England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		7th October 2014

1. MRS JUSTICE ELISABETH LAING: These are renewed applications for leave to appeal against sentence after refusal by the single judge. Knight also applies for an extension of time. Counsel for Knight and Hall have appeared pro bono, that is Mr Hingston and Mr Draycott, and we are grateful for that.
2. We grant leave to appeal and the necessary extension of time and we also grant legal aid.
3. On 23rd August 2012 in the Crown Court sitting at Inner London the applicants pleaded guilty to five offences (counts 3 to 7), which related to a conspiracy to commit armed robberies on banks and/or building societies in the South London area in the period between February 2011 and February 2012 ("the new conspiracy"). On 10th October 2012, in the same court, they pleaded guilty on re-arraignment to two counts (counts 1 and 2) in respect of an older conspiracy between 2005 and 2010 ("the old conspiracy"). Hall also pleaded guilty to two substantive offences committed in 2000 (counts 8 and 9). His Honour Judge Bishop sentenced the applicants for these offences on 2nd November 2012 and after a sentence variation hearing to correct an administrative error, pursuant to section 155 of the Powers of the Criminal Courts (Sentencing) Act 2000, in respect of counts 6 and 7, their sentences were as follows. In respect of all of applicants count 1, conspiracy to rob, 20 years' imprisonment. This was reduced to seventeen-and-a-half years on an appeal, on 30th April 2013. Count 2, conspiracy to have an imitation firearm with intent, 20 years' imprisonment concurrent, also reduced to seventeen-and-a-half years, on appeal on 30th April 2013. Count 3, conspiracy to rob, 12 years' imprisonment concurrent. Counts 4 and 5, having a firearm with intent, contrary to section 18(1) of the Firearms Act 1968, 12 years' imprisonment concurrent. Count 6, possessing ammunition without a firearms certificate, contrary to section 1 of the Firearms Act 1968, 32 months' imprisonment concurrent. Count 7, possessing a prohibited firearm, contrary to section 5(1)(b) of the Firearms Act 1968, 40 months' imprisonment concurrent. In respect of Hall only, count 8, robbery, 2 years' imprisonment consecutive. Count 9, having an imitation firearm with intent, contrary to section 18(1) of the Firearms Act 1968, 2 years' imprisonment concurrent.
4. Taking into account therefore the decision of this court on the appeal the total sentence were as follows. For Hall, nineteen-and-a-half years' imprisonment. For Wynne, seventeen-and-a-half years' imprisonment and for Knight, seventeen-and-half years' imprisonment. Orders were made pursuant to section 52(1) of the Firearms Act 1968 for the forfeiture and disposal of the relevant firearms and ammunition. On 14th February 2014 in the Crown Court at Inner London His Honour Judge Bishop made confiscation orders pursuant to the Proceeds of Crime Act 2000 without any opposition. On 14th March 2014, at the same court, His Honour Judge Bishop imposed on the applicants serious crime prevention orders ("SCPOs") for a period of 5 years from their release from prison pursuant to sections 1 and 19 of the Serious Crime Act 2007. We say more about the terms of these orders in due course.
5. The facts of these offences were that the appellants conspired to commit armed robberies in which they attacked cash-in-transit security cars at bank premises as they were making cash deliveries. The offences were committed at night by masked intruders who had either broken into the back of premises and lain in wait for the guards or had attacked the front door and entered while the guards were already there filling the automatic teller machines ("ATMs"). The offenders were armed on each occasion with handguns. In the case of the old conspiracy it was accepted that these were imitation firearms. On one occasion there was a knife. The guards were told to comply and were threatened with violence if they did not do so. The robbers were equipped with an angle grinder or hammer to open the ATMs. The guards were detained at gun point and restrained if necessary with cable ties. They were then either made to open the bars securing the cassettes containing the cash, or the robbers cut them open themselves with an angle grinder. The applicants then made off with the proceeds, amounting to as much as £130,000 on a single occasion.
6. The first incident concerned the applicant, Hall, only. On 4th August 2000 two men robbed the Abbey National branch in Hendon. They were wearing disguises and a mask. One held a handgun. They emerged from the back of the premises and overcame the guards delivering the cash, again to an ATM. Threats were made. One of the guards was grabbed and forced to the ground. The police found a stolen van opposite the bank with holes drilled in the side to permit observation. £67,000 was stolen. The getaway vehicle was boxed into an alleyway and smashed its way out destroying a motorbike in the presence of its owner. The security guard had been terrified and believed he was going to be shot or hurt.
7. Five incidents were included in the old conspiracy. They happened between 26th April 2005 and 28th April 2010, in Beckenham, Wallington and West Wickham. Large sums of cash were successfully stolen, £448,000 in total. The incidents had an adverse effect on the guards, some of whom were victims of the gang more than once. As a result a number of them had to leave their jobs, as their victim impact statements describe.
8. The new conspiracy consisted of offences planned between 10th February 2011 and 16th February 2012. The applicants had been under surveillance by the police and were arrested after an abortive attempt to rob a bank in North Cheam. Reconnaissance had been carried out over many months by the conspirators at that bank and at seven other banks across South London. Vehicles had been stolen and carefully stored so that they could be changed during the escape. A number plate machine had been obtained together with software to help disguise the vehicles.
9. All three men had been in the same vehicle that night and the police recovered tools and equipment from the car and from their homes showing the comprehensive planning of, and preparation for, the robberies. Also recovered were cable ties that could be linked to offences in the old conspiracy. Loaded firearms and other weapons were recovered from the men together with gloves and balaclavas.
10. Each appellant submitted a written basis of plea.
11. Hall, now aged 50, had 16 convictions between 1979 and 1984, largely for burglary and theft. Wynne, now aged 50, had six convictions between 1989 and 1995, including a conviction for wounding, contrary to section 20 of the Offences Against the Person Act 1861, an offence committed in 1991. Knight, now aged 52, had 24 convictions between 1997 and 1994, largely for offences of dishonesty. None of the appellants had convictions for robbery or firearms offences of the kind with which the court is now concerned.
12. Pre-sentence reports were before the court in respect of each of the appellants. The only significant feature of note is that each report identified limited insight into the offences and their consequences and all the reports stated that there was a significant risk of harm to the public from further offending.
13. Giving his reasons for making the SCPO the judge found that the items recovered on the appellants' arrest, and from their homes, showed that they had taken part in a long-standing and well-equipped conspiracy and they would have continued their campaign for some time. The judge found that they were dangerous within the meaning of the Criminal Justice Act 2003. Nevertheless he imposed determinate sentences. He gave particular weight to the use of firearms, cutting equipment and communication devices, to the degree of planning, to their use of vehicles and to the length of the offending.
14. The orders were made on application by the prosecution under the Serious Crime Act 2007. The restrictions in the draft orders proposed by the prosecution included the following. In essence all the restrictions require various matters to be notified for the entity responsible for managing risk. So far as communication devices were concerned, possession was limited to one mobile phone, one computer with access to e-mail and land-line phone at each home and place of work and restricting the use of electronic devices. There were restrictions without notification in relation to vehicles, ownership and the regulation of car hire. Requirements to business interests and ownership of premises were also included, and a prohibition on association with other defendants. There were also restrictions, without notifying the police, on the ownership of metal cutting equipment such as chainsaws, angle grinders and bolt cutters, of portable hydraulic equipment, such as hydraulic car body repair kits, of registration number making equipment and anti-surveillance equipment and a restriction on proximity to banking premises at night for longer than 15 minutes while in charge of a motor vehicle.
15. The defence submissions before the judge were firstly that the order was unnecessary. It was argued that the defendants were not young men. They would be in their mid to late 50s on release and subject to long licences. Future risk would be best assessed by the probation service on release. Second, the period of the order would be less than their licence period on release. The SCPOs were in that situation virtually redundant and added nothing to the licensing regime. Third, changes in technology might mean that the orders did not adequately refer to the facilities which might be available on release, and fourthly, the terms were disproportionate and lacked clarity.
16. Having reminded himself of the statutory basis for making a SCPO and the authority of R v Hancox and Duffy [2010] Cr App R(S) 74, the judge was quite satisfied, because of the lengthy serious offending, that there were reasonable grounds to believe that a SCPO would protect the public by preventing, restricting and disrupting involvement of the appellants in serious crime. He was assessing future risk. He was satisfied that there was a real or substantial risk that the appellants would commit further serious crime when released and that an appropriate SCPO would be proportionate to prevent, disrupt and restrict their involvement in serious crime. He was satisfied as to risk, he said, both to the civil and to the criminal standard.
17. He was fortified in that assessment, he said, by the clearly expressed desire of all three defendants to be allowed cutting equipment on release, albeit they had submitted that it would only be for work purposes. The purposes for which such equipment had been used in the past:

"Lead me to a high degree of concern as to the risk they would pose in future should they have access to such equipment on release."

18. With the exception of the restriction on association with one another, and the requirement for notification of business interests and ownership of premises, he held that the provisions of the draft order, with minor amendment were proportionate and were clear, certain and precise. He had already set out an amendment to the draft dealing with metal- cutting equipment. He was not satisfied that the restriction on association was proportionate. He pointed out that the SCPO was not a punishment. The defendants all knew one another, as did their families. They would no doubt have contact in the prison estate. He considered that the risk from association would be better judged by the probation service at the time of release. The order as made contained no restrictions on the ownership of premises or on associating with the other defendants.
19. The Registrar has helpfully reminded us of our powers on an appeal such as this. They are conferred by the Serious Crime Act 2007 (Appeals under section 24) Order 2008 (SI 2008 No 1863). By Article 4(1) the court is limited to a review of the decision of the Crown Court unless it considers that it would be in the interests of justice to hold a rehearing.
20. This court will allow an appeal where the decision of the Crown Court was (a) wrong or (b) unjust because of a serious procedural or other irregularity in the procedures in the Crown Court (Article 4(2)). We therefore have to consider whether the decision was wrong or procedurally unjust. It is not suggested that the procedure was irregular or unfair, so we restrict ourselves to asking whether the order was wrong. By Article 5(1) the Court of Appeal has all the powers of the Crown Court. Article 5(2) sets out what those powers are.
21. All three sets of grounds of appeal have been settled by counsel. In the grounds of appeal in outline it is submitted on behalf of each that in the context of the length of the sentences being served, the respective ages of the appellants, the significant change in risk to the public over the period and the likely licence conditions to be imposed on their release there were no reasonable grounds for making an SCPO. Section 19(2) of the Serious Crime Act 2007 was not satisfied.
22. In the alternative it is submitted that the terms of the SCPOs was disproportionate, unreasonable, unnecessary or unworkable and lacked certainty so as to be defective. Complaint was made in particular about clause 1 which deals with communication devices, clause 2 which deals with vehicles, clauses 6 and 7 which deal with cutting and hydraulic equipment and clause 10 which deals with proximity to banking premises.
23. The law set out in Hancox and Duffy was at the forefront of the judge's mind. In short, these orders are preventive. The relevant power is conferred by section 19 of the Serious Crime Act 2007. Three conditions must be met:

(i) The defendant must have been convicted of a serious offence. That this is met is not disputed.

(ii) The application must be made among others by the Director of Public Prosecutions. It is not disputed that the application was made by the right person.

(iii) The court must have reasonable grounds to believe an order would protect the public by pre-preventing, restricting or disrupting the involvement of the defendant in serious crime.

24. The Crown Court has no power to vary an order once made but the High Court does have such a power if a change in circumstances is shown. Breach of an order once made is a criminal offence, with a maximum sentence on conviction of 5 years' imprisonment.
25. Proceedings for an order are civil proceedings (section 36). The court is not limited to evidence which would have been admissible on a criminal prosecution. The standard of proof is the civil standard. The central issue on an application for such an order, that is whether there are such reasonable grounds, is not one of disputed fact but of judgment and assessment of future risk.
26. There must be "a real or significant risk (not a bare possibility) that the defendant will commit further serious offences" (per Hughes LJ, as he then was, giving the judgment of this court in Hancox, at paragraph 9). If an order is made it may contain such provisions as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting the involvement of the defendant in serious crime.
27. The terms of such orders must be proportionate because they are likely to engage the qualified rights of defendants, recognised by Article 8 of the European Convention on Human Rights, to respect for their private and family lives, their homes and correspondence. As Hughes LJ put in paragraph 10 of Hancox:

"... the interference which it will create with the defendant's freedom of action must be justified by the benefit; the provisions of the order must be commensurate with the risk."

To put it another way the order must go no further than is reasonably necessary to guard against the risk.

28. Two further points emerge from Hancox. First, orders must be expressed in terms from which the defendant and any person enforcing the order can readily know what the defendant may or may not do - see paragraph 11 of Hancox. Second, orders must not be imposed as a form of punishment. They may only be made if the conditions we have just described are met.
29. We have considered the grounds of appeal and counsel's oral arguments with care. The first point we would make is that we are satisfied that the judge understood the statutory provisions and properly applied the statutory test. There was no error of law in his overall approach. He was well aware that the orders should be based on an assessment of future risk and that they should be clear and proportionate.
30. The applicants were all professional armed robbers in their early 50s. They will not by any means be old men by current standards on their release. As background the judge had been satisfied the statutory test of dangerousness in the 2003 Criminal Justice Act was met . The focus of that test is a significant risk of serious harm from the commission of certain types of offences. The appellants had committed a string of well-planned, equipped and organised offences over a long period. The commission of those offences required access to the types of assets such as vehicle, cutting gear and communications equipment which are the subject of the orders. The judge made a nuanced assessment of proportionality and as a result did not include any restrictions in the orders on association.
31. The first submission in principle which is made both by Mr Draycott and Mr Hingston is that the orders were not necessary. The essential basis for this submission, Mr Draycott realistically submits, is not that there is no risk from these appellants, but that the existing licence regime would manage that risk on release better than would the SCPO regime and, that being the case, the provisions of the the SCPO were not necessary.
32. We consider that Parliament's view must have been that this regime added to the licence regime otherwise it would not have been enacted. It is a different regime from the licence regime. There are different methods of enforcement and different sanctions. We consider that the sentencing judge is in a uniquely good position to assess what measures are likely to meet the statutory aim of preventing serious crime. We do not accept in principle that the fact that there could be licence provisions when these appellants are released and that licence provisions might last for longer than would the provisions of the SCPO means that as a matter of principle the judge was wrong to make a SCPO. This submission, if right, would mean there could never be a lawful SCPO where the length of the licence on an offender's release would exceed the length of the SCPO. We reject that submission. We consider, given the facts of these offences, that as a matter of principle the judge was right to make SCPOs in these cases.
33. We turn to the drafting of the SCPOs. It seems to us that there is some force in the criticisms that have been made of the drafting of these orders in these cases. The language is very broad and it appears to us perhaps that the orders may not have been drafted by a Chancery draftsman. We give just a couple of examples: the restriction on being near bank premises at night might, we think at the moment, prevent one of the appellants from going to a cinema in a town centre at night, parking his car in a car park that is within 100 metres of a bank and then having an evening's entertainment. Another example given in the course of oral submissions is that the current drafting might catch the presence of one of the appellants on a coach to Margate. There are various potential problems that we can see with the drafting of the provisions about communications devices. That is why we have decided to give the appellants and the prosecution an opportunity to make written submissions about the terms of these orders. We will then consider those as my Lord, the President, has just described.
34. PRESIDENT OF THE QUEEN'S BENCH DIVISION: In the circumstances leave to appeal against sentence is granted. A representation order is granted in relation to each applicant. Mr Wynne, who presently does not have a legal representative appearing for him, may choose between the two who are in the case - it is unnecessary for a third representation order to be granted to separate counsel. He must have the opportunity to make oral representations if he requires them. We anticipate he can add nothing to that which has been said and it will be sufficient for him to permit whoever represents him to engage upon the drafting exercise to which my Lady has referred.
35. We order that within 14 days the appellants redraft the serious crime prevention order to avoid the unintended consequences which have been identified while preserving the spirit of and behind these orders. The Crown may have 28 days thereafter to respond in writing, with the appellants to have 14 days after that to reply to the Crown's response. Subject only to Mr Wynne seeking to make oral representations, which we would not encourage for the reasons we have identified. We will determine what the other should be in writing and then hand down the new order.
36. MR DRAYCOTT: I am grateful.
37. PRESIDENT OF THE QUEEN'S BENCH DIVISION: Does that work?
38. MR DRAYCOTT: My Lord yes.
39. MR HINGSTON: There was one further application on behalf of Mr Knight, an extension of time. It is a mere formality.
40. PRESIDENT OF THE QUEEN'S BENCH DIVISION: The extension of time is granted.