Neutral Citation Number: [2009] EWHC 2468 (Admin)

CO/10780/2008 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Monday, 20th July 2009
 
B e f o r e:

LORD JUSTICE THOMAS 

MR JUSTICE SILBER 
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Between: 
WEST YORKSHIRE PROBATION BOARD 
Claimant

v 

ROBINSON & TINKER 
Defendant 
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Mr R Grattage (instructed by Sharpe Pritchard) appeared on behalf of the Claimant
Mr R Howard (instructed by P & R Howard) appeared on behalf of the Defendant
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J U D G M E N T
1.	LORD JUSTICE THOMAS:  The issue in this case relates to the way in which the probation service can take action when an offender breaches a requirement either of a suspended sentence order or a community order.  
2.	It comes before this court by way of a Case Stated from West Yorkshire.  The one case before us, the case involving the respondent, Robinson, is by way of Case Stated from District Judge Bennett, sitting at the Pontefract Magistrates' Court on 22nd April 2008, and the other, involving the offender, Tinker, comes also from the same Magistrates' Court but Stated by a bench of magistrates on 9th September 2008.
3.	We would have already expressed concern of the delay that has occurred in this case.  Obviously where an issue arises as to the way in which people are to be dealt with for breach of the requirements, either of a suspended sentence order or community order, it is very important the case comes to this court as quickly and as expeditiously as possible, so that the offenders concerned can, if need be, be punished.  In this case it was extremely important these cases came quickly, because in both cases there were breaches of suspended sentence orders which ought to have been dealt with long ago.
4.	The position in the case of Robinson can be summarised as follows.  On 21st November 2007 he was given a suspended sentence with a 12‑month supervision order.  On 26th November 2007 he failed to attend the first supervision appointment.  On 27th November 2007 a warning letter was sent, which told him that if he did not provide a reasonable explanation within five working days, "this will count as your first failure to comply with your order".  The letter then subsequently continued: "If you fail to comply again in the next 12 months you will be in breach of your order and returned to court."  
5.	In the case of Tinker, he was given, on 17th July 2007, a 12 month community order, with a 12 month supervision requirement, as well as an unpaid work requirement of 80 hours.  On 2nd November 2007 he failed to attend his appointment.  On 9th November 2007 a warning letter was sent in materially the same terms as had been sent to Robinson.  It is obviously a standard form used by the West Yorkshire Probation Service.  
6.	In Robinson's case the warning letter was sent under paragraph 4 of schedule 12 to the Criminal Justice Act 2003, that schedule dealing with breach of a suspended sentence orders and in the case of Tinker, that was sent under paragraph 5 of schedule 8, which deals with breach of  community orders.  The paragraphs of the schedule are in identical terms.
7.	Each of those paragraphs requires a warning to be given if a person subject to the requirements fails to attend without reasonable excuse, unless a warning has been given previously, or an information is laid in respect of the failure.
8.	What then happened was each of Robinson and Tinker failed to attend a second time, Robinson on 14th January 2008 and Tinker on 4th January 2008.  After those failures the West Yorkshire Probation Board laid informations, which set out a failure to comply with the requirements and a failure to attend in respect of each on two occasions, including the occasion in respect of which the warning had been given.  It did so under paragraphs 5 and 6 of the schedule.
9.	It is necessary only to read one of the paragraphs to the schedule as they are in identical terms.  The point in this case turns entirely upon the wording of the paragraph which provides: 
"(1) If‑ 
(a) the responsible officer has given a warning under paragraph 4 to the offender in respect of the community order, and 
(b) at any time within twelve months beginning with the date on which the warning was given, the responsible officer is of the opinion that the offender has since that date failed without reasonable excuse to comply with any community requirements of the order,
the officer must cause an information to be laid before a justice of the peace in respect of the failure in question."
The paragraphs of the schedule then go on to deal with the issue of summones and the powers of the court.
10.	In each of the cases before the Pontefract Magistrates' Court, it was argued successfully that the information was wrong in that it was not possible to include in the information any matters relating to the breach in respect of the warning that has been given.  It was also argued, successfully, that a court could not take into account the first breach in respect of which the warning had been given, as the warning had constituted a punishment and the breach was for that reason spent.
11.	After that ruling had been made, both by the district judge and the magistrates in the respective the cases before the Magistrates' Court, a Case Stated was required for the opinion of this court.  The argument before us has been short; it is a short point of statutory construction on which I have no doubt that the answer is crystal clear.
12.	One of the characteristics of the Criminal Justice Act 2003 was to lay down in fairly prescriptive terms a number of  steps that had to be followed or decisions made.  It is a preeminent example of prescriptive legislation intending to remove discretions from those who should be trusted to carry out functions under the Act, including the court, in a sensible and fair manner.
13.	It is clear that the purpose of paragraph 5 of the schedule was to give the probation officer one and one discretion only to give a warning.  The view was taken, and it is clear from the schedule that this was what Parliament embodied, that after that first warning, the probation officer was to have no discretion as to what he was to do.  If there was a failure after the first warning, then an information had to be laid.  It is clear that that is what paragraphs 5 and 6 respectively say.  If there is a breach within the requisite period then an information must be laid before justice of the peace in respect of the failure in question.  It does not mean that, when the information is laid, it can only be laid in respect of the failure in question.  It is plainly open to the probation service to set out in that information both the original breach before the warning and the subsequent breach after the warning.  There is no reason to construe the clear wording in any other way.
14.	It was argued, successfully as I have mentioned before the magistrates and the district judge, and in this court, that somehow the warning in respect of the first breach had the effect of spending or dealing with that breach.  I cannot see the basis for such an argument.  The plain purpose of the legislation is to give the probation officer a single discretion, so that he does not always have to bring the offender to court but can give a warning.  But that one warning having been given, there is no discretion.  But it does not say in any way (and I cannot construe the schedule as saying in any way) that the warning operates as a punishment.  It is simply a warning that, if thereafter the offender complies and 12 months elapses, he may not be subject to having an information laid immediately, and the probation officer has a further discretion.  In no way is the effect of the warning to expunge the initial breach.  When a matter comes before the court, the court, in exercising its powers under paragraphs 8 and 9 respectively in each of the schedules, looks at the full circumstances of each breach in determining what to do, assuming, of course, that in respect of each breach it has determined that there has been a breach without reasonable excuse.
15.	For those reasons therefore, the decision of the magistrates and of the district judge in Pontefract was wrong.  The matter should be remitted to them to take within as short a period as possible action in respect of any breaches that they find to be proved.
16.	MR JUSTICE SILBER:  I agree.
17.	MR GRATTAGE:  I know the lower court as read disposed of this matter entirely.  I understand that declaration‑‑ 
18.	LORD JUSTICE THOMAS:  We cannot send it back.  Why?   
19.	MR GRATTAGE:  I understood a declaration could be made.  
20.	LORD JUSTICE THOMAS:  You can make a declaration, certainly. Why cannot the matter be dealt with?  These people, on the pure misunderstanding of the Act had, you know, escaped punishment. 
21.	MR GRATTAGE:  In these particular cases, my Lord, these issues in the end‑‑ 
22.	LORD JUSTICE THOMAS:  ‑‑ are academic.
23.	MR GRATTAGE:  Because they are dealt with otherwise whether offences and the suspended sentence was activated, one and the other.
24.	LORD JUSTICE THOMAS:  It is in both of those cases.
25.	MR GRATTAGE:  Different matters before the Crown Court rather than the administrative.  
26.	LORD JUSTICE THOMAS:  What happens about the costs? 
27.	MR GRATTAGE:  Mr Robinson was dealt with for commission of a further offence which activated a suspended sentence and the same concerning Mr Tinker.
28.	LORD JUSTICE THOMAS:  Has this practice now ceased in West Yorkshire?  
29.	MR HOWARD:  As I understand it, West Yorkshire probation office have been waiting for the answer to that.
30.	LORD JUSTICE THOMAS:  They have not been prosecuting in the meantime every person who has breached on the first occasion.  The effect of holding to the contrary would have been as soon as anyone breached it, he would have been prosecuted which cannot possibly been in the public interest.  One of the points which has not been taken, was that it is not in the interest of  any person to have this sort of decision made.
31.	MR HOWARD:  That was the view of the Probation Board, my Lord, and they certainly took stock of the position a lot further than before they gave the warning until ‑‑ they have been until today and probably have been issuing summones more often than they would have done. 
32.	LORD JUSTICE THOMAS:  It should never have been made by the magistrates.  Second, it is actually detrimental because it forces the issue of summonses on the first breach.  
33.	MR GRATTAGE:  I have no argument to that, my Lord.  
34.	LORD JUSTICE THOMAS:  Do you need any form of taxation or assessment? 
35.	MR GRATTAGE:  Mr Tinker has not had the benefit of legal aid, so I apply for costs on a legal aid basis.   
36.	LORD JUSTICE THOMAS:  Your costs to be assessed on a legal aid basis.  Thank you both very much indeed.  I am sorry that this has been estimated to last the entire day.
37.	MR HOWARD:  I indicate that those who instruct me, that was clearly wrong, although I was wrong in my estimation.  Thank you very much indeed.