England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		29th November 2007

LORD JUSTICE THOMAS:

1. This is an appeal by way of case stated which raises an important issue in relation to the orderly enforcement of community punishment orders. We have been greatly assisted by the provision of clear skeleton arguments by both counsel.
2. On 12th February 2007 the appellant had been convicted of the offence of possessing a knife or bladed article contrary to section 139(1) of the Criminal Justice Act 1988. He was sentenced under section 189 of the Criminal Justice Act 2003 to 3 months' custody, suspended for 12 months, with a supervision period of 12 months and a requirement of doing 100 hours unpaid work. Under the provisions of section 200(1) of the Criminal Justice Act 2003, a provision to which I will return, the appellant was required to perform the number of hours specified at such times as he might be instructed by the responsible officer.
3. After the order was made, the appellant attended an induction appointment with a member of the National Probation Service for the Thames Valley, who was to be the responsible officer within the terms of the legislation. He was given a document, the terms of which have featured heavily in the argument before us, which is headed "Thames Valley Probation Area: Community/Court Order Induction Rules and Conditions". That document was signed by the appellant under the following rubric:

"The above rules have been read out to me, and I have had the opportunity to ask questions about them. I understand the rules and that I must comply with them and any other reasonable instructions that may be given to me. If I fail to do so I understand I can be returned to court for breach. If proved the court may penalise me for breach or can re-sentence me for the original offence(s) (or if I am subject to a Suspended Sentence Order I understand the court may activate the custodial elements of the sentence)."

4. The rules set out were as follows:

"(1) I must attend all appointments under my order at the time and place specified by the instructions I will be given.

(2) While attending an appointment, I must cooperate with these rules and any other reasonable directions given until being permitted to leave . . .

(4) I must notify my supervising officer of any change of employment (or working times) as soon as possible, giving the reason.

(5) If I know I cannot keep an appointment in advance, I must inform my supervising officer as soon as possible, giving the reason.

(6) Every failure to comply with these rules (or any other instructions as part of my order) will be treated as unacceptable, unless my supervising officer decides otherwise. If I believe the failure is acceptable, I must provide the reason and supporting written evidence to my supervising officer, within seven days of the failure, for their consideration. My supervising officer will then decide if it is acceptable."

5. Paragraph 7 deals with medical reasons.

(8) "For an employment reason to be considered as reasonable, I must provide a signed letter on headed paper from my employer stating the hours worked and that the work was compulsory under the contract of my employment. If this reason is given, I give TVPA permission to contact my employer to verify any such absence. Voluntary overtime would not be an acceptable reason for absence."

The rest of the document goes on to deal with other matters which are not relevant to the argument.

6. It is contended on behalf of the National Probation Service of the Thames Valley that the terms of this document were terms they were entitled to impose under section 220 of the Criminal Justice Act 2003 which is a provision to which I will turn.
7. On 1st March 2007 the responsible officer notified the appellant that he was to do unpaid work at a specified location at a specified time on Wednesday 7th March 2007 and every Wednesday thereafter. On that date, the appellant failed to attend for the unpaid work session. The appellant had telephoned and had told the responsible officer that he was attending an appointment for training for a new job. On that day, the Probation Service sent out a letter to the appellant telling him that he needed to provide some evidence of a failure to attend and of a previous failure on 24th February. They gave him until 16th March to comply. On 15th March the responsible officer for the Probation Service received a call from the appellant telling him he had the evidence. On 20th March the officer was again telephoned to say that the appellant would produce the evidence but only at court.
8. On 23rd March 2007 the National Probation Service commenced breach proceedings in respect of the Suspended Sentence Order, first of all relying on his failure to attend on 7th March, and secondly (and for these purposes much more importantly), contending that he failed to keep in touch with the responsible officer by failing to provide the information required to cover the absence on 7th March.
9. The matter came before the Magistrates' Court at Oxford and the appellant pleaded not guilty. On 12th April 2004 the appellant's representative received a letter from the manager of a public house confirming that the appellant had undergone work assessment during 7th March.
10. It was nonetheless contended by the National Probation Service that section 220 of the Criminal Justice Act 2003 provided the basis for the second part of the breach allegations that were made against the appellant.
11. Section 220 of the Act provides as follows:

"Duty of offender to keep in touch with responsible officer

(1) An offender in respect of whom a community order or a suspended sentence order is in force --

(a) must keep in touch with the responsible officer in accordance with such instructions as he may from time to time be given by that officer, and

(b) must notify him of any change of address.

(2) The obligation imposed by subsection (1) is enforceable as if it were a requirement imposed by the order."

12. It is necessary to read that provision with section 198 of the same Act, headed "Duties of responsible officer", which provides:

"Where a relevant order has effect, is it the duty of the responsible officer --

(a) to make any arrangements that are necessary in connection with the requirements imposed by the order,

(b) to promote the offender's compliance with those requirements, and

(c) where appropriate, to take steps to enforce those requirements."

13. It is also necessary to have regard to section 200(1) which provides:

"An offender in respect of whom an unpaid work requirement of a relevant order is in force must perform for the number of hours specified in the order at such times as he may be instructed by the responsible officer."

14. The National Probation Service contend that the requirement to provide evidence in paragraph 6 of the Thames Valley Probation Service Community Order Induction Rules, set out at paragraph 4 above, is a provision that falls within the power under section 220(1)(a) as it is an instruction to keep in touch. They contend that, if it is an instruction to keep in touch within the scope of section 220(1), by virtue of subsection (2) of the same section it becomes enforceable as if it were a requirement imposed by the order; the failure to provide the information as required by paragraph 6 was therefore in itself a breach of the order and would be dealt with as a breach under schedule 12 to the 2003 Act.
15. That contention is and was disputed by the appellant. The appellant simply says that there is no such power. The appellant had in fact kept in touch, and it is for the court to determine on the basis of the evidence whether there had been a breach. The appellant points to the provisions of paragraph 8 of Schedule 12 which provide that it is in essence for the court to determine, to its satisfaction, whether there has been a breach. If there had been a breach, of course, the consequence that followed was that the defendant (as was the case of the appellant in this case) could be punished by the activation of the suspended sentence.
16. That short argument was heard by the Justices at Oxford on 18th May; it had been foreshadowed at a pre-trial review that had taken place on 24th April. The Magistrates considered that the National Probation Service were right. Having made that determination, the appellant then pleaded guilty and a suspended sentence was activated. The appellant asked the Justices to state a case for the opinion of the court in these terms:

"Does an offender the subject of a Suspended Sentence Order made under section 189 of the Criminal Justice Act 2003, which requires that he undertake unpaid work, fail to keep in touch with his responsible officer in accordance with such instructions as he may from time to time be given by that officer, as required by section 220(1)(a) of the Criminal Justice Act 2003, if he fails to provide, as instructed by the responsible officer, documentary evidence explaining a failure to perform unpaid work, within a specified period of time?"

17. It cannot be gainsaid that what the National Probation Service was seeking to do was sensible; indeed that is accepted on behalf of the appellant. First, it is well known that community punishments only have a hope of acceptance by the public as real and effective punishment and an effect on the defendant the subject of such orders, if they are strictly enforced. It has been the intention of successive Acts of Parliament to facilitate speedy and proper enforcement. Indeed, that is one of the purposes of the Criminal Justice Act 2003. Secondly, it is clear that circumstances can arise where there is a reasonable excuse for non-attendance at unpaid work. But it is clear to anyone with experience of community service, and must have been clear to Parliament, that the National Probation Service cannot be expected to rely upon the oral explanation of a defendant for failure to attend. If they were expected to rely on such oral explanations, these orders would be unenforceable. That would be neither in the interests of the defendant, who is expected to benefit from such an order, nor in the interests of the public who expect, as I have said, the orders to be strictly enforced.
18. If a person does not attend and a warning is given and breach action takes place, it is, as Miss Sear, for the National Probation Service, has pointed out, very inconvenient to everyone if the offender can produce at the hearing of a breach action evidence as to why he was not present. She points out that if the offender can do this, lawyers, probation officers, and witnesses may well have to attend unnecessarily at considerable cost; there is also the waste of time of very hard-pressed probation officers together with a waste of scarce resources.
19. There has, therefore, been little dispute that the objectives that Thames Valley Probation Area sought to achieve are laudable and in the interests of making sure that community sentences take effect as Parliament intended. But the question that has been raised in this case is whether that is within the statutory powers conferred by the Criminal Justice Act 2003. In their argument for saying that it is, the National Probation Service relied essentially on the decision of this court, in Boss v Measures [1990] RTR 26. There is another decision to which reference has been made, DPP v Broomfield [2002] EWHC 1962 Admin, but as in that case the single judge who decided it followed the decision in Boss v Measures, it adds little.
20. In Boss v Measures, the question that arose related to the ability of local authorities to enforce parking regulations. They were given power under the Road Traffic Regulation Act 1994 to require the keeper of a vehicle to provide information as to the identity of the driver. The obvious purpose of that was to enable local authorities to enforce breaches of parking regulations. The local authority in question required the information from the keeper to be in writing. The defendant claimed he had given the information orally and challenged the requirement that it should be in writing. The Divisional Court, comprising of Woolf LJ and Saville J (as they then were), held that there was power. At page 31F Woolf LJ said:

"In my view, as the section is silent as to what information can be included in the requirement, whether the requirement be oral or in writing, what Parliament intends is that there should be a power in the requesting authority -- whether it be the police or the local authority -- to include in the requirement reasonable instructions as to the manner in which the information requested is to be provided. There could therefore, and indeed in my view should, be included in the request the information as to whom it is to be provided, where it is to be provided and by what means it is to be provided.

As long as the request is a reasonable request, then it is a lawful one. If it was, however, an unreasonable request, then it would be unlawful and there would be no obligation to comply with it. In that way the position of the citizen who receives the request is capable of being well protected in accordance with what was no doubt Parliament's intention. One can take, for example, a situation where there is a postal strike, when it might be reasonable for a local authority to request information to be provided in a form which was different from that which applied when there was no postal strike. If reasonableness was challenged the court concerned would have to decide itself whether the requirement on the facts of the particular case was a reasonable or unreasonable request.

The position, as I see it, is that by implication there is a power to include a requirement which in the circumstances of the case is a reasonable one."

21. It is the contention of the appellant, in answer to the contentions made on behalf of the National Probation Service that however laudable the requirements of the National Probation Service Thames Valley scheme may be, they simply are not one within the power contained in the Act. The power contained in the Act, as I have set out, is a power to require someone to keep in touch in accordance with instructions as he may from time to time be given. The argument is that the responsible officer can set out reasonable means of keeping a person in touch, but what the responsible officer cannot do is to require ex post facto evidence, the failure of which to provide gives rise to a breach. There is a difference, it is said, between what is done in relation to requiring an offender to keep in touch and what is purportedly done by requiring the provision of evidence after the event. It is submitted that if the Probation Service was to be given that power, that power could only be given under section 222 of the Act which provides for the Secretary of State to make rules.
22. I should make it clear right away that it would not, in my view, be wise for this court to speculate as to whether there was power under section 222 of the Act. Not only have we not heard argument about that but there are no relevant rules; the scope and meaning of any such rules should only be properly be determined by this court when the point arises. It helps no-one for us to give our views on that subject in those circumstances.
23. I therefore turn to consider, first of all, what can be done under section 220, as that is the important issue in this case. There is a much more specific factual issue as to whether what the Thames Valley Probation Authority had done in relation to this particular appellant falls within the general powers; that is a fact specific matter relating solely to the Thames Valley Probation Service and the facts of this case. But the point under section 220 is obviously a more general one; in fact in relation to that it appears from the course of argument that there is little dispute.
24. It seems to me clear, in the context of community punishments, that a responsible officer is entitled to set conditions that require, as paragraph 5 did in this case, the offender to inform the officer in advance if he knows he cannot keep an appointment to do work. It seems to me that that plainly must fall within the words "keep in touch". It also seems to me that it would be entirely reasonable, and within what Parliament intended, that the officer could require that information to be in writing and to be supported by some third party evidence. If you are dealing with someone who ex hypothesi is an offender, it cannot have been intended by Parliament that the responsible officer would have to rely upon the word of the offender. That would not give proper efficacy to the purpose Parliament had plainly had in mind, which was the rigorous enforcement of community punishments.
25. It follows, therefore, that where a Probation Officer requires an offender to inform him in advance of an appointment for which there is a good reason why he cannot attend and provide that information in writing together with supporting documentation, it is a reasonable requirement well within section 220. It also seems to me that if the conditions then provided that the officer could relax that requirement in the circumstances of a given case, so that the information was provided within a short period thereafter, that would also be permissible. All it would be would be a derogation from the principal requirement, which was providing the information in advance so that the person would keep in touch in relation to an appointment.
26. There is, however, it seems to me, a difference between that type of provision and a provision where the Probation Service independently specified that evidence was to be provided after the event. It is difficult to see how such an obligation could be viewed as an obligation to keep in touch; standing on its own it would merely be an obligation to provide evidence. The distinction, I think, is an important one. It can be the consequence of a breach of an order (as happened in this case) that a suspended sentence can be activated or other punishment imposed. It is also important that it is for the court to determine whether there has been a breach. It cannot be right that the provisions of section 220 can be read as enabling the responsible officer to request the information ex post facto, though, as is clear from what I have said, if the request is to provide the information in advance and a concession made to providing it later, that would be acceptable for the reasons I have given.
27. It would of course have been open to Parliament to have specified more precisely the powers that they wished to give, but it is important to give effect to the words of section 220, bearing in mind their penal consequences.
28. It seems to me, therefore, that under section 220, most of the laudable purposes that the Thames Valley Probation Area sought to achieve could be achieved. There may, of course, be difficulties in relation to an emergency. If, for example, someone is taken ill in the middle of the night and taken to hospital, it is difficult to see how information could be given in advance of that and therefore a requirement to provide evidence late could not be imposed as a derogation from the requirement to provide it in advance; the requirement to provide evidence would be simply the requirement to provide evidence ex post facto and outside the powers in s.220. But those cases are much rarer. It may be the way of dealing with the problem in those rarer cases is to use the powers of the court at the pre-trial hearing; the Criminal Procedure Rules requires cards to be put on the table; the offender has to make clear at that stage what his case is.
29. I therefore turn from the general question to the more specific question in this case. Are the requirements that are set out in the document that was signed by the appellant requirements that fall within section 220 as I have construed it? We are dealing with paragraph 5 primarily and part of paragraph 6 and paragraph 8. We are not dealing with paragraph 7 which deals with the position of a medical case. As I have already stated, there is no dispute that it is perfectly proper for a Probation Service to require someone to notify them in advance, and no real dispute that that requirement could include a requirement that this was to be in writing with the provision of supporting documentation.
30. Can, therefore, paragraph 6 which I have set out be read not as the provision of information ex post facto, but the provision of information ancillary to paragraph 5? The relevant words are:

"If I believe the failure is acceptable, I must provide the reason and supporting written evidence to my supervising officer, within seven days of the failure for their consideration."

31. It is those words and those words alone to which it is necessary only to have regard. It seems to me that reading this document, which is not a document that follows as precise a form as might be desirable, that can be read as a requirement ancillary to paragraph 5; the Probation Officer is in effect stating that if information cannot be given at the time it can be given within seven days. I believe that it can be read in that way. If, however, we had been concerned with a case under paragraph 7, the position might well have been different.
32. It is clear from what I have said that a document such as this is one that needs to be carefully drafted to bring it within the terms of section 220. We have been told today that this is a document that is produced in the Thames Valley area and that there may well be different documents in other parts of the Probation Service. It is entirely a matter for the Probation Service what they do, but it would plainly be worthy of their consideration that a document of this kind ought to be carefully drafted to bring it within the powers in the way I have endeavoured to explain them. It is also difficult to see why this sort of document should vary from one of the 42 probation areas to another, save where local conditions necessitated some particular change.
33. Therefore, to return to the question that has been posed to us by the Justices, it seems to me that the way in which the Justices framed the question for us, the question can be answered "Yes". It is important to note the question is as much directed to paragraph 5 as to paragraph 6. For the reasons I have given, it is the fact that one sentence of paragraph 6 is ancillary to paragraph 5, which enables us to answer the specific and very narrow question on the meaning of the wording in the Thames Valley document in the way I have. For those reasons, therefore, this appeal by way of case stated, in my view, should be dismissed.
34. MR JUSTICE GROSS: I agree.
35. MR BLAKE: Could I make a request for Legal Aid assessment?
36. LORD JUSTICE THOMAS: Yes. I should have added we are greatly indebted to you both for the very helpful skeleton arguments that you put in. It was a great pleasure to us to receive the assistance in advance.