Slocombe, R v

Neutral Citation Number: [2005] EWCA Crim 2997 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT EXETER HHJ GRIGGS Case No: 20052457B2 Royal Courts of Justice Strand, London, WC2A 2LL Wednesday, 23 November 2005 Before : PRESIDENT OF THE QUEEN'S BENCH DIVISION (THE RT HON. SIR IGOR JUDGE) MR JUSTICE ELIAS and MR JUSTICE OUSELEY - - - - - - - - - - - - - - - - - - - - - Between: R - v - Slocombe - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr G. Collett for the appellant Mr G. Branston for the Crown - - - - - - - - - - - - - - - - - - - - - Judgment President of the Queen's Bench Division: 1. 2. On 11th April 2005 Nicholas Slocombe appeared before HHJ Griggs sitting in the Crown Court at Exeter. He faced an indictment which charged four offences of failure to register as a sex offender, contrary to s 91(1)(a) and (2) of the Sexual Offences Act 2003. The particulars alleged that, without reasonable excuse, he had failed to comply with the requirements of notification found in s 83 and s 84 of the 2003 Act. So far as the first three counts were concerned, the relevant dates of non- compliance were November 2004, while the allegation in the fourth count related to December 2004. He had undoubtedly failed to provide the necessary details. The question, however, was whether he was under a legal obligation to do so, and liable to be punished for non-compliance. On 17th March 2005, Judge Griggs heard submissions that as a matter of law Slocombe could not be guilty of these offences. At the dates alleged he was not required to comply with the notification provisions in the 2003 Act. The judge 3. 4. 5. 6. 7. 8. 9. rejected the argument. Accordingly, when Slocombe appeared on 11th April 2005, he pleaded guilty. He now appeals against conviction on the ground that HHJ Griggs’ conclusion was wrong in law. Any intelligent observer will be baffled to discover that there could be any doubt about whether the appellant was or was not guilty of a criminal offence. There certainly should be none. Yet counsel, seeking to assist us to decide this question, made detailed submissions about the legislative provisions in no less than five statutes. Having heard argument, we found it necessary to reserve our judgment. We shall avoid lengthy comment. Such complication and difficulty in achieving a proper understanding of legislative provisions which may result, as this case did, in a criminal conviction and prison sentence, is profoundly unsatisfactory. Nicholas Slocombe was born on 5th March 1983. On 18th March 2000, at Neath and Port Talbot Youth Court, after he pleaded guilty, he was convicted of an indecent assault on a ten year old boy, whom he had kissed on the cheek. On 10th May 2000 he was sentenced to a twelve month probation order. On 15th August 2000, he was found to be in breach of the probation order at Caerphilly Youth Court. The probation order was revoked. He was re-sentenced to a twelve month detention and training order. After serving six months, on 14th February 2001, the appellant was released. Between June 2003 and November 2004, the appellant served a custodial sentence for an offence or offences of theft. After his release on 16th November 2004, he failed to notify the police of his release or three changes of his home address. He thought that his notification obligations had expired. He was arrested in December 2004 for unrelated matters, and in due course charged with these offences, contrary to the Sexual Offences Act 2003. The relevant provisions came into force on 1st May 2004. Our attention was drawn first to the Sex Offenders Act 1997, the statutory provision in force at the date when the appellant pleaded guilty on 18th March 2000, when he was sentenced in May 2000, and re-sentenced in August 2000. This included a Schedule relating to notification requirements for young offenders, ascertained by reference to the “equivalent” sentence of imprisonment. For these purposes s 4(1)(a) identified “a period of detention which a person is liable to serve under a secure training order”. This provision, and in particular the words “liable to serve” pre- echoed s 82 of the Sexual Offences Act 2003, to which we shall come in due course. On 1st March 1998 the relevant provisions of the Criminal Justice and Public Order Act 1994 came into force, defining the secure training order as an order that the offender “shall be subject to a period of detention in a secure training centre followed by a period of supervision” (s 1(1) of the 1994 Act). With effect from 1st April 2000 this section of the 1994 Act was replaced by ss 73-79 of the Crime and Disorder Act 1998, which produced the detention and training order to which the appellant was resentenced at Caerphilly Youth Court on 15th August 2000. During the course of argument both counsel assumed that there was no specific provision in the 1997 Act which, at the date of the imposition of the detention and training order in August 2000, applied any of the relevant provisions of the 1997 Act to detention and training orders. This led to a certain amount of creative interpretation of the 1997 Act on both sides. In fact the assumptions were incorrect, and overlooked an amendment to s 4(1)(a) of the 1997 Act, contained in paragraph 144 of Schedule 8 to the 1998 Act, which covered the introduction of the then new detention and training order. This came into force on 1st April 2000. 10. 11. S 73(3) of the 1998 Act identified the detention and training order as an order “that the offender in respect of whom it is made shall be subject, for the term specified in the order, to a period of detention and training followed by a period of supervision”. S 75(1) and (2) made clear that the period of detention and training under such an order was to be one half of its term, and by s 76(1) the period of supervision began immediately on the release of the offender from detention and training, and ended when the term of the order was complete. Some ten days after the appellant had been re-sentenced, the relevant parts of the Powers of Criminal Courts (Sentencing) Act 2000 were introduced, repealing ss 73-79 of the Crime and Disorder Act 1998, after they had been in force for just over 4 months. These are the provisions which now govern the order then imposed on the appellant. Part V of the 2000 Act deals with the custodial sentences, and includes the detention and training order in the relevant list. Chapter II is concerned with the custody and detention of young offenders generally, and ss 100-107 applied specifically to detention and training orders. S 100(3) repeats s 73(3) of the 1998 Act. The distinction between the period of detention and training and the term of the order in the 1998 Act is maintained. The period of detention is to be half the term, that is one half of the length of the order (s 102). Although there are provisions to produce earlier release there are none to extend the period of detention without an express order of the court. Similarly, the period of supervision begins with the offender’s release from detention and training, and ends when the term of the order itself comes to an end (s 103). The term of the order is limited to the periods prescribed in s 101(1). In short the order expressly envisages two different periods, one devoted to detention and training, the second to supervision. 12. We must return to the Sexual Offences Act 2003. We are not here concerned with the objective or indeed the various orders such as the sexual offences prevention orders, found in Part 2 of the 2003 Act. For present purposes it is sufficient to notice that by s 81 its provisions apply to the individual who was formerly subject to the notification requirements in the 1997 Act. The notification requirements on conviction of an offence listed in Schedule 3 remain unbroken. The length of the notification period is determined exclusively by reference to the sentence imposed by the court. It has no connection with the circumstances in which or time when release from any period of custody takes place, and the judge has no discretion to alter the statutory notification period. S 82(1) includes a table divided into two halves, one side of which describes the relevant offender, with an entry opposite under the notification period, specifying the relevant period. Thus, for example, a person who “has been sentenced to imprisonment for life or for a term of thirty months or more” is subject to an indefinite notification period beginning with the date of conviction. This is the “relevant date” specified in s 82(6). 13. The first question in the present case is whether the appellant was a person sentenced to the equivalent of “imprisonment for a term of more than six months but less than thirty months” or a person sentenced to imprisonment “for a term of six months or less”. For an adult the relevant notification periods would be ten years and seven years respectively. As the appellant was under eighteen at the date of conviction, the periods of ten years and seven years would be halved (s 82(2)). Accordingly, if the appellant were to be treated as if he had been sentenced to a term of more than six months but less than thirty months imprisonment, he was, in November and December 2004, subject to the notification requirements. If however the applicable notification period was three and a half years, then he was not. So the ultimate question simply stated is whether the twelve month detention and training order is to be treated as an “equivalent” sentence of imprisonment in excess of six months, or as one of six months or less. 14. 15. 16. S 82 specifies the relevant notification periods in the context of terms of imprisonment. Imprisonment has no application to young offenders. So, s 131 explains and applies the “equivalent sentence of imprisonment” to the various different orders which apply to young offenders. In particular by s 131(a) the “equivalent” arrangement applies to “a period of detention which a person is liable to serve under a detention and training order, or a secure training order …” (emphasis supplied). Judge Griggs accepted the submission on behalf of the Crown that an offender sentenced to a twelve month detention and training order was “liable” to serve the full twelve month term of the order. He had in mind that if the offender were in breach of supervision requirements, the youth court might order his detention for the shorter of three months or the remainder of the term of the detention and training order in secure accommodation. He was troubled that if the appellant’s submissions were correct, the arrangements by which the offender might be released before the end of the period of detention and training could, in a different case to this one, lead to uncertainty about the notification periods. He noted that if the contrary argument were correct, the notification requirements for those sentenced to detention and training orders would, in effect, be discounted twice, first under s 82(2), because the offender was aged under 18 years, and yet again, if the period of detention and training was confined to the custodial part of the order. He concluded that the relevant period of notification was five years, and subject to an inaccuracy which has no bearing on the substance of the appeal, that in November and December 2004 the appellant was under legal compulsion to comply with the notification provisions. Before us, the Crown supported this ruling, and the reasoning behind it. In a carefully prepared submission, Mr Gareth Branston analysed the relevant statutory provisions. He suggested that the references to “imprisonment” within s 1(4) of the 1997 Act extended to detention and training orders while that Act was in force. The contrary was not argued. He also argued that a re-sentence at least had the potential to extend the notification period, and that a variation in sentence might remove an offender from one category within the notification table into another. Again, the contrary was not argued. He highlighted the circumstances in which a period of detention might be altered without necessarily having any effect on the notification period. These included, for example, the release of the offender on compassionate grounds at any time, or the power of the Secretary of State to release an offender subject to a term of twelve months’ detention and training to release after five months (s 75(4) of the 1998 Act and s 102(4) of the 2000 Act). He also pointed out that the period of detention might be increased, although he accepted that the period of detention and training could not be extended by executive act, without the intervention of the court. In order to achieve certainty, the period of notification pursuant to a sentence should be known at the point of sentence. Mr Branston then suggested that detention and training orders and sentences of imprisonment were, for the purposes of the notification periods, sentences similar in nature. Both sentences involved a “custodial” element, and both involved periods of “supervision”, with in an appropriate case, conditions attached. It was therefore sensible to treat both sentences in the same way. The equivalent of twelve months detention and training order was a twelve month sentence of imprisonment. 17. We acknowledge the force of these submissions. That said, however, there are significant differences between the regimes which apply to detention and training orders, and what we may describe as the ordinary sentence of imprisonment. (See R v B [2005] CLR 488: 14th February 2005). In our view, for practical purposes the period of detention which a person “is liable to serve” under a detention and training order is fixed at the date of sentence. Without a further order of the court, the period may not be extended. The notification provisions are, as we have already explained, directly linked with the sentence of the court. The statutory provisions are not susceptible to judicial alteration. By definition, those made subject to a detention and training order are young offenders who have not been sentenced to detention in a young offender institution. Bearing that in mind we can see no particular reason why the double discount (as it was described) should lead to the wide construction of s 131(a) for which the Crown contends. If Mr Branston were right, it would have been perfectly straightforward for the statutory provision under s 131 (a) to have referred simply to “a detention and training order” or “the term of a detention and training order” or “a sentence of detention and training” rather than the “period of detention which a person is liable to serve”. Under the detention and training order therefore the offender is not liable to serve a sentence of detention and training: he is liable to serve a period of detention and training. By contrast with s 131(f)-(j), the detention and training order is one of a group of provisions included in s 131(a)-(e) which focussed specifically on the “period” of detention, or training, or keeping in secure accommodation. 18. We must now consider s 131(f)-(j). S 131(f) refers to a “sentence of detention” in a young offender institution, paragraph (g) to “sentence under a custodial order”, (h) a “sentence of detention” under s 90 or 91 of the Powers of Criminal Courts (Sentencing) Act 2000, paragraph (i) to “a sentence of custody for life” and finally, paragraph (j) to “a sentence of detention or custody for life”. These paragraphs produce equivalents between various “sentences” of detention and the equivalent “sentence” of imprisonment. The distinction between the “sentence” of detention and the “period” of detention must be deliberate. This is consistent with the express distinction already identified between the respective periods of detention and training, and of supervision, and the term of the order which is one of the marked characteristics of the detention and training order. 19. In our judgment, for the purposes of s 131(a) the period of detention which the offender is “liable to serve” is and should be treated not as a reference to the entire term of the detention and training order, but to what it says it is, the period of detention and training itself. By reference to s 131 of the 2003 Act we conclude that for the purposes s 82(1) the appellant was sentenced to the equivalent of a sentence of imprisonment for a term of six months. As he was under 18 at the relevant date, the notification period for him was three and half years from the date of his conviction, that is 18th March 2000. Therefore at the time of his release from custody in November 2004, his obligations under the notification requirements had expired. He pleaded guilty to these offences following a ruling which was wrong in law. Accordingly these convictions are unsafe. The appeal must be allowed. -------------------------------- MR BRANSTON: My Lords, I am grateful. May I mention three matters. First of all may I apologise for perpetuating an omission that is made in at least four editions of Archbold and is corrected by your Lordships' judgment at paragraph 9, the words "detention and training order or". THE PRESIDENT: That is a very handsome apology and you have nothing to reproach yourself about. Ouseley J hunted that one down for us. MR BRANSTON: I am extremely grateful. Secondly, I hope your Lordships received from me yesterday a draft question. I seek your Lordships' leave to certify a question of general public importance in this matter in the terms that I have set out in that question. It is my submission that this appeal and matters raised in this appeal may well affect a large number of children and young people who may already be subject to the notification requirements or will become subject to the notification requirements in due course. It is also my submission, and it was alerted to by your Lordships when the submissions were made, that there may be a conflict between the position in Scotland and the position in England and Wales. Your Lordships may recall that within paragraph B of section 131 of the 2003 Act there is reference to section 44(1) of the Criminal Procedure (Scotland) Act 1995. A reading of that section in line with the questions raised by this appeal may well lead your Lordships to conclude that a person subject to a one year order under that section is required to notify for a longer period than a person subject to a one year detention and training order in this jurisdiction. Therefore, in my submission, my Lord, this question that I ask is a question of general public importance. THE PRESIDENT: Very well. Thank you. Mr Branston, we think the point is an interesting one but we do not think it is appropriate to certify. MR BRANSTON: Certainly, my Lord. My third matter was rather dependent on the second matter and therefore I have nothing more to add. MR COLLETT: My Lord I simply have to say I echo the apology in my learned friend's first point, and I am of course grateful to my Lord. THE PRESIDENT: I am about to say something indiscrete but It would be jolly interesting to have an apology from whoever is responsible. Thank you both very much.