Court of Appeal
| Published date | 01 December 2011 |
| Date | 01 December 2011 |
| DOI | http://doi.org/10.1350/jcla.2011.75.6.732 |
| Subject Matter | Court of Appeal |
Court of Appeal
Has the Court of Appeal Extended the Per Incuriam
Exception?
R v Cooper [2011] EWCA Crim 1872
Keywords Disqualification; Precedent; Per incuriam; Safeguarding vul-
nerable persons
The appellant was made subject to a court order under s. 28 of the
Criminal Justice and Court Services Act 2000 following his conviction
for three counts of rape for which he initially received 18 years’ impris-
onment. He appealed against his sentence on the basis that it was
manifestly excessive. The second issue for the Court of Appeal to con-
sider concerned the s. 28 order which disqualified the appellant from
working with children.
The regime for disqualification orders was created under Part II of the
2000 Act with the consequences of such an order contained in s. 35 of
the Act. In the appellant’s case, he received a standard form notice
conveying the content of the s. 28 order which he signed in acknow-
ledgement of receipt. However, the judge did not inform the appellant
that he would be barred from working with children as he is required to
do under the Safeguarding Vulnerable Groups Act 2006. The 2006 Act
was introduced following the Bichard Inquiry (The Bichard Inquiry
Report, HC653 (TSO: London, 22 June 2004)) undertaken as a result of
the Soham murders, which highlighted a need for reform of the schemes
dealing with the vetting and barring of individuals working with vulner-
able groups. The 2006 Act was intended to create a new statutory regime
for barring individuals convicted of specified crimes from working with
children and vulnerable adults as a replacement for the disqualification
order regime under the 2000 Act.
The 2006 Act has been implemented in a piecemeal fashion following
further statutory amendment and, as a result, it is difficult to navigate
the provisions of the Act, leading to a lack of legal certainty as to the
correct Crown Court procedure in respect of disqualified or barred
persons upon conviction of a specified offence. The Safeguarding Vul-
nerable Groups Act 2006 (Commencement Order No. 6, Transitional
Provisions and Savings) Order 2009 (SI 2009 No. 2610) entered into
force on 12 October 2009. Article 3(2) provides that: ‘The provisions of
CJCSA referred to in paragraph (1) shall cease to have effect for the
purposes of enabling a disqualification order to be made in relation to a
person who is barred from regulated activity by virtue of section 3(2) of
the Act’. The provisions in s. 3(2) of the 2000 Act relate to the duty of the
court to make a s. 28 order.
In the present appeal the Court of Appeal was asked to determine
what the duty of the court was in relation to making a s. 28 order
following the 2009 Commencement Order. Either it should be read as
448 The Journal of Criminal Law (2011) 75 JCL 448–467
doi:10.1350/jcla.2011.75.6.732
placing the court under a continued duty to make an order under s. 28
of the 2000 Act in addition to informing the appellant he would also be
barred under the 2006 Act. Alternatively, the 2009 Commencement
Order removed the duty of the court to make an order under the 2000
Act and consequently the convicted person would not be subject to the
disqualification regime under that Act. Instead the court would only be
under a duty to inform the convicted person that he will be barred and
subject to the 2006 regime. On account of the legal uncertainty created
by these provisions the Registrar of the Court of Appeal (Criminal
Division) asked the court to address the issue in Attorney-General’s Refer-
ence No. 18 of 2011 [2011] EWCA Crim 1300. On that occasion the Court
of Appeal determined that courts no longer were required to make a
s. 28 order under the 2000 Act, but should apply the provisions under
the 2006 Act giving effect to the meaning of the Commencement Order
accorded by the court.
However, the Home Office was concerned that the court had not been
made aware of the practical consequences of this interpretation given to
the 2009 Commencement Order in Attorney-General’s Reference No. 18 of
2011 and informed the Registrar of these concerns. As a result the court
invited the Home Office to attend the present appeal as it involved an
appeal against a s. 28 disqualification order. This led the Home Office to
intervene, without objection by the Crown Prosecution Service or the
appellant, in this appeal.
H
ELD
,
DISMISSING THE APPEAL
, the decision in Attorney-General’s Refer-
ence No. 18 of 2011 was wrong on account of the fact that the court was
not presented with all material considerations, particularly those relat-
ing to the gradual implementation of the 2006 Act’s regime. Parliament
could not have intended to have continued with two similar, but not
identical, statutory regimes to apply indefinitely as a consideration of the
legislative history demonstrated. This would also be contrary to good
governance and administration. In fact the 2009 Commencement Order
required a literal meaning to give effect to the purpose of it, which was
to phase in the implementation of the 2006 Act. In this period of
transition courts must therefore continue to make s. 28 orders as well as
notifying the convicted person that he is barred under the 2006 Act
regime, although the court indicated that the current transitional regime
ought to be discontinued as soon as possible (at [43iii]).
C
OMMENTARY
Upon setting out the relevant legislative provisions at the heart of this
case, the Court of Appeal’s first task, after dispensing with the appellant’s
appeal against sentence, was to determine whether to grant leave to the
Home Office to intervene in this appeal in order to review the recent
Court of Appeal decision in Attorney-General’s Reference No. 18 of 2011
[2011] EWCA Crim 1300. The Home Office had identified a gap in the
operation of the barring system following the decision and sought the
court to review its earlier decision. In granting leave to the Home Office
to intervene in the present case, the court stated that it would do so on
the basis that ‘if material and argument had not been put before the
Has the Court of Appeal Extended the Per Incuriam Exception?
449
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