Court of Appeal
| Published date | 01 August 2001 |
| Date | 01 August 2001 |
| DOI | http://doi.org/10.1177/002201830106500404 |
| Subject Matter | Article |
Court
of
Appeal
Length
of
Consecutive
Orders
for
Detention
and
Training
Rv
Norris
(2000)
164
lP
659
A
youth
who
was
16
on
the
date
on
which
he
was
sentenced
for
attempted
burglary, to
which
he
had
pleaded
guilty,
had
committed
that
offence (at
the
age of 15)
while
he
was
still subject to a IO
months'
detention
and
training
order.
On
this,
second
occasion,
the
Crown
Court
judge
took
the
view
that
a
further
order
for
detention
and
training
should
be
made
and
that
it
should
operate
consecutively to
the
already
existing order. He was, it seems,
minded
to
impose
a
term
slightly less
than
eight
months,
but
the
question
arose
whether
the
aggregate of
the
two
terms
had
to
be
one
of
the
terms
set
out
in s.
73(5)
of
the
Crime
and
Disorder Act
1998.
If
that
were
necessary,
the
second
term
to be
added
to
the
existing 10
months
was
the
full
eight
months
which
he
considered
inappropriate,
as
being
in excess of
what
he
had
had
in
mind
until
the
import
of s.
73(5)
came
to be considered. In
the
end,
he
formed
the
opinion
that
the
aggregate
had
to coincide
with
a
term
in
the
Act
and
he,
therefore,
regarded
himself as being
'trapped'
in
the
necessity of
making
his
order
for
the
full
eight
months
(which
he
had
already
indicated to be
excessive).
The
defendant
appealed
to
the
Court
of Appeal,
on
the
ground
that
the
correct
sentence
was
a
shorter
term,
which
the
judge
had
already
indicated as
being
appropriate.
Section
73(5)
of
the
Crime
and
Disorder Act
1998
provides
that
the
term
of a
detention
and
training
order
shall be of 4, 6, 8, 10, 12, 18
or
24
months.
Section
74(2)
provides
that
where
an
offender
who
is subject to a
detention
and
training
order
is convicted of
one
or
more
further
offences
for
which
he
is liable to
such
an
order
the
court
shall
have
the
same
power
to pass,
on
conviction,
detention
and
training
orders
as
if
they
were
sentences
of
imprisonment.
Thus,
provided
the
sentence
is of
such
a
length
as brings it
within
the
section,
the
only
effect of s.
74(2)
is
that
of a
'capping'
provision of
24
months.
The
sole issue
was
whether
the
aggregate of
the
two
orders
had
to
amount
precisely to
one
or
other
of
the
periods set
out
in s.
73(5).
If
that
were
not
necessary,
and
s.
74
(2)
was
confined, for this purpose, to its
'capping'
function
it
would
be
open
to
the
judge
on
the
second occasion
to impose
what
term
he
thought
appropriate, provided
the
aggregate
was
within
the
maximum.
HELD,
ALLOWING
THE
APPEAL
AND
QUASHING
THE
IO-MONTH
ORDER,
a
six-month
order
of
detention
and
training
be substituted.
The
judge
was
in
error
in
holding
that
the
aggregate
had
to
amount
precisely
to
one
or
other
of
the
periods
mentioned
in s.
73(5).
He had, therefore,
been
entitled
to impose
the
slightly
shorter
term
which
he
had
thought
appropriate,
and
that
was
the
term
which
he
ought
to
have
ordered.
299
The Journal
of
Criminal Law
The
court
held
that
s. 3 of
the
Human
Rights Act 1998 obliged
the
Crown
Court
judge
so to
interpret
s.
73(5)
that
the
length
of
the
aggregate
sentence
should
not
restrict his choice of
the
length
of
the
sen-
tence
on
the
second
occasion.
The
Court
of Appeal
was
of
the
opinion
that
the
interpretation
of
s.
73(5)
which
the
judge
had
thought
he
was
bound
to
adopt
had
imposed
on
him
'a straitjacket capable of
producing
quite
bizarre re-
suits'.
The
term
fixed in
the
earlier
order
would
determine
the
term
of
the
second
order, so
that
the
judge
sentencing
on
the
second
occasion
might
find
that
the
term
which
he
wished
to
impose
was
not
open
to
him.
In
the
present
case,
the
l
O-month
term
imposed
on
the
earlier
occasion
would
permit
a
further
two-month
term
or
an
eight-month
term,
but
nothing
in
between
the
two,
however
appropriate
an
inter-
mediate
sentence
might
be. In
any
case of
joint
offenders, in
which
one
played
the
major
and
the
other,
the
minor
role, it
could
turn
out
that,
in
view
of
the
difference
between
the
two
respective
earlier
orders,
the
offender
who
played
the
minor
role receives a
longer
term
than
the
more
serious
offender.
It
would
then
be said
that
that
result
was
in
conflict
with
s. 3 of
the
Human
Rights Act 1998.
The
Court
of Appeal,
therefore,
concluded
that
s. 3
had
the
effect of
rendering
the
judge's
interpretation
of s.
73(5)
erroneous.
Judge
Mellor
pointed
out
in
the
Court
of Appeal
that
the
training
periods
determined
administratively
to
be
appropriate
could
not
be
enforced
inevitably in all cases, since it
was
always
open
to
the
Home
Secretary
to
bring
such
a
term
to a close by
exercising his discretion to
grant
the
offender
early
release,
even
though
that
fell
during
the
currency
of a
pre-ordained
training
period.
COMMENTARY
As it
was
clear
that
the
Crown
Court
judge
had
'trapped'
himself
into
the
'straitjacket'
by his
misinterpretation
of s.
73(5),
the
court
quashed
the
eight-month
order
and
substituted
one
of six
months,
which
seems
to be
in
accordance
with
the
judge's
first
thoughts
as to
what
was
appropriate,
before
he
had
come
to
consider
whether
it
was
permitted
by s.
73(5).
The
result
of this decision is
that
each
sentence
must
be for a
term
mentioned
in s.
73(5),
and
that
the
effect of s.
74(2)
is simply to fix
an
aggregate
maximum.
The
decision
contains
something
of a
paradox.
It
is essentially a
decision
which
adopts
the
principle
that
a
sentence
should
be
that
of
the
sentencing
judge
in
the
exercise of his discretion;
but
that
principle is
enunciated
in a
judgment
given
for
the
purpose
of
quashing
his decision
and
substituting
that
of
the
Court
of Appeal,
which
took
the
view
that
the
shorter
period
was
what
justice
required
and
that
was
more
im-
portant
than
keeping
to
pre-ordained
training
schedules.
300
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