West Midlands Probation Board v French
| Jurisdiction | England & Wales |
| Judgment Date | 31 October 2008 |
| Neutral Citation | [2008] EWHC 2631 (Admin) |
| Date | 31 October 2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1194/2008 |
[2008] EWHC 2631 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Scott Baker and
The Honourable Mr Justice Aikens
Case No: CO/1194/2008
Naomi Gilchrist (instructed by West Midlands Probation Service) for the Appellant
Richard Murray (instructed by Millerchip Murray) for the Respondent
Hearing dates: Thursday 16 th October 2008
Aikens J:
This is the judgment of the court to which both judges have contributed.
The Justices of the Peace for the West Midlands have stated a case which raises an interesting point on the law of evidence in criminal proceedings. The question arises out of a preliminary ruling made by the justices when sitting as a Magistrates Court at Coventry in the course of a criminal trial on 17 October 2007.
A.The Facts.
The relevant background facts are these: Darren French, who is now 30 and who is the respondent in this court, had been convicted of an offence for which he was sentenced to a term of imprisonment. We do not know the nature of the offence, nor the precise details of what sentence was originally imposed and when; it probably does not matter. On 30 April 2007 Mr French was released on licence under the terms of section 40A of the Criminal Justice Act 1991 (“the 1991 Act”). We set out its terms below. The release was made by the Governor of HMP Blakenhurst, acting upon behalf of the Secretary of State for the Home Department.
Section 40A of the 1991 Act, together with other sections dealing with release of prisoners on licence, has now been repealed by the Criminal Justice Act 2003 and has been replaced by provisions in Chapter 6 of Part 13 of the Criminal Justice Act 2003. However, section 40A remains in force in relation to a prisoner serving a sentence of imprisonment for an offence committed before 4 April 2005. The material parts of section 40A are as follows:
“(1)This section applies (in place of sections 33, 33A, 37(1) and 39 above) where a court passes on a person a sentence of imprisonment which—
(a)includes, or consists of an order under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000; and
(b)is for a term of twelve months or less.
(2)As soon as the person has served one-half of the sentence, it shall be the duty of the Secretary of State to release him on licence.
(3)Where the person is so released, the licence shall remain in force for a period of three months.
(4)If the person fails to comply with such conditions as may for the time being be specified in the licence, he shall be liable on summary conviction—
(a)to a fine not exceeding level 3 on the standard scale; or
(b)to a sentence of imprisonment for a term not exceeding the relevant period,
but not liable to be dealt with in any other way.
(5)In subsection (4) above “the relevant period” means a period which is equal in length to the period between the date on which the failure occurred or began and the date of the expiry of the licence.
(6)As soon as a person has served one-half of a sentence passed under subsection (4) above it shall be the duty of the Secretary of State to release him, subject to the licence if it is still subsisting.”
Section 116 of the Powers of the Criminal Courts (Sentencing) Act 2000 (“the PCCSA”) gave the court the power to order a prisoner to return to prison when an offence is committed by him during the period when he is on licence during the period of imprisonment imposed for the original offence. It has now been repealed by the Criminal Justice Act 2003.
The fact of the release and the conditions upon which it was made were set out in a document dated 30 April 2007, which was signed by a Governor of HMP Blakenhurst and countersigned by Mr French. For the purposes of this judgment and without pre–judging the issue raised by the Case Stated, we will refer to the terms of this document, which, for convenience we will call “the Notice”. It is headed “Notice of 3 Month Supervision”. Then underneath it states: “Criminal Justice Act 1991”. Beneath that is “HMP Blakenhurst” and the telephone number of the prison. Underneath that the name of Mr French appears together with various personal details: his date of birth; prison number, CRO No. and so forth. There is then a statement in the following terms:
“Under the provisions of Section 40A of the Criminal Justice Act 1991 you are being released on licence for a period of three months. You will be under the supervision of a probation officer or a social worker of a local authority social services department or members of a Youth Offending Team and must comply with the conditions of this licence. The objectives of this supervision are to (a) protect the public, (b) prevent re-offending and (c) help you to resettle successfully into the community.
Your supervision commences on 01/05/2007 and expires on 31/07/2007 unless the licence is previously revoked.
On release you must report without delay to:
PROBATION OFFR
NOELLE HOLTON
70 LITTLE PART STREET
COVENTRY
WARWICKSHIRE
CV1 2UR
024 7663 0555
You must place yourself under the supervision of whichever probation officer or social worker is nominated for this purpose from time to time.”
The Notice then states that “While under supervision” Mr French must do various things. The document then sets out seven conditions, which are the conditions to the grant of the licence. These are of a fairly standard kind. They require the person on licence to keep in touch with his supervising probation officer; to reside permanently at an approved address; to undertake work approved by the probation officer; not to travel outside the UK without prior permission of the probation officer; to be well behaved and not to commit any offence and to report immediately on release on licence to the probation officer.
After the conditions, the Notice states that the Secretary of State may vary or cancel any one of those conditions, in accordance with s.37(4) of the CJA 1991. The last two paragraphs of the licence document then state:
“In accordance with the provisions of Section 40A(4) of the Criminal Justice Act 1991, if you do not comply with the requirements in paragraphs 3, 4 and 5 above, you will be liable to prosecution before a court. The court may fine you or recall you to custody. If you are sent back to prison and released before the end of the licence period, you will still be subject to supervision.
Your sentence expires on 04/06/07. In accordance with the provisions of Section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, you are liable to be returned to custody if you are convicted of a further imprisonable offence committed before your sentence has fully expired. The court dealing with the new offence may add all or part of the outstanding period of the original sentence onto any new sentence it may impose.”
The Notice is signed by someone whose signature is illegible. The advocates appearing before us agreed that this was the signature of one of the Governors of HMP Blakenhurst, but the person could not be identified. There is an entry: “status” with a manuscript “E” after the signature. Neither advocate could assist on what the “E” signified. The Notice is date stamped 30 April 2007. Underneath the stamp are the words: “This licence has been given to me and its requirements have been explained.” Then there is a signature which is agreed to be “D French”, viz. that of the respondent. There is a manuscript date of “1/5/07”.
On the 23 May 2007 an Information was laid before the Magistrates by the West Midlands Probation Board (“the Board”) against Mr French to the effect that in Coventry on three different dates, 4 th May, 11 May and 18 May 2007, he had breached the conditions of the licence, by failing to attend supervision appointments.
B.How the present issue arose before the Magistrates Court
Before the matter came on for trial, the solicitor advocate representing Mr French, Mr Richard Murray, (who also appeared for Mr French before us) informed the West Midlands Probation Service that, on behalf of Mr French, he challenged the assumptions on which the Information had been laid. In other words, he challenged whether (a) Mr French had been released on licence pursuant to s.40A(2) of the CJA 1991; (b) that the licence properly contained the conditions with which Mr French had to comply; (c) the specific terms of those conditions; (d) whether Mr French was aware of those conditions; (e) that Mr French was instructed to attend supervision appointments in accordance with the licence conditions; and (f) that Mr French had failed to attend those appointments.
Mr Murray told the Probation Service that it therefore had to adduce evidence, in an admissible form, which proved the relevant release licence which would have presented the Magistrates with prima facie evidence of all these six matters. It was common ground before us that, for the breach proceedings to have been successful, the Board had to prove, to the necessary criminal standard, the elements we have set out above.
Mr Murray requested that a statement be taken from the Governor of HMP Blakenhurst, where Mr French had been a prisoner. He has told us that he made this request for two reasons: (a) so that the licence could be exhibited to the statement and so, once proved in evidence, it would become admissible as evidence in the proceedings; but more importantly, (b) because it would enable him to cross – examine the Governor.
As we understand it, Mr Murray's...
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