Carruthers v Hampshire Probation Service [2010] EWHC 1961 (Admin)

Case No CO/2808/2010[2010] EWHC 1961 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 2 July 2010
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE MOSES
MR JUSTICE WYN WILLIAMS
Between
RUSSELL CARRUTHERSAppellantv
Between
HAMPSHIRE PROBATION SERVICERespondent
Computer-Aided Transcript of the Palantype Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Peter Greenfield (instructed by Messrs Rowe Sparkes Partnership) appeared for AppellantMr Peter Towler (instructed by Hampshire County Council) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE WYN WILLIAMS: This case has an unfortunate history. As long ago as 21st May 2008, the appellant pleaded guilty at the Southeast Hampshire Magistrates' Court to eight offences of theft, one offence of assault and three motoring offences. Each of those offences was committed on 20th May, that is the day before his appearance at the Magistrates' Court.[2]The offences of theft involved stealing copper pipe from a B&Q stores in Southsea, when the appellant was passing himself off as a member of staff at the store. The offence of assault was committed against an actual member of staff who had discovered what the appellant was doing.[3]Following guilty pleas on 21st May 2008, sentence was adjourned by the magistrates to 17th June. A pre-sentence report was ordered, together with a drug rehabilitation assessment. The appellant was remanded on bail.[4]Literally a few hours later, he returned to the B&Q stores. He again stole copper from the stores while impersonating a member of staff. He again assaulted a member of staff who tried to apprehend him. He committed two further motoring offences.[5]He was quickly arrested and brought before the Magistrates' Court on 23rd May. He pleaded guilty to his further offending and he was remanded in custody to await sentence for his offences. Sentence again was adjourned to 17th June.[6]The hearing on 17th June took place before District Judge Arnold. She sentenced the appellant as follows. In respect of each offence of theft, she sentenced him to concurrent terms of four months' imprisonment. In respect of the offences of assault, she sentenced him to two months' imprisonment. In respect of the second assault offence, she ordered that the sentence should run consecutively, so that the total period of imprisonment imposed was six months. However, she decided to suspend that sentence for a period of 12 months. She also directed that the appellant should be subject to a supervision requirement for 12 months, a drug rehabilitation requirement for 12 months and she made various other directions relating to the road traffic offences.[7]By the time those sentences were imposed, the appellant had spent 28 days in custody on remand. As will become apparent, time spent in custody on remand is normally to be taken into account in calculating the period of time which a person should serve under a custodial sentence. However, when the District Judge imposed the suspended sentences on 17th June, she indicated expressly in her sentencing remarks that if the appellant broke the terms of his suspended sentence order, and should the suspended sentence be activated, the 26 days on remand should not count towards sentence. She so indicated because she said that she was of the opinion that it would be just in all the circumstances not to direct that the time spent on remand should count towards sentence.[8]The learned District Judge also directed that any proceedings relating to the breach of the suspended sentence, which might happen in the future, should be listed before her.[9]On 17th September 2008 the same District Judge heard an information laid against the appellant by the probation service. The information alleged a breach of the terms of the suspended sentence order. The breaches were set out in documents which were provided to the District Judge.[10]A Statement of Facts alleged that the appellant was being returned to court for failing to attend on two separate occasion when required so to do by a probation officer at an appointed time or place, or, in the alternative, failing to provide evidence to enable those absences to be accepted. The absences were said to have been on 7th August and 8th August 2008.[11]Of themselves, those facts would not appear to be unduly serious. However, there was a further document placed before the District Judge. That was a document headed "Response to Supervision Report". It suffices to quote from part of that document to illustrate its flavour:
"Mr Carruthers' attitude, motivation and progress to date have been extremely poor. He has in the short time of his order had eight acceptable absences, seven unacceptable absences and has been excluded from a day programme for suspicious behaviour."
The conclusion expressed in that report was that the appellant had shown a total disregard and contempt for the court by his failure to comply with the order. The conclusion went on:
"I therefore respectfully request that the custodial element of Mr Carruthers' order be activated and that his supervision and drug rehabilitation requirement be revoked."
[12]The two documents to which I have just referred, the Statement of Facts and the Response to Supervision Report, contained two material errors, or rather they each contained the same error which is of significance in this case. Each of the documents recited that the appellant had been sentenced to a term of four months' imprisonment on 17th June 2008, whereas in fact, of course, he had been sentenced to a total term of six months.[13]When the District Judge considered the information, she decided to activate the suspended sentence in full. However, by virtue of the inaccuracies in the documentation placed before her, she directed that the term to be activated was four months' imprisonment. She also directed that the 26 days spent in custody should not count towards sentence.[14]An appeal against any sentence imposed by the District Judge lies as of right to the Crown Court. For reasons which are completely unexplained, the appellant did not avail himself of his right of appeal. Rather, his solicitor applied to the Magistrates' Court to state a case contending that the District Judge had made errors of law when she sentenced on 17th September.[15]When the application for a case to be stated was placed before the District Judge, she declined on the grounds that such an application was frivolous. That led to an application in this court for judicial review of that decision. The matter came on quickly before His Honour Judge Pelling QC sitting as a judge of the High Court. He directed that the District Judge should state a case and, further, he granted bail. As from the date of the order of His Honour Judge Pelling, which was 20th October 2008, the appellant was released from his custodial sentence.[16]The effect of the order of Judge Pelling was to bring an end to the judicial review proceedings. He had ordered the District Judge to state a case, which was the relief sought in the judicial review, and he had granted bail. However, no one, including the appellant's solicitors, appeared to have realised that the judicial review proceedings were at an end and that something further needed to be done to bring the case before the Administrative Court on a substantive appeal. I say that for this reason. On 27th October 2008 the appellant's solicitors lodged a draft Case Stated in the Administrative Court. There is no explanation of why they took that step, which as it seems to me was wholly unnecessary. What they needed to do was to send it to the respondent, the District Judge, to ensure that it was in proper form. They did take that step but some days later.[17]On 27th November 2008, the District Judge approved the Case Stated and signed it. It was sent to the appellant's solicitor under cover of a letter dated 2nd December 2008. What then should have happened was that the appellant's solicitor should have appealed to the Administrative Court in an appropriate form by way of Case Stated. However, that did not occur. Nothing occurred in the year 2009, and it was not until 1st March 2010 that the appellant's solicitor actually lodged a notice of appeal in this court by way of Case Stated.[18]The first issue which arises, therefore, is whether or not in these unusual circumstances it is appropriate to grant the necessary extension of time for the appellant to bring his appeal. Approximately 14 months' extension is necessary, as is clear from the timetable which I have set out.[19]In the appellant's notice, the reasons for this delay are given. Without wishing to be unduly disrespectful to the appellant's solicitor, none of the reasons there provided begin to justify a 14-month delay, as occurred in this case. In my judgment it was incumbent upon the appellant's solicitor to familiarise himself or herself with the necessary procedural requirements for appealing by way of Case Stated and, had that been done, an appeal by way of Case Stated ought to have been lodged in December 2008 or at the very latest in early 2009.[20]The difficulty is that the appellant has remained on bail for a very significant period of time. Were I to take the robust view that I should simply refuse an extension, the consequence would be that the appellant's appeal would necessarily fail and he would be required to return to prison to serve such part of his sentence as remains. That appears to me, at least, to be a draconian approach, given that I know nothing of what has transpired with this appellant since the autumn of 2008. For all I know, he has remained of good behaviour, remained on bail and has simply been awaiting the outcome of his appeal. If that is the true position, it seems to me that it would be unjust to simply dismiss his appeal on the basis that it was brought out of time, with the consequence that he would have to return to prison.[21]Accordingly, in these very unusual circumstances, it seems to me that I should grant the necessary extension of time for bringing this appeal and deal with the substantive points raised.[22]An appeal by way of Case Stated is available to a person who alleges that an order made in the Magistrates' Court is wrong in law or is in excess of jurisdiction. The appellant in this case alleges that the sentences imposed by District Judge Arnold on 17th September 2008 were wrong in law in two respects. First, it is said that the District Judge erred in law when she directed that the 26 days spent in custody on remand prior to 17th June 2008 should not count towards sentence. Second, it is said that she erred in law when she directed that the whole of the suspended sentence should be activated.[23]I propose to deal with the second point first and in the circumstances as they arise in this case quite shortly. The order of the District Judge on 17th September was that the appellant should serve four months' imprisonment.[24]In my judgment, in the circumstances of this case, she made no error of law when she activated the whole sentence as she believed it to be. The powers of the court in relation to a person who his in breach of a community requirement of a suspended sentence order are to be found in paragraph 8 of Part 2 of Schedule 12 of the Criminal Justice Act 2003. Sub-paragraph 2 of paragraph 8 is in the following terms:
"The court must consider his case and deal with him in one of the following ways- (a) the court may order that the suspended sentence is to take effect with its original term and custodial period unaltered (b) the court may order that the sentence is to take effect with either or both of the following modifications (i) the substitution for the original term of a lesser term ... (ii) the substitution for the original custodial period of a lesser custodial period ... (c) the court may amend the order by doing any one or more of the following-(1) imposing more onerous community requirements which the court would include if it were then making the order (2) subject to subsections (3) and (4) of section 189 extending the supervision period or (iii) subject to subsection (3) of that section, extending the operational period."
Sub-paragraph 3 provides that:
"The court must make an order under sub-paragraph 2(a) or (b) unless it is of the opinion that it would be unjust to do so in view of all the circumstances, including the matters mentioned in sub-paragraph (4), and where it is of that opinion the court must state its reasons."
Finally sub-paragraph (4), the matters referred to in sub-paragraph (3) are:
"(a) the extent to which the offender has complied with the community requirements of the suspended sentence order ... "
[25]In this case, the submission is made that because the appellant had complied with some parts of the supervision requirement, that should have been taken into account by the District Judge and should have led her to the view that the whole of the custodial term should not be activated. I remind myself that I am considering the legality of what the District Judge did, not whether I or any other judge would have acted differently had the problem confronted me or that other judge.[26]In my judgment, it was clearly open to the District Judge to take the view that the activation of the whole of the suspended sentence was appropriate in the circumstances of this case. As I have said earlier in this judgment, the probation report upon this appellant was scathing. It was open to the District Judge to conclude that his response to supervision had been very poor and that in those circumstances no account should be taken in deciding whether to activate the whole or part of the suspended sentence of the perfunctory manner in which he had performed some of the supervision requirements. In my judgment there is nothing in this point.[27]I turn to the issue of whether the District Judge acted unlawfully when she directed that 26 days spent on remand was not to count towards the sentence. In my judgment this is a much more difficult issue.[28]Section 240(1) of the Criminal Justice Act 2003 provides that the section is to apply where a court sentences an offender to imprisonment for a term in respect of an offence committed after the commencement of the Act.[29]Subsection (3) provides that subject to subsection (4), the court must direct that the number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by him as part of the sentence.[30]Subsection (4) is in these terms:
"(4) Subsection (3) does not apply if and to the extent that— (a) ... "(b) it is in the opinion of the court just in all the circumstances not to give a direction under that subsection."
As I have said, in this case the District Judge concluded that it was just in all the circumstances not to direct the 26 days were to count. What were her reasons for so directing?[31]In order to ascertain what they were, it is necessary to consider, first, what happened when she imposed the suspended sentences of imprisonment on 17th June 2008.[32]The District Judge summarises what happened on that occasion and her reasons for acting at page 24 of the Trial bundle, which is page 4 of the Case Stated. Two passages are relevant.[33]In a passage describing why it was that she decided to impose a suspended sentence of imprisonment, the District

Judge said this:

"Being mindful that the appellant had been in custody for 26 days, and had been assessed as being very motivated to remain abstinent from all illicit substances, I consider that justice might be better served in the longer term by the imposition of a suspended sentence order rather than a term of immediate imprisonment, notwithstanding the aggregate custodial term would be limited to 6 months as opposed to 12 months were the sentence to be one of immediate custody."
A little later on in the case, she said this:
"I further indicated in open court that in the event that the term of imprisonment were ordered to take effect, I consider that it would be just in all the circumstances not to direct, pursuant to section 240(3) of the Criminal Justice Act 2003 that the 26 days which the appellant had spent on remand in connection with the above offences should count as time served by him, as part of the sentence for reasons recorded briefly in the court register as follows: 'court restricted to a 6-month maximum suspended sentence because deficit in legislative drafting deprives this court of 12 months suspended sentence.'"
[34]The deficit in the legislative drafting to which the District Judge was referring was the Criminal Justice Act 2003 (Sentencing) Transitory Provision) Order 2005, which in summary form confined the powers of the magistrates when imposing a suspended sentence to a term of no more than six months.[35]In my judgment, the District Judge was perfectly entitled to suspend the sentence for the reasons which she articulated. It was clearly appropriate for her to take into account the fact that 26 days had been spent on remand, as she also took into account the clearly relevant factor that the appellant would be the beneficiary of a drug rehabilitation treatment. Accordingly, as it seems to me, the reason why she imposed the suspended sentence cannot be faulted.[36]Her reasons for imposing the maximum by virtue of the regulation also cannot be faulted. She did not impose the maximum sentences available for each offence. She therefore gave credit for guilty plea. The maximum was achieved only because she properly made the sentence for an offence committed on bail consecutive. There is nothing in her reasoning to this point, in my judgment, which makes it open to challenge on the basis of illegality.[37]Complaint, however, is made about the fact that she decided to direct what should happen under section 240 at the time when she imposed the suspended sentences as opposed to considering what should happen under section 240 when the time actually came to activate the sentence, if that was going to occur.[38]In my judgment, there is force in that criticism in this sense. For my part, I see nothing wrong with a judge or magistrate indicating to a defendant, when passing a suspended sentence, that one of the consequences of breaching that sentence would be that a custodial term would be activated and consideration would then be given as to how time spent in custody should be treated. It does seem to me, however, that the time for deciding whether to give a direction under 240 is the time when the sentence is actually activated. It seems to me that it is the circumstances as then pertaining which are the circumstances which should be taken into account in deciding whether or not to make a direction under section 240.[39]When the District Judge passed sentence on 17th September and when she activated the suspended sentence she explained that she was giving the direction under section 240(3) as opposed to section 240(3) by virtue of her earlier indication. There is no real material in the Case Stated which suggests that she considered the matter afresh, as in my judgment she was bound to do when she came to activate the suspended sentence on 17th September 2008. If that is the correct analysis of what the District Judge did, then in my judgment she fell into error.[40]I am conscious, however, that a Case Stated cannot be expected to contain every single factor which motivated a judge to act in a particular way, particularly in relation to activating a suspended sentence, and so I go on to consider the position as it was, on the assumption that the District Judge did consider the matter afresh when deciding to make the direction that she did.[41]It is important, in my judgment, to consider the context in which she was considering the position under section 240. It would be at a time when she had decided to activate the suspended sentence in full. It would be in response to breach proceedings, which did not allege the commission of a further criminal offence, but did allege a failure to participate in and co-operate with the supervision requirements of the suspended sentence order. As I have said, I can well understand how on the facts of this case it was open to the District Judge to reach the conclusion that the activation of the whole of the suspended sentence was just and appropriate.[42]For my part, however, I find it difficult to see how she could also conclude that it was appropriate that the 26 days spent on remand should not be taken into account in serving that sentence. The appellant was not to be punished by the additional imposition of 26 days for the breaches established by the probation service. His punishment for that was the activation of the suspended sentence in full.[43]In our judgment, there is at least a very real possibility that when one looks at the effect of what the District Judge did, the appellant is being punished not just by the activation of the suspended sentence in full for his breaches, but by being required to serve 26 days additionally by virtue of the direction given under section 240. In my judgment, such a state of affairs would not justify the giving of a direction under section 240(4). For my part, I consider that a direction under section 240(3) was appropriate in the circumstances of this case.[44]I can test my analysis another way. It may well be thought that the passing of the suspended sentence on 17th June 2008 was a merciful course, given the scale of the appellant's offending. Many judges or magistrates would have made any sentence of imprisonment an immediate one. Had they done so, however, I am confident, for my part, that they could not possibly have concluded that it was not appropriate to make a direction that the time served on remand should not count towards that sentence. It does not seem to me that in the circumstances which prevailed two months later, any different course should have been taken by the sentencing judge. Accordingly, I have reached the conclusion that when the District Judge made her direction under section 240(4) of the 2003 Act she did fall into error in the sense that she made a direction which was unreasonable in the Wednesbury sense. Accordingly, I would answer the questions posed for the opinion of the High Court as follows: (1) Whether I was wrong in law not to credit the appellant with remand days served in custody under section 240 of the Criminal Justice Act 2003? The answer is "Yes".[45]The second question posed is whether I was wrong in law to order that the suspended sentence should take effect with what I understood to be the original term remaining unaltered thereby affording the appellant no credit for any degree of compliance with the suspended sentence order since its imposition. The answer is "No".[46]But for the reasons I have given, in relation to the first ground I would allow this appeal.

LORD JUSTICE MOSES: I agree.

[48]MR GREENFIELD: My Lords, I am grateful. The appellant is subject to a representation order, so there is no consequential orders that I apply for?

LORD JUSTICE MOSES: Thank you.

[50]MR TOWLER: My Lord, might I ask for the costs of the probation service, which is not a public authority within the meaning of the Act to be paid out of central funds?

LORD JUSTICE MOSES: Yes.

[52]MR TOWLER: Does the court need to assess those or not? I can give you figures now if you want them.

LORD JUSTICE MOSES: No, they will be assessed --

[54]MR TOWLER: In the usual way.

LORD JUSTICE MOSES: -- in the usual way. Thank you very much. (A short break)

LORD JUSTICE MOSES: Yes.

[57]MR GREENFIELD: I do apologise for the bringing you back. There is the question of bail. The appellant is the subject to High Court bail.

LORD JUSTICE MOSES: I do not know whether he needs to go back to custody or not now.

[59]MR GREENFIELD: No.

LORD JUSTICE MOSES: We will order that all questions of bail and custody be dealt with by the relevant Magistrates' Court.

[61]MR GREENFIELD: My Lord --

LORD JUSTICE MOSES: So he remains on bail until further order from the magistrates. Do you agree?

[63]MR JUSTICE WYN WILLIAMS: I agree. Should we direct that the case be listed before the magistrates within 14 days of today?

LORD JUSTICE MOSES: Yes.

MR JUSTICE WYN WILLIAMS: So that there is finality.

LORD JUSTICE MOSES: Yes.

[67]MR TOWLER: I am sure it could be brought back before District Judge Arnold if necessary.

LORD JUSTICE MOSES: She may be away. Within 14 days it is to be listed and considered by the magistrates.

[69]MR GREENFIELD: My Lords, I am grateful.

Cited in 2 later judgments