R v Pike
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW |
| Judgment Date | 11 June 1971 |
| Judgment citation (vLex) | [1971] EWCA Crim J0611-2 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 6466/B/70 |
| Date | 11 June 1971 |
[1971] EWCA Crim J0611-2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Megaw
Mr. Justice Geoffrey Lane
and
Mr. Justice Kilner Brown
No. 6466/B/70
MR. A. D. KENNEDY appeared on behalf of the Appellant.
This appeal is concerned with yet another of the many problems which arise out of the limitations imposed by Section 3 of the Criminal Justice Act, 1961 in respect of sentences of imprisonment on persons under 21.
The Appellant, Eric John Pike, is now 20 years of age. Before the events with which we are concerned he had served a sentence of Borstal Training. Hence, so far as he is concerned, the effect of Section 3, Sub-sections (1) and (3) of the 1961 Act is that "a sentence of imprisonment shall not be passed by any court" on him unless it is for six months or less or for eighteen months or more.
On the 29th October, 1969 at Liverpool Crown Court sentences involving a total term of eighteen months' imprisonment were passed on the Appellant for burglary and other offences. That sentence was suspended for two years.
On the 16th November, 1970, again at Liverpool Crown Court, the Appellant was convicted of attempted theft. We shall refer to this as the substantive offence. He had been caught, on the 4th May, 1970, while trying to pull lead and copper pipes from a derelict house belonging to Liverpool Corporation.
The Court passed a sentence of three months' imprisonment on him for the substantive offence. The Court also ordered that the suspended sentence should take effect with the substitution of a lesser term, namely twelve months, for the original term of eighteen months. This substitution was ordered under Section 40, Sub-section (1)(b) of the Criminal Justice Act, 1967. As required by that sub-section, the Court gave its reasons for not ordering that the suspended sentence should take effect with its original term unaltered. It is unnecessary to go into these reasons.
Since the Court ordered that the suspended sentence should commence on the expiration of the term of three months for the substantive offence, the total term which the Appellant was required to serve was fifteen months.
Leave was given by the single Judge to appeal against sentence. The point, and the only point, argued by Mr. Kennedy on behalf of the Appellant is that the term of fifteen months imprisonment is invalid because it is within the range prohibited by Section 3 of the 1961 Act in respect of this Appellant. The Court is indebted to Mr. Kennedy for his clear and forceful argu-ment, which necessarily though unfortunately raises intricate questions of statutory interpretation of both the 1961 Act and the Criminal Justice Act 1967. We say "unfortunately" because it is undesirable that matters of this sort relating to the powers of a court as to sentence should be anything other than simple, clear and straightforward.
The primary question which has to be decided is whether the Liverpool Crown Court in ordering that the suspended sentence should take effect with the substituted term of twelve months was itself passing a sentence. For Section 3, Sub-section (1) of the 1961 Act uses the words "a sentence of imprisonment shall not be passed".
That question has already been considered by this Court in R. v. Lamb reported in 52 Criminal Appeal Reports at page 667. It is true that that case differed in various respects from the present case. In particular, one of the grounds on which R. v. Lamb was decided does not here exist. In that case Lamb was already actually serving a sentence of six months' imprisonment when the suspended sentence, also of six months' imprison- ment, was ordered by Quarter Sessions to take effect consecutively. Thus Section 3, Sub-section (2) of the 1961 Act applied so that the limitations of Section 3, Sub-section (1) did not apply. The Court in R. v. Lamb, however, also decided, as appears in paragraph (c) at page 669 of the report, that Quarter Sessions, in ordering the suspended sentence to take effect, did not itself "pass" a sentence of imprisonment by so ordering. What it did was simply, in the words of Section 40, Sub-section (1) of the Criminal Justice Act, 1967, to "deal with him" in accordance with that sub-section.
That part of the decision in R. v. Lamb, whether it be regarded as obiter dictum or, as we think it should be regarded, as part of the ratio decidendi, is attacked by Mr. Kennedy. He submits that the Court's attention in R. v. Lamb cannot have been directed to Sub-section (9) of Section 40 of the 1967 Act. That Sub-section reads: "For the purposes of any enactment conferring rights of appeal in criminal cases any such order made by a court shall be treated as a sentence passed on the offender by that court for the offence for which the suspended sentence was passed'!
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