Ovenell v Premier Monitoring Services Ltd. [2003] EWHC 387 (Admin)

Case No CO/5111/2002[2003] EWHC 387 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 11 February 2003
Strand
London WC2
B E F O R E:
MR JUSTICE NEWMAN
Between
GEORGE OVENELLClaimant-v-
Between
PREMIER MONITORING SERVICES LTDDefendant
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 HARDIE (instructed by Brady Eastweeod Pierce & Stewart) appeared for CLAIMANTMR M BRYANT-HERON (instructed by Premier Monitoring Services) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE NEWMAN: This is an appeal by way of case stated from a decision of Deputy District Judge Hawgood in respect of an adjudication by him at the magistrates' court sitting at Camberwell Green.[2]The essential facts taken from the Case Stated can be summarised as follows. On 26 February 2002 an information was preferred against the appellant that he, having been made subject to a curfew order on 25 January 2002, did breach that order in that he failed to comply with the requirements of the order in that he removed the personal identification device without just cause on 2 February 2002 at 6.40 pm and was absent from the place of curfew on 3 February 2002 between 10.00 pm and 10.04 pm, the hours of the curfew being 10.00 pm to 7.00 am daily.[3]No point arose below, nor in this court, as to the allegation that he had been absent on 3 February from the place of curfew. That fell because there was no evidence to support it. The allegation which the deputy district judge had to deal with was the allegation that he breached the order in that he removed, what I will call the tag, without just cause on 2 February 2002 at 6.40 pm.[4]The issues which have been raised in this court, which do not entirely reflect the arguments as they were advanced below, can be divided under four headings. I will call the first an issue as to the time in the information, namely 6.40 pm, which is expressed as the time of the removal and the failure to comply; secondly, an issue as to whether notice was given orally by the magistrate who imposed the curfew order; thirdly, an issue as to whether there was oral notice of the consequences of failing to comply with the terms of the order; and fourthly, an issue as to the effect of the terms of the written order, which was filled out and signed after the order had been made by the court on 25 January 2002.[5]By way of general observation and not contentious, it has to be pointed out that the curfew order which was filled out, namely the form of the written order which was prepared and signed by the appellant on 25 January 2002, is an order which carries no reference to the tagging process. It sets out the times of the curfew. It continues at the bottom, under the heading "Warning":
"If you do not stay at the place you should be at during your curfew you may be brought back to Court. This means that the Court may then: • Punish you for that failure as well as making you finish this order, or. • Pass a different sentence for the original offences."
The form, however, did conclude with these words:
"I am bound to comply with the curfew order and confirm that the Court has explained to me the conditions of the order and what will happen if I do not comply with the order. I understand that monitoring officers will visit me after sentencing during curfew periods."
[6]The position, as it seems plain to the court, is that the form of order which was drawn up and signed is not one which actually reflects the order which was made by the court. Even if it had not been borne out by an admission, which is in the bundle, it would be perfectly obvious that the court had not only made a curfew order, but also made it a condition of the curfew order that the appellant would be subjected to the tagging process. It was a condition of the order as made that he should be electronically monitored.[7]The power under which the court, at the relevant time, acted in including such a requirement in the curfew order was section 36B of the Powers of Criminal Court Sentencing Act 2000. Section 36B came into force on 2 July 2001 and had the effect of repealing section 38 of the 2000 Act, which was the precursor, which had provided for electronic monitoring.[8]The admission to which I have already referred is in these terms:
"On 25th January 2002 the offender was sentenced by the Camberwell Green Youth Court to a Curfew Order. The terms of the Order were that the offender was to remain indoors at 6 Addison Drive, Eltham Road, London, SE12 between the hours of 10pm to 7am daily from 25th January 2002 to 19th April 2002. The order was to be electronically monitored. Premier Monitoring Services Ltd was appointed by the Court as Responsible Officer for the duration of the Order."
It follows, one might add as a matter of detail, that the written order to which I have referred does not record that Premier Monitoring Services had been appointed by the court as the responsible officer for the duration of the order, but it is plain according to the provisions of section 36B that the court was, under subsection (5), required to include a provision making a person responsible for the monitoring and a person who is made so responsible shall be of a description specified in an order made by the Secretary of State. Thus it is perfectly obvious and beyond argument that on 25 January 2002 an order was made under section 36B, as I have described.[9]The Deputy District Judge considered the allegation concerning the appellant's absence at the curfew address. That was not proceeded with.[10]Next, as it is recorded in the Case Stated, it was contended that the curfew order served on and signed by the appellant in court on the making of the order on 25th January 2002 was silent concerning the requirement that the appellant wear a tag during the period of the curfew. The argument, therefore, with which the Deputy District Judge had to deal under that submission related to the wearing of the tag during the period of the curfew.[11]The argument which has been advanced to this court by Mr Hardie as the first ground of appeal is an argument that the Deputy District Judge was not entitled to make any order because the information, as laid, referred to a period of time, namely 6.40 pm, which was outside the terms of the curfew. I will come back to that argument, which is the first issue as I have identified it.[12]The next submission with which the Deputy District

Judge had to deal was 3(v) in the Case Stated:

"No evidence had been called that the conditions of the Order made included any explanation by the Court on the 25th of January that any 'tag' should be worn continuously (and not removed) during the currency of the Order."
[13]I need not refer to any other submissions as they were set out in the course of the case.[14]The Deputy District Judge found the following facts: "ii) That the Appellant had been made the subject of a Curfew Order on the 25th of January .... The second page of the Curfew Order reads 'I am bound to comply with the curfew order .... '," namely the words I have already read. He also found that one William Reeves, whose statement was before him, had occasion to visit the "curfewee" -- as he is called -- in order to induct him into the electronic monitoring system as required by the court order. The Deputy District Judge found that, notwithstanding the written order served on the appellant did not refer to the Act, it was a curfew order with a condition of electronic monitoring. He went on to find also that the regime imposed by the order is not simply a matter of physical surveillance, nor a matter of unannounced visits by the monitoring authority, but that it is implicit in the order that the tag must be worn at all times throughout the period of the order in order to ensure compliance with the court order. He concluded that in damaging the tag the appellant had sought to undermine the regime and system of ensuring compliance with a court order. He concluded that it was implicit and inherent in the order that the appellant permit the tag to be attached for the period of the order and that the tag is not to be damaged or destroyed or removed. As a result he imposed a fine of £50 for the breach.[15]So far as the first issue is concerned, the issue as to time, Mr Hardie submits that there is an absence of sufficient evidence in the Case Stated and there was an absence, therefore, of any sufficient evidence before the Deputy District Judge for him to conclude that if it was a condition of the requirement that he wear the tag, the appellant knew that he had to wear the tag all the time as opposed to only during such periods of time as the curfew was in force. In my judgment the point is open to be made but it is, as I see it, upon the facts of this case unnecessary for this court to determine the point. Had it had to do so the law as set out by the Deputy District Judge and recited in paragraph 14 above would appear to be correct. The Deputy District Judge was considering was a case in which it was manifestly plain from the evidence before the court that the tag was not being worn during the period of time when the curfew was prevailing, because, on the evidence of the compliance officer who went round, at 23.49 hours in the evening of 2 February the tag, which was in a damaged condition, was not on the ankle of the appellant.[16]The Deputy District Judge was dealing with a submission that the order was silent concerning a requirement that the appellant was to wear a tag during the period of the curfew, and I regard that as the relevant consideration for the court today. It is not clear from the argument of Mr Hardie whether or not he submits that, because the information referred to 6.40 pm, it was not open to the Deputy District Judge to conclude that there was a breach at a time other than at 6.40 pm. If the submission had been made, I would have concluded that it was wholly misconceived. It was plainly open to the court to conclude, considered in the light of all the evidence that there was in relation to the breach, that there was a breach during the period of time of the curfew as well.[17]The second issue is as to whether there was notice of the condition. Again, I was not entirely clear from Mr Hardie's submissions whether he was submitting that the appellant could not have known that it was a condition of the curfew order that he should wear a tag, but in so far as the submission may have been advanced, it is plainly not capable of argument. Obviously he knew that it was a condition of the curfew that the tag would be imposed. He has placed an admission before the court, to the effect that it was. Obviously his consent to the tag being put around his ankle was required and there is the undoubted evidence that on the evening of the day of the order someone went round to his house and put the tag on his ankle. So there is nothing in that.[18]One therefore turns to the third issue. The third issue is whether the statutory requirements were complied with so far as giving notice of the consequences of a breach of the order in accordance with the requirements of subsection 37(10) of Part IV Chapter II of the Powers of Criminal Courts (Sentencing) Act 2000. In its material parts, that subsection provides:
"Before making a curfew order, the court shall explain to the offender in ordinary language -- (a) the effect of the order (including any additional requirements proposed to be included in the order in accordance with section 38 below (electronic monitoring)); (b) the consequences that may follow (under Part II of Schedule 3 to this Act) if he fails to comply with any of the requirements of the order; and (c) that the court has power (under Parts III and IV of that Schedule) to review the order on the application either of the offender or of the responsible officer."
Obviously, for "section 38", that having been repealed, must be read, "section 36B". The evidence which was before the court below was in the terms of the signed certification that "the court has explained to me the conditions of the order and what will happen if I do not comply with the order." In my judgment there is no call for any doubt to arise in relation to that, it being, as counsel agreed, the criminal standard of proof which applied. As signed, the conditions of the order must refer sensibly, not to the conditions of the particular written order which has then been signed, but to the conditions of the order which have been explained to him by the court. In the absence of any issue being joined with the terms of such a written declaration, in my judgment there can be no question that it was open to the Deputy District Judge to be sure that the court had followed the provisions of section 37, and in particular 37(10), in making known to the appellant the effect of the order, including the electronic tagging and also the consequences which may follow if he failed to comply with any of the requirements of the order made under section 36B. In my judgment nothing turns on that point.[19]Therefore one comes to the fourth argument before this court namely, what difference does it make that the written order which was drawn up and signed did not comply with section 37(11) of the Act? Section 37(11) provides:
"The court by which a curfew order is made shall give a copy of the order to the offender and to the responsible officer."
On the evidence which was before the court, section 37(11) had not been complied with because the written order which was given to the appellant did not reflect the full terms of the order which had actually been made under section 36B. I have no doubt that that was because the court was using the remaining pro forma forms of order which had been used previously under the earlier provisions. Mr Hardie has very helpfully provided a specimen which shows what the Greater London Magistrates Courts Authority are now using by way of written curfew order, and it is plain a warning is being given in respect of the removal of the tag and the consequences which may follow. But the argument forcefully presented by Mr Hardie did not, in my judgment, at any time deal with the substance of the matter, namely that what is required by these provisions is that the individual concerned must be aware of what the order contains by way of its terms and he should be given a warning as to the consequences of breaching it. The principle that an individual should be aware of the terms of an order, and before he can be penalised for having breached it the court must be sure that he knew of the terms, is long established and the cases to which I have been referred by Mr Hardie underline the importance of that in the analogous sphere of the law in connection with contempt. He has kindly drawn to my attention the well-known case of re Bramblevale Ltd [1969] 3 All ER 1062 and the more recent R v City of London Magistrates' Court ex parte Green [1997] 3 All ER 551. Reference was also briefly made to the case of Churchman and Others v Joint Shop Stewards' Committee of the Workers of the Port of London [1972] 1 WLR 1094. All those cases make it plain that the terms must be known to the person made subject to the order and also that the individual must have a proper notice of the terms, and that he will be at risk of penal consequences flowing from a breach of the terms. As I have indicated, there was ample material before this Deputy District Judge for him to be sure that the terms of the order spoke for themselves, had been explained and were plainly known to the appellant. There was a declaration in terms which was sufficient for him to conclude that the effect of and consequences of those terms had been explained in accordance with the requirement of the Act. Against that was only the absence from the written order of mention of the full terms of the order imposed by the court.[20]For all those reasons, I am entirely satisfied that the Deputy District Judge was entitled to come to the conclusion to which he came.[21]I turn to the question. The question for the opinion of the court is:
"Whether, as a matter of law and fact, the Deputy District Judge was entitled to find that there was a breach of a Curfew Order where the curfew monitoring tag was removed in circumstances where the original order served upon the curfewee in Court [under s 37 of the Powers of Criminal Courts (Sentencing) Act 2000] was silent as to whether a tag must be worn during the operation of the Order?"
[22]For the reasons as I have given, the answer to that question must be, yes.[23]MR BRYANT-HERON: I apprehend my learned friend is publicly funded. May I make application for the respondent's costs to be taxed from central funds.

MR JUSTICE NEWMAN: That is a usual order is not it.

[25]MR BRYANT-HERON: This is the form. The solicitor who instructs me is from Premier Monitoring Services; this is not a public body answering the appeal. Therefore I make the application.

MR JUSTICE NEWMAN: This is part of their contract.

[27]MR BRYANT-HERON: They are contracted by the Home Office to conduct the administration.

MR JUSTICE NEWMAN: And it includes defending proceedings and so on.

[29]MR BRYANT-HERON: They become respondent in this situation.

MR JUSTICE NEWMAN: You can be say much about that.

[31]MR HARDIE: I was would ask for the normal order.[32]MR JUSTICE NEWMAN: It is out of central funds, so it is not affecting your client. Thank you very much to indeed for your help. I am sorry it has taken a bit longer.[33]MR HARDIE: What I was going to ask -- your Lordship may think it is impertinent -- I was wanting to give consideration of certification of a point of general public importance.[34]MR JUSTICE NEWMAN: Well, if you want to apply for such a certificate you will have to formulate the point before you trouble me with it now.[35]MR HARDIE: If I could have liberty to apply.[36]MR JUSTICE NEWMAN: You have, do you not, a time limit in which you have to do it. There is a time limit.[37]MR BRYANT-HERON: I think there is.[38]MR JUSTICE NEWMAN: I do not think it is seven days. If you look at the rules there is probably a time limit. If you want to request the court to certify you would have to put the certificate before me in proper form and give Mr Bryant-Heron an opportunity of seeing it too. But I do not suggest that you ask for certificate on a point that was not even in issue.[39]MR HARDIE: It may be that I should look at a little more carefully at the judgment. Thank you.