R v Moore (Deborah)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOBHOUSE,MR JUSTICE SEDLEY |
| Judgment Date | 13 December 1994 |
| Judgment citation (vLex) | [1994] EWCA Crim J1213-13 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 94/4151/Y5 |
| Date | 13 December 1994 |
[1994] EWCA Crim J1213-13
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Hobhouse Mr Justice Judge and Mr Justice Sedley
No: 94/4151/Y5
MISS MULLIGAN appeared on behalf of the Appellant
MR JAY appeared on behalf of the Crown
Tuesday 13th December 1994
The judgment of the Court giving the reasons for allowing the appeal of Deborah Jane Moore will be given by Mr Justice Sedley.
This case came before the Court on 28th November 1994 on a Registrar's referral because the notice of appeal raised a question about the legality of a sentence of probation passed on the applicant. On that occasion we enlarged time and granted leave, and after hearing the submissions of Miss Mulligan for the appellant we adjourned in order to obtain the assistance of counsel as amicus curiae. At the resumed hearing on 2nd December 1994 we had the assistance of Mr Jay, and we record our appreciation of the help which both counsel have given to us in resolving an unexpected problem of statutory construction.
Because the appeal concerns questions of construction and jurisdiction there is no need to embark upon the factual background of the case. It is sufficient to set out the relevant chronology. On 25th October 1989 at St Albans Crown Court the appellant was placed on probation for two years for possession of cannabis. On 14th February 1992 at St Albans Crown Court, before His Honour Judge Rodwell QC, for offences of handling and deception committed in December 1990 in breach of the probation order, the appellant was sentenced to three months' imprisonment consecutive on each of three counts, with thirteen offences taken into consideration, and to one month's imprisonment concurrent for breach of the probation order —a total of nine months, which Judge Rodwell suspended for two years.
On 25th August 1993 the appellant appeared before Bedford Magistrates' Court charged with two thefts committed during the operative period of her suspended sentences. The justices conditionally discharged her for twelve months and imposed no separate penalty for having failed to surrender to custody. Under section 24(2)(b) of the Powers of Criminal Courts Act 1973 they gave written notice to the Crown Court of the "conviction" of the appellant. In consequence she was brought before Judge Rodwell at Luton Crown Court on 22nd October 1993, where Judge Rodwell dealt with her for re-offending during the operational period of her suspended sentence, without protest by either counsel, by making a three-year probation order with a condition of medical treatment.
It was not until the appellant was "breached" in relation to the new probation order and committed by Luton Magistrates' Court on 10th March 1994 to the Crown Court that the present issue was identified. On 6th June 1994, again before Judge Rodwell, both counsel then instructed submitted to the judge that he had possessed no power in October 1993 to impose the probation order which the appellant was now said to have breached. They cited the case of R v Tarry (1970) 54 Cr App R 322, to which we shall come later in this judgment. The learned judge said, after hearing argument as to the nature of the committal made by the Luton justices:
"It might technically be a matter of whether they said 'We are committing you to the Crown Court for breach of the suspended sentence'. If those words came first then the conditional discharge is ultra vires. If, on the other hand, they say 'We will give you a conditional discharge and we will commit you to the Crown Court for breach of the suspended sentence', then it might be otherwise. I propose to deal with it on the basis that she was committed by the magistrates to this Court which was in accordance with law and that the probation sentence was a valid one."
He made an order continuing the probation order and varying it by adding a condition that the appellant should reside where directed by the probation service.
Within twenty-eight days of this decision, on 30th June 1994, application was made to Judge Rodwell to vary the sentence in the exercise of his power under section 47 of the Supreme Court Act 1981, or to revoke the probation order pursuant to paragraph 8(2) of Schedule 2 to the Criminal Justice Act 1991 because of new circumstances. Again both sides made the same submission on want of jurisdiction, but the judge concluded:
"I do not think the Crown is necessarily right in its submission that the order was a nullity. It may not have been an order which is approved by the Court of Appeal, that is to say the original probation order. My own view is that academic writers have for many years questioned the correctness of R v Tarry. I do not believe it was correctly decided in the context of modern legislation. I would not be prepared to follow it and I do not think the Court of Appeal would take the same decision now."
The critical fact in this history is that for the offence of shoplifting which constituted the breach of a suspended sentence, the appellant had been given a conditional discharge by the Bedford justices. In law this form of disposal has for many years been deemed not to rank as a conviction save for specified purposes. Section 12 of the Criminal Justice Act 1948 provided:
"(1) Subject as hereinafter provided, a conviction of an offence for which an order is made under this Part of this Act placing the offender on probation or discharging him absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under the foregoing provisions of this Act…."
At the date of its enactment, the saving in relation to the "foregoing provisions" of the Act related back to the provisions of section 8 which concerned the commission of further offences during the period of a probation order or conditional discharge. Thus it was for these purposes, but for no others, that a conditional discharge was to rank as a conviction.
It was by the Criminal Justice Act 1967, sections 39 to 41, that suspended sentences were first introduced into the criminal justice system. In 1970 in the case of Tarry (supra) this Court had to consider the effect of a further offence committed during the operative period of a suspended sentence but dealt with by justices by means of a conditional discharge. The Lord Chief Justice, having set out section 12 of the 1948 Act, went on:
"The relevant provisions in regard to suspended sentences are to be found in sections 39, 40 and 41 of the Criminal Justice Act 1967. Section 39(1) provides as follows: 'A court which passes a sentence of imprisonment for a term of not more than two years for an offence may order that the sentence shall not take effect unless, during a period specified in the order, being not less than one year or more than three years from the date of the order, the offender commits in Great Britain another offence punishable with imprisonment….'
I deliberately break off there, because an argument could be put forward that really the condition precedent here is not conviction, but the commission of an offence, and therefore section 12 of the Act of 1948 would not operate.
However, section 39(1) goes on to provide another condition, as it were, because it continues: 'and thereafter a court having power to do so orders under the next following section that the original sentence shall take effect…' Accordingly, that takes one to section 40(1), which provides for a suspended sentence being brought into operation by a court having power to do so under the following section, or the court before which he subsequently appears or is brought, and all that is conditional on the opening words of the subsection, which are: 'Where an offender is convicted of an offence punishable with imprisonment….'
Accordingly, in the judgment of this Court, it is really impossible to say that the only condition here is the commission of an offence; there must be in fact a conviction. Accordingly, when one looks at section 12 of the Act of 1948, it seems abundantly clear that the conviction upon which the order of probation was made is not to rank as a conviction for any purposes other than those provided in section 12 itself."
Thus an offender such as Tarry who had been given a conditional discharge for re-offending during the operative period of a suspended sentence could not be dealt with by activation of the suspended sentence. That this was not an oversight was made clear when the legislation was consolidated in the Powers of Criminal Courts Act 1973. Section 13 of that Act replaced section 12 of the 1948 Act in terms and in a location which produced the identical effect to that set out in Tarry. It reproduced the rule that probation or discharge should not be deemed to be a conviction except for the purposes of the proceedings in which the order was made and of any subsequent proceedings "under the preceding provisions of this Act". The preceding provisions included, as before, re-offending in breach of a probation order or a conditional...
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