England and Wales High Court (Administrative Court) Decisions

IN THE SUPREME COURT OF JUDICATURE
DIVISIONAL COURT
ON APPEAL FROM THE DONCASTER MAGISTRATES COURT
(YOUTH PANEL)

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 May 2003

Lord Justice Scott Baker:

1. There is before the court an appeal by why of case stated from a decision of the Youth Panel of the Doncaster Magistrates Court on 28 February 2002 when Andrew Stewart was convicted of failing to comply with the terms of a detention and training order contrary to section 104 of the Powers of Criminal Courts (Sentencing) Act 2000 (the 2000 Act).
2. He had first been before the Doncaster Juvenile Court on 6 February 2001 when he was convicted of four offences. These were:

Burglary committed on 3 February 2001.

Theft committed on 11 January 2001.

Theft committed on 17 January 2001.

Possession of a Class A drug committed on 17 January 2001.

3. For the burglary he was sentenced to a detention and training order of 18 months and for each of the other three offences he was sentenced to detention and training orders of 4 months. They were all to run concurrently.
4. He released from detention 5 November 2001 and the supervising period of the 18 months detention and training order was due to expire on 5 August 2002.
5. The basis of his conviction on 28 February 2002 was that he had failed on four occasions to report as instructed to the Youth Offending Team and had failed to reside where directed by that team. The four occasions of failure to report were on 4,11,18 and 25 February 2002. His sentence was a recall to serve 13 weeks detention. This was passed on 1 October 2002. The appeal is academic in the sense that between February and October 2002 the appellant had appeared in the Crown Court on other charges and been sentenced to 4 years detention. The appeal does, however, highlight a number of difficulties or irregularities with which it is necessary to deal.
6. Section 100(3) of the 2000 Act provides that:

"A detention and training order is an order that the offender in respect of whom it is made shall be subject, for the term specified in the order, to a period of detention and training followed by a period of supervision."

7. A detention and training order therefore has two elements, the detention and training element and the supervision element.
8. Where, as happened here on 6 February 2001, several orders are made on the same occasion the effect of section 101(13) is that they are to be treated as a single term. Thus the practical effect in the appellant's case is that he was the subject of a single detention and training order of 18 months.
9. Section 103 deals with the period of supervision. Section 103(1) provides:

"The period of supervision of an offender who is subject to a detention and training order ...

(a) shall begin with the offender's release, whether at the half-way point of the term of the order or otherwise; and

(b) subject to subsection (2) below, shall end when the term of the order ends."

Section 103(6) provides:

"The offender shall be given a notice from the Secretary of State specifying –

(a) the category of person for the time being responsible for his supervision; and

(b) any requirements with which he must for the time being comply."

And section 103(7):

"A notice under subsection (6) above shall be given to the offender –

(a) before the commencement of the period of supervision; and

(b) before any alteration in the matters specified in subsection 6(a) or (b) above comes into effect."

10. Prosecuting counsel sought, on the day of the hearing, to amend the information so as to delete a number of occasions of failure to report and to add the allegation of failing to reside where directed by the Youth Offending Team. There was no objection.

The justices recite in the case:

"After carefully considering all of the evidence presented to us, we found the case proved."

11. The memorandum of conviction for 28 February 2002 records four offences; one for each of the four detention and training orders. But in each case the conduct constituting the offence is the same namely the four failures to report and failure to reside where directed. This is plainly an error and should be rectified. First, the information relates to one detention and training order only; second, the justices proceeded on that basis; third, section 101(13) of the Act requires the four orders to be treated as a single term; and fourth, the four month orders would by the time the offence(s) were committed on any view have run their course. What mattered was whether the appellant was in breach of a detention and training order lawfully made, not the particular grounds for having made it in the first place.
12. The next issue is whether the information was bad for duplicity containing, as alleged by Mr Nicholas Dean Q.C., for the appellant, not one but five offences. Rule 12(1) of the Magistrates Court Rules 1981 provides that, subject to any Act passed after 2 October 1848, a Magistrates Court shall not proceed to the trial of an information that charges more than one offence. Rule 12(3) provides that if it appears to the court at any stage of the trial that the information charges more than one offence, the court shall call upon the prosecutor to elect on which offence he desires the court to proceed and the court shall then try that information afresh with the others struck out.
13. Sometimes it is difficult to distinguish between separate offences on the one hand and different features of committing the same offence on the other. In the present case, as it seems to me, there were two quite separate licence conditions of which the appellant was in breach. These were failing to keep in touch with his supervising officer and failing to live at the address approved by his supervising officer. These were two separate offences that should not have been tried on the same information. The court should have put the prosecutor to his election under Rule 12(3). Whichever he elected would have than been tried afresh with the other struck out. Alternatively, the court could have proceeded with two separate informations in the first place. However, no possible prejudice can have been occasioned to the appellant in this case. It cannot have made any difference to the penalty imposed and he is in any event serving a substantial period in detention for quite separate offences.
14. As to failing to report on four occasions, this seems to me simply to be the manifestation of the appellant's failure to keep in touch with his supervising officer. It would be entirely artificial to split this up into four quite separate offences. Failure to turn up once might be overlooked, or there might be an explanation for it. It is, however, the persistent failure here that conveyed the message of a failure to keep in touch.
15. The next point is whether direct evidence of proof of service of the notice on the appellant under 103(7) is required. There was no direct evidence that the appellant had been served with it. Section 103(7) does not specify any particular formality. It simply says that notice under subsection (6) must be given to the offender before the commencement of the period of supervision. There was, in this case, the clearest possible inference that the subsection had been complied with because the appellant turned up at the appropriate time and place for his first supervision appointment. Furthermore, Ms Topliss gave evidence about the standard procedure as to notification of offenders when released on supervision. The justices were, in my opinion fully entitled to infer from this evidence that the appellant had indeed been notified of the requirements with which he was required to comply.
16. The justices found that Ms Topliss gave credible evidence of the appellant's breaches. She was not present when he was released from detention but she was present at his first supervision session and gave him his appointments there after which included every Friday and every Monday from 1 February 2002. The log that was kept showed no attendance by the appellant on any date in February 2002. She produced the log. As to residence, her evidence was that: "The Youth Offending Team have directed (the appellant) to reside at Sunshine Guest House as part of his licensed terms. (The appellant) is unhappy to stay there. (The appellant) has not stayed where he has been ordered to stay." Ms Topliss made it plain that she personally did not complete the log; that was the job of the administration. However, her evidence about the contents of the log seems to me to fall within section 24(1) of the Criminal Justice Act 1988. When somebody was required to attend but did not, a red star was put in the log. She had no reason to believe the log was not accurate.
17. The justices found that the appellant was told to reside at a specific address but failed to do so. The evidence is unclear who told him and whether Ms Topliss' evidence on this was hearsay. The fact that she said he was unhappy about staying there suggests he may have told her this, in which case an inference could properly be drawn that he was indeed told he was required to live there. In the event, the point is of little consequence. There was a plain and continuing breach in failing to report.
18. For the future, however, it seems to me desirable that when an offender is given a notice under section 103(7) he should be asked to sign a copy so that there can be no dispute that he has been given it. Also, where a failure is alleged of a requirement to comply with a specific order such as to live at a specified address or attend on a specific occasion, the person who gave the order should, if it is disputed, be at court to give evidence about it.
19. As to the questions posed in the case, I would answer them in this way:

1. The information alleges breach of one detention and training order of 18 months which reflects the effect of section 101(13) of the 2000 Act. The memorandum of conviction is wrong because it suggests conviction for four different offences reflecting detention and training orders. The memorandum should be rectified to reflect the true position as set out in the information. There is, however, a different point about duplication, not taken at the trial. This could, however, have easily been rectified and in the event caused no injustice to the appellant.

2. Proof of service under section 103(7) of the 2000 Act is required. Proof by inference, as in the present case, is sufficient.

3. (i) Terms of the supervision requirements of which breach is alleged have to be proved, and were proved in the present case.

(ii) Ms Topliss was entitled to give evidence about the terms of the licence.

(iii) It was not, in the circumstances of the case, necessary for the actual licence to be produced. Ordinarily it would be preferable to do so.

(iv)The fact that Ms Topliss was unable to give direct evidence of service of a notice under section 103(7) of the 2000 Act was not fatal.

4. Ms Topliss' evidence about the log book was appropriately admitted under section 24(1) of the C.J.A. 1988.

5. Hearsay evidence that the appellant had not resided at the required address would not ordinarily be admissible. If, the evidence of Ms Topliss was that the appellant had by inference told her that he was not living at the Sunshine Guest House that would be sufficient.

6. The court was right to convict the appellant.

I would accordingly dismiss the appeal.

Mr Justice Newman: I agree.

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LORD JUSTICE SCOTT BAKER: For the reasons given in the judgment that has been handed down, this appeal is dismissed.