Regina v. Longworth (Appellant) (On Appeal from the Court of Appeal (Criminal Division))
21. It would nonetheless be unhelpful if the House, having heard full argument, did not itself take this opportunity of indicating its own view on the point of law certified by the Court of Appeal. In my view the correct answer is in the affirmative: the effect of s.14(1) of the 2000 Act is to deem there to be no conviction for the purposes of s.1(1)(a) of the 1997 Act. I start by observing that the language of s.14(1) states a general principle - not limited by the specific provisions in s.14(3), which are expressly stated to be "without prejudice" to subsection (1) and to apply "in any event". S.14(3)(b) must itself be read bearing in mind the previous provision in s.12(7) that nothing in s.12 should be construed as preventing a court, on discharging an offender absolutely or conditionally, from inter alia imposing any disqualification on him. But it is unnecessary in this case to consider how far s.14(3)(b) qualifies, or has a separate subject-matter from, s.12(7).
22. The purposes of the proceedings in which the conditional discharges were ordered were, first, to establish the appellant's guilt or innocence in respect of the offences charged under the 1978 and 1988 Acts, and, secondly, in the event of his guilt, to determine whether any and if so what punishment should be inflicted. The focus of the phrase "the purposes of the proceedings" in s.14(1) of the 2000 Act is in my view narrow. It is on the legal proceedings actually before the court and the significance that may attach in them to any conviction. Even proceedings under s.13 of the same Act to have an offender re-sentenced, following conviction and sentence in respect of another offence committed during a period of conditional discharge, are in s.14(1) treated as separate proceedings. The proceedings under the 1978 and 1988 Acts were on no view "brought under the Sex Offenders Act", as the Court of Appeal at one point described them. Nor did such proceedings involve, or have as any part of their intrinsic purpose, the making by the court of any order to register, or the imposition of any sanction for failure to register. The duty to register and the statutory sanction for failure to register were both imposed independently by the 1997 Act itself; and the imposition of any such sanction would have involved further separate proceedings under s.3 of that Act. Further, as Mr Perry representing the Crown acknowledged in his objective and helpful submissions, the purposes of proceedings under the 1978 or the 1988 Act cannot plausibly be said to embrace the bringing of subsequent proceedings under s.3 of the 1997 Act for failure to notify under s.1 of that Act, and so s.14(1) of the 2000 Act would on any view preclude reliance on any such conviction for the purposes of sanctioning such a failure. The existence should however be noted of s.5 of the 1997 Act, whereby, if a court by or before which a person is convicted of an offence to which Part I of that Act applies states in open court that he has on that date been convicted thereof and then or subsequently certifies accordingly, that certificate is, for the purposes of Part I, to be evidence of those facts. But the possibility that a court may under s.5 issue such a certificate does not mean that it is one of the purposes of the proceedings under the 1978 or 1988 Act to obtain such a certificate, let alone that the purposes of such proceedings are to be viewed so expansively as to embrace reference to or use of any resulting conviction under s.1 of the 1997 Act.
23. The statute book contains a number of enactments in which Parliament has been careful to exclude the effect of subsections (1) and/or (3) of s.14 as contemplated by s.14(6) of the 2000 Act. Yet there is no such exclusion in the 1997 Act. To take some examples, under s.46(1) of the Road Traffic Offenders Act 1988, a court on convicting a person of an offence involving obligatory or discretionary disqualification and making an order discharging him absolutely or conditionally may, notwithstanding s.14(3), also exercise any power conferred, and must discharge any duty imposed, on it by ss.34, 35, 36 or 44 of that Act, being provisions dealing with disqualification, while under s.46(2) a prior conviction involving disqualification or endorsement of licence is to be taken into account, notwithstanding s.14(1), in determining the same offender's liability to punishment or disqualification for any offence involving obligatory or discretionary disqualification committed subsequently. Under s.1 of the Licensed Premises (Exclusion of Certain Persons) Act 1980, where a person is convicted of "an offence committed on licensed premises" and the court is satisfied that in committing that offence he resorted to violence or offered or threatened to resort to violence, the court may make an exclusion order prohibiting him from entering those or other specified premises without certain consents, and s.1(2) is careful to provide that such an order may, notwithstanding s.14 of the 2000 Act, be made in addition to an order discharging him absolutely or conditionally. A similar exclusion appears in s.14A of the Football Spectators Act 1989, which provides that a court before which a person was convicted of certain specified offences must make a banning order, if satisfied that there are reasonable grounds to believe that this would help to prevent violence or disorder at or in connection with any regulated football matches. S.14A(5) carefully provides that such an order may be made in spite of anything in s.14 of the 2000 Act. What is noticeable about the 1997 Act is the absence of any similar exclusion, although that Act introduces a notification requirement which does not depend on any order by the court by or before which the relevant sex offender was convicted.
24. Strong support for a conclusion that the absence of any such exclusion from the 1997 Act is because Parliament never envisaged that the notification requirements of the 1997 Act should apply to persons discharged absolutely or conditionally is, furthermore, provided by the subsequent legislative history. This is admissible as an aid to construction, at least if one were to take the view that the conclusion which I have reached was open to any doubt. The notification requirements of the 1997 Act were re-enacted with some changes in the Sexual Offences Act 2003. Part 2 of this Act (which came into force on 1st May 2004) provides in s.80(1) that a person is subject to the notification requirements for the relevant notification period set out in s.82, if he is, inter alia, convicted of a relevant sexual offence after the commencement of Part 2. S.81(1) covers persons convicted of such an offence before such commencement, providing that they shall be subject to the notification requirements from such commencement until the end of the notification period. Under s.82(1) the notification period for a person within s.80(1) or 81(1) is the period set out in a Table opposite the description applying to such person. None of the previous descriptions being apt to cover a person discharged either absolutely or conditionally, this Table contains a penultimate category, expressly covering persons conditionally discharged, which is without any parallel in the Table in the 1997 Act. The final category is once again "a person of any other description". The wording of these two categories in the 2003 Act Table is as follows:
"A person in whose case an order for conditional discharge .. is made in respect of the offence
The period of conditional discharge ..
A person of any other description
5 years beginning with the relevant date"
Notification must now, under s.83(1), take place within the period of 3 days beginning with the relevant date or, if later, the commencement of Part 2 of the Act.
25. The relevant date under the 2003 Act is by s.82(6) defined (in the same way as under the 1997 Act) as the date of the conviction or finding or caution, as the case may be. The reference in the Table in s.82(1) of the 2003 Act to a person subject to a conditional discharge must be seen in the light of s.134(1) in Part 2 of the Act, which provides that s.14(1) of the 2000 Act does "not apply for the purposes of this Part to a conviction for an offence in respect of which an order for conditional discharge . is made". But by s.134(2), s.134(1) itself "applies only to convictions after the commencement of this Part".
26. This last provision clearly indicates that it was Parliament's understanding that, in respect of any conviction prior to the commencement of this Part of the 2003 Act in respect of which the offender was discharged absolutely or conditionally, s.14(1) of the 2000 Act would have the effect of deeming such conviction not to have occurred for the purpose of the notification requirements under the Sexual Offences Act 2003, and, inferentially, under the predecessor 1997 Act.
27. If the position were otherwise, some remarkable anomalies would also follow. A person convicted and conditionally discharged would under the 1997 Act be subject, as HHJ Hale and the Court of Appeal considered, to a 5 year notification period. But once the 2003 Act came into force, that period would on the face of it be reduced to a period matching the length of the conditional discharge (a maximum of 3 years or, in the present case, a period of 12 months). However, a person subject to an absolute discharge would, paradoxically, be worse off. He or she would also be subject under the 1997 Act to a 5 year notification period as a person of any other description. But there would be nothing in the 2003 Act to reduce this period after the commencement date of Part 2 of that Act. Further, in respect of a conviction after that commencement date, such a person would not fall within any specific description in the Table, but would presumably continue to be subject as "a person of any other description" to a 5 year notification period, whereas a person convicted and conditionally discharged would be subject to a notification period equal only to the period of conditional discharge which cannot itself exceed three years. Why Parliament should have chosen expressly to disapply s.14(1) in relation to persons conditionally discharged, but not in relation to persons absolutely discharged, would on this analysis also be wholly inexplicable. The only sensible conclusion, as Mr Perry accepted, is that Parliament assumed that, apart from the express exclusion introduced by s.134(1), s.14(1) would have under the 2003 Act (and had had under the 1997 Act) the effect of deeming any otherwise material conviction leading to an absolute or conditional discharge not to have occurred for the purposes of both Acts.
28. Mr Perry drew the House's attention to a possible problem that arises from this conclusion. Whatever the current day-to-day practice of courts by or before whom sex offenders are convicted and sentenced, the scheme of both the 1997 and the 2003 Acts is on its face that the requirement is to notify within a period beginning with the date of the conviction, rather than (if this is later) the date of the sentence. That appears to follow from the ordinary meaning of conviction, confirmed in the case of both statutes by provisions distinguishing the date of conviction from the date when an offender is "dealt with" (cf s.1(2)(a) of the 1997 Act and s.81(3) of the 2003 Act), as well as by the parallel requirements to notify within 14 or now 3 days beginning with the date of any finding (in a case of insanity or disability) or caution.
29. But this problem then arises. In many cases involving an absolute or conditional discharge, such sentence will be passed on the same date as conviction (or it will be made clear that such will be the sentence, as it was by the judge in this case). However, that will not always be so. Accordingly, if the trigger to any notification requirement is conviction rather than sentence, there will be cases where it is uncertain at conviction not merely how long the period of notification will be (a matter of irrelevance to the initial notification), but also whether or not the conviction gives rise to requirement to notify for any period at all. No such requirement can exist, or at all events survive, under the 1997 Act in the event of an absolute or conditional discharge, or under the 2003 Act in the event of an absolute discharge. If the sentence passed is such a discharge, there could be no problem. Indeed, as I have pointed out, s.14(1) would preclude the Crown from proceeding under s.3 of the 1997 Act or s.91 of the 2003 Act, even it would ever occur to anyone to think of doing so. The potential problem arises if there is a real likelihood of such a discharge, but in the event the judge imposes a heavier sentence. By this time, the period (of 14 or now 3 days) within which notification must be effected is likely to have expired. The practical answer to this anomaly under the current legislation is likely to be that an offender will never be prosecuted under s.92(1)(a) for failure to notify at a date when he has not yet been sentenced, if prior to sentence he had good reason to believe that he would be absolutely discharged. Though we did not hear argument on this point (and I mention it for completeness, without expressing any view), he might even be able to argue, if he was prosecuted, that he had a legal defence to any prosecution under that subsection, in that he had "reasonable excuse" for not complying with a requirement to notify which had only become clear at a later date.
30. Mr Goldrein QC representing the appellant submitted that this whole problem could and should be circumvented by treating the date of conviction, for the purposes of the initial requirement to notify and the notification period, as the date of sentencing. The basis of this argument is that the Table in each Act describes offenders by reference to the nature of their sentence. But the applicable notification period specified in the Table is either indefinite or begins with "the relevant date", which is itself defined as the date of conviction, finding or caution; and the ordinary meaning of the word "conviction" - reinforced by other statutory language - appears, as I have said, clear. In rejecting Mr Goldrein's submission on this point, I am also influenced by the underlying rationale of the notification requirements, which is the protection of the public. This suggests that the notification requirement should arise at once on a conviction, finding or caution, rather than await a sentence which will in many cases do no more than determine whether the notification should continue indefinitely or for as long as 10, 7 or 5 years (or under the 2003 Act in the event of a conditional discharge 1 year). As a minor point, one may add that, if the notification requirement and period run from conviction rather than sentence, the period of notification will, where sentence is adjourned, expire correspondingly earlier than it would do if it ran only from sentence.
31. For these reasons, I have no doubt that HHJ Hale and the Court of Appeal were wrong in ruling that the present appellant was subject to any notification requirements in consequence of the convictions in respect of which he was conditionally discharged. However, the appeal should be allowed in respect of that part of the judge's sentence which purported to determine that the appellant was subject to notification requirements and to require him to register under the Sex Offenders Act 1997 on the simple ground that it was outside the judge's and the Court of Appeal's power so to determine and order.