Neutral Citation Number: [2009] EWHC 3463 (Admin)
Case No. CO/4528/2008 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Thursday, 20 November 2008
 
B e f o r e:

LORD JUSTICE LATHAM 
 
MR JUSTICE UNDERHILL 
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Between: 
H 
Claimant 
v
DONCASTER YOUTH COURT 
First Defendant 
DONCASTER YOUTH OFFENDING SERVICE 
Second Defendant 
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Miss Laura Dawes (instructed by Foys) appeared on behalf of the Claimant
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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J U D G M E N T
1.	MR JUSTICE UNDERHILL:  This is an appeal by way of case stated from a decision of the Youth Panel of the Doncaster Magistrates' Court made on 12 February 2008.  It raises a short question of statutory construction.  The necessary background can be summarised as follows:
(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.  
2.	This appeal is against that order.  The respondents are (1) the Doncaster Youth Court and (2) the Doncaster Youth Offending Service.  The appellant is  represented before us by Ms Laura Dawes.  The second respondent is represented by Mr Stuart Roberts.  The first respondent does not appear.  I will refer to the second respondent simply as "the respondent".  
3.	I start by setting out the terms of section 104 of the 2000 Act so far as relevant.  Sub‑section (1) provides for an offender to be brought before the court by way of summons or arrest if it appears to a justice "that he has failed to comply with" his supervision requirements.  Sub‑section (3) provides that in such a case the Youth Court ‑
" ..... 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." 
4.	The justices in this case proceeded under sub‑section (3) (a).  The issue raised by this appeal is how to calculate the second of the two alternative maxima there provided for,  namely "the remainder of the term of the detention and  training order".  
5.	The appellant submitted to the justices, and contends before us, that all that is required is for the court to identify the date on which the original order expires ‑  namely, here, 5 March 2008 ‑ and not to impose any term of detention that would go beyond that date, which would have meant in this case a maximum term of 23 days.  
6.	The respondent submitted, and the justices accepted, that the right approach was to stop the clock at the date of the failure to comply with the supervision requirement and to calculate the number of days from that date to the end of the term; and then treat that number of days, counted from the date of the order to return the offender to detention, as the relevant maximum, notwithstanding that it would normally lead to a term of detention which expired after the expiry of the term of the initial order.  Thus in this case the figure would be 49 days, being the length of the period from 16 January to 5 March.  (The justices in fact imposed a term of seven days shorter than that, but that term would still end after the expiry of the term of the initial order.)  
7.	I am bound to say that on a natural reading of the words the appellant's approach seems to me to be correct.  The sub‑section is concerned with specifying the exercise to be carried out by the sentencing court ‑ "that court" ‑ on the occasion that the accused is brought before it.  It seems to me necessarily to follow that when the sub‑section refers to "the remainder" of the term of the order it must mean the remainder still to run as at that date.  The respondent's approach is in my view inconsistent with that language.  Even if words such as "to run from the date of breach" could be implied ‑ which I find hard to accept that they could ‑ the word "remainder" would still be inapt.  
8.	In truth, the respondent's approach would require a wholly different formulation, explicitly defining the maximum by reference to the period between the date of the breach and the date of the expiry of the original order.  Ms Dawes points out that the draftsman was perfectly capable of providing for such a formulation when he thought appropriate.  She refers us to sections 105 and 116 of the Act, which deal with the situation when a further offence is committed during the currency of ‑ as the case may be ‑ a DTO or, after release on licence, a term of imprisonment.  The formulation used in those cases is that an order may be made for the detention (or, as the case may be, return to prison) of the offender for ‑
"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]."  
9.	Mr Roberts says that that difference in wording between section 104 on the one hand and sections 105 and 116 on the other is explicable by reference to the drafting history and to the slightly different factual situation, where the court is having to deal not simply with a breach of the terms of a  supervision requirement but with a further offence.  That may or may not be a significant difference, but it does not deal with the point that Parliament had a ready‑made formulation which, with very minor adaptation, could have been used to achieve the result for which the respondents contend but that  it did not use it.  
10.	Mr Roberts contends that the result which seems to me to follow from that reading of the words is contrary to common sense ‑ indeed, as he would submit, absurd.  As he puts it in his skeleton argument:
"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.  
11.	I agree that if the appellant's construction is correct it may be somewhat unsatisfactory that the sanction of return to detention is of diminishing value in the last few weeks of the supervision period.  Parliament may or may not have considered those consequences.  But to say that some of the consequences of the language adopted may not have been positively contemplated and may be unsatisfactory is not the same as to say that the resulting postiion is absurd or, still less, that the court can re‑write the statute to achieve a more satisfactory result.  
12.	It does not in any event seem to me that it is in any way irrational to treat the original term of a DTO as setting the limit to the period during which an offender can be kept in custody.  Nor is it ‑ with respect to Mr Roberts ‑ right to say that in the closing weeks of an order breaches by the offender will go entirely unpunished.  On the contrary, there remains the option of a fine under sub‑section (3) (b).  The maximum fine is £1,000 per breach,  in default of which an offender could serve a period in detention.  
13.	Those points seem to me sufficient to require this appeal to be allowed.  I would if necessary also rely on the principle that where there is a choice between two possible constructions of a criminal statute the narrower is generally ‑ not every case, I accept ‑ to be preferred.  I also note that the respondent's construction would require the court in every case to define a precise date for the failure which has resulted in the offender being brought back to court.  This would not always be straightforward.  
14.	The question posed by the case stated is as follows:
"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?"
15.	Neither party has in fact argued before us for alternatives (b) and (d) though the distinction made by the justices between (a) and (b) implicitly recognises the potential complications which could arise when there are multiple breaches.  I would answer the questions no, no, yes and no and accordingly allow the appeal. 
16.	LORD JUSTICE LATHAM:  I agree.  There are undoubtedly practical problems which flow from that construction which have been identified by Mr Roberts.  
17.	I, for one, am not prepared to conclude either that they were not foreseen at the time or that they should drive us to a construction of the section which is simply not possible, in my judgment, bearing in mind the wording used in Section 105 and Section 116 which identify the date which is to be treated as the commencement date for entitling the court to determine the period for return to detention or prison which could have been used if Parliament had thought it right to use that formula in Section 104.  Parliament chose not to.
18.	MISS DAWES:  The appellant had the benefit of legal funding.  First, could I ask for costs assessment?  The other matter was that within the appeal notice an order was sought that the period for which the appellant H was sent to custody was in fact an unlawful order in that it sent him to custody for longer than he should have been.  Would the court make an order?
19.	LORD JUSTICE LATHAM:  I do not think in an appeal by way of case stated we can make such an order.  That would have to be by way of separate judicial review proceedings and there would have to be a different respondent or there might have to be.  It would be the Prison Service.
20.	MISS DAWES:  Yes. 
21.	LORD JUSTICE LATHAM:  It flows from what we have said.  If you want any relief, I think you have to ask in a different way.