Trigger (R) v Northampton Magistrates Court
| Jurisdiction | England & Wales |
| Judgment Date | 02 February 2011 |
| Neutral Citation | [2011] EWHC 149 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 February 2011 |
| Docket Number | Case No: CO/11395/2010 |
[2011] EWHC 149 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before : The Rt Hon Lord Justice Moore-bick
The Hon. Mr. Justice Ramsey
Case No: CO/11395/2010
Graeme Knight (instructed by Carter Slater & Co) for the Claimant
Vikram Sachdeva (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 12 November 2010
The Hon Mr Justice Ramsey:
Introduction
This is the judgment of the court.
The claimant seeks permission to apply for judicial review and, if granted, judicial review to quash a decision of Northampton Magistrates' Court made on 19 and 29 October 2010 imposing a period of imprisonment on him of 8 weeks.
At the conclusion of the hearing we gave permission to proceed on the claim for judicial review and quashed the sentence of imprisonment and indicated that we would give our reasons for doing so at a later date. We now do so.
At the hearings on 19 and 29 October 2010, the magistrates purported to make use of the powers conferred on them by section 142(1) of the Magistrates Courts Act 1980 ("section 142") to "vary or rescind" a suspended sentence order which was passed on the claimant on 25 February 2009, following his conviction on 5 November 2008 for exposure, contrary to section 66 of the Sexual Offences Act 2003.
The sentence imposed on 25 February 2009 was a suspended sentence order under Section 189 of the Criminal Justice Act 2003 ("the 2003 Act"). The sentence was one of 12 weeks' imprisonment with an operational period of 36 months, a requirement of supervision for a supervision period of 36 months and a programme requirement to complete the sex offender groupwork programme. There was also a requirement to register with the police for 7 years from 25 February 2009.
As accepted in the respondent's representations, the suspended sentence order was an unlawful sentence, because under section 189(3) of the 2003 Act the supervision period and the operational period must each be for a period of not more than two years beginning with the date of the order. In this case both the supervision period and the operational period were three years.
On 27 February 2009 the matter was brought before the Magistrates' Court for correction of an error pursuant to section 142. At that hearing the supervision period was amended to 24 months but the court ordered that "all other matters remain" so that the operational period remained unlawful because it was still for a period of three years.
On 5 December 2008 the magistrates had imposed a five year anti-social behaviour order on the claimant for conduct which included the wearing of a school girl uniform, including a short skirt, pursuing children and parents, bending over revealing bare legs and tugging a school girl's sleeve. The order prohibited the claimant from wearing a skirt or showing bare legs on any school day between certain hours or behaving in a manner which caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself.
On 6 May 2010 the claimant was convicted of a breach of the anti-social behaviour order committed on 16 December 200That conviction put him in breach of the suspended sentence order passed in February 200Under Section 193 of the 2003 Act and paragraph 8(3) of Schedule 12 to the 2003 Act, the Court had to consider whether to activate the suspended sentence order under paragraphs 8(2)(a) or (b) of Schedule 12. They decided that it would be unjust to activate the sentence as the claimant was the sole carer for his aged mother. Instead, under paragraph 8(2)(c)(i) of Schedule 12 they added a requirement for a 12 week curfew between 7am and 9am daily. They also imposed a financial penalty for the breach of the anti-social behaviour order.
When sentencing the claimant on 6 May 2010 it appears that the magistrates did not have the benefit of a report from the Probation Service dated 17 February 2010 which reported on his progress in relation to the suspended sentence order with a view to it being taken into account at that hearing. The conclusion of that report was in the following terms:
"Mr Trigger's attitude and behaviour towards both the Police and Probation has prevented any effective work being undertaken to reduce his risk with him in the community. It is my assessment that interventions available in the community are unworkable and ineffective in reducing his risk despite the involvement of both the Police Service and Probation Service and therefore I propose that the Court activate the custodial element of the Suspended Sentence Order or revoke the Order and re-sentence, with a view to imposing a custodial sentence, should he be convicted of the Breach of the ASBO."
On 10 September 2010 the Probation Service made an application to discharge that part of the suspended sentence which required the claimant to attend the community sex offender group work programme. The Probation Service set out the reason as follows:
"Mr Trigger is subject to a Programme Requirement to attend the Community Sex Offender Group work Programme. Northamptonshire Probation Trust cannot deliver this programme. The Suspended Sentence Order is 2 years and it is a 3 year programme. There has been a problem delivering the programme due to Mr Trigger denying his need for it. There are concerns about his on-going risk due to the inability to deliver the programme, however we are unable to deliver the programme due to the length of the Order. I [request] that the Court revoke the Programme Requirement."
In about July 2010 proceedings were brought against the claimant in the Magistrates' Court for failure to comply with the notification requirements of the Sexual Offences Act 2003 in relation to the February 2009 sentence and on 6 August 2010 the claimant consented to summary trial and pleaded not guilty. The case was adjourned until 5 October 2010 for trial. He pleaded guilty on 5 October 2010 and the case was adjourned to 14 October 2010 for a probation report prior to sentence.
In the report dated 12 October 2010 the Probation Service said:
"It is my assessment therefore that Mr Trigger remains a high risk of serious harm to children and the public by way of indecent exposure and possible sexual assault. Due to the state of his denial the Programme Requirement will not be completed by Mr Trigger. The Supervision Requirement alone is not sufficient in reducing this risk of serious harm. He has persistently failed to demonstrate any intention to change his behaviours, his attitude towards the victims, the Court and the criminal justice agencies is very poor. Thus Northamptonshire Probation trust is unable to reduce or manage his risk of serious harm."
On 14 October 2010 the magistrates dealt with the breach of the notification requirements by imposing a financial penalty but failed to take the steps they were obliged to take under paragraph 8(2) and 8(3) of Schedule 12 to the 2003 Act in relation to the suspended sentence order.
Meanwhile the application by the Probation Service in September 2010 to revoke the programme requirement was, it seems, withdrawn on the basis that there was to be a re-opening of the sentence under section 142. This led to the hearing on 19 October 2010.
At the hearing on 19 October 2010 the claimant was not represented. Although his solicitors had made an application in writing for a Legal Representation Order to cover the hearing, that application does not appear to have been considered and an oral application for an adjournment for the purposes of obtaining a Legal Representation Order was refused.
On 19 October 2010, according to the memorandum of an entry in the register for that date, the magistrates dealt with an application under section 142 in relation to the suspended sentence order imposed on 25 February 2009. The outcome was that the suspended sentence was implemented as a sentence of 8 weeks' immediate imprisonment, with the reason being "credit given for part of the order that has been complied with." Although the respondent's representations state that the suspended sentence order was activated pursuant to paragraph 8(2)(b) of Schedule 12 to the 2003 Act without valid breach proceedings having been taken pursuant to paragraph 6 of Schedule 12 to the Criminal Justice Act 2003, that does not appear to be borne out from the memorandum of the entry in the register.
As a result of that hearing the claimant's solicitors requested a re-opening of the case under section 142 and the hearing took place on 29 October 2010 by which time a Legal Representation Order had been granted.
On 29 October 2010 the magistrates reopened the case under section 142. They set aside the decision of 19 October 2010 which was described as an "incorrect decision". The magistrates considered that the original sentencing court had been misled on 25 February 2009 regarding the appropriateness and availability of the community sex offender groupwork programme. They said that the Probation Service would not have recommended that programme for less than 36 months. They said that claimant was not a suitable candidate for the course and has "actually disrupted the course" and added that the fact that "he was not...
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