Longworth, R. v [2004] EWCA Crim 2145

Case No 04/979/A6[2004] EWCA Crim 2145
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday 23 July 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE POTTER
MR JUSTICE GIBBS
SIR MICHAEL WRIGHT
Between
R E G I N ACrown-v-
Between
GARY DEAN LONGWORTH
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR MICHAEL I DAVIES appeared for APPLICANTMR SIMON MEDLAND appeared for CROWN
J U D G M E N T
[1]MR JUSTICE GIBBS: This matter comes before the court by way of an appeal against sentence with the leave of the sentencing judge, who issued a certificate under section 11(1)(a) of the Criminal Appeal Act 1968. On 2nd December 2003 the appellant, Gary Dean Longworth, pleaded guilty before the Crown Court at Warrington to two offences of making an indecent photograph or pseudophotograph of children. His Honour Judge Hale, who presided over the court, sentenced the appellant to concurrent twelve-month conditional discharges. An issue arose as to whether, in the light of the sentences of conditional discharge, Part I of the Sex Offenders Act 1997 applied to the appellant so that he was required to comply with the provisions of section 2 of the Act to notify certain prescribed information to the police (to be referred to in this judgment as "notification requirements"). The issue was adjourned for argument. This took place on 12th January 2004, and the judge gave a considered ruling to the effect that the notification requirements did apply.[2]The facts can be extremely briefly stated. The appellant had delivered a computer belonging to him to be repaired at a shop. Staff at the shop found indecent images on the computer. The police were called. The images consisted largely of adult pornography (which are not the subject of any charges), but there were also indecent images of children. All those images were within level 1 as set out in the case of Oliver [2003] 2 Cr App R (S) 15. Level 1 is the least serious of the categories applicable. The appellant was arrested and gave an explanation, with which we need not trouble, for the presence of the child pornography images on his computer.[3]On issue in this case, there have been contradictory decisions and opinions of different courts and, indeed, different learned writers. In the case of Malone [2001] 2 Cr App R (S) 43, it was held that the notification requirements did apply in the case of a conditional discharge. In the case of Oliver, to which we have already referred, it was held that they did not. It is right to say that in neither case was the matter argued. The editors of Archbold, current edition at chapter 20-271c, prefer the view in Oliver, as does a commentary on the case of Malone to be found in Criminal Law Week 2001/26/42.[4]The applicable statutory provisions to which we need to refer for resolution of this issue are as follows. The Sex Offenders Act 1997, section 1:
"Sex offenders subject to notification requirements 1.-(1) A person becomes subject to the notification requirements of this Part if, after the commencement of this Part--- (a) he is convicted of a sexual offence to which this Part applies; (b) he is found not guilty of such an offence by reason of insanity, or to be under a disability and to have done the act charged against him in respect of such an offence; or (c) in England and Wales or Northern Ireland, he is cautioned by a constable in respect of such offence which, at the time when the caution is given, he has admitted."
Subsection (4), so far as material, provides as follows:
"(4) A person falling within subsections (1) to (3) above shall continue to be subject to those requirements for the period set out opposite a person of his description in the second column of the following table."
There then is set out the table. This recites a series of categories of person who have either been sentenced to imprisonment for the relevant offence or have been admitted to hospital under a hospital order. However, the last category is "a person of any other description", and the applicable period provided in the table for such a person is a period of five years beginning with the date of the conviction.[5]The other relevant statutory provisions are to be found in the Powers of Criminal Courts (Sentencing) Act 2000, in particular at section 14:
"Effect of discharge 14.-(1) Subject to subsection (2) below, a conviction of an offence for which an order is made under section 12 above discharging the offender absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under section 13 above." ... (3) Without prejudice to subsections (1) and (2) above, the conviction of an offender who is discharged absolutely or conditionally under section 12 above shall in any event be disregarded for the purposes of any enactment or instrument which--- (a) imposes any disqualification or disability upon convicted persons; or (b) authorises or requires the imposition of any such disqualification or disability."
[6]On behalf of the appellant, Mr Davies relies upon section 14(1) of the 2000 Act. He does not maintain the argument (if indeed it was ever advanced on behalf of the appellant) that the notification requirements constituted any disqualification or disability upon the appellant, and therefore subsection (3), he accepts, can be disregarded for the purposes of this appellant. He relies in particular upon the proposition that unless an offence is committed within the period of discharge the 2000 Act provides that the conviction is not a conviction for any purpose other than the purposes of the proceedings. He points out that the requirement to notify under the 1997 Act must be complied with within three days of the conviction. He says that once the proceedings in which the offender has been discharged are concluded the conviction ceases to be a conviction. He submits, therefore, that any requirement which arose immediately following the appellant's plea of guilty must thereby cease, and consequently a failure to notify in those circumstances cannot give rise to an offence under the Act. He submits that the notification requirement does not constitute a matter within the purposes of the proceedings in which the order is made. He says that the notification requirement is a consequence of the proceedings and not "for the purposes of the proceedings". He relies further on the fact that the 1997 Act does not contain any provision expressly disapplying section 14(1) of the 2000 Act. This, he points out, is in contrast to section 121 of the Social Security Administration Act 1992, for example, in which section 14(1) was specifically disapplied.[7]He addresses a point made on behalf of the respondent to this appeal, namely that if the appellant's argument is right then a discrepancy arises. The discrepancy derives from the fact that the notification requirements undoubtedly do apply in the case of an appellant who receives a caution rather than being charged or convicted at all. He concedes that it is arguable that this does produce an anomaly. But if there is an anomaly, he contends that that is a matter for Parliament to deal with and not for the courts. In any event he submits that, if one views the situation broadly, no real anomaly exists. A caution is administered in circumstances in which an offender expressly admits his offence to the police, whereas Mr Davies contends that a conditional discharge or indeed an absolute discharge involves a judicial assessment of the degree of guilt. Thus if a judge, having heard the facts of the case, assesses that the level of criminality is so low as to merit no more than a discharge, there is no anomaly if the registration requirement does not apply.[8]In answer on behalf of the respondent, Mr Medland invites us to take a straightforward common-sense view of the 1997 Act, section 1(4), and to find that Parliament clearly intended the words "a person of other description" at the conclusion of the table to that section to include a person who had been sentenced by means of a discharge for the offence. He accepts, and indeed relies upon the fact, that notification requirements are preventative in nature and not punitive, and that they follow inexorably from the fact of a conviction. This principle was established in the European case of Ibbotson v United Kingdom [1999] Crim LR 153. He submits that there is nothing in the wording of the 2000 Act which alters the obvious statutory intention which Parliament had evinced in the 1997 Act. Importantly, he submits that the notification requirements cannot be described as anything other than for the "purposes of the proceedings in which the order was made". He points out that the proceedings for this purpose include, for example, the process of requiring attendance at court, the plea of guilty or the verdict, the sentence that follows, and also, by implication, as indeed Mr Davies conceded, orders for costs and other ancillary to the proceedings. Accordingly, Mr Medland invites us to uphold the decision of the sentencing judge.[9]We have the benefit of the detailed and careful ruling of the sentencing judge. It is not out of any disrespect to him that we do not rehearse his ruling. Our conclusions are as follows. But for the provisions of the 2000 Act, it is agreed that the appellant would be liable to the notification requirements under the 1997 Act. With regard to the 2000 Act, we have already referred to the provisions of section 14(3). We think that Mr Davies has rightly conceded that the notification requirements cannot be said to impose any "disqualification or disability" on the appellant. We are reinforced in that view by the decision in Ibbotson. The statutory requirements are preventative in nature. A person subject to an order is not disqualified or disabled by it.[10]That being our conclusion on subsection (3), the effect of subsection (1) falls to be considered. It contains an exception to the general proposition that a discharge is not deemed to be a conviction save in certain circumstances. The material effect of the exception in our judgment is that a discharge is to be regarded as a conviction for the purposes of the proceedings in which the order is made. The notification requirement does fall within the ambit of the "purposes of the proceedings in which the order is made". The requirement follows inevitably under the 1997 Act from the fact of conviction, being an ancillary condition attached by virtue of that statute to the orders of the judge made in those very proceedings. We also attach weight to the fact that the proceedings themselves are brought under the Sex Offenders Act and that when Parliament enacted that statute it thought it right, in the case of certain offences, to attach the notification requirements. Thus we conclude that, applying the ordinary meaning of the language of section 14(1) of the 1997 Act, the notification requirements undoubtedly fall within the exception. It follows that the appellant's conviction, notwithstanding the conditional discharge, does constitute a conviction for the purposes of the registration requirements. Under those circumstances it follows that the appellant is a person of the description referred to in section 1(4) in the 1997 Act. In the table attached to that subsection he is "a person of any other description". It follows that the judge reached the right decision.[11]It is appropriate to make two further observations. First, the notification requirements take effect independently of the judge's order. Technically they therefore do not depend on anything decided or spoken by the judge. However, it is clearly desirable, in the light of the conflicting views expressed on the topic, that the issue arising in these proceedings should be determined, and this we have sought to achieve. And, second, our attention has been drawn to the fact that, by virtue of the Sexual Offences Act 2003, the notification requirements have now been changed in respects which are undoubtedly material to the issue which has arisen in this case. Whether those changes will lead to clarification or further argument remains to be seen, but we do not find ourselves assisted in interpreting the legislation current at the time relevant to this appeal by considering those new provisions.[12]In all the circumstances, therefore, this appeal will be dismissed.

Cited in 1 later judgment