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)
London, WC2A 2LL
B e f o r e :
MR JUSTICE GRIGSON
MR JUSTICE OUSELEY
|- and -
|BRIAN JOHN FIELD
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
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Mr Crow on behalf of the Secretary of State
There Being no representation on behalf of Alfred Young
Crown Copyright ©
Lord Justice Kay:
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.
The relevant legislation
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, andb) 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, andb) 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.
"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."
"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."
The ECHR issue
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)
"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."
"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  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…"
"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."
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.
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.
"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."
"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."
The interpretation issue
"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."