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
		20 December 2012

THE PRESIDENT:

The issue

1. The issue in this appeal by way of judicial review is whether a district judge has power under section 177 and section 205 of the Criminal Justice Act 2003 to impose, by way of a requirement under a community order, a direction that a citizen of another country in the EU, who has been convicted of an offence, can be excluded from entering the UK for 12 months.
2. We understand, from what we have been told by both counsel in this particular case, that the issue is not a one-off matter. We have been told that, in the Magistrates' Courts, a number of persons found guilty of shoplifting or other offences, in order to avoid custody, undertake to go back to the country from which they have come and, to ensure that their undertaking is complied with, judges have made orders in the form to which I have referred. This case appears to be the first where the legality of this practice has been raised.

The facts

3. The facts are very simple.
4. The claimant came to the United Kingdom on 10 February 2012. Six days later, on 16 February 2012, he committed an offence of theft and was given a caution. Another six days later, on 22 February, he entered Debenhams on Oxford Street. This was no casual shoplifting: he had lined his shoulder bag with foil so as to stop the alarm system of the store being triggered. He went to the clothes counter and there stole two designer shirts and a tie. He left without paying. The value of these goods was £120. He was immediately arrested and taken to Charing Cross Police Station. He admitted his theft and he said he had been given the bag by a friend.
5. The following morning he appeared before District Judge Baraitser at Clerkenwell Green and pleaded guilty to two offences, one of theft and, secondly, of going equipped. The mitigation before the district judge was that he had come to the United Kingdom as he had lost his job in Romania and thought that he could obtain a job in the United Kingdom. That job did not materialise. He committed the offences out of desperation to support himself. He had left his children and partner in Romania. He said he would return to Romania as soon as possible after funds came from Romania to enable him to return.
6. There is a dispute as to then what happened. The district judge says that his lawyer asked for an order excluding him from the United Kingdom as he was going to Romania in any event. Ms Ahluwalia, who has appeared for him today, says that no such request was made. It is impossible for us to resolve that factual issue but it makes no difference to the decision to which I have come.
7. The district judge identified three aggravating factors. First, the claimant had a record, bearing in mind the caution given on 16 February 2012; second, he had committed the second series of offences within a short period of his arrival; and, third, that this was professional theft; he had targeted high value items rather than what he needed to survive. The judge was plainly correct on each matter; on the most serious factor, the evidence of planning was clear as he had lined the bag with foil.
8. The judge decided, in accordance with the sentencing guidelines, that these offences were serious enough for a community penalty. She therefore decided that she would impose a Community Order. The Order that she imposed was as follows:

"The court makes a community order containing the requirements listed below. He must comply with all the requirements by 23 February 2013, unless the requirement specifies a shorter period. A responsible officer for this order will be a probation officer. You must keep in touch with your responsible officer, as the officer tells you, tell your responsible officer to change your address and comply with the following requirements.

"Requirements: the court area you live in is the East London Magistrates' Court.

1. Exclusion requirement: not enter United Kingdom. This exclusion requirement lasts for 12 months. Exclusion from United Kingdom from 01.03.2012 for 12 months. Warning: if you do not comply with this order, you will be brought back to court. The court may then change the order by adding extra requirements, pass a different sentence to the original offences. You could be sent to prison."

That is signed by the justice's clerk.

The statutory powers

9. The section under which the order was made was the well known sections of the Criminal Justice Act 2003, section 177 and section 205. The relevant part of section 177 provides as follows:

"Community orders where a person aged 18 or over is convicted of an offence, the court by or before which he is convicted may make an order imposing on him one or more of the following requirements -- ...

"(f) an exclusion requirement (as defined by section 205)."

Section 205 provides as material:

"(1) In this Part 'exclusion requirement', in relation to a relevant order, means a provision prohibiting the offender from entering a place specified in the order for a period so specified.

"(2) Where the relevant order is a community order, the period specified must not be more than two years.

"(3) An exclusion requirement --

(a) may provide for the prohibition to operate only during the specified in the order, and.

(b) may specify different periods for different places or days places for different periods or days.

"(4) In this the section 'place' includes an area."

10. It is clear that the objective of the provision conferring the power to impose an exclusion requirement as part of a term of a community order is to exclude an individual from a particular area where he is likely to get into trouble, and therefore increase the risk of reoffending. An example is prohibiting the offender going to an area which is known to be a place for drug dealing or preventing him going to a particular park which is known to be rowdy or dangerous or where he might drink. All of those are exclusion orders that could be made under this provision. As this court has made clear in R v Jacob [2008] EWCA Crim 2002, such an order must be proportionate.

No power to exclude from the UK

11. It is not the objective of this term of a Community Order to punish the particular offender, nor can it possibly be imagined that Parliament had provided by this order a form of power to exclude someone who was already in the United Kingdom from the United Kingdom. In the first and most important respect, it is obvious that there is an entirely separate regime under the UK Borders Act 2007 that deals with the power of exclusion. Secondly, on a much narrower point, it is plain on the construction of section 205 that it deals with entering an area within the United Kingdom. It cannot possibly, on any view, take effect as permitting a judge to exclude someone who is already in the United Kingdom from entering the United Kingdom. Third, in any event, it is plain from the other terms of the order, which reflects the statutory scheme, that the purpose of exclusion is an inherent part of a Community Order to reform someone in the United Kingdom. Fourth, there is no mechanism in the Act or elsewhere to require someone to be removed from the United Kingdom. It is in effect an order for expulsion. The Magistrates' Court has no power to do so.

Conclusion

12. In my judgment, therefore, the sentence passed was an unlawful one and, to the extent that this practice exists, it is unlawful. It may be thought that such a power should be provided for, but that is a matter for Parliament. It would obviously require close scrutiny if it was to be enacted in respect of those coming from the European Union. Consideration would have to be given as to whether such provisions could be enacted compatible with community law. We have had no argument on the issue of community law and we say nothing about it. If my Lord agrees, we will therefore quash this sentence.

The future disposal of the proceedings

13. As to the future disposal of this matter, it is a matter of deep regret that such a simple case that has taken barely 20 minutes to deal with in this court, including the giving of this judgment, has been delayed for so long. Part of the reason is that the estimate put down for this case, both for reading and hearing, was far too long; part of the reason is that it was not appreciated this matter could have been dealt with in short order. As this has been delayed and as, through no fault of those instructing counsel, no-one has been in contact with the claimant, it is not known where he now is, except that it is thought he might have left the country for Romania, whether permanently or not is not known.
14. In those circumstances it is not possible for this court, using one of its statutory powers, to deal with the matter today. The only proper course is to remit the matter to the Camberwell Green Magistrates' Court, to reconsider the matter in the light of the fact that they are dealing with someone who has committed a serious offence of shoplifting in a professional manner and who needs to explain why he told the court that he was leaving this country when he obviously did not do so. The court will be fully entitled to reconsider entirely the sentence of this individual and to consider what is the appropriate punishment that he requires for such a serious offence of shoplifting.
15. To give effect to that decision, and if he returns to the United Kingdom, it is necessary that we authorise that a warrant for his arrest be issued but, in the circumstances, it must be backed for bail. The issue of an arrest warrant is the only mechanism by which he can conveniently, if he returns, be required to attend for resentencing. He can immediately be released so he will not be in custody more than a short time to arrange bail conditions for him.
16. If my Lord agrees, we will make an order to that effect.
17. MR JUSTICE CRANSTON: I agree.