Monaghan & Ors, R v [2009] EWCA Crim 2895

No: 200901602/A8, 200903058/B3,200903440/B3, 2009027289/A4, 200901543/A4[2009] EWCA Crim 2895
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 21 October 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HOOPER
MRS JUSTICE SWIFT DBE
HIS HONOUR JUDGE MORRIS QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
R E G I N A
v
RUDIE AARON MONAGHAN
ROBERT DOUGLAS TYLER
CHAY GILBERT
ASIM NASER
K
Computer Aided Transcript of the Stenograph Notes of
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165 Fleet Street London EC4A 2DY
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(Official Shorthand Writers to the Court)
Mr A Amer appeared on behalf of Monaghan
Mr S Gittins appeared on behalf of Tyler
Mr D Higgins appeared on behalf of Gilbert
Mr N Mian appeared on behalf of Naser
Mr A Hook appeared on behalf of K
Mr T Chaize appeared on behalf of the Crown in the cases of Tyler and Gilbert
Mr K Barry appeared on behalf of the Crown in the case of Naser
J U D G M E N T
Between
Monaghan & OrsDefendantRCrown

LORD JUSTICE HOOPER:

[1]For reasons which we will give later, we take the view that one cannot enjoy the benefit of section 240A except to the extent that a person is on bail subject to the necessary conditions on or after 3 November. So in the case of Tyler and Gilbert, using the schedule, the 95 days will count but not the 51 days.[2]The second issue -- we just want to make sure from the respondent -- Mr Chaize, we think we know and understand your point, is no one is suggesting that the Ministry of Justice circular is right.[3]MR CHAIZE: As I understand it.

LORD JUSTICE HOOPER: It is right?

[5]MR CHAIZE: I have not seen it. I have been told something about it.

LORD JUSTICE HOOPER: Have a look at it. Where is our circular?

[7]MR CHAIZE: Is this the one that says you must be physically in front of a court?

LORD JUSTICE HOOPER: Yes, you must come back in front of a court.

[9]MR CHAIZE: That would be quite extraordinary. It would mean, as my learned friend Mr Higgins said in his skeleton, that every solicitor in the land would have to get their clients before a court, flooding the courts merely for the purposes of getting their bail renewed and for no other purpose.

LORD JUSTICE HOOPER: Which paragraph? Someone remind us.

[11]MR CHAIZE: I think it is Mr Higgins.[12]MR HIGGINS: My Lord, if it is, it is in -- paragraph of the skeleton on behalf of the Gilbert.

LORD JUSTICE HOOPER: Just give us the paragraph number of the circular.

[14]MR HIGGINS: Paragraph of -- the circular? Well ...

LORD JUSTICE HOOPER: That is all we want. (Pause).

[16]MR BARRY: My Lord, unfortunately I have not seen that circular. It was not raised in my case. I was not provided with it. It did not have a bearing on my case.

LORD JUSTICE HOOPER: I shall give it to you and you can have a look? I am sure I read it this morning.

[18]MR HOOK: In the Court Services guidance document, which I served, paragraph 20 of that document.

LORD JUSTICE HOOPER: May be I am looking at the wrong document. Where is that? Where do we find that? In your helpful bundle?

[20]MR HOOK: I sent it in separately to the bundle. I don't know whether the court inserted it into my bundle but the court appointed lawyer, Mr Catterson, referred to it.

LORD JUSTICE HOOPER: I am so sorry, I am missing you. What is the title of the document?

[22]MR HOOK: HM Court Service Guidance to Court Staff. (Pause)

LORD JUSTICE HOOPER: I have it. Paragraph?

[24]MR HOOK: Paragraph 20.

LORD JUSTICE HOOPER: Yes, that is right. Yes. I will read it aloud for everybody. "Please note that the new legislation will only apply to tagged bail curfew orders made on or after 3 November. Any person who is subject to an order made before that date should not receive credit for that order. However if the order is varied after 3 November or a new one made, then the defendant should receive credit from the date of the variation or the new order." You disagree with that.

[26]MR CHAIZE: I do, yes.

LORD JUSTICE HOOPER: Do you?

[28]MR BARNES: I do also, my Lord, yes.[29]MR HIGGINS: My Lord, if it assists this court, I corresponded with someone from the Ministry of Justice asking for the numbers of those who were on electronically monitored curfew prior to the coming into force on 3 November. The message back or the response was in line with that Circular or that guidance about coming into force but the numbers I was given from this lady was that one would therefore expect that about 3237 of the orders being monitored at 31 October were for curfews of nine hours or more. That was in response to the point I made in the skeleton argument about if every one of those, and did not know the figure at the time when the skeleton was drafted, but if every one of those offenders had to be physically brought to court to be rebailed so as to enjoy the benefit --

LORD JUSTICE HOOPER: How many were there?

[31]MR HIGGINS: 3237 at 31 October, which is three days --

LORD JUSTICE HOOPER: Just before.

[33]MR HIGGINS: It would have been a logistical nightmare for all.

LORD JUSTICE HOOPER: Yes. The circular is wrong. We will give our reasons later. One thing on which everyone is agreed.

[35]That leaves us now with how should a court treat the 51 days, I am using them as an example, of Tyler and Gilbert. You have seen the decision of Rix LJ. We have the decision of Latham LJ. We have the decision of Hughes LJ, saying it can all be taken into account. We all agree with that proposition. Do you wish to oppose that?[36]MR CHAIZE: No, it is mitigation.[37]MR BARRY: I agree with that, yes.

LORD JUSTICE HOOPER: So have we solved all the legal problems we need to solve?

[39]MR CHAIZE: My Lord, there is one remaining, which is by what authority can a court impose an electronic curfew? I have got with me the current edition of Archbold, which is what I have been looking at. There is a section in the Bail Act. It is section 3AC entitled "Electronic Monitoring General Provisions", and subsection (3) of that section says:
"The Secretary of State may make rules for regulating -- (a) the electronic monitoring of persons on bail."
[40]Now, what I don't know is when that first was brought into force and I don't know how it happened, whether it was as one of my learned friends helpfully and perhaps correctly suggested, it was an idea of someone working with Serco to offer this service because the Bail Act in fact --

JUDGE MORRIS: Those came into force on the day appointed by the Criminal Justice Act 2008.

[42]MR CHAIZE: That is what it says, yes.

LORD JUSTICE HOOPER: They have been doing this for years haven't they.

[44]MR CHAIZE: They have been doing it for a while. But the section in the Bail Act says:
"He may be required [this is the accused person] to comply before release on bail with such requirements as appear to the court to be necessary to secure the surrender, does not commit offences."

LORD JUSTICE HOOPER: The general provisions.

[46]MR CHAIZE: So it seems to be as wide as --

LORD JUSTICE HOOPER: Why they brought in that long one, 6.

[48]MR CHAIZE: That was to prevent it applying to children and young persons.

LORD JUSTICE HOOPER: Because they were worried that courts were imposing these things without consultation or whatever is required. Then they said to themselves in 2008 actually we have the same worries about adults and you ought to do A, B and C before you do it. It would look as if for some time now the courts have just being doing it because they are entitled under ordinary rules to make conditions.

JUDGE MORRIS: Is that not under 3AA?

[51]MR CHAIZE: 3AA is --

JUDGE MORRIS: Which was inserted in the 2001 Act I think.

[53]MR CHAIZE: My Lord, yes. It has been changed of course.

JUDGE MORRIS:

[54]I appreciate there have been subsequent amendments but haven't noted what the amendments are or what the Acts purport to amend but wasn't that the original provision dealing with electronic monitoring?[55]MR CHAIZE: My Lord, the original 3AA before amendment on 3 November 2008 related to -- it begins:
"A court shall not impose on a child or a young person a requirement under section 3(6ZAA) unless each of the following conditions are satisfied."
So it prevented children and young people from being subject.

LORD JUSTICE HOOPER: Because they were doing it and they should not have been doing it.

[57]MR CHAIZE: Yes.

LORD JUSTICE HOOPER: Yes. You can do that overnight for a note, please, and e-mail it through to me and the associate will give you my e-mail address. If you could do it and show us whether it is just simply by general law or whether there was actually a specific provision. I suspect it is the former. All right. You don't mind doing that.

[59]MR CHAIZE: No.

LORD JUSTICE HOOPER: That leaves us where? Who wants now to -- that is the law. We have been told what the law is. Now, what do you want to do?

[61]MR GITTINS: My Lord, I want to argue for my 51 days as a matter of discretion.

LORD JUSTICE HOOPER: Can we, please, get ourselves in order.

[63](Submissions made on behalf of Tyler and Gilbert)

LORD JUSTICE HOOPER: We are not going to made an immediate decision on the 51 days point. We are going to consider it at least either until later day or perhaps after the weekend.

[65]Do you need -- your man is already on home detention curfew. What would you like us to do? Would you like us to do the 95 days because what does that mean?[66]MR GITTINS: That means no restrictions on his liberty but for the licence.

LORD JUSTICE HOOPER: What about you on the 95?

[68]MR HIGGINS: Home detention curfew aside he would be due for release in May of next year on the sentence he received, no days taken into consideration. So he will certainly, even if your Lordships allowed the full amount or altered the sentence and allowed the 95 days, he is still going to be for the very near future in youth detention. It may make -- have an impact as to whether he is released before or after Christmas.

LORD JUSTICE HOOPER: What I am trying to do is decide how fast we should try and make our decision. If we made it on Monday or Tuesday of next week. I think to try and divide it into two would confuse people.

[70]MR HIGGINS: I worked out if the full 159 days, or whatever it was, to take account from July until May when he was sentenced was discounted or allowed then it would perhaps result in his release some time shortly before Christmas so it would not a drastic effect.[71]MR GITTINS: My Lord, it does cause some difficulty. 12 hours a day between now and Monday is 50 hours, two days effectively inside. Effectively 12 hours times five days. But were your Lordships to make the ruling in relation to 95 days in relation to Tyler today he would not have to do it. Although it is confusing, Mr Tyler isn't paramount given the concession by my learned friend and everyone that those 95 days count from the beginning of November.

LORD JUSTICE HOOPER: Do you want to forget the 51 day argument and just win on the 95?

[73]MR GITTINS: My Lord, no.

LORD JUSTICE HOOPER: Because it affects your licence period. You want your cake and eat it.

[75]MR GITTINS: My Tyler. My Lord, may I just say this for completeness. The co-defendant, Ben Chaplin, is not here, is not listed today, but his case would apply similarly.

LORD JUSTICE HOOPER: We have already anticipated that Mr Chapman will be following. Yes, all right. (Pause). We will make an order that the 95 days is allowed and we will reserve on the further 51 days. So that bites from today and you can tell your client accordingly.

[77]MR GITTINS: Very grateful, my Lord.

LORD JUSTICE HOOPER: Then the 51 is less urgent in the sense that I am sure he will behave himself until Tuesday.

[79]MR GITTINS: Will the court inform the Prison Service immediately? I am very grateful.

LORD JUSTICE HOOPER: So let us leave Tyler and Gilbert. On Tyler and Gilbert we will -- you are going to stay here or do you want to go on the 51 days? Do you want to stay and listen to the other arguments?

[81]MR HIGGINS: I am due at Isleworth at 2 o'clock.

LORD JUSTICE HOOPER: Why don't you go and leave it with Mr Gittins in case and then he can communicate with you if we decide to do something this afternoon.

[83]MR HIGGINS: Yes.

LORD JUSTICE HOOPER: Let us move on to the next one.

[85]MR CHAIZE: I wander if your Lordship would require me to stay? I was only here for Tyler and Gilbert.

LORD JUSTICE HOOPER: No. You may certainly go. Thank you so much for your help.

[87]MR AMER: Shall we move on to Mr Monaghan?[88](submissions made in relation to Monaghan)

LORD JUSTICE HOOPER: Mr Amer, in your case we are going to, for reasons which we will give later which will be brief, we will refuse you leave to appeal. But you have a representation order and we presume that the Prison Service will now do what they have been told to do. So if it turns out that they don't you had better come back I suppose.

[90]MR AMER: Yes.

LORD JUSTICE HOOPER: There is not much we can do. Once we have refused leave there is nothing we can do.

[92]MR AMER: I understand.

LORD JUSTICE HOOPER: In the light of our rulings this morning, Mr Amer, this is no criticism of you, one could describe your submissions as cheeky but I would not do that in a written judgment.

[94]MR AMER: I hope I have not caused any offence.

LORD JUSTICE HOOPER: You have not at all.

[96]MR AMER: It is something that I really wanted to explore because these are complicated and intricate matters.

LORD JUSTICE HOOPER: We are not in any way suggesting you should not have made the submissions. So you may go.

[98]MR AMER: Thank you.

LORD JUSTICE HOOPER: Who is next?

[100]MR MIAN: My Lord, the applicant Mr Naser.

LORD JUSTICE HOOPER: Under our rulings this morning, applying that, where are we? Nothing counts. Agreed?

[102]MR MIAN: Indeed.

LORD JUSTICE HOOPER: As a matter of law, nothing counts.

[104]MR MIAN: Indeed, yes.

LORD JUSTICE HOOPER: Let us look at your --

[106]MR MIAN: Given that nothing counts as a matter of law one would seek to persuade your Lordships that as a matter of discretion --

LORD JUSTICE HOOPER: Can we just sort our papers out? (submissions made in relation to Naser)

[108]For reasons which we shall give later we refuse both the extension -- we refuse the extension of time and therefore we will also refuse the application for leave to appeal, but thank you very much. Now that leaves Mr Khan.[109]MR HOOK: My Lord, yes.

LORD JUSTICE HOOPER: Just remind us. You are?

[111]MR HOOK: Mr Hook.

LORD JUSTICE HOOPER: As of right 67 days.

[113]MR HOOK: That's right.

LORD JUSTICE HOOPER: Do you have someone from the prosecution in your case?

[115]MR HOOK: No.

LORD JUSTICE HOOPER: No, you are on your own. But there is no doubt that you are entitled to 67.

[117]MR HOOK: My Lord, yes.

LORD JUSTICE HOOPER: We will just put this one away. (Pause). What happened when you asked for it?

[119]MR HOOK: The learned Recorder took the view -- the Recorder was handed the Court Service Guide that you mentioned earlier on this morning and he adopted that as being the correct statement of the law and took the view that as a result of it no days fell to be credited wherever they may have come from and the issue of 3 November did not really arise.

LORD JUSTICE HOOPER: So you must win, is this your submission, to the tune of 67 days.

[121]MR HOOK: Yes, and I ask for discretion on the 95 days prior to that.

LORD JUSTICE HOOPER: You are also saying the sentence is manifestly excessive.

[123]MR HOOK: I am, yes.

LORD JUSTICE HOOPER: Would you mind leaving this to 2 o'clock. You are the only one with another argument. If we read this during the short adjournment. Would you mind?

[125]MR HOOK: Not at all.

LORD JUSTICE HOOPER: We will not give judgment today so you don't need to wait any longer. It will be handed down. Some time next week. Thank you. We will see you at 2 o'clock. (Short Adjournment) (submissions made on behalf of Khan)

LORD JUSTICE HOOPER:

[127]We are not dealing with all your sentence today. We can tell you that we are not reducing the four years other than to the extent of 67 days and then we will in our reserved judgment deal with the other 95. (To Counsel). Will you explain that to the appellant?[128]MR HOOK: Yes, I will.

LORD JUSTICE HOOPER: Thank you.