England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Wednesday, 20th September 2006

1. LORD JUSTICE MOSES: These are applications for leave to appeal in relation to a large number of applicants who, as a result of their demonstration on a railway, in different parts of London, were nearly all of them ordered to serve community sentences of 80 hours unpaid work and also in respect of whom indefinite anti-social behaviour orders were made. These cases therefore raise the issue of the propriety of a significant punishment and also of an anti-social behaviour order in respect of their demonstration against an arms fair.
2. The sentences were passed on two different occasions, following pleas of guilty, either to obstructing an engine or carriage or using a railway contrary to section 36 of the Malicious Damage Act 1861. It is important, in considering the propriety of the anti-social behaviour orders to bear in mind that the maximum sentence for such an offence is one of 2 years' imprisonment.
3. With the exception of three of these applicants, all of the defendants were of good character; all had done considerable public voluntary service to the community, or alternatively (in the case certainly of one of them) was a student of whom much is still expected.
4. All pleaded guilty before His Honour Judge Pardoe QC at Snaresbrook.
5. The defendants wished to demonstrate against the Biannual Defence Systems and Equipment International Exhibition commonly referred to as an Arms Fair. It was accepted, perhaps somewhat charitably, since disruption of the railways was involved throughout, that their involvement was as a result of not of a plan but uncoordinated acts.
6. They all involved trying to interfere with stationary trains to prevent them moving either by seeking to chain the doors or by climbing on the roof. The first event, concerned Dr Oppenheim who, assisted by a man called Zack, who was cautioned for his role, was lifted onto the roof of the Docklands Light Railway stationary train at Canning Town at about 10.30 am. He was not prepared to move straight off, he is a man of some height so we are told, and waited up there some 50 minutes before what are graphically described as a police rope team, seeking not to lynch him but to persuade him to climb down, eventually persuaded him to do so when he was arrested.
7. The next incident involved only an attempt when a Miss Hawkins at 11.50 am, and Dale, another of the defendants, tried to use a chain and padlock to secure a door on the train so that it could not be moved.
8. Next, Mr Brown, at 12.30 pm, assisted by Ward tried to get onto the roof by being given a leg up at Canning Town railway station. They had engaged in a mock fight to cause distraction before they got there but they could not get on to the top of the train because a number of passengers took, as one would have expected in Canning Town, a poor view of what they were doing and forcibly restrained them. It appeared, and this is relevant to the order that the judge made for an anti-social behaviour order, that some of the passengers set upon them in retaliation for what they had done.
9. At about the same time, at the same railway station, we understand at a different platform, Mr Fenoulhet-Walker climbed onto the roof of a stationary train, refused to come down for about 30 minutes until persuaded to do so by the rope team.
10. At 2.30 pm Mrs Jones and Miss Sheedy, on the same railway, the Docklands Light Railway at Canning Town, tried to climb onto the roof of a stationary train. Miss Jones was trying to do so helped by Miss Sheedy but they did not succeed.
11. Some time later, at 4.30 pm, Barnes of the Royal Albert Docklands Light Railway station managed to climb onto the roof and stayed there for some 20 minutes delaying the train operation.
12. The judge, on the two separate occasions he sentenced them, clearly took a serious view of this matter and took the view that the only sentence commensurate with these offences were the community punishment for 80 hours, in the case of all of them, with the exception of Miss Sheedy who had four recent convictions for public order offences. In her case the judge ordered that she should serve a sentence of 6 months' imprisonment, suspended for 2 years, with a requirement to perform a number of hours of unpaid work, namely 150 hours.
13. The judge said, in relation to these offences, on the first occasion, that there had been considerable disruption to train services. He took into account the effect on the travelling public, on costs and lost revenue to train services. There had been warnings, in announcements over the public address system, and Brown had taken part in a mock fight, followed by a real fight concerning angry passengers. He took the view, on those grounds, that the seriousness of the offences required the orders that he made of 80 hours' community services.
14. He acknowledged the good character of all the defendants, save Annwen Jones and Sheedy, although it subsequently emerged that another of the defendants, Gonzales, had two previous convictions arising out of one incident at the G8 Conference.
15. The first question, therefore, is whether the judge was right to make community orders of unpaid work. In order to assess the propriety of that order, both the seriousness of the offence and the character of these defendants must, it is trite to observe, be considered. We pause to mention that the judge considered this matter globally but, although he does not express it in terms, we are confident that he must have looked in detail at the particularly good reports and character references each of these defendants were able to rely upon, as well as their outstanding work that they did. It is, perhaps, unfortunate he did not deal with all that might be said in their favour in rather greater detail.
16. So far as Dr Oppenheim is concerned, he is 35, and is one of the outstanding Research Fellows in applied maths and theoretical physics in the country. It is difficult to think that any don could have better things said about him than are said in the three character references. He has acknowledged the impropriety of the method he adopted in order to protest against an arms fair. The judge was careful not to make any comment as to the propriety or otherwise of challenging this country's holding of arms fairs and he was right to do so. But the fact that this was a source of legitimate protest was important in relation to the sort of sentence which ought to have been passed. If a criminal offence is committed in the course of a protest, a political protest, that is clearly a relevant factor in relation to the propriety of the sentence. If one needs authority for that proposition, it is to be found in R v Jones & Ors [2006] UKHL 16, in the remarks of Lord Hoffmann, in his speech at paragraph 89. Of course, they do not excuse the criminal offences committed in this case but they are highly relevant to the appropriate punishment. Although the judge acknowledged that these offences were committed in a demonstration, he seems to have played little heed to the motives with which these offences were committed.
17. We take the view that in relation to Dr Oppenheim it was wrong to make a community order with unpaid work of 80 hours. That sentence was not commensurate with the offence committed by Dr Oppenheim and paid insufficient heed, not only to the motives with which he committed the offence but also to his excellent character. In our judgment, the appropriate sentence was one of a conditional discharge for 12 months. Only by that means could the motives with which the offence was committed and his character be properly reflected.
18. In relation to the next applicant with which we deal, George Fenoulhet-Walker, he had an irrelevant conviction for possession of cannabis. He is 24 but has an outstanding record as a support worker for adults with learning disabilities and for his voluntary work which he performs in the community.
19. It is unnecessary to read all the references that speak so well of him, but a flavour of them can be gained from the helpful report produced by the former principal lecturer in education at Nottingham Trent University, Mr Onion, dated 18th May 2006. He describes this applicant, Fenoulhet-Walker, as working exceptionally hard, undertaking voluntary work, and research as to how universities might support those with learning difficulties. He says this:

"Many students feel compassionate towards others but very few translate the compassion into serious extended actions."

20. This applicant has done so. In his case, we too take the view that it was wrong to make a community order with 80 hours unpaid work and that the appropriate sentence in his case, having regard to the motives which he climbed on top of a stationary train and his character, is one of a conditional discharge for 12-months.
21. Stuart Barnes is another applicant who voluntarily works for others at a community centre. He is 29. He has never been in trouble before and, as some earnest of his approach to his responsibilities, has already served 73 hours out of the 80 hours unpaid work. That is truly laudable in the context of a case where he was appealing and where for all he knew the appeal might be allowed. But he did not wait for that, and he has served most of the order. That is powerfully to his credit. But notwithstanding that, we repeat in his case that the order as originally made was not, in our judgment, correct and the proper order in his case was one of a conditional discharge for 12 months.
22. Vanessa Gonzales has been in trouble before. She is only 23. She has two previous convictions but they arise out of one incident at the G8 summit held at Gleneagles. She must learn, obviously, that her peaceful protest must not involve breaches of the law. She apparently was not only convicted of a breach of the peace, but some may think rather excessively also of attempting to pervert the course of justice by initially giving a false name which she subsequently changed. There was clearly an astute prosecuting authority in Scotland.
23. Whatever one thinks about that, despite that one previous occasion, there are powerful things to be said on her behalf, not properly reflected in the order made by the judge. Again, we need only give only an example. When working as a director of the Industrial & Provident Society the assisted in the provision of homeless services to young people in Bristol and South Gloucestershire. She is a model employee, diligent and trustworthy. She left earlier in 2006 to help work voluntarily for indigenous people in Mexico. She has what is described as a high moral code. In her case, too, we take the view that it was wrong to make the order for unpaid work and she should have been conditionally discharged for 12 months, which is the order we make in her case.
24. Christopher Ward, although he has been in trouble a long time ago, his convictions are now spent and he must be dealt with as a man of good character. He is older than many of the others, 35. He attempted to climb onto the roof of a stationary train but did not succeed. Miss Sikand, on behalf of this applicant, as well as the others, submits that attempts should be dealt with less severely than the full offence. We question whether that is the right approach and it is certainly not the basis upon which we allow his appeal as well. After all, his failure was not because he thought better of the idea, but simply because he just did not succeed in what he was trying to do. In his case, having regard to his motives and the excellent character references written on his behalf, we take the view that the appropriate order was one of a conditional discharge.
25. Damien Brown was the person trying to give him a leg up. He is a relief herdsman, works part-time in college and has positively good character references. Again, his attitude is powerfully demonstrated by the fact that he has already served 70 out of the 80 hours of his unpaid work. But we think in his case, too, the appropriate order was one of a conditional discharge for 12 months.
26. Thomas Dale is now an Oxford graduate but his success or otherwise in his finals are clothed, perhaps, in tactful obscurity. Nevertheless much was expected of him by his tutor who gives a powerfully good reference. Of course his future will be greatly damaged if he has a conviction which merited the severe penalty of 80 hours unpaid work by way of community penalty. It should never be forgotten that a community penalty is not a soft option. It originated and still is considered as but one step short of imprisonment and it is a serious penalty that these days, in particular, requires hard and sometimes unpleasant, and certainly boring work.
27. In those circumstances, having regard to the fact that he is the youngest of these applicants, only 21, with what we hope will be a great future before him, we take the view, for the reasons we have given in the case of the other applicants, that it was wrong to order a sentence of 80 hours unpaid work for his attempt which lasted 30 seconds before he was arrested in trying to put a chain round the door of the Docklands Light Railway at Canning Town. He, again, has shown his attitude well by the fact that he has already served a full period of 80 hours. But nevertheless we think it was wrong that his record should be blotted in this way. The appropriate order was of conditional discharge for 12 months.
28. Similarly too the 27-year old Alice Hawkins, with eleven character references, not surprisingly, since she has spent her life as advocacy project leader and doing other work for the community, particularly volunteer work for Child Line and those with learning disabilities.
29. It is difficult to see, when reading the reports about her and how she could have undertaken far more lucrative work, had she not wanted to spend her life helping others, what the point of unpaid work by way of a community penalty was. We take the view, again, in her case, that the appropriate order was of a conditional discharge for 12 months. She has already done 19 hours community service.
30. So has Annwen Jones. She has four previous convictions relating to politically motivated protests. In her case, she has a history of voluntary work in the community but, in her case, we do take the view that the fact that this is the fifth occasion that she has broken the law in pursuit of political protest, justifies the order made in relation to her of 80 hours' community service. In those circumstances, that part of her application is dismissed. It may be noted she too, much to her credit, has already performed the 80 hours of unpaid work. To that extent, her appeal will not be allowed. We have not yet turned to the anti-social behaviour orders.
31. So far as Jacqueline Sheedy, she too has four previous convictions including one under the same Act, namely under section 36 relating to obstructing the railway back in 2004, for which she received 40 hours' community service.
32. We do not think that the suspended prison sentence of 6 months was justified by this offence having regard to the work that she does as a housing support worker, the voluntary work she does, the character reference and the motives which lay behind this offence. We think that an appropriate sentence was one of 80 hours unpaid work by way of community penalty. She has already done 35 hours of unpaid work and that 35 hours should count towards the 80 hours, so effectively she only has 45 hours left to do. To that extent her appeal against the suspended sentence is allowed.
33. We then turn to the anti-social behaviour order. This was passed in what we consider to be unfortunate circumstances. Although we do not have any very clear evidence of what happened, the judge hit upon the idea of making such an order on the day of the first hearing, there having been no prior warning to counsel. That is not to say, that the court is not entitled to make such an order but any court must give counsel, both for the Crown and the defence, proper opportunity to obtain all the relevant authorities before making it and giving them full opportunity to make submissions about the considerable learning there is now on the subject.
34. This does not appear to have happened. The Court was not appraised of the relevant authorities and, in particular, to an authority that may not have been reported but would certainly have been available, R v Dean Boness & Ors [2005] EWCA Crim 2395, [2006] 1 Cr App R(S) 120. This decision of this Court, 14th October 2005, should have been carefully considered before the judge made the order. Had the judge seen that case, it is beyond doubt he would not have made the order at all.
35. The order he in fact made in relation to all these applicants was:

"That the defendant does not in any way whatsoever interfere with, or prevent the operation of any train on the Docklands Light Railway or of any train operating on any platform accessible from a platform on the Docklands Light Railway including but not limited to London Underground trains and London Silver Link trains. This order will continue until further order."

36. The grounds for making such an order are those set out in section 1C of the Crime and Disorder Act 1998, as inserted by section 64 of Police Reform Act 2002 and amended by section 86 of the Anti-social Behaviour Act 2003. Section 1C(2) of the 1998 provides:

"If the court considers--

(a) that the offender has acted, at any time since the commencement date! [1st April 1999] in an anti-social manner, that is to say in a manager that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household himself and.

(b) that an order under this section is necessary to protect persons in any place in England and Wales from further such anti-social acts by him.

it may make an order which prohibits the offender from doing anything described in the order."

37. The first question, therefore, is whether the judge was entitled to conclude that the criminal activity of these applicants did have the effects identified in section 1C(2) (a) or that it was more probable than not that they were likely to cause those effects. What the judge said on the 24th May was this:

"It is clear from that [that is the attempts to climb on the roof of the train] and other material before me that the trains in that area are particularly vulnerable to frustrated demonstrators demonstrating against this annual arms fair. I repeat my earlier observations as to the effect on the public. It is clear that these offences had a substantial harassing effect on the public to the extent that it led briefly to a breakdown in public order by irate passengers attacking, for instance, Warden Brown on the station platform."

38. When dealing with three of the other applicants on another occasion, on 23rd June, he added to that, saying:

"The law has no place for vigilantism. Disruption of train transport in London in these days of high public sensitivity is, in my judgment, very likely indeed to lead to the harassment, alarm and distress of the travelling public."

39. It is important, as authority teaches, that clear findings are made of activity of a manner which has the effects identified in the 1998 Act. Authorities are not needed for that proposition, but can be found particularly in the judgment of this Court in R v W and F [2006] EWCA Crim 686. Clear conclusions are to be made in relation to findings, both as to the manner of the activity and its effects and in relation to the other limbs that have to be found before an order can be made.
40. In our judgment, they were not in this case sufficiently clear, nor sufficiently set out. The judge had to concern himself with was the manner of the applicant's activity and why it was that he had formed the view either that he was sure it had had the effects which fell within the section, or were likely to.
41. There is a draft sample of the orders to be made, which provide a space for such clear findings to be set out. The judge did not use that sample form. This may have led him into error.
42. For reasons that we will come to in relation to section 1C(2)(b), it is unnecessary for us to come to any concluded view as to whether the applicant's behaviour in this case was likely to cause harassment, alarm or distress. We merely, at this stage, wish to say this: firstly, that the fact that other passengers, in their frustration, caused a breach of the peace provoked by the behaviour of these applicants could not possibly entitle the judge to reach the conclusion that he did. His reasons given at that first hearing were therefore not permissible reasons to justify a finding under section 1C(2)(a). They did not relate to the manner of the behaviour of the applicants but rather to the response of the public to that activity.
43. However, the findings that he made on 23rd June might justify a finding within section 1C(2)(a) of the 1998 Act.
44. To interfere with a train, by either doing something to the doors, or to the roof, in an age when all passengers on public transport might fear for their safety could well fall within the meaning of activity likely to have the identified effects. We reach no concluded view, but we do not for one moment wish to be understood to say that behaviour of this type might not fall within section 1C(2)(a).
45. But we do wish to draw a distinction between activity likely to cause harassment, alarm or distress, and activity which merely causes frustration, disappointment, anger, or annoyance. That is plainly not what the Crime and Disorder Act 1998 is aimed at. It is aimed at actions likely to cause what might be globally described as "fear for one's own safety"; merely being frustrated at the delay on a train does not come within that meaning, even though in one sense it might be said to cause distress. In relation to that which is required by section 1C(2)(a), we merely say that the conduct might have fallen within such a subsection, but clear findings with clear reasoning would have to be set out to justify such a conclusion.
46. But when one turns to the second limb of that which is required by the Act, it is plain that the judge fell into error. The judge had to be satisfied as to the necessity of such an order. He sets out no basis for reaching the conclusion that such an order was necessary, nor, having examined the facts was there any basis for so concluding. To start with, as the case of Boness QV (supra) teaches, the purpose of the order is not to punish the offender but to protect persons from further anti-social acts by him (see paragraph 29).
47. There was no evidence before the court by which it could have been satisfied that anti-social acts were likely to have been perpetuated by any of these applicants, save those who had already committed similar acts, namely Gonzales, Jones and Sheedy. None of the others had ever committed such an act before; all of them said they would not again. In those circumstances, there was no basis for saying that it was necessary to protect persons from further anti-social acts from them.
48. But it does not stop there. As the Court made clear in Boness, the purpose of such an order is prevention. Here the applicants had committed criminal offences for which the maximum sanction was one of 2 years' imprisonment. Nothing that the order did would have prevented further offences being committed by these applicants, should they choose to commit them (see paragraph 30 and 35 of Boness). The paradigm example of the aim which an order is designed to achieve is in relation to control of the movement of persons, or of that which they might carry, to prevent them from committing a further offence. There was no means or opportunity for the police to prevent further offences in the terms in which the order was made. If any of these defendants sought to commit a further offence, then the sanction of the criminal law would be a sufficient deterrent. In those circumstances, the order was merely beating the wind in so far as it sought to prevent future offences; it was clearly inconsistent with that which was set out in Boness in paragraphs 30 and 35.
49. This leads to a further reason as to why the order was wrong in law. The purposes of these orders is to prevent future offending and consequential suffering. If the order was not capable of having that effect, its effect was only to increase the sentence that would be available to a court, should these applicants commit another similar offence. Yet, as this Court made clear in Boness, the order is not to be used merely to increase a sentence of an imprisonment which an offender is liable to receive (see R v Kirby [2005] EWCA Crim 1228, [2006] 1 Cr App R(S) 151, and paragraph 32 of Boness itself). These orders would have no affect other than merely to increase the available sentence should these applicants be misguided enough to break the law again.
50. Finally, these orders are objectionable because they are not proportionate. There is no evidence, and there was no evidence before the judge, as we understand, that the arms fair was going to be held next time anywhere which would give any point to interfering with the transport identified in the order itself. For all one knows the next arms fair was going to be held in Birmingham, in which case seeking to prevent inference with the Docklands Light Railway, or Silver Link of London Underground would be singularly useless. Moreover, it was made without limit of time, as the Act envisages is possible but would clearly be disproportionate in a case such as this.
51. For all these reasons, no doubt led into error because there was no sufficient research into the relevant law, these orders were wrong and should be quashed. The result is, although these are only applications, that we give leave to appeal in each and every application. In each and every application we allow the appeal. They are all represented and we understand therefore that there is no need to make any special order about them being present and being allowed to consider the matter further. The appeals to the extent that we have given therefore are all allowed.
52. MISS SIKAND: My Lord, I am mindful of the fact that there is statutory regime in relation to conditional discharges and requires an offender to be explained to by the Court the ramifications, although I do note there is authority that says that that job can be given to me, as it were.
53. LORD JUSTICE MOSES: I will give that job to you and to Mr English for Mr Dale.
54. MISS SIKAND: My Lord, the other point is the Registrar granted me legal aid for the purposes of leave alone.
55. LORD JUSTICE MOSES: You can have whatever legal aid that can be properly assessed for the whole hearing. So can Mr English.
56. MISS SIKAND: Just in case there is an applicant -- now, an appellant who wishes to -- I am mindful one applicant, Stuart Barnes, who had indicated to me that he had finished his community penalty and was concerned about the ramifications of conditional discharge. I indicated to the Court I had not been able to explain to him in full what that would mean.
57. LORD JUSTICE MOSES: I am wondering whether it is right now he has done the 80 hours also to impose a conditional discharge. Should they not be absolutely discharged?
58. MR ENGLISH: Can briefly say that is a point that very much occurred to me.
59. LORD JUSTICE MOSES: Otherwise they are doing two different -- because he has now 12 months when he could be brought back to court.
60. MR ENGLISH: My Lord, with respect, as of course your Lordship readily recognise when a sentence is rectified on appeal it will be taken into account if the sentence is being carried. So, for example, a case that received custody it might be dealt with by way of conditional discharge because some months have been served. In my respectful submission in this case, the right remedy is an absolute discharge, in my respectful submission. They have done the 80 hours certainly in the case of Mr Dale.
61. LORD JUSTICE MOSES: Who else? Mr Dale?
62. MISS SIKAND: Not everybody has done the hours. Stuart Barnes has done now 73. Damien Brown 70. Thomas Dale 80.
63. LORD JUSTICE MOSES: This is all a bit academic though. I mean they are not going to interfere with the railways in the next 12 weeks.
64. MISS SIKAND: My Lord, the point -- it may well be academic. For example, if those who are subject to conditional discharge were to be arrested for a further offence and in the course of the 12 months of course the court who has to consider resentencing for the original offence will verify the fact that they have completed or done a large part of the community penalty.
65. LORD JUSTICE MOSES: That is the point. Is there anything else you want to say?
66. MR ENGLISH: Could I just briefly say on that point, in my submission it is relevant for example that Thomas Dale, he has done the whole of the 80 hours. I recall Miss Hawkins has done 19. He has done substantially more. I do respectfully urge upon you an absolute discharge.
(Short Adjournment)
67. LORD JUSTICE MOSES: The point has been raised that some of these applicants have either performed all or a substantial part of the community penalty. The question therefore has arisen as to whether it is appropriate to give a conditional discharge for 12 months. We take the view that it is, because if they were to commit a further offence then the Court would be bound to take into account that they have served all or most of the penalty that had originally been imposed. So, if they are foolish enough to break the law again, it will be taken into account. We make no alteration to the orders on the appeal we have already made.
68. MISS SIKAND: Just to clarify that the 12 months begins today.
69. LORD JUSTICE MOSES: No, it begins--
70. MISS SIKAND: At the time--
71. LORD JUSTICE MOSES: You will have to look up the law on that but since I am not paid to give advice.
72. MISS SIKAND: I will tell the way in which--
73. LORD JUSTICE MOSES: I should have thought it was from the time of the original sentence.
74. MISS SIKAND: It is from the date of the order, the order being the order of the court.
75. LORD JUSTICE MOSES: Then it is from today. They better behave themselves for another 12 months.