QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE UNDERHILL
|DONCASTER YOUTH COURT||First Defendant|
|DONCASTER YOUTH OFFENDING SERVICE||Second Defendant|
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The First Defendant was not represented, did not attend
Mr Stuart Roberts (instructed by Treasury Solicitor) appeared on behalf of the Second Defendant
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(1) On 31 May 2007 the appellant, who was born on 30 September 1990 and was thus aged 16, pleaded guilty to an offence of dangerous driving, together with associated but less serious offences. There was also before the court a failure to comply with an earlier order. In relation to the latter failure, he was ordered to return to custody for 36 days, that is until 4 July 2007. On the offence of dangerous driving he was sentenced to an eight-month detention and training order (a DTO) with no separate penalty for the associated offences. That sentence took effect from the expiry of his previous custodial term, that is from 5 July 2007.
(2) The appellant was released from custody on 2 November 2007, but in accordance with the nature of a DTO, the training or supervision element of the order was to continue until 5 March 2008.
(3) In both November 2007 and January 2008 the appellant was brought back to court for failure to comply with requirements of his supervision imposed under section 103 (6) (b) of the Powers of the Criminal Courts (Sentencing) Act 2000. On both occasions he was fined and the order continued.
(4) On 6 February 2008 the appellant again appeared before the court, this time for an alleged failure to attend an appointment as part of his supervision on 16 January. He denied the breach, and a trial was listed for 12 February. (5) In the event, the appellant changed his plea. In accordance with the recommendation of the Youth Offending Service, the justices decided that the appellant would be returned to detention in accordance with Section 104 of the 2000 Act for a period of 42 days.
" ..... may -
(a) order the offender to be detained, in such youth detention accommodation as the Secretary of State may determine, for such period, not exceeding the shorter of three months or the remainder of the term of the detention and training order, as the court may specify; or
(b) impose on the offender a fine not exceeding level 3 on the standard scale."
"the whole or any part of the period which (a) begins with the date of the court's order and (b) is equal in length to the period between the date on which the new offence was committed and the date mentioned in sub-section (1) above [i.e. the date that the term of the original order or the original sentence of imprisonment expired]."
"If the appellant's contentions were correct, this would mean that the 'at risk' period could partially be manipulated by the offender. By way of example only, the offender could fail to answer the summons, could avoid service of the summons, could evade arrest, could enter a tactical not guilty plea to the allegation of breach, could feign illness on the day of the hearing, could decide to require the attendance of witnesses who were likely to be unavailable and could generally put off and delay the proceedings. All of these matters would put off the day when a court could make a finding that the requirements of the order had been breached and thereby reduce or extinguish the remainder of the term which constituted the 'at risk' period."
He says that it is essential to adopt a construction which does not undermine the operation of this unique form of order, with its particular emphasis on the need for supervision and training. He says that if the appellant's interpretation were correct it would effectively be impossible to enforce the supervision element of the order in its final days and weeks. He points out that problems of the kind which he identifies did in fact occur to some extent in the present case (whether or not by design) as a result of the appellant's initial denial of the breach, which reduced by some weeks the term of his eventual return to detention.
"Do the words 'the remainder of the term of the detention and training order' in Section 104 (3) of the Powers of Criminal Courts (Sentencing) Act 2000 mean:
a) the period between the first occasion on which an offender fails to comply with requirements under Section 103 (6) (b) and the expiry of the order;
(b) the period between the second or subsequent occasion on which an offender fails to comply with requirements under Section 103 (6) (b) and the expiry of the order;
(c) the period between the occasion on which it is proved to the satisfaction of the Youth Court before which he is brought that he has failed to comply with the requirements under Section 103 (6) (b) and the expiry of the order;
(d) some other period?"