Needham & Ors, R v, Court of Appeal - Criminal Division, April 28, 2016, [2016] EWCA Crim 455

Issuing Organization:Criminal Division
Actores:Needham & Ors, R v
Resolution Date:April 28, 2016
 
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Neutral Citation Number: [2016] EWCA Crim 455

Case Nos: 2015 05647 A4; 2015 05814 A1; 2015 04996 A1; 2015 05788 A4; 2015 05735 A4; 2015 05730 A3; 2016 00294 A1

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURTS AT LINCOLN, BIRMINGHAM DURHAM, CHESTER, NOTTINGHAM AND PRESTON

T20150275; T20157740; S20150176; T20157109; T20157697; T20150987; S20150249

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 28/04/2016

Before:

LORD JUSTICE TREACY

MR JUSTICE JEREMY BAKER

and

THE RECORDER OF CARDIFF

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Between:

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T. Little (instructed by Crown Prosecution Service) for the Crown

R. Davies (instructed by Registrar for Criminal Appeals) for Needham

T. Rashid (instructed by Registrar for Criminal Appeals) for Ali

Miss R. Landin (instructed by Registrar for Criminal Appeals) for Williams

B. Close (instructed by Registrar for Criminal Appeals) for Smythe

S.V. Evans (instructed by Registrar for Criminal Appeals) for Deakin

R.H. Ashton (instructed by Registrar for Criminal Appeals) for Aitken

H. Barton (instructed by Registrar for Criminal Appeals) for Khan

Hearing date: 7th April 2016

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Lord Justice Treacy:

Introduction

  1. These cases come before the court for consideration of the effect of the introduction into the Road Traffic Offenders Act 1988 (RTOA) of sections 35A and 35B. Those provisions were originally inserted by section 137 and schedule 16 of the Coroners and Justice Act 2009. However those provisions were not brought into force at that time and they were amended by section 30 of the Criminal Justice and Courts Act 2015 (the 2015 Act). The provisions as amended came into force on 13th April 2015 and, in broad terms, do not apply to offences committed wholly or partly before that date.

  2. It was common ground before us that the purpose of this legislation is to avoid offenders to have been disqualified from driving and to have had a custodial sentence imposed at the same time, serving all or part of their disqualification whilst in custody. The clear intention of Parliament is that periods of disqualification should be served by an offender whilst he or she is at liberty in the community.

  3. Sections 35A and 35B employ different mechanisms for achieving this purpose. There have been disputes before the court as to the correct interpretation of and inter-relationship between those two sections. It is also apparent from the cases before us that the effect of these provisions has not been fully understood by practitioners, court officials and, indeed, judges.

  4. Sections 35A and 35B relate to situations where a person is to be disqualified under section 34 RTOA (disqualification for specific offences) or section 35 RTOA (totting up disqualification). There are mirror provisions inserted by the 2015 Act into the Powers of Criminal Courts (Sentencing) Act 2000 at sections 147(A) and 147(B). They deal with situations where the court has imposed disqualification under section 146 (disqualification for any offence) and section 147 (disqualification where vehicle used for purposes of crime).

  5. The cases before us did not involve those latter sections, but since they are mirror provisions, our interpretation of and observations upon sections 35A and 35B apply to them as well.

  6. We next set out the two new sections. The relevant parts of sections 35A and 35B of the RTOA are in the following terms:

    ``35A.-- Extension of disqualification where custodial sentence also imposed

    (1) This section applies where a person is convicted in England and Wales of an offence for which the court--

    (a) imposes a custodial sentence, and

    (b) orders the person to be disqualified under section 34 or 35.

    (2) The order under section 34 or 35 must provide for the person to be disqualified for the appropriate extension period, in addition to the discretionary disqualification period.

    (3) The discretionary disqualification period is the period for which, in the absence of this section, the court would have disqualified the person under section 34 or 35.

    (4) The appropriate extension period is--

    (a) where an order under section 82A(2) of the Powers of Criminal Courts (Sentencing) Act 2000 (life sentence: determination of tariffs) is made in relation to the custodial sentence, a period equal to the part of the sentence specified in that order;

    (b) in the case of a detention and training order under section 100 of that Act (offenders under 18: detention and training orders), a period equal to half the term of that order;

    ...

    (e) where section 226A of the Criminal Justice Act 2003 (extended sentence for certain violent or sexual offences: persons 18 or over) applies in relation to the custodial sentence, a period equal to two-thirds of the term imposed pursuant to section 226A(5)(a) of that Act;

    (f) where section 226B of that Act (extended sentence for certain violent or sexual offences: persons under 18) applies in relation to the custodial sentence, a period equal to two-thirds of the term imposed pursuant to section 226B(3)(a) of that Act;

    (fa) in the case of a sentence under section 236A of that Act (special custodial sentence for certain offenders of particular concern), a period equal to half of the term imposed pursuant to section 236A(2)(a) of that Act;

    (g) where an order under section 269(2) of that Act (determination of minimum term in relation to mandatory life sentence: early release) is made in relation to the custodial sentence, a period equal to the part of the sentence specified in that order;

    (h) in any other case, a period equal to half the custodial sentence imposed.

    (5) If a period determined under subsection (4) includes a fraction of a day, that period is to be rounded up to the nearest number of whole days.

    ...

    (7) This section does not apply where--

    (a) the custodial sentence was a suspended sentence,

    (b) the court has made an order under section 269(4) of the Criminal Justice Act 2003 (determination of minimum term in relation to mandatory life sentence: no early release) in relation to the custodial sentence, or

    (c) the court has made an order under section 82A(4) of the Powers of Criminal Courts (Sentencing) Act 2000 (determination of minimum term in relation to discretionary life sentence: no early release) in relation to the custodial sentence.

    (8) Subsection (9) applies where an amending order provides that the proportion of a prisoner's sentence referred to in section 243A(3)(a), 244(3)(a) of the Criminal Justice Act 2003 (release of prisoners in certain circumstances) is to be read as a reference to another proportion (``the new proportion'').

    (9) The Secretary of State may by order--

    (a) if the amending order makes provision in respect of section 243A(3)(a) or 244(3)(a) of that Act, provide that the proportion specified in subsection (4)(h) of this section is to be read, in the case of a custodial sentence to which the amending order applies, as a reference to the new proportion;....

    (10) [Procedure for making order under subs. (9).]

    (11) In this section--

    ``amending order'' means an order under section 267 of the Criminal Justice Act 2003 (alteration by order of relevant proportion of sentence);

    ``custodial sentence'' has the meaning given by section 76 of the Powers of Criminal Courts (Sentencing) Act 2000;

    ``suspended sentence'' has the meaning given by section 189 of the Criminal Justice Act 2003.

    35B.-- Effect of custodial sentence in other cases

    (1) This section applies where a person is convicted in England and Wales of an offence for which a court proposes to order the person to be disqualified under section 34 or 35 and--

    (a) the court proposes to impose on the person a custodial sentence (other than a suspended sentence) for another offence, or

    (b) at the time of sentencing for the offence, a custodial sentence imposed on the person on an earlier occasion has not expired.

    (2) In determining the period for which the person is to be disqualified under section 34 or 35, the court must have regard to the consideration in subsection (3) if and to the extent that it is appropriate to do so.

    (3) The consideration is the diminished effect of disqualification as a distinct punishment if the person who is disqualified is also detained in pursuance of a custodial sentence.

    (4) If the court proposes to order the person to be disqualified under section 34 or 35 and to impose a custodial sentence for the same offence, the court may not in relation to that disqualification take that custodial sentence into account for the purposes of subsection (2).

    (5) In this section ``custodial sentence'' and ``suspended sentence'' have the same meaning as in section 35A.''

    Commencement provisions

  7. Before turning to these new sections, we should say a word about the commencement provisions of which there has been some criticism, albeit not at the present hearing. All parties accepted that the new provisions are in force, and an issue which has been raised about transitional provisions did not arise in the present cases.

  8. The relevant provision is the Coroners and Justice Act 2009 (Commencement No. 17) Order 2015 (SI) 2015 No. 819 (C. 51)). Paragraph 2 of the Order provides:

    ``The following provisions of the Coroners and Justice Act 2009 come into force on 13th April 2015 -

    (a) section 137 (extension of driving disqualification);

    (b) paragraphs 2(1) and (2) and 5 of schedule 16 (extension of driving disqualification); and

    (c) paragraphs 29-34 of schedule 22 (transitional, transitory and saving provision).''

  9. Sub-paragraphs (a) and (b) of paragraph 2 of the Order have the effect of bringing both section 35A and 35B and also section 147A and 147B into force with effect from 13th April 2015. Although section 137 does no more than provide a signpost to schedule 16, the necessary detail is incorporated within schedule 16. We are satisfied that those provisions were properly brought into force.

  10. By way of contrast, sub-paragraph (c) of paragraph 2 of the...

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