England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		23 November 2006

1. LORD JUSTICE KEENE: I shall ask Lloyd Jones J to give the first judgment.
2. MR JUSTICE LLOYD JONES: This is an appeal by way of case stated by the Director of Public Prosecutions against a decision of the Newham Magistrates' Court made on 20 January 2006. On 23 December 2005, the respondent, Mr Russell Clutterbuck, was convicted following a trial before the Newham Magistrates' Court of an offence, contrary to section 3 of the Sexual Offences Act 2003. Sentence was adjourned for the preparation of a pre-sentence report by the probation services. The matter came back before the magistrates on the morning of 20 January 2006.
3. The submissions that were made to the court at that hearing are set out in the case stated:

"7. It was contended during the respondent's plea in mitigation, made by the respondent's lawyer, that in determining sentence we should not impose a Community Order that would cause him to become subject to registration as a sex offender within the terms of the Sexual Offences Act 2003.

8. It was contended by the appellant, in light of the respondent's lawyer's contention above, and our response to the respondent's lawyer that we were of a similar view, that it would be improper to impose a sentence that had the effect of abrogating the legislative scheme created by Parliament for the registration of sex offenders under the scheme of the Sexual Offences Act 2003.In support of this contention it was further submitted that the Court of Appeal had held in the case of a judge sitting at the Crown Court that he had been wrong to reduce a sentence allowing the offender in that case to be the subject of a shorter period of registration than otherwise should have been the case. AG's Reference (No 50 of 1997) R v V 1998 2 Cr App R(S) 155. Thus, it would be wrong to order a period of less than 12 months that had the effect of avoiding the terms of the legislation concerned as had been requested by the respondent.

9. It was contended by the duty Probation Officer that to enable the Sex Offender Groupwork Programme to be provided to, and undertaken, by the respondent a Community Order longer than 12 months had been requested in the Pre-sentence Report. An order not less than 12 months, rather than 11 months, would be preferable to enable the requirement be completed.

10. We were advised that the administrative consequences of a sentence are separate from, and should not be considered by any court when determining sentence, whether that be in respect of the administrative consequences provided for by statute, for example, in respect of early release in respect of custodial sentences on, as in this matter, the administrative consequences that follow under the scheme of the Sexual Offences Act 2003 for registration of sex offenders as contended by the appellant above.

11. We were also advised, as a result of the indication that the respondent had become homeless since his conviction, that we may wish to consider whether a Probation Hostel requirement might also be included in the Community Order, we might make."

The case stated records the mental processes of the bench in the following terms:

"13. We were initially of the opinion, having read the pre-sentence report before coming into court that we would not go below a 12 months order, and gave an indication that we were considering an order of less than the three years sought in the Pre-sentence Re port when in court with the parties before us.

14. Having, considered the contentions of the parties, and the duty Probation Officer, and the legal advice proffered by our Legal Adviser, we were of the opinion that a Community Order for three years would be too long and excessive in all the circumstances of this case. We determined that the appropriate length of the Community Order would be for 11 months. This was having had regard to the respondent being of previous good character, and the impact on his life as a result of the offence which had already been substantial … and the facts of the case itself before us. Our thinking being to mark how close he was to a longer Community Order, not to keep it below the threshold for registration under the administrative consequences of the Sexual Offences Act 2003.

15. Further, we were of the opinion that due to the lack of means and circumstances of the respondent, that it was not appropriate to order compensation to the victim, or order costs to the appellant."

4. Accordingly, the magistrates imposed upon the respondent a community order for 11 months with the requirements that he be under the supervision of the probation services for the term of the order and that he attend the Sex Offenders Groupwork Programme during the currency of the order. However, the matter did not end there. There were further developments with the result that the case was re-listed for further hearing before the same bench that afternoon. Again I quote from the case stated:

"As a result of representations made out of court by the duty Senior Probation Officer that a longer Community Order, than we had imposed, would be necessary to ensure that there was adequate time to perform the Sex Offenders Groupwork Programme. The case was re-listed to come before us immediately to reconsider sentence without any delay during the afternoon with the respondent returning to Court and being present."

5. At that further hearing the submissions, which were made, are summarised in the case stated:

"It was contended by the duty Senior Probation Officer that the Groupwork Programme could not be completed within 11 months as it requires at least 24 months to be provided and undertaken. It would be preferable for there to be a Community Order for three years, or for a minimum of two years, during which it would be much more likely that the Programme requirement could be provided and completed. The Officer referred to the "Community Sex Offender Groupwork Programme Leaflet for Offenders" and a "LPA Accredited Programmes Table" explaining the extensive time and work that is required to be undertaken during the course of the programme. It was further explained that there was a waiting list of some length such that 11 months was wholly insufficient. These documents had not been before us until the afternoon and the duty Senior Probation Officer apologised for this.

It was contended by the respondent's lawyer that, as we had considered what the appropriate length of the Community Order should be and decided that it would be for only 11 months, it would be improper for us to extend the order as suggested by the Duty Senior Probation Officer. In respect of undertaking the Sex Offender Groupwork Programme itself, that as we had mooted ourselves, we had the option of rescinding that requirement. Further, we should not reconsider whether a Probation Hostel requirement might be added to the Community Order, as this point had been raised before us when dealing with the respondent in the morning, and we had sentenced him without imposing such a requirement, which we must have then considered.

It was contended by the appellant that:

(i) We should not remove the Sex Offenders Groupwork Programme requirement from the Community Order as we must have found it to be an appropriate requirement of the Community Order when we had imposed it that morning, and

(ii) The term of the Community Order should be extended to enable the Sex Offenders Groupwork Programme to be completed as a result of the duty Senior Probation Officer's observations that without a longer Order the purpose of including the requirement in the Order would more likely than not be defeated."

The magistrates then came to the following conclusions:

"21. Having, had again regard to the appropriate length of the Community Order as a restriction on the liberty of the respondent, with due consideration of the facts and circumstances of the case, the respondents previous good character, and the contents of the pre-sentence report. We stated in open Court that we were of the opinion that a Community Order with a term of six or nine months could have been as appropriate as that of our decision to impose an Order for 11 months.

22. We accordingly declined to vary the Community Order made by us further stating in open court that the Probation Service were to now ensure that the Sex Offenders Groupwork Programme is provided to, and completed by, the respondent within the 11 months given."

6. Following a request by the Director of Public Prosecutions the magistrates have stated a case referring the following questions for the opinion of the High Court:

"(i) In light of the Crown's representations in the morning, regarding how we should approach sentencing, was our decision to impose a Community Order less than 12 months correct in law; and

(ii) In light of the duty Senior Probation Officer's representations in the afternoon, that we should reconsider the length of the Community Order to enable Sex Offenders Groupwork Programme be completed, was our decision not to extend the Order correct in law."

7. It will be recalled that the case stated reveals that before they went into court in the morning the magistrates held a preliminary view that they would not go below a 12-month community order. In court they heard various submissions, including a submission made on behalf of the respondent that they should not impose a community order which would cause the respondent to become subject to registration as a sex offender under the Sexual offences Act 2003. However the prosecution then referred the magistrates to the decision of the Criminal Division of the Court of Appeal in the Attorney General's Reference (No 50 of 1997). In that case the judge had indicated in his sentencing remarks that if he imposed a sentence of nine months' imprisonment, which he considered the appropriate sentence, the offender would have to register for ten years which in the judge's view was too long. Accordingly, he imposed a sentence of six months' imprisonment so that the offender would have to register for only seven years. The Criminal Division of the Court of Appeal considered that the judge had been wrong to reduce the sentence for the reason he gave.
8. In the present case the magistrates record in the case stated their understanding of the effect of that decision. They clearly understood that it would be wrong to make a community order for less than 12 months for the purpose of avoiding the requirement of registration as had been suggested on behalf of the respondent. They also record that they were advised by their clerk that such consequences of a sentence should not be considered by the court when determining sentence.
9. In paragraph 14 of the case stated, which I have already quoted, the magistrates make clear the reasoning that led them to the sentence they imposed. It was based on the seriousness of the offence and the circumstances of the offender. All of the considerations which they took into account were relevant. They state that they arrived at the term of 11 months in order to mark how close the respondent was to a longer community order and not to keep it below the threshold for registration as a sex offender under the Sexual Offences Act 2003. It does not appear from the case stated that considerations relating to the registration under that Act played any part in the further submissions or deliberations which occurred during further hearing in the afternoon.
10. Mr Graham Brown, who appears before us for the Director of Public Prosecutions, has not advanced any ground on which it could be said that the decision of the magistrates in this regard was unlawful.
11. The case stated makes clear that at the further hearing the duty senior probation officer sought to persuade the magistrates that they should increase the sentence to a community order for three years or for a minimum of two years. He was supported in this by the prosecution. It is of course entirely appropriate for a duty probation officer to assist the court by indicating the nature, availability and duration of a particular programme which the magistrates may be minded to order the offender to undertake. To that extent, it was appropriate for the senior probation officer to raise these matters with the bench.
12. The magistrates declined to vary the order. On behalf of the appellant on this appeal it is submitted that:

"there appears to be no rational reason why the justices should choose to stay with the period of 11 months for the length of the order"

and that:

"it is unreasonable not to reopen the case and impose a period of supervision commensurate with the time required to complete the further requirements that the justices had deemed necessary to be included in the order"

and that:

"the magistrates acted unreasonably in not making the order for longer than 11 months and in not reopening the decision on sentence so as to enable the period of the order to be extended to accommodate the specific requirement they had intended."

So the submission is essentially that no reasonable bench could have come to that conclusion.

13. I consider these submissions to be unarguable. The reason the senior probation officer took his position was that the Groupwork Programme could not be completed within 11 months as it requires at least 24 months to be provided and undertaken. It is apparent from the Community Sex Offender Groupwork Programme leaflet for offenders, which is annexed to the case stated, that first it is undoubtedly an intensive programme; secondly, it may well have been possible to complete the programme within 11 months, but thirdly it is possible that in certain circumstances the completion of the programme could take longer. However, the approach adopted by the senior probation officer also appeared to have been influenced in part by administrative considerations in relation to the ability of the probation service to provide access to the course.
14. There seems therefore to have been a neat reversal of roles in this regard from the positions taken by the prosecution and the defence in relation to the different issue at the morning hearing. It is apparent from the case stated that the magistrates responded entirely properly to the invitation for reconsideration of their decision. They do, of course, have the power to reconsider their decision. However, they decided not to change the sentence they had already imposed.
15. In arriving at this conclusion they were clearly influenced by the following vital considerations: the duration of the restriction on the liberty of the respondent, which a community order constitutes, his previous good character and the contents of the pre-sentence report. Moreover, I consider that they were entitled, in these circumstances, to direct the probation service that it was its responsibility to ensure that the programme was provided and completed by the respondent within the 11-month period.
16. Accordingly I would answer both questions posed as follows: the decision was correct in law in that it was a lawful exercise of the magistrates' discretion. The magistrates directed themselves correctly as to the law, took account of all relevant considerations and did not take account of any irrelevant considerations. For these reasons I would dismiss the appeal.
17. LORD JUSTICE KEENE: I agree. I would only add that nothing that this court has said should encourage justices to pursue the course which was adopted here. Normally it will be sensible for them to accept what they are told by a probation officer about the time required for a sex offender's treatment programme and then to decide, in the light of that advice, whether or not to impose such a requirement. However, the appellant, that is the Director of Public Prosecutions in the present case, has to establish that the justices erred in law in deciding this case as they did.
18. It is accepted that they took into account what the probation officer told them and consequently Mr Brown, on behalf of the appellant, is driven to submit that their decision was perverse, that is to say that it was one which no reasonable bench of justices could have arrived at. That is a very high hurdle to surmount. The justices have to exercise judgment as to the appropriate order and its terms. For the reasons given by my Lord, I take the view that they did not go beyond the generous width of discretion which is available to them in arriving at the appropriate sentence. This appeal is therefore dismissed.
19. Are there any consequential orders that anybody seeks?
20. MR MILNE: As I understand, Mr Clutterbuck has the benefit of legal assistance.
21. LORD JUSTICE KEENE: You want an assessment order?
22. MR MILNE: I would be grateful if that could be granted.
23. LORD JUSTICE KEENE: Yes. Thank you both very much indeed.