England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/01/2008

Lord Justice Dyson :

1. This is an appeal by way of case stated from the decision of the Sutton Coldfield Magistrates' Court dismissing an information laid by the claimant that the defendants had failed without reasonable excuse to comply with the requirements of community orders.
2. The facts can be shortly stated. The defendants were convicted of an offence of affray and on 10 October 2005 were made subject to a community order for 12 months with an unpaid work requirement of 240 hours. They lodged notices of appeal against conviction on 10 October. They were required by the probation service to attend for unpaid work appointments on 8 and 22 January 2006. They failed to attend on both occasions on the grounds that they were appealing their convictions.
3. These reasons were not considered to be acceptable by the West Midlands Probation Board. The defendants were summonsed to appear before the Sutton Coldfield Magistrates' Court for breach of their community orders in failing to attend for unpaid work appointments on 8 and 22 January.
4. The proceedings were adjourned on several occasions for reasons which are not material to this appeal. When the case was finally heard on 10 May 2006, the defendants' appeals against their convictions had not yet been heard. The district judge was told that the appeals were due to be heard on a date in July 2006. He dismissed the informations. We were told by Mr Sharma that the appeals have not been pursued. I presume that they have now been abandoned.

The statutory framework

5. So far as material, the Criminal Justice Act 2003 ("the CJA 2003") provides as follows:

"177(1) Where a person aged 16 or over is convicted of an offence, the court by or before which he is convicted may make an order (in this Part referred to as a "community order") imposing on him any one or more of the following requirements-

(a) an unpaid work requirement (as defined by section 199),"

"179 Schedule 8 (which relates to failures to comply with the requirements of community orders)… shall have effect."

"198(1) Where a relevant order has effect, it is 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."

"199(1) In this Part "unpaid work requirement", in relation to a relevant order, means a requirement that the offender must perform unpaid work in accordance with section 200."

"200(1) 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 such work at such times as he may be instructed by the responsible officer."

Schedule 8:

"5 (1) If the responsible officer is of the opinion that the offender has failed without reasonable excuse to comply with any of the requirements of a community order, the officer must give him a warning under this paragraph unless-

(a) the offender has within the previous twelve months been given a warning under this paragraph in relation to a failure to comply with any of the requirements of the order, or

(b) the officer causes an information to be laid before a justice of the peace in respect of the failure.

(2) A warning under this paragraph must-

(a) describe the circumstance of the failure,

(b) state that the failure is unacceptable, and

(c) inform the offender that, if within the next twelve months he again fails to comply with any requirement of the order, he will be liable to be brought before a court."

"6 (1) If –

(a) the responsible officer has given a warning under paragraph 5 to the offender in respect of a community order, and

(b) at any time within the twelve months beginning with the date on which the warning was given, the responsible officer is of the opinion that the offender has since that date failed without reasonable excuse to comply with any of the requirement of the order,

the officer must cause an information to be laid before a justice of the peace in respect of the failure in question."

"9(1) If it is proved to the satisfaction of a magistrates' court before which an offender appears or is brought under paragraph 7 that he has failed without reasonable excuse to comply with any of the requirements of the community order, the court must deal with him in respect of the failure in any one of the following ways-"

The use of the word "must" in "the officer must" in paras 5(1) and 6(1) and "the court must" in para 9(1) of the schedule should be noted.

The decision under appeal

6. The district judge recorded that he had been referred to the decision of The Greater Manchester Probation Committee v Bent (1996) 160 JP Rep 297 as well as an article in the Justice of the Peace magazine. The view of the editor of the magazine was that the lodging of an appeal would provide a reasonable excuse for failure to comply with a community order. I shall refer to the Bent decision later in this judgment.
7. The district judge decided that the fact that the defendants were appealing afforded them a reasonable excuse for their failure to comply with the community orders. The single question stated for the opinion of the court is: "whether the district judge's finding that the defendants had a reasonable excuse for not attending their respective CPO appointments by reason of the fact that they both had appeals pending was wrong in law".

Discussion

8. There is no previous authority on the question whether the fact that a defendant has an appeal pending against his conviction (or indeed sentence) is capable of being a "reasonable excuse" for failure to comply with any of the requirements of a community order within the meaning of para 9 of Sch 8 of the CJA 2003. In Bent, a community order had been made and, after lodging a notice of appeal against both conviction and sentence, the defendant failed to attend for community service on 2 occasions. The appeal came before the Crown Court on 5 May and was dismissed. On that same day, an information was laid for breach of the community service order, but it was not until the breach proceedings came before the magistrates' court that the probation service first learnt that an appeal had been lodged and that it had been dismissed. At an adjourned hearing, the justices ruled that the breach proceedings should not have been instituted while the appeal was pending and they dismissed the information.
9. A case was stated in which the question for the opinion of the court was whether the justices were right to conclude that there was no lawful authority for a probation service to enforce breach proceedings whilst at the same time the offender has lodged an appeal to the Crown Court. The Divisional Court (Saville LJ and Blofeld J) said that the answer to this question was "No". The decision of the court, therefore, was that the fact that an appeal had been lodged did not mean that the probation service could not institute proceedings for breach of an order which was under appeal. Having stated that the magistrates should have heard the information, at page 300F, Blofeld J said this:

"…They were perfectly entitled to consider all the facts of the relevant case, including the specific fact that a notice of appeal had been lodged. If in all the circumstances of the individual case they had then come to the conclusion that there was a reasonable excuse for this particular offender, Mr. Bent, not to have attended, then under sch.2 they were entitled to say so. They did not take that course."

10. These observations were unnecessary for the decision. In any event, however, Blofeld J did not say that the fact that an appeal had been lodged could of itself amount to a valid reason for failure to comply with the requirements of the order. That is the question that arises in the present case.
11. The starting point is the general principle "once a sentence of any kind has been passed, then it is in force and enforceable in the absence of specific provisions to the contrary": see per Saville LJ in Bent page 301D. In principle, the fact that an appeal is pending does not operate so as to suspend the operation of any sentence or order: see, for example, R v May and others [2005] EWCA Crim 367.
12. Where a custodial sentence is passed, it must be served unless bail pending an appeal is granted by a court having power to do so. The power to grant bail pending an appeal from the Magistrates' Court to the Crown Court is provided by section 113 of the Magistrates' Court Act 1980.
13. It follows that, like any other sentence, a community order takes effect when it is imposed and it remains in full force and effect until and unless it is quashed on appeal or revoked or amended by order of the court. The lodging of an appeal does not of itself have any effect on the enforceability of the order. That is the reasoning that underpins the decision in Bent. The reason why the magistrates were wrong to dismiss the information in that case was that, until the community order was quashed, it remained in force and the defendant had to comply with it unless he had a valid reason for not doing so. Even if the defendant had a valid reason for not complying with the order, it nevertheless remained in full force and effect until and unless it was quashed on appeal.
14. There is no statutory provision which automatically suspends the operation of a community order pending an appeal against it (or the conviction on which it is founded). In certain cases, however, Parliament has given the court a power to suspend a penal order pending appeal. For example, where the sentence or order involves disqualification from driving, there is power to suspend the qualification pending an appeal: sections 39 and 40 of the Road Traffic Offenders Act 1988. But Parliament has given no such power in relation to appeals against community orders.
15. Although the concept of "reasonable excuse" is broad, I do not consider that it can have been intended by Parliament to be stretched to include the mere fact that the defendant has lodged an appeal against the community order or the conviction on which it is based. To do that would be to undermine the general principle that community orders take effect from the date on which they are made and remain in force until and unless they are quashed on appeal or revoked or amended by order of the court. To accept non-compliance with a community order as a reasonable excuse merely because the defendant is appealing would amount to an acknowledgement that defendants may pick and choose whether and in what circumstances they will comply. That is wrong in principle.
16. I emphasise that I am deciding no more than that the bare fact that an appeal has been lodged cannot afford a reasonable excuse to a defendant for failing to comply with the requirements of a community order. In response to questions from the court, Mr Sharma conceded that special factors relating to a pending appeal might afford a reasonable excuse for a defendant's failure to comply. I express no view as to whether this concession was correctly made, since it is not necessary to do so on the facts of this case.
17. I would, therefore, answer the question stated for the opinion of the court: "Yes" and would remit the case to the district judge with a direction that the defendants be convicted.

Mr Justice Jack:

18. I agree.