R v Harries (Michael John)
| Jurisdiction | England & Wales |
| Judge | SIR IGOR JUDGE |
| Judgment Date | 07 June 2007 |
| Neutral Citation | [2007] EWCA Crim 1622 |
| Court | Court of Appeal (Criminal Division) |
| Date | 07 June 2007 |
| Docket Number | No: 200700386/A9–200702244/A1–200701956/A3–200606422/A1–200604457/A5 |
[2007] EWCA Crim 1622
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
President of the Queen's Bench Division
(Sir Igor Judge)
Mr Justice Field
Mr Justice Treacy
No: 200700386/A9–200702244/A1–200701956/A3–200606422/A1–200604457/A5
MR T ASHMOLE appeared on behalf of the APPLICANT SMITH
MR N NATHERS-LEES appeared on behalf of the APPLICANT BAINTON
MISS D CONNOLLY appeared on behalf of the APPLICANT SAIGER
MR K RIORDAN appeared on bhealf of the APPLICANT HARRIES
MISS S WHITEHOUSE appeared on behalf of the CROWN
: Although they are otherwise unconnected, these five cases, applications for leave to appeal referred to the Full Court by the Registrar and listed and heard together, raise an important common feature arising from the mandatory dangerous offender provisions contained in Part V of the Criminal Justice Act 2003.
Unsurprisingly these provisions do not apply to offences committed on or before the commencement date. The commencement date is 4th April 2005, but, an offender who falls to be sentenced for a specified offence committed after the commencement date and who falls within the statutory definition of “dangerous” must be sentenced in accordance with the 2003 Act.
The problem common to these cases is that some of offences, dealt with on the basis of the dangerous offender provisions, were alleged by the Crown to have taken place over a period which straddled 4th April 2005. Count 1 in Bainton provides a typical example taken at random. Count 1 charges in the statement of offence, making an indecent photograph of a child contrary to section 1(1)(a) of the Protection of Children Act 1978 and the particulars of offence alleged that on a day between 1st January 2005 and 7th July 2006, Lyndon Bainton made an indecent photograph of a child.
The starting point must be the well-established principle that when an offence is charged between two dates which span an increased penalty for the offence in question, the former or previous maximum sentence should normally apply (see, for example, R v S 13 Cr App R(S) 306 and R v Hobbs [2002] 2 Cr App R(S) 93). However, where, for example, the case has been conducted on the basis that the offence in question was in fact committed after the date when the increase in the maximum sentence came into force, the new maximum applies ( R v B 14 Cr App R(S) 744). Logically the same approach should be adopted to every legislative provision which produces an increase in the sentencing powers of the court. There is no doubt that an order of imprisonment for public protection, which largely, but not exclusively features in this case, represents a more serious sentence than a determinate sentence ( R v Reynolds [2007] EWCA Crim 538).
We have considered whether any feature of Part V of the 2003 Act or indeed any subordinate legislation may lead us to disapply these broad principles. The primary legislation includes one provision which may bear on the problem. Section 234 of the 2003 Act reads:
“Determination of day when offence committed.
an offence is found to have been committed over a period two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of section 229 to have been committed on the last of those case.”
Section 229, as is well known, is concerned with the assessment of dangerousness, where it falls to the court to assess “whether there is significant risk to members of the public of serious harm occasioned by the commission…of further such offences.” That is a reference to “specified” offences. Section 234 does not refer, and is not linked, to sections 225 to 228. It is focussed on section 229.
The provisions were considered in R v Howe [2006] EWCA Crim 3147 where, because the point did not in the end arise for decision, the Court described its observation as “very tentative”. It observed that:
“…if section 234 is to be treated creating a power to pass a sentence of greater severity than was available at the time when the offence was committed, there would be significant problems with retrospectivity, and Article 7 of the European Convention of Human Rights. If section 234 is simply evidential so that the court should apply a presumption, when no other evidence about the date when the offence was committed is available, then perhaps the difficulty would not arise. The evidence to show that the offence was committed before April 2005 would be there, if it were available and would speak for itself.
22. Our very tentative view would be that section 234 should be read in context with section 229, which, as we have already indicated, is evidential, and directed to the assessment of whether or not the particular offender represents a danger. In practical terms in this case, however, the decision is academic, which is why we do not resolve it.”
Although they were expressed in very cautious terms, these words attracted the attention of Dr David Thomas in the Crim LR for May 2007, at page 395. Having analysed the whole of the decision of Howe he commented on the possible application of section 234 in the context of section 229. The commentary reads:
“This decision deals with two important questions. The first is the application of the 'dangerous offender' provisions of the Criminal Justice Act 2003 to cases where the offence is charged as having been committed on a date unknown between two dates which are specified, one before April 4, 2005 and one after that date. Unfortunately the transitional provisions of the Act and its associated Commencement Orders are not wholly clear. As the court points out, s 234 states that in such circumstances the offence shall be taken to have been committed on the last of the specified days for the purposes of s 229. Unfortunately s 229 is not relevant for this purpose, and it seems that s 234 must contain a simple mistake. The cross-reference should have been to ss 225, 226, 227 and 228.”
The corresponding provision is found in the Criminal Justice Act 2003, Commencement No 8 and Transitional and Salient Provisions Order 2005, Schedule 2, paragraph 5(3):
“This provides that where an offence is found to have been committed over a period two or more days or some time during a period of two or more days, it shall be taken for the purposes of paragraph 5(1) to have been committed on the least of those days.”
Paragraph 5(1) of the Schedule refers to the appeal of the earlier dangerous offender provisions (see paragraph 5(2)(c) xii) but not to the implementation of the new dangerous offender provisions (see paragraph 2A). This was presumably because it was thought that the problem had been resolved by the express provisions of section 225, 226, 227, but they did not apply to pre-commencement offences.
We cannot construe a statute which creates power to impose a sentence of imprisonment for public protection other than strictly, and it would be inappropriate to treat the text of section 234 as having suffered from a Homeric nod by an overpressed draftsman. On reflection, and having in this case had the assistance of counsel specifically addressing the points now under consideration—and we pause to say how grateful we are to Miss Whitehouse, for the Crown, who prepared a detailed argument on the point and to all the other counsel in the case for their efficient thoughtful contribution to the discussion—we adhere to the views formerly expressed in tentative fashion in Howe. Neither section 234, nor the transitional periods in paragraph 5(3) of Schedule 2 to the Commencement No 8 Order are sufficient to empower the court to impose sentence on an individual as if he had committed the offence in question after 4th April 2005, merely because the dates in the relevant count straddle the April 4th date. That would undermine the principle that the dangerous offender provisions do not apply to offences committed before the commencement date.
In her carefully structured submissions Miss Whitehouse further suggested that it was possible to identify three factual situations to which a wide time span straddling the commencement date might apply. The suggestions were, first, where it was unclear from the evidence on what particular date a specific offence took place; second, where a continuing offence had been committed but it was not possible accurately to say when the offending started and when it ended; and third, when a continuing offence had been committed and it was possible to be certain when it began and ended.
We do not necessarily conclude that that is a final and comprehensive list of the relevant invitations but the analysis demonstrates how wide-ranging this problem may be. The end result, in our judgment, is that in cases where the count in the indictment spans the commencement date, the court should not impose any of the penalties created in sections 224 to 229 of the 2003 Act, unless satisfied that at least one relevant offence occurred after 4th April 2005. Once it is so satisfied, then the mere fact that the count was framed so that it spanned that date does not preclude such a sentence if it would otherwise be appropriate or mandated. We should perhaps add that, even if it is not open to the court to impose any of the dangerous offender penalties, because it is unsure whether the offence was committed before or after 4th April, if a qualifying offence or offences is committed after that date, then offences committed before the date may have some bearing on the assessment of dangerousness and, of...
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