P, R. v [2004] EWCA Crim 287

No. 2003/05750/A2 Error! Bookmark not defined.[2004] EWCA Crim 287
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 3 February 2004
Between
R E G I N ACrown
The Strand
London
WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(The Lord Woolf of Barnes)
MR JUSTICE RICHARDS
and
MR JUSTICE HENRIQUES
__________________
- v -
Between
SHANE P__________________Computer Aided Transcription bySmith Bernal, 190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)__________________DR D THOMAS appeared for APPELLANTMISS J M DAGNALL appeared for CROWN____________________J U D G M E N TTuesday 3 February 2004THE LORD CHIEF JUSTICE: I will ask Mr Justice Henriques to give the judgment of the court.
[1]In addition to considering the length of this sentence, this appeal focuses upon the propriety of courts making anti-social behaviour orders and suspending such orders pending the release from custody of the defendant.[2]The appellant has the leave of the single judge to appeal firstly against two incidental unlawful sentences, which do not affect the sentences to be served, and to argue matters relating to the anti-social behaviour orders. The full court today has granted leave to appeal against the totality of the sentence.[3]The appellant, who was born on 7 May 1987, appeared before Judge Ensor at the Manchester Crown Court when he was 16 years and almost two months old. He is now 16 years and nearly nine months old. He pleaded guilty in the Crown Court sitting at Manchester to a total of twelve offences, all of which took place between 20 and 26 March 2003, when he was 15 years and 10 months old.[4]On the first count he was sentenced to twelve months' detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 for an assault with intent to rob. He had chased a 12 year old boy across a park and hit him with a stick whilst demanding money and his mobile phone.[5]Count 2 was a charge of theft for which a concurrent sentence of twelve months' detention purporting to be pursuant to section 91 was passed. The appellant approached a 14 year old boy, told him that someone had stolen his mobile phone and asked to look at the phone belonging to that boy. The boy produced his phone and the appellant grabbed it before cycling off.[6]Count 3 was a charge of robbery for which a consecutive sentence of 12 months' detention was passed. The appellant approached a 15 year old boy and threatened to hit him with a bat unless he handed over his phone. When he did so the appellant snatched it and ran off.[7]Counts 4-11 involve four allegations of false imprisonment and four linked allegations of attempted robbery for which sentences of two years' detention said by the judge to be “on count 4 consecutive on count 4, concurrent on all other counts....” Four 14 year old boys were detained in a park for a considerable time. The appellant threatened to knife them if they tried to leave. He forced one of them to dance for him and reduced that boy to tears. He also demanded money from all four boys.[8]Count 12 was a charge of theft for which a concurrent twelve-month sentence of detention was imposed again purporting to be pursuant to section 91. The appellant approached and asked to see the phone of a 14 year old boy. When the boy produced the phone the appellant snatched it from his hand.[9]The total sentence was expressed to be four years' detention. Doubtless that was the judge's intention, although the expression “consecutive on count 4 and concurrent on all other counts” permits of the argument that in fact sentences totalling only three years were passed. We proceed, however, on the basis that this was no more than a slip of the tongue and that sentences on counts 1, 3 and 4 were all intended to run consecutively.[10]The most convenient starting point is to make the necessary correction in relation to counts 2 and 12. So far as section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 applies to those aged at least 14 and under 18, the Act provides that offenders between those ages who are convicted on indictment of any offence punishable in the case of an adult with imprisonment for fourteen years or more, other than an offence the sentence of which is fixed by law (indecent assault, causing death by dangerous driving, or causing death by careless driving while under the influence of drink or drugs). It follows that the power to impose detention under section 91 does not apply to the offence of theft. Accordingly, the sentences of detention on counts 2 and 12 must necessarily be quashed. Rather than substitute sentences of 12 months' conditional discharge on each count, it appears to us to be appropriate that no separate penalty be imposed in relation to either of those matters. Since the sentences were in any event ordered to run concurrently, the overall sentence is in no way affected.[11]The next criticism relates to the judge's failure to state in terms that he was giving the appellant credit for his pleas of guilty. It is beyond argument that those who plead guilty may expect some reduction in sentence, although there is no statutory right to such discount. Section 152 of the Powers of Criminal Courts (Sentencing) Act provides:
“(1) In determining what sentence to pass on an offender who has pleaded guilty to an offence in proceedings before that or another court, a court shall take into account -- (a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty; and (b) the circumstances in which the indication was given. (2) If, as a result of taking into account any matter referred to in subsection (1) above, the court imposes a punishment on the offender which is less severe than the punishment it would otherwise have imposed, it shall state in open court that it has done so.”
There was no such statement in the present case.[12]It has been said more than once (see R v Fearon [1996] 2 Cr App R(S) 25, and R v Aroride [1999] 2 Cr App R(S) 406) that it is highly desirable that a sentencing judge in every case makes it absolutely plain to a defendant that he has been given credit for his plea of guilty; otherwise there is likely to be a reasonable possibility that the plea of guilty was not taken into consideration.[13]It is clear from a consideration of the judgment of this court in Attorney General's Reference Nos 4 and 7 of 2002 [2002] 2 Cr App R(S) 77 (R v Lobban and Sawyers and R v Stephen Q) that a plea of guilty, the age of the offender, the number of previous convictions, the degree of violence used, the number of offences committed, and whether a team of offenders was involved, are all relevant in determining where in the eighteen month to five year bracket an offender should be placed, having committed offences of robbery on persons using mobile phones.[14]This appellant was 15 at the time of the offences. He pleaded guilty. He has one previous conviction for assault occasioning actual bodily harm, five previous convictions for theft, but no earlier convictions for robbery. None of his victims appears to have suffered physical injury. These offences were not committed as part of a gang. Further, this was his first custodial sentence. Without a plea of guilty the sentences passed indicate a starting point of five years or more which, in our judgment, is excessive. Giving due credit for the pleas of guilty, avoiding as they did a number of young witnesses giving evidence, and further, the appellant is able to rely on an early childhood wherein he was disadvantaged in a number of respects not of his own making, we take the view that the appropriate sentence, giving due credit for these matters, would have been one of three years' detention.[15]The remainder of the appeal relates to the order under section 1C of the Crime and Disorder Act 1998, made by the learned judge immediately after the appellant had been sentenced to the term of four years' detention. The effect of the order was to prevent the appellant from acting in various ways, principally excluding him from two parks in the locality and from Manchester Airport. The duration of the restraint was stated to be for a period of two years after the appellant's release from custody.[16]A problem has arisen by reason of the fact that the order served and signed by the judge was not the same as that indicated by him in court. Be that as it may, the judge clearly intended to suspend the order until the appellant's release from custody, and it was then to apply for the duration of two years.[17]Section 1C was inserted into the Crime and Disorder Act 1998 by the Police Reform Act 2002. It came into force on 2 December 2002. It is accepted that the section applies in this case, the appellant having been convicted of a relevant offence. So far as relevant the section reads:
“(2) If the court considers -- (a) that the offender has acted, at any time since the commencement date, in an anti-social manner, that is to say in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and (b) that an order under this section is necessary to protect persons in any place in England and Wales from further anti-social acts by him, it may make an order which prohibits the offender from doing anything described in the order. .... (5) An order under this section takes effect on the day on which it is made, but the court may provide in any such order that such requirements of the order as it may specify shall, during any period when the offender is detained in legal custody, be suspended until his release from that custody. (6) An offender subject to an order under this section may apply to the court which made it for it to be varied or discharged. .... (8) No application may be made under subsection (6) for the discharge of an order before the end of the period of two years beginning with the day on which the order takes effect.”
It follows that the judge was empowered both to make this order and to suspend it until the appellant's release from custody.[18]The scope and proper exercise of the power given by section 1C has been considered only once by the appellate courts, namely in C v Sunderland Youth Court (DC) [2003] EWHC 2385 (Admin), a case in which the justices appeared to have acted on evidence which had not been given in open court. The terms of the order were not explained to the defendant by the magistrates in open court. It was unclear why such a geographical limit encompassing the entire local government area of Sunderland was appropriate; and finally the order was drawn up on a wholly inappropriate standard form which related to section 1 orders.[19]In quashing the order the following general principles appear from the judgment of Sullivan J:
“25. While section 1C does not prescribed any particular procedure for making an order, whether the proceedings are civil or criminal it is common ground that, in making an order, the Magistrates' Court must act fairly and have regard to all relevant considerations. What fairness requires and what considerations are relevant will depend upon the circumstances of each particular case. In addition to the requirement to act fairly, there is the elementary requirement that there should be clarity as to the basis for, and scope of, any order made by the magistrates under section 1C, particularly if breach of such an order exposes a person to potential criminal penalties.... It is vital that the terms of the order are clearly and accurately explained to the defendant by the magistrates in open court.”
Brooke LJ, concurring with Sullivan J, stated:
“43. What is essential, however, is that whatever procedure is adopted must be a fair procedure culminating in the making of an order which correctly reflects the order the justices actually made.”
We unhesitatingly adopt those general principles in relation to the Crown Court. Brooke LJ, concurring with Sullivan J, stated:[20]We turn to consider whether, having passed a substantial sentence of detention, it was (to use the words of section 1C(2)(b)) “necessary to protect persons in any place in England and Wales from further anti-social acts by the appellant”. Dr Thomas, who appears on the appellant's behalf, submits that an order restraining an offender from behaving in a particular way should not be made unless there is a demonstrable necessity to make the order and to include in it the specific prohibitions made in the order. He goes on to raise a number of procedural objections to the course taken in this case, but the principal question for our consideration is whether in the particular circumstances of this case, assuming proper procedure, the judge was justified in making such an order, having regard in particular to the fact that aged 16 this appellant would remain in custody until he was 18. Thereafter, he would remain on licence for a further year if he was convicted of any imprisonable offence committed within two years of his release from custody or 18 months on the reduced sentence which we are minded to substitute.[21]It is submitted that these sanctions are sufficient to provide a deterrent to criminal behaviour in the period after his release from custody and accordingly it is not necessary to add a further sanction in the form of an order under section 1C to cover the period during which he will be liable to the revocation of his licence or returned to custody under section 116 of the Powers of Criminal Courts (Sentencing) Act.[22]Further it is said that in the case of an offender aged 15 at the time of the offences the sentencing court should in principle assume that the term of custody will have a beneficial effect on his behaviour on release. It is contended that the present order under section 1C carries with it the implication that the appellant is a hopeless case who will not succeed in amending his behaviour. In his sentencing remarks

the judge stated:

“.... I am satisfied so that I am sure that his conduct is likely to cause harassment, alarm or distress in one or more persons not of the same household as himself, and of course he has admitted that by way of his pleas to these counts, and it is furthermore clear he was described to me that his conduct was similar to a one person crime wave, but certainly the extent of his criminality over that period of time was quite appalling, and I am in no doubt that an order is quite appropriate ....”
Nowhere in his sentencing remarks does the judge address the submission of Miss Crossley, who appeared in the court below for the appellant, to the effect that at 18 the appellant is going to be a very different individual to the 15 year old who committed the offences in Woodhouse Park or to the 16 year old being sentenced.[23]Having read both the pre-sentence report of Mr Anwar dated 19 August 2003, and the psychiatric report of Dr Lengua, it is clear to us that the appellant is by no means a lost cause and was certainly not regarded by the Youth Offending Team as such. From 20 November 2002 until 20 February 2003 he had been on bail with bail support. This worked well. He co-operated and had a good relationship with the bail support worker. Between 1999 and 2001 there was a gap in his offending of over two years. As the report indicates, within a fortnight of sentence offending behaviour programmes, education and training programmes would be planned. The appellant's background history is set out at length in Dr Lengua's report. The appellant last saw his mother when he was five. He was brought up by a father with acute psychiatric problems, requiring frequent admissions to hospital. He has spent much time in children's homes and with foster parents. Dr Lengua has recommended psychological intervention for chronic depression, and there is no indication that he considers such a course to be hopeless. Of course we recognise that there is much work to be done, with no guarantee or even high expectation of success. On the most pessimistic prognosis, however, it seems to us that the court's powers under section 116 to return the appellant to custody will provide such deterrent as is appropriate in all the circumstances of this particular case.[24]We have regard to the arguments advanced by Miss Dagnall on behalf of the Crown Prosecution Service. Orders imposing a geographical restraint upon an offender may well supplement licence conditions. In the present case she submits that keeping the appellant out of parks and/or away from Manchester Airport during his licence period would effectively supplement the licence conditions. Further she submits that there is public confidence in this particular piece of legislation which appears to be working particularly well in the Manchester area.[25]Those are valid arguments. However, each case depends upon its particular facts. We are driven to the conclusion that, even having regard to the reduced sentence of three years' detention, it is simply not possible for a court to determine that an order is necessary to protect members of the public at some future date, having regard to the real possibility that the custodial element of the sentence imposed will prove to be effective.[26]Had we concluded that an anti-social behaviour order was appropriate in the present case, we would in any event have had grave misgivings as to the procedures adopted in the Crown Court. Firstly, when applying for the order counsel then appearing for the prosecution (not Miss Dagnall) addressed the judge for quite some time in the absence of the defendant (see page 2B to page 4D of the sentencing remarks). During that period of time counsel said this to the judge in the absence of the appellant:
“.... the remand into custody of this defendant would indicate that the massive fall in crime in this particular area and the remanding into custody of the defendant, are not matters of coincidence. .... They are dealt with in the final paragraph, when one can see in the statement of Police Constable Berry that in March 2002 there were 437 incidents of youths causing annoyance. Following his remand that I have referred to, that has now reduced to 331.”
[27]Whilst it is correct that the appellant was arrested in March 2003, it is positively misleading to suggest that the reduction in the number of incidents was attributable to the appellant's arrest. What PC Berry said in his statement was:
“In my opinion anti-social behaviour orders are an effective way of dealing with persistent offenders. Just as a comparison, in March 2002 when the Wythenshawe area had four anti-social behaviour orders in place there were 437 incidents of youths causing annoyance. In March 2003, when Wythenshawe had 20 anti-social behaviour orders in place there were 371 incidents of youths causing annoyance.”
The reduction in incidents was not said by PC Berry to be attributable to the appellant's arrest, as contended by the then prosecuting counsel, but rather to the greatly increased number of orders.[28]Further, in the absence of the appellant the following exchange took place:
“PROSECUTING COUNSEL: He likes going to the airport and making a thorough nuisance of himself.”
That observation, unsubstantiated by any clear evidence before the court and in due course challenged by Miss Crossley, appears to have resulted in one of the restrictions in the order. Such an observation should plainly not have taken place in the absence of the appellant and in the absence of plain evidence to substantiate it.[29]The totality of the proceedings should have been in the presence of the appellant. Further, it is submitted that paragraphs 1 and 3 of the order are too vague and general and cannot readily be understood by a person of the appellant's age and educational attainment. Paragraph 1 reads:
“It is ordered that the defendant it prohibited from either by himself or by instructing, encouraging or inciting any other person to act in any anti-social manner.”
Paragraph 3 prohibits him “either by himself or by instructing, encouraging or inciting any other person to engage in any conduct that tends to prevent the public from passing freely along the highway or enjoying free access to any place to which the public has access.” We agree that plain, simple, ordinary language should be used by courts when making orders in circumstances such as this. We invite the attention of courts to the Home Office guide entitled “A Guide to Anti-Social Behaviour Orders and Acceptable Behaviour Courses”. It is an 80-plus page document which contains helpful instruction as to the drafting of such orders.

Paragraph 3 prohibits him

[30]Next, it is submitted that the prohibitions imposed by paragraphs 2 and 7 are redundant as they prohibit conduct which is already subject to a general prohibition by the Public Order Act 1986 and the Prevention of Crime Act 1953 respectively. In that regard we are by no means persuaded that the inclusion of such matters is to be actively discouraged. So far as more minor offences are concerned, we take the view that there is no harm in reminding offenders that certain matters do constitute criminal conduct, although we would only encourage the inclusion of comparatively minor criminal offences in the terms of such orders.[31]It is further submitted that the order served on the appellant is defective in that it fails to set out or identify the anti-social behaviour in relation to which the order was made, notwithstanding the fact that paragraph 2 of the order commences in these terms:
“The court found that the defendant had acted in the following anti-social manner which caused or was likely to cause harassment, alarm or distress, etc.”
The paragraph has simply not been filled in. It should have been. Full particulars should be included in such an order.[32]Further, it is submitted that the procedure adopted in the Crown Court was defective in that the appellant was not given any opportunity to dispute the allegations contained in the witness statement of PC Berry. We have already mentioned that reference was mentioned to PC Berry's statement in the absence of the appellant. Whilst Miss Crossley stated in terms that the defendant would take issue with some of the elements that are contained therein, she quite properly chose to focus upon whether or not the public required protection for at least two years into the future. It is plainly the duty of a court making such an order to identify matters relied upon by the party seeking the order, to give the defendant an opportunity to dispute the allegation, and to record the findings of fact in the order.[33]Complaint is also made that the order as signed by the judge and as served upon the appellant differed from that pronounced in open court. The order served was without limit as to time whereas the order made in open court was for a duration of two years post-release. Further, in the order served some conditions were expressed to be suspended until the appellant's release from custody; others were not. In open court no such distinction was made. It need hardly be said that the court order must accurately represent what is said by the judge in open court: see the observations of Brooke LJ in the Sunderland Youth Court case. Further, it is said that no attempt was made by the judge to explain to the appellant the requirement of the order. Again, this submission is unanswerable; no such attempt was made.[34]In our judgment the following principles clearly emerge:(1) The test for making an order is one of necessity to protect the public from further anti-social acts by the offender.(2) The terms of the order must be precise and capable of being understood by offender.(3) The findings of fact giving rise to the making of the order must be recorded.(4) The order must be explained to the offender.(5) The exact terms of the order must be pronounced in open court and the written order must accurately reflect the order as pronounced.[35]It will be readily observed from a consideration of the Home Office Guide to Anti-Social Behaviour Orders that the conduct primarily envisaged as triggering these orders was for a less grave offence than street robbery, namely graffiti, abusive and intimidating language, excessive noise, fowling the street with litter, drunken behaviour and drug dealing. Doubtless in drafting that report the Home Office had in mind that courts have considerable powers to restrain robbers. We do not go so far as to suggest that anti-social behaviour orders are necessarily inappropriate in cases with characteristics such as the present. But where custodial sentences in excess of a few months are passed, and offenders are liable to be released on licence, circumstances in which there is demonstrable necessity to make anti-social behaviour orders are likely to be limited. We endorse the suggestion properly made by Miss Dagnall that there will be cases in which geographical restrains may properly supplement licence conditions.[36]Finally, it should be noted that whilst the making of such an order is strictly not part of the sentencing process, the appropriate venue for an appeal against the making of such an order when made in the Crown Court is plainly to the Court of Appeal Criminal Division. So much is plain from a reading of section 9(1) of the Criminal Appeal Act 1968 together with section 50(1) of the same Act.[37]Accordingly, the sentence of four years' detention is quashed and in its place is substituted a sentence of three years' detention. That can be conveniently achieved by ordering that the sentences on counts 1 and 3 run concurrently rather than consecutively. The anti-social behaviour order is quashed.[38]DR THOMAS: There is the question of the recovery of defence costs order.

THE LORD CHIEF JUSTICE: It is automatic.

[40]DR THOMAS: I think the court should formally make no order.

THE LORD CHIEF JUSTICE: No, no.

Cited in 13 later judgments

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