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Judgments - Regina v. Longworth (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

HOUSE OF LORDS

SESSION 2005-06

[2006] UKHL 1

on appeal from:[2004] EWCA Crim 2145

 

 

OPINIONS

OF THE LORDS OF APPEAL

for judgment IN THE CAUSE

 

Regina

v.

Longworth (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

 

 

Appellate Committee

 

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Hope of Craighead

Lord Rodger of Earlsferry

Lord Mance

 

 

Counsel

Appellants:

Iain Goldrein QC

Michael Davies

(Instructed by Frank Howard Solicitors, Warrington)

Respondents:

David Perry

Louis Mably

(Instructed by Crown Prosecution Service)

 

Intervener

Secretary of State for the Home Department

Steven Kovats

(Instructed by the Treasury Solicitor)

 

Hearing date:

8 November 2005

on

Thursday 26 JANUARY 2006

 

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Regina v. Longworth (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

[2006] UKHL 1

LORD NICHOLLS OF BIRKENHEAD

My Lords,

    1.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Mance. For the reasons he gives, with which I agree, I would allow this appeal.

    LORD HOFFMANN

    My Lords,

    2.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Mance. For the reasons he gives, with which I agree, I would allow this appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

    3.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Mance. I agree with him that, although HHJ Hale made an order against which the appellant was entitled to appeal, he had no power to require the appellant to sign the sex offenders register.

    4.  I also agree with him that the duty to register under section 1 of the Sex Offenders Act 1997 was a consequence of the appellant's conviction, which took effect at once by force of the statute upon his conviction of sexual offences to which Part I of the Act applies. But it was not part of the proceedings in which the appellant was convicted, so his conviction was not saved by section 1(1) of the Powers of Criminal Courts (Sentencing) Act 2000 when on a later date the judge sentenced the appellant on each of these offences to a conditional discharge.

    5.  I too would allow the appeal and answer the certified question in the affirmative.

LORD RODGER OF EARLSFERRY

My Lords,

    6.  I have had the advantage of considering in draft the speech to be delivered by my noble and learned friend, Lord Mance. I agree with it and for the reasons he gives I too would allow the appeal to the extent that he proposes.

LORD MANCE

My Lords,

    7.  This is an appeal by leave of this House against the dismissal by the Court of Appeal (Criminal Division) (Potter LJ, Gibbs J and Sir Michael Wright) on 23rd July 2004 of an appeal which the Court of Appeal described as being against that part of a sentence imposed by the trial judge, HHJ Hale, sitting in the Warrington Crown Court on 12th January 2004, whereby the judge found that the appellant was subject to the notification requirements of the Sex Offenders Act 1997. The point of law of general public importance which the Court of Appeal certified on 12th November 2004 is:

    "Do the provisions of s.14(1) of the Powers of Criminal Courts (Sentencing) Act 2000 have the effect of preventing an order for conditional discharge made on conviction for an offence other than under the Sex Offenders Act 1997 from being classed as a conviction for the purposes of the 1997 Act and thus avoiding [the] notification requirements under the 1997 Act?"

    8.  The appellant was charged on two counts, of making indecent photographs of children, contrary to s.1(1)(a) of the Protection of Children Act 1978, and of possessing indecent photographs of children, contrary to s.160(1) of the Criminal Justice Act 1988. He pleaded guilty to both counts on re-arraignment on 22nd December 2003, when the judge indicated that he proposed to impose a conditional discharge in relation to each offence. Discussion then took place as to whether or not this would result in the appellant being subject to the notification requirements of the 1997 Act. Sentencing was as a result postponed until 12th January 2004, when, after hearing submissions, the judge, in accordance with his previous indication, imposed conditional discharges under s.12 of the Powers of Criminal Courts (Sentencing) Act 2000, in the case of each offence for 12 months, and further ruled that there was a requirement to notify under the Sex Offenders Act 1997, for a period of five years from the date of conviction "subject to any views that the Court of Appeal may have". To enable those views to be obtained he certified that the case was fit for appeal. The certificate of conviction drawn up on 30th November 2004 recites the two offences of which the appellant was convicted and goes on to record that he was sentenced to, respectively:

    "1.  CONDITIONAL DISCHARGE FOR 12 MONTHS

    THE DEFENDANT IS TO SIGN THE SEX-OFFENDERS REGISTER FOR 5 YEARS

    2.  AS ABOVE CONCURRENT"

    9.  The notification requirements of the Sex Offenders Act 1997 provide, so far as relevant:

    "1.-(1) A person becomes subject to the notification requirements of this Part if, after the commencement of this Part-

    (a)  he is convicted of a sexual offence to which this Part applies;

    (b)  he is found not guilty of such an offence by reason of insanity, or to be under a disability and to have done the act charged against him in respect of such an offence; or

    (c)  in England and Wales or Northern Ireland, he is cautioned by a constable in respect of such an offence which, at the time when the caution is given, he has admitted."

S.1(2) and (3) of the 1997 Act introduced notification requirements in respect of convictions and findings where the offender had "not been dealt with" at the commencement of Part I of the Act (viz. on 1st September 1997), or in respect of which he was still at such commencement subject to imprisonment, a community order, supervision, detention or a guardianship order. By s.1(9) read with Schedule 1 to the Act, any offence under s.1 of the Protection of Children Act 1978 or s.160 of the Criminal Justice Act 1988 is a sexual offence to which Part I of the 1997 Act applies.

    10.  S.1(4) of the 1997 Act provides that a person falling within subsection (1) shall continue subject to the notification requirements for a period set out opposite a person of his description in a Table. None of the specific descriptions in that Table refers to a person discharged either absolutely or conditionally, but the Table concludes with a sweep up category covering "a person of any other description" not otherwise specified in the Table, against which category the period stated is 5 years beginning with "the relevant date". HHJ Hale concluded that the appellant fell into this category. The relevant date is defined in s.1(7) as meaning, in the case of a person falling within subsection (1)(a), the date of the conviction, in the case of a person falling within subsection (1)(b), the date of the finding and, in the case of a person falling within subsection (1)(c), the date of the caution.

    11.  A person subject to notification requirements in respect of a conviction after the commencement of the Act is, under s.2(1) read with s.2(3), required within a period of 14 days commencing with the relevant date to notify the police of his name(s), address and date of birth. On request, he must under s.2(6A) also allow the police officer or other authorised person to whom he notified such information to take his fingerprints and photograph. Under s.3 of the 1997 Act, a person who fails without reasonable excuse to comply with s.2(1), or who notifies to the police in purported compliance with s.2(1) any information which he knows to be false, is guilty of an offence, and liable on indictment to imprisonment for a term not exceeding 5 years or a fine or both or on summary conviction to imprisonment for a term not exceeding 6 months or a fine or both. Failure to comply with s.2(6A) is made an offence with similar liability by s.3(1B).

    12.  The power, in a case where the court considers that it is inexpedient to inflict punishment, to make an order discharging an offender absolutely or on the condition that he commits no offence during a stipulated period not exceeding three years is provided by s.12(1) of the Powers of Criminal Courts (Sentencing) Act 2000. S.12(7) of this Act provides:

    "(7) Nothing in this section shall be construed as preventing a court, on discharging an offender absolutely or conditionally in respect of any offence, from making an order for costs against the offender or imposing any disqualification on him or from making in respect of the offence an order under section 130, 143 or 148 below (compensation orders, deprivation orders and restitution orders)."

S.14 provides:

    "(1)  Subject to subsection (2) below, a conviction of an offence for which an order is made under section 12 above discharging the offender absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under section 13 above.

    (2)  Where the offender was aged 18 or over at the time of his conviction of the offence in question and is subsequently sentenced (under section 13 above) for that offence, subsection (1) above shall cease to apply to the conviction.

    (3)  Without prejudice to subsections (1) and (2) above, the conviction of an offender who is discharged absolutely or conditionally under section 12 above shall in any event be disregarded for the purposes of any enactment or instrument which -

    (a)  imposes any disqualification or disability upon convicted persons; or

    (b)  authorises or requires the imposition of any such disqualification or disability.

    (4) Subsections (1) to (3) above shall not affect-

    (a)  any right of an offender discharged absolutely or conditionally under section 12 above to rely on his conviction in bar of any subsequent proceedings for the same offence;

    (b)  the restoration of any property in consequence of the conviction of any such offender; or

    (c)  the operation, in relation to any such offender, of any enactment or instrument in force on 1st July 1974 which is expressed to extend to persons dealt with under section 1(1) of the Probation of Offenders Act 1907 as well as to convicted persons.

….

    (6) Subsection (1) above has effect subject to section 50(1A) of the Criminal Appeal Act 1968 and section 108(1A) of the Magistrates' Courts Act 1980 (rights of appeal); and this subsection shall not be taken to prejudice any other enactment that excludes the effect of subsection (1) or (3) above for particular purposes."

    13.  The short point of law certified by the Court of Appeal requires the House to consider the ambit under s.14(1) of "the purposes of the proceedings" in which the appellant was made subject to orders discharging him conditionally for 12 months; and in particular whether the existence or use of a conviction "for the purposes of the 1997 Act" (as the point of law puts it) can, or can also, properly be described as being within the purposes of the criminal proceedings taken under s.1(1)(a) of the Protection of Children Act 1978 and s.160(1) of the Criminal Justice Act 1988.

    14.  The starting point is to consider the statutory scheme or schemes. It was accepted on all sides before us that, if there was any requirement to notify under s.1 of the Sex Offenders Act 1997 in consequence of the appellant's convictions in the proceedings under the 1978 and 1988 Acts, it arose independently of anything provided in those Acts and of any order which was or could be made by the court in the proceedings or on the convictions under those Acts; and further that the only statutory sanction for failure to register was to be found in s.3 of the 1997 Act. It follows that, if and so far as the judge in the present case heard submissions and purported to determine whether any and what notification requirements arose under the 1997 Act consequent upon the orders of conditional discharge which he made, he had no power to do so.

    15.  This led to a new point being raised before the House not identified before the judge or the Court of Appeal. If the judge had no power to determine the existence and nature of any notification requirements under the 1997 Act, it was submitted that he must have lacked jurisdiction to certify that the case was fit for appeal and the Court of Appeal must equally have lacked jurisdiction to hear and determine any appeal. It was further suggested that it would in such circumstances have been open to the appellant to ignore the judge's ruling and to defend any prosecution thereafter brought against him under s.3 of the 1997 Act on the ground that he was - in the light of s.14(1) of the 2000 Act and despite the judge's ruling - not subject to any notification requirements. Exercise of this suggested option would involve a boldness unlikely to attract many offenders, while the submission that there was no basis for any appeal to the Court of Appeal in this case rests in my view on a fallacy.

    16.  The right to appeal against sentence following conviction on indictment is provided by s.9(1) of the Criminal Appeal Act 1968:

    "(1) A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings."

By s.50(1) "sentence", in relation to an offence, "includes any order made by a court when dealing with an offender". S.50(1A) provides that s.14(1) of the 2000 Act shall not prevent an appeal under the 1968 Act, whether against conviction or otherwise. By way of belt and braces, s.14(6) of the 2000 Act provides that s.14(1) "has effect subject to s.50(1A) of the Criminal Appeal Act 1968". It is, rightly, not suggested that an appeal in the present case was precluded because any notification requirement was "a sentence fixed by law", since the gravamen of the appeal is that the judge's ruling was not a proper part of any sentence, and that there was, moreover, no notification requirement at all (cf R v. Cain [1985] AC 46, cited below).

    17.  Although the judge had no power to determine the existence and nature of any notification requirements under the 1997 Act, he purported to do so as part of the sentencing exercise which he undertook. As he put it in paragraph of his ruling on 12th January 2004:

    "I adjourned this aspect of the sentencing hearing until today which was within the 28 day period allowed for further consideration and argument."

After considering in detail the statutory and other material put before him, he said:

    "… I act on what I consider to be the plain words of the statute and I take the view that the defendant is liable to be subject to the notification requirements under section 1(1) for a period of 5 years".

    18.  It is true that, after indicating that he was minded to grant a certificate of fitness for appeal (expressed as being against conviction and/or sentence), he added

    "In saying that, I am fully aware of the argument that the effect of section 1 of the Sex Offenders Act [1997] is that it is not part of the sentence of the court but a consequence of the sentence. Nevertheless, the matter must be capable of being tested elsewhere ..."

He concluded with the words:

    "So, Mr Longworth, the effect is I am afraid you must within 3 days of today go to the local police station and register under the provisions of the Sex Offenders Act. That obligation will last for a period of 5 years from the date of conviction subject to any views that the Court of Appeal may have."

Not surprisingly in these circumstances the later prepared certificate records the requirement to register for 5 years as part of the sentence passed.

    19.  In R v. Cain, an issue arose whether the trial judge had, under the provisions of s.39 of the Powers of Criminal Courts Act 1973, power to make a criminal bankruptcy order. However, s.40(1) of the same Act provided that "No appeal shall lie against the making of a criminal bankruptcy order". The House held, nonetheless, that the issue regarding the judge's power could be tested on appeal. In a speech with which the other members of this House all agreed, Lord Scarman said at p.55D:

    "An order of the Crown Court, once made, may be in excess of its statutory power or otherwise irregular. But it is not a nullity. And it would undermine the authority of the criminal law if orders made by the highest court of trial in criminal matters could be disregarded as nullities. The order of the Crown Court stands unless and until set aside by the court itself upon application or, if appeal lies, by the appellate tribunal to which the appeal is taken."

The House went on to construe s.40(1) as permitting an appeal where the issue was whether the court in making an order had exceeded the powers conferred upon it by Parliament. In the event, they also held that the judge had had power to make the bankruptcy order which he did.

    20.  In the present case, although the judge noted in passing the "argument" that notification under the Sex Offenders Act was "not part of the sentence of the court but a consequence of the sentence", the objective effect of the course he took, in adjourning and hearing submissions, and of the language he used, was a ruling determining the position subject to appeal. It is irrelevant to consider whether there could have been consequences, in terms of contempt or otherwise, if his ruling had not been complied with. The fact that he purported as part of the sentencing exercise to determine the issue entitled the appellant to appeal, as the judge contemplated. However, on the appeal, if the issue regarding the judge's power to rule had been identified, the judge's ruling should have been set aside without more, as having been beyond his power. It follows that on the present further appeal to this House, the order that is appropriate is an order setting aside that part of the judge's sentencing remarks and ruling which purported to order the appellant to register for 5 years under the 1997 Act, without any determination whether or not the appellant was under any such obligation under that Act.

 
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