Lewis, R. v [2019] EWCA Crim 1612

Case No 201901519/A1IN THE COURT OF APPEAL CRIMINAL DIVISION[2019] EWCA CRIM 1612Venue Royal Courts of Justice Strand London, WC2A 2LLDate Thursday, 19 September 2019B e f o r e:LORD JUSTICE FLAUXMRS JUSTICE WHIPPLE DBEMR JUSTICE SOOLE
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DAVID ANTHONY LEWISComputer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22Furnival Street, London EC4A 1JS, Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.NON-COUNSEL APPLICATIONJ U D G M E N T (Approved)

LORD JUSTICE FLAUX:

[1]Having pleaded guilty in the Magistrates' Court to a variety of offences (mainly Public Order Act offences) involving abusive or threatening behaviour, this appellant was sentenced to 22 March 2019, in the Crown Court at Caernarfon by His Honour Judge Petts, to a total of 2 years and 4 months' imprisonment. One of the offences, for which the sentence was 2 years' imprisonment, was breach of a criminal behaviour order, contrary to section 30 of the Anti-Social Behaviour, Crime and Policing Act 2014; that order had been made by the Caernarfon Magistrates' Court on 13 October 2017 with the duration of 3 years.[2]At the sentence hearing the prosecution made an application to the judge to extend that order; the judge acceded to that application and purported to extend that order for a further period of 3 years until 2023.[3]The applicant's application for leave to appeal against sentence was refused by the single judge, save in one respect which had been identified by the Registrar, that the variation made by the judge to the criminal behaviour order was arguably unlawful as, under section 27(1) of the Anti-Social, Crime and Policing Act 2014, such an order may only be varied by the court which made it (here Caernarfon Magistrates' Court). The single judge gave limited leave in relation to this point which we will now deal with.[4]Because the appeal is limited to this point it is not necessary to set out the facts in more detail - they are summarised in the Criminal Appeal Office summary. Section 27(1) of the Anti-Social Behaviour, Crime and Policing Act 2014, provides as follows: i. "Variation or discharge of orders. (2) A criminal behaviour order may be varied or discharged by the court which made it on the application of—(a) the offender, or(b) the prosecution."[5]It is quite clear from the terms of that subsection that only the Caernarfon Magistrates' Court which made the criminal behaviour order has the power to vary it. The judge had no power or jurisdiction to do so and the prosecution made its application to the wrong court. Accordingly, that part of the judge's order on sentencing which purported to extend the criminal behaviour order must be quashed and the appeal is allowed to that extent only. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk