R v Wayne Bailey and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leveson |
| Judgment Date | 25 July 2013 |
| Neutral Citation | [2013] EWCA Crim 1551 |
| Docket Number | No: 201303314 A4; 201301927 A6; 201302989 A4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 25 July 2013 |
[2013] EWCA Crim 1551
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Leveson
Mrs Justice Sharp DBE
His Honour Judge Bevan QC
(Sitting as a judge of the Court of Appeal Criminal Division)
No: 201303314 A4; 201301927 A6; 201302989 A4
Mr N Palmer appeared on behalf of Bailey
Mr J Mustafa appeared on behalf of Kirk
Mr W Byne appeared on behalf of Tote
Mr P Lodato appeared on behalf of the Crown
(As approved)
The victim surcharge was first introduced by section 161A of the Criminal Justice Act 2003, which was inserted by section 14 of the Domestic Violence, Crime and Victims Act 2004 ("the 2003 Act"). It then applied to all offences committed after 1 April 2007. Initially it amounted to £15 but was only imposed if a fine formed part of the sentence: see the Criminal Justice Act 2003 (Surcharge) (No 2) Order 2007, SI 2007/1079. With one exception there is and was no discretion as to the surcharge, although the fine could be reduced where the sentencer was satisfied that the offender did not have the resources to pay both the fine and the surcharge: see section 161(4A) of the 2003 Act.
The only exception relates to cases in which compensation is ordered. On the basis that this exception continues to apply and is self-explanatory, it is worth setting out section 161A(3) of the 2003 Act in full. It provides:
"Where a court dealing with an offender considers —
(a) that it would be appropriate to make a compensation order, but
(b) that he has insufficient means to pay both the surcharge and appropriate compensation,
the court must reduce the surcharge accordingly (if necessary to nil)."
These provisions were amended where an offender is sentenced for offences which were all committed on or after 1 October 2012: see now the Criminal Justice Act 2003 (Surcharge) Order 2012, SI 2012/1696 ("the Order"). Where this Order applies, subject to section 161A(3) set out above, a victim surcharge order must be made if the sentence consists of a conditional discharge, a fine, a community order or is custodial (whether suspended or not). Different surcharges must be ordered in relation to (a) offenders above and below the age of 18; (b) different types of disposal (the exceptions being an absolute discharge and orders under the Mental Health Act 1983); and (c) different sentence lengths where the sentence has any custodial element (whether suspended or not): see Tables 1 and 2 of the Schedule to the Order and the summary in R v Stone [2013] EWCA Crim 723 per Pitchford LJ at paragraph 15. The surcharge is mandatory although, as we have identified, section 161A(3) of the 2003 Act continues to provide an element of discretion when compensation is ordered.
There are traps for the unwary and the appeals before the court raise these issues. First and foremost, the new victim surcharge does not apply where the court deals with a person for a single offence committed before 1 October 2012 or for more than one offence at least one of which was committed before 1 October 2012 (Article 7(2) of the Order). Thus, if sentencing an offender for breach of an order of the court subsequent to 1 October 2012 but imposed for offending prior to that date, the court is still "dealing" with the sentence for the original offence and the new victim surcharge regime will not apply.
This may cause difficulties in relation to allegations of offences which are alleged to have been committed between dates that fall before and after 1 October 2012. In those circumstances, although the amount of judicial time to be taken on the issue should reflect its comparative significance in the sentencing process, the court should adopt the broad approach of this court in R v Harries and other cases [2007] EWCA Crim 1622, [2008] 1 Cr App R (S) 47. These cases concerned the sentencing regime for dangerous offenders and also involved a different regime dependent on the commencement date (4 April 2005). In that case, Sir Igor Judge P (as then he was) dealt with the position where the indictment had not been drafted with the dangerousness provisions in mind and said (at paragraph 12):
"… the judge, considering all the evidence should make whatever findings are appropriate in the light of the evidence and give reasons for his conclusions, in particular, if in such a case the offence is found, on analysis of the evidence, to have taken place after 4 April."
By analogy, in relation to the victim surcharge, without taking undue time, the court should take a view on the evidence so that the appropriate order can be made; in the absence of a clear answer, lengthy analysis is utterly unnecessary and the issue should be resolved in the way least punitive to the offender.
The second trap concerns the young. If any single offence for which the court is dealing with an offender was committed when that offender was under 18, the relevant table to be used for assessing the victim surcharge is Table 1: see Articles 3 and 5 of the Order. If every offence for which the court is dealing with an offender was committed after the offender had attained 18 years of age, Table 2 provides the range depending on the sentence passed: see Article 4 of the Order. In all cases, if more than one sentence is passed, so that the disposals (and the corresponding surcharge) are not the same, it is the highest such amount that must be ordered: see Articles 3(2), 4(2) and 5(2) of the Order.
The third issue concerns offences to be taken into consideration. These offences do not attract specific disposals and represent no more than "a convention under which, if a court is informed that there are outstanding charges against a prisoner … the court can, if the prisoner admits the offences and asks that they should be taken into account, take them into account, which means that the court can give a longer sentence than it would if it were dealing with him only on the charge mentioned in the indictment" (per Lord Goddard CJ in R v Batchelor (1952) 36 Cr App R 64 at 67). Similar observations have more recently been made in R v Miles [2006] EWCA Crim 256 per Sir Igor Judge P at paragraph 10. There is no question of autrefois convict: R v Nicholson 32 Cr App R 98, at 127.
The Sentencing Council of England and Wales has approached offences taken into consideration as an aggravating feature and, in one sense, by imposing a more severe sentence than would otherwise have been imposed because of the admission of greater offending, the court is dealing with them. In our judgment, however, the reference in the 2012 Order to the court "dealing with an offender" is coupled with the disposals listed in the scheduled table. Offences considered cannot, directly or on their own, attract any disposal, and the better view is that TIC offences would not be dealt with in the sense expressed in the order. Thus, offences considered should be ignored when considering the offences dealt with for the purpose of imposing a victim surcharge.
The fourth possible trap concerns the correction of errors. The court may order the parent or guardian of a juvenile offender to pay the surcharge (section 137(1A) of the Powers of Criminal Courts (Sentencing) Act 2000) and the parent or guardian may appeal as if convicted and sentenced on indictment (see section 137(7) of the 2000 Act). Thus, it is consistent with principle that unlawful victim surcharges can generally be open to challenge by way of appeal: see R v Stone, supra, at paragraph 14, followed in R v Hemsworth [2013] EWCA Crim 916 and R v de Brito [2013] EWCA Crim 1134.
In the circumstances, as with the impact of section 240 of the 2003 Act in relation to remand time, there is clearly room for mistakes which could add "a wholly unnecessary and disproportionate expenditure of funds at the present time" (see per Thomas LJ in R v Nnaji [2009] EWCA Crim 468 at paragraph 9(i), endorsing the approach suggested in R v Gordon [2007] EWCA Crim 165, [2007] 2 Cr App R (S) 66). Similarly, on the basis that the identification of the size of the surcharge is driven entirely by the sentence, courts have adopted the approach of making an order in these terms:
"The surcharge provisions apply to this case and the order can be drawn up accordingly ".
It will be the duty of prosecuting and defence advocates to ensure that the sum identified is correct, and this should be done on the same day that sentence is passed: we would expect it to be agreed and confirmed with the clerk of the court but, in the absence of agreement, the matter can be referred to the judge for a decision to be made. If compensation is to be ordered, however, and submissions addressed in relation to section 161A(3) of the Act, a judicial decision will be required.
Following the procedure set out in Gordon in relation to section 240 (and later section 240A), if an error has been made in the record, we anticipate that the record can be corrected well within the appropriate time, but if it is not and an appeal becomes necessary, the prosecution should be notified and an attempt made to agree the position. The application for leave to appeal should then state both the facts and the agreement, in which event, on receipt of confirmation, the matter will be remitted by the Registrar direct to the court for the error to be corrected. There will be no need for a representation order (and the expenditure of yet further money) and the offender should be informed that as no purpose would be served by attendance, the court will assume that he...
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