely whether there is a risk of re-offending.
48. In B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, the Divisional Court concluded that an application for a sex offender order under Section 2 of the Crime and Disorder Act 1998 was an application in civil proceedings involving preventive measures rather than criminal punishment. At paragraph 25 of the judgment, Lord Bingham of Cornhill CJ said:

"There is no room for doubt about the mischief against which this legislation is directed, which is the risk of re-offending by sex offenders who have offended in the past and have shown a continuing propensity to offend. Parliament might have decided to wait until, if at all, the offender did offend again and then appropriate charges could be laid on the basis of that further offending. Before 1998 there was effectively no choice but to act in that way. But the obvious disadvantage was that, by the time the offender had offended again, some victim had suffered. The rationale of Section 2 was, by means of an injunctive order, to seek to avoid the contingency of any further suffering by any further victim. It would also of course be to the advantage of a defendant if he were to be saved from further offending. As in the case of a civil injunction, a breach of the court's order may attract a sanction. But, also as in the case of a civil injunction, the order, although restraining the defendant from doing that which is prohibited, imposes no penalty or disability upon him. I am accordingly satisfied that, as a matter of English domestic law, the application is a civil proceeding, as Parliament undoubtedly intended it to be."

49. It is to be observed that the order in that case upheld by the Divisional Court prohibited the appellant from (1) seeking to communicate with a child or young person under the age of 16 years, (2) associating with or befriending a child or young person under the age of 16 years, (3) residing in any private dwelling where a child or young person under the age of 16 years was present, or (4) undertaking any activity (paid, voluntary or recreational) which by its nature was likely to bring him into contact with a child or young person under the age of 16 years. In terms of the severity of the restrictions imposed by the order, it was at least as far reaching as those under a Section 28 disqualification order but the severity of the consequences for the appellant did not in any way translate it into a penalty.
50. In Ibbotson v UK (1998) 27 EHRR CD 332, the European Court of Human Rights has ruled that the requirement to register under the Sex Offenders Act 1997 does not involve the imposition of a penalty within the meaning of Article 7. Mr Bendall seeks to distinguish this decision on the basis that the obligation is imposed as a matter of law, not as a part of the sentencing process. In one sense that is correct: the requirement to register will take effect whether or not the court says anything about it. However, a Section 28 disqualification order is mandatory unless the court concludes that it is unlikely that the person will commit any further offence against a child. It is not immediately obvious why this distinction should in itself lead to a different conclusion.
51. Mr Bendall also seeks to distinguish Ibbotson v UK on the basis that the restrictions imposed under a disqualification order under Section 28 are far greater than the requirements in respect of registration. That is undoubtedly right and it is a factor to be considered in the overall equation but for reasons already explained, it cannot be determinative of the question.
52. Finally we were referred to R (McCann) v Crown Court for Manchester. That case had been heard in the Court of Appeal at the time of the hearing but judgment was awaited in the House of Lords. We were asked to postpone our judgment pending the decision of the House of Lords and this explains the delay in our giving judgment. We invited counsel to make written representations on the decision and we have received such representations from Mr Crow. Mr Crow provided Mr Bendall with a copy of his representations and Mr Bendall has indicated that there is nothing that he feels he can add to his earlier submissions.
53. In McCann, the Court of Appeal and the House of Lords had to consider antisocial behaviour orders made under Section 1 of the Crime and Disorder Act 1998. The question raised in that case was whether such proceedings were to be classified as civil or criminal in domestic law and whether they constituted a "criminal charge" within Article 6 of the ECHR. It is accepted that what amounts to a penalty under Article 7 is closely analogous to the concept of "a criminal charge" under Article 6.
54. In McCann the House of Lords recognised that Section 1 of the Crime and Disorder Act 1998 formed part of a wider raft of legislation in which Parliament employed the technique of the civil injunction to deal with novel social problems where the criminal law itself did not provide adequate protection for the public (see Lord Steyn at paragraph 17 and 18, Lord Hope at paragraph 42 and Lord Hutton at paragraph 85). We have no doubt that Section 28 of the 2000 Act has to be seen in much the same light and again employs injunctive remedies to supplement the normal criminal sanctions which are perceived as providing inadequate protection for children.
55. One of the principal reasons for concluding that the proceedings in McCann were classified in domestic law as civil and not criminal was that the nature of an antisocial behaviour order is not penal and its purpose is not punitive. It is designed to protect members of the public and prevent future misconduct not to punish past misconduct. (See in this regard Lord Steyn at paragraphs 19-24 and Lord Hutton at paragraphs 94-95). Mr Crow submits that exactly the same purpose can be discerned in relation to the disqualification order in this case.
56. In McCann, the House of Lords rejected the suggestion that, in seeking to determine whether an antisocial behaviour order is civil or criminal, the effect of the order itself must be considered in conjunction with the consequences of any possible breach. (See Lord Steyn at paragraph 23).
57. Having thus recorded the arguments advanced and the authorities to which we were referred, we have to determine whether a Section 28 disqualification order is a penalty within the meaning of Article 7. We make clear that we have been considerably helped by both counsels' clear and concise submissions in this regard for which we are grateful.
58. Having considered the matters though we have little difficulty in concluding that the arguments advanced on behalf of the Secretary of State by Mr Crow must prevail. It seems to us of considerable importance that a conviction is not a necessary condition for the making of such an order. When one considers the nature and purpose of such an order it points overwhelmingly to this being for preventative rather than punitive effect. Precisely the same order is made whether a person is convicted or not and the making of the order has no regard to the extent or seriousness of the offending but rather to whether a repetition of the conduct is likely. Save to the very limited extent we made clear in setting out his submissions, we accept the force of the various arguments advanced by Mr Crow. The various authorities to which we were referred seem entirely consistent with the approach that he adopted and we believe lead to an inevitable conclusion that a Section 28 disqualification order is not a penalty within the meaning of Article 7. It follows that Article 7 does not require the court to interpret Section 28 in a way that would make it apply only to convictions for offences after the coming into force of the 2000 Act.

The interpretation issue

59. In the grounds of appeal in the case of Field, it seemed that a second issue was raised as to whether as a matter of statutory interpretation, Section 28 could apply where a conviction related to conduct that pre-dated the coming into force of the 2000 Act. Mr Bendall indicated that he was not taking any separate point over and above the ECHR point but it is perhaps desirable that we make clear that we have considered this aspect of the matter as well.
60. On behalf of the Secretary of State, the following submissions in this regard were made:

"1. Looking simply at the words of Section 28(2)(a), its temporal effect is entirely general. The only limitation is that the offender must have committed an offence against a child when he was aged 18 years or over. There is no suggestion from the wording of Section 28 that the acts constituting the offence must have been committed after the 2000 Act came into force.

2. Assuming that a disqualification order is not a criminal penalty, the Secretary of State's interpretation does not offend against the presumption against retrospective legislation. That presumption is based on concepts of fairness and legal certainty, which dictate that accrued rights and the legal status of past acts should not be altered by subsequent legislation. But the effect of a disqualification order is entirely prospective, because it only affects future conduct. In such circumstances, a statute does not offend against the presumption against retrospective effect merely because it depends for its future application upon events that may have occurred before it came into force.

3. Finally, the purpose of Section 28 is plainly to protect children. That purpose would be severely undermined if a disqualification order could only be imposed in relation to offences committed after the Section came into force. The court should take a more relaxed approach to a potentially retro-active element in legislation where its intended purpose is to protect the public."

61. We have no doubt that the Secretary of State's submissions are right and that Section 28 is to be construed as applying to a conviction whenever the offending behaviour occurred.

Conclusion

62. For these reasons the appeal of Field against sentence is dismissed. It follows that there are no prospects of Young successfully appealing against the disqualification order made in his case and his application for leave to appeal against sentence is refused in this respect as it was in relation to the extended term of imprisonment.