West Yorkshire Probation Board v Cruickshanks [2010] EWHC 615 (Admin)

Case No CO/1667/2010[2010] EWHC 615 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/03/2010
Before
THE RT. HON LORD JUSTICE LEVESONTHE HON. MR JUSTICE CRANSTON
Between
WEST YORKSHIRE PROBATION BOARDAppellantWAYNE CRUICKSHANKSRespondent
Mr Stephen Grattage (instructed by Sharpe Pritchard as London Agents for NJ Thorpe, Secretary to West Yorkshire Probation Board) for the AppellantMr Nicholas de la Poer (instructed by Carr and Co, Huddersfield) for RespondentHearing Hearing date: 10th March 2010
JudgmentLord Justice Leveson :
[1]This is an appeal by way of case stated from a decision of Mr Recorder Bury sitting in the Crown Court at Bradford dismissing a summons issued by West Yorkshire Probation Board which brought Wayne Cruickshanks before the court to answer an allegation that he had failed without reasonable excuse to perform unpaid work as directed on 7th June 2009, 3rd July 2009 and 14th July 2009. The recorder concluded that the court had no power to deal with the alleged breaches of the order because it had lapsed. He posed the question for the High Court in these terms:
“Does section 200(2) and (4) of the Criminal Justice Act 2003 operate to prevent the Probation Service from enforcing an unpaid work requirement under a Suspended Sentence Order following the expiration of the operational period absent an extension granted pursuant to paragraph 18(1) of Schedule 12 of the same Act?”
[2]The facts can be stated quite shortly. On 24th November 2007, at the same court, for the offence of assault occasioning actual bodily harm, Mr Cruickshanks was sentenced to 8 months imprisonment suspended for 12 months with requirements imposed pursuant to 189(1) of the Criminal Justice Act 2003 (“the Act”) that he be supervised for a period of 12 months and undertake 150 hours unpaid work. At some time thereafter, but during that 12 month period, he suffered a serious injury in a road traffic accident; he did not perform the unpaid work and it was common ground that, having suffered that injury, he had a reasonable excuse for not doing so.[3]After the expiration of the 12 month period, however, Mr Cruickshanks did undertake some of the work that he had not completed, last reporting for duty on 24th May 2009 after which some 41.5 hours of work remained outstanding. Notwithstanding notification to work on the three dates to which I have referred, he did not do so and so was summoned to appear before the court. At the heart of the case is not the particular circumstances of this offender (it being common ground that the particulars of this particular summons are misconceived) but the time limits for the system of enforcing the provisions of this particular legislation. With that introduction, I turn to the law and, in particular, the statutory scheme for the imposition and enforcement of a suspended sentence.

The Statutory Regime

[4]The power to impose a suspended sentence of imprisonment is contained in section 189 of the Act, the relevant parts of which are in these terms: (1) A court which passes a sentence of imprisonment for a term of at least 28 weeks but not more than 51 weeks in accordance with section 181 may— (a) order the offender to comply during a period specified for the purposes of this paragraph in the order (in this Chapter referred to as “the supervision period”) with one or more requirements falling within section 190(1) and specified in the order, and (b) order that the sentence of imprisonment is not to take effect unless either— (i) during the supervision period the offender fails to comply with a requirement imposed under paragraph (a), or (ii) during a period specified in the order for the purposes of this sub-paragraph (in this Chapter referred to as “the operational period”) the offender commits in the United Kingdom another offence (whether or not punishable with imprisonment), and (in either case) a court having power to do so subsequently orders under paragraph 8 of Schedule 12 that the original sentence is to take effect. … (3) The supervision period and the operational period must each be a period of not less than six months and not more than two years beginning with the date of the order. (4) The supervision period must not end later than the operational period. … (a) order the offender to comply during a period specified for the purposes of this paragraph in the order (in this Chapter referred to as “the supervision period”) with one or more requirements falling within section 190(1) and specified in the order, and (b) order that the sentence of imprisonment is not to take effect unless either— (i) during the supervision period the offender fails to comply with a requirement imposed under paragraph (a), or (ii) during a period specified in the order for the purposes of this sub-paragraph (in this Chapter referred to as “the operational period”) the offender commits in the United Kingdom another offence (whether or not punishable with imprisonment), and (in either case) a court having power to do so subsequently orders under paragraph 8 of Schedule 12 that the original sentence is to take effect. …[5]The requirements identified in section 190(1) of the Act include “(a) an unpaid work requirement” defined by section 199(1) as “a requirement that the offender must perform unpaid work in accordance with section 200”. Section 200 puts the obligations in these terms:
“(1) An offender in respect of whom an unpaid work requirement of a relevant order is in force must perform for the number of hours specified in the order such work at such times as he may be instructed by the responsible officer. (2) Subject to paragraph 20 of Schedule 8 and paragraph 18 of Schedule 12 (power to extend order), the work required to be performed under an unpaid work requirement of a community order or a suspended sentence order must be performed during a period of twelve months. (3) Unless revoked, a community order imposing an unpaid work requirement remains in force until the offender has worked under it for the number of hours specified in it. (4) Where an unpaid work requirement is imposed by a suspended sentence order, the supervision period as defined by section 189(1)(a) continues until the offender has worked under the order for the number of hours specified in the order, but does not continue beyond the end of the operational period as defined by section 189(1)(b)(ii).”
[6]There are a number of important features of these provisions. First, the offender must do the work as instructed. Secondly, although a number of the requirements under section 190 (such as residence, mental health treatment or supervision) might extend for two years, unpaid work must be completed within 12 months, subject only to the power to extend the order to which I shall return. Third, if unpaid work is ordered, the supervision period (which is defined by section 189(1)(a) and is not the same as a supervision requirement made possible by section 190(1)(k) and defined in section 213(1) lasts only as long as work remains to be completed but cannot extend beyond the operational period of the suspended sentence of imprisonment. This last provision is not surprising because the sanction for breach of the order is to serve the term of imprisonment the operation of which was suspended for a specific albeit limited period of time and the operational period of that sentence, involving loss of liberty, is understandably the governing limit for the sentence as a whole.[7]I turn to the enforcement of the community requirements of such an order and, in particular, the requirement of unpaid work. The duty falls on the responsible officer which, for an offender over 18 is an officer of the local probation board: see section 197(1), 197(2)(b) and 198(1) of the Act. The structure, which is prescriptive and limits the discretion of the officer enforcing the order is set out in Schedule 12 in these terms: “Duty to give warning in relation to community requirement 4(1)If the responsible officer is of the opinion that the offender has failed without reasonable excuse to comply with any of the community requirements of a suspended sentence order, the officer must give him a warning under this paragraph unless—(a) the offender has within the previous twelve months been given a warning under this paragraph in relation to a failure to comply with any of the community requirements of the order, or(b) the officer causes an information to be laid before a justice of the peace in respect of the failure. (2) A warning under this paragraph must— (a) describe the circumstances of the failure, (b) state that the failure is unacceptable, and(c) inform the offender that if within the next twelve months he again fails to comply with any requirement of the order, he will be liable to be brought before a court. (3) The responsible officer must, as soon as practicable after the warning has been given, record that fact. (4) In relation to any suspended sentence order which is made by the Crown Court and does not include a direction that any failure to comply with the community requirements of the order is to be dealt with by a magistrates' court, the reference in sub-paragraph (1)(b) to a justice of the peace is to be read as a reference to the Crown Court. Breach of order after warning 5(1)If— (a) the responsible officer has given a warning under paragraph 4 to the offender in respect of a suspended sentence order, and (b) at any time within the twelve months beginning with the date on which the warning was given, the responsible officer is of the opinion that the offender has since that date failed without reasonable excuse to comply with any of the community requirements of the order, the officer must cause an information to be laid before a justice of the peace in respect of the failure in question. (2) In relation to any suspended sentence order which is made by the Crown Court and does not include a direction that any failure to comply with the community requirements of the order is to be dealt with by a magistrates' court, the reference in sub-paragraph (1) to a justice of the peace is to be read as a reference to the Crown Court.” (a) the offender has within the previous twelve months been given a warning under this paragraph in relation to a failure to comply with any of the community requirements of the order, or (b) the officer causes an information to be laid before a justice of the peace in respect of the failure. (a) describe the circumstances of the failure, (b) state that the failure is unacceptable, and (c) inform the offender that if within the next twelve months he again fails to comply with any requirement of the order, he will be liable to be brought before a court. Breach of order after warning (a) the responsible officer has given a warning under paragraph 4 to the offender in respect of a suspended sentence order, and (b) at any time within the twelve months beginning with the date on which the warning was given, the responsible officer is of the opinion that the offender has since that date failed without reasonable excuse to comply with any of the community requirements of the order,

Breach of order after warning

[8]Enforcement in the Crown Court (where the Crown Court has not included a direction that any failure to comply with the community requirements of the order is to be dealt with by the magistrates’ court) is governed by paragraph 7(2) in these terms:
“If at any time while a suspended sentence order to which this paragraph applies is in force it appears on information to the Crown Court that the offender has failed to comply with any of the community requirements of the order, the Crown Court may— (a) issue a summons requiring the offender to appear at the place and time specified in it, or (b) if the information is in writing and on oath, issue a warrant for his arrest.” (a) issue a summons requiring the offender to appear at the place and time specified in it, or (b) if the information is in writing and on oath, issue a warrant for his arrest.”
[9]Proof of breach either for failure to comply with a community requirement or by reason of the commission of a further offence, must be considered by the court which is then empowered to order the suspended sentence to take effect with its original term unaltered, for a lesser term or by amending the order to impose more onerous community requirements, or subject to section 189(3) and (4), in the case of the supervision period or 189(3) alone in the case of the operational period, extend either or both: see paragraph 8 of Schedule 12.[10]Finally, there are two subsidiary provisions which are relevant to the issues in this case. Paragraph 13 permits the court responsible for the order to cancel the community requirements of a suspended sentence order and is in these terms:
“(1) Where at any time while a suspended sentence order is in force, it appears to the appropriate court on the application of the offender or the responsible officer that, having regard to the circumstances which have arisen since the order was made, it would be in the interests of justice to do so, the court may cancel the community requirements of the suspended sentence order. (2) The circumstances in which the appropriate court may exercise its power under sub-paragraph (1) include the offender’s making good progress or his responding satisfactorily to supervision.”
[11]The second is paragraph 18(1) which deals with the extension of an unpaid work requirement but which is subject to section 200(4) of the Act limiting any extension to the operational period of the suspended sentence: “Where—(a) a suspended sentence order imposing an unpaid work requirement is in force in respect of the offender, and(b) on the application of the offender or the responsible officer, it appears to the appropriate court that it would be in the interests of justice to do so having regard to circumstances which have arisen since the order was made, the court may, in relation to the order, extend the period of twelve months specified in section 200(2). (a) a suspended sentence order imposing an unpaid work requirement is in force in respect of the offender, and (b) on the application of the offender or the responsible officer, it appears to the appropriate court that it would be in the interests of justice to do so having regard to circumstances which have arisen since the order was made,

Argument

[12]For the Probation Board, Mr Stephen Grattage argued that a suspended sentence order is an operative sentence of imprisonment unless two requirements are satisfied, namely, that the offender completes the requirement imposed in the order in the supervision period and that he commits no further offences during the operational period: where they are not, a court subsequently can order that the original sentence is to take effect. Such an order is not complete and remains in force if an offender fails to comply with the requirement to complete the unpaid work within the period of supervision specified and, as such, the court has power to institute proceedings by summons and decide that issue. Thus, if work remains outstanding, it is appropriate to issue a summons notwithstanding that the operational period of the suspended sentence has elapsed (which also brings the supervision period to an end: see s 200(4) of the Act); if it were otherwise, an offender who was coming to the end of the operational period of his sentence could ignore a requirement to work on the basis that there would be insufficient time to issue a summons before it did so, thereby bringing the ability to enforce to an end. The phrase “at the time” in paragraph 7(2) refers to when the information may be issued and not to whether the suspended sentence still remains in force.[13]For the offender, Mr de la Poer argues that the starting point is that the work must be completed within 12 months (section 200(2) of the Act) and that any attempt to require performance of unpaid work outside this period is contrary to the statute and that, given that the obligation only subsists as long as the suspended sentence order is in force, there was no obligation upon him to attend for work in 2009 at all. Furthermore, where (as here) the operational period of an extended sentence is also 12 months, no extension to the period within which the unpaid work can be done is possible under paragraph 18 of Schedule 12 because the supervision period cannot extend beyond the operational period: s. 200(4) of the Act.

Analysis

[14]It is important to go back to the policy behind the operation of a suspended sentence. It is intended to be a sentence of imprisonment the implementation of which is deferred on specific conditions. The first is that the offender must commit no further offences; the second is that he must comply with the community requirements of the order. To ensure that the latter are enforced, there is a strict regime requiring, at the least, breach first to be met with formal warning (the alternative being immediate proceedings) and, if there is a breach after a formal warning, proceedings. In each case the provisions are mandatory and are clearly intended to establish public confidence in the sentence by demonstrating that the orders cannot be ignored with impunity.[15]Given that the court must take action in respect of a breach of a community requirement unless it is unjust to do so and can order the suspended sentence to take effect with its original term or for a lesser term, it is critical that breach is quickly notified and that an offender is aware of the risk that he faces while the suspended sentence is still operative. In those circumstances, in my judgment, paragraph 7(2) does require an information to be laid before the end of the operational period of the sentence although there is no requirement that it be heard before then.[16]In this regard, it is instructive to note the differences between the regime for suspended sentence orders and that imposed in relation to community orders with a requirement of unpaid work. Although the language in relation to the issue of a summons for non compliance is effectively the same (see paragraphs 7 and 8 of Schedule 8 of the Act), section 200(3) of the Act makes it clear that a community order will continue in force, unless revoked, until the offender has worked under it for the number of hours specified. In relation to a suspended sentence order, on the other hand, section 200(4) is equally clear that the order does not continue beyond the operational period.[17]Further, the suggested lacuna (a breach of an unpaid work requirement at the very end of the operational period which can never be enforced) is more theoretical than real because the responsible officer will have identified dates on which the offender must attend to perform unpaid work well in advance and can (and should) do so in good time before the expiry of the operational period of the sentence. Doing so, and taking action in accordance with the provisions of paragraphs 4 and 5 serve to underline the importance attached to compliance.[18]Neither should it be thought that this case proves the reverse. Because the operational period of the sentence and the supervision period were the same (12 months), it would never have been possible to extend under paragraph 18 of Schedule 12 (because the supervision period cannot exceed the operational period). Assuming that the serious road traffic accident provided a reasonable excuse for non-compliance with the unpaid work requirement for the duration of the order, neither was it possible to prove breach. In those circumstances, paragraph 13 of Schedule 12 permitted either Mr Cruickshanks or the responsible officer to return to the Crown Court and, having regard to the circumstances in which the inability to comply arose, cancel the requirement or, pursuant to paragraph 15, amend it.[19]Thus, in my judgment, the Probation Board were not entitled to take the action which they did in relation to Mr Cruickshanks. First, as Mr Grattage concedes, it was inappropriate to summons for failure to attend to perform unpaid work on specific dates outside the period covering the supervision period. Second, the summons was issued outside the period; if it had been issued in time (ie before the expiry of the 12 month supervision period), the effects of the serious road traffic accident would be likely to have provided reasonable excuse; if the effects of that accident were not of sufficient length to cover the 12 month period, times at which the work must be performed should have been set under section 200(1) of the Act, followed by warning and, if necessary breach proceedings under paragraphs 4 and 5 of Schedule 12, commenced within the supervision period.[20]In my judgment, although the recorder does not appear to have appreciated that extension under paragraph 18 would not have been possible in this case, I endorse his analysis of the statute. I would answer the stated question in the affirmative and dismiss the appeal. Mr

Justice Cranston:

[21]I agree.

Cited in 1 later judgment