K, R (on the application of) v Newport Crown Court & Anor

LORD JUSTICE THOMAS: On 13th May 2004 the magistrates, sitting at Cwmbran, Gwent, sentenced the claimant, who was then aged 16, to a detention and training order of 12 months for a breach of a final antisocial behaviour order [ASBO] made on 21st January 2004 and a consecutive sentence of 4 months for theft of a handbag, making a total period of 16 months. An appeal against that sentence was made to the Crown Court sitting in Newport, which was heard on 18th June 2004. The appeal was dismissed and, for reasons that are not entirely clear, the application for judicial review of the decision of the Crown Court has taken some time to come before this court. That delay has influenced the decision to which we have had to come.

It is helpful, I think, to explain a little of the background. In October 2003 an interim ASBO was imposed on the claimant and a young man who was slightly younger than the claimant, whom I shall call "A". It is clear from the antecedents of A, which are before us, that he breached an interim ASBO (made in the same terms as the final order made on 21~Jauary~2004) on four separate occasions during November~2003 and, when he appeared before the justices for Southeast Gwent on 16th December 2003, he was given four sentences of a four months' detention and training order concurrent with each other. The facts of those breaches are not before us.

We do not know what happened -- and that is a comment I shall make throughout this judgment -- when, on 21st January 2004, the interim ASBO was made a full ASBO. The ASBO was in very broad terms, and the important paragraph of the ASBO, which imposed a total of six restrictions, was that the claimant should not associate with A unless supervised by a Newport City Council employee or by a Gwent police officer. The ASBO also prevented the claimant and A from entering a designated area, from throwing or firing any objects, including stones and fireworks, at properties and/or vehicles in any public place; he was not to threaten, intimidate or cause harassment, alarm or distress to five named people, including a Mrs B. He was also not to cause harassment, alarm, or distress to any person who was living, working or visiting the city of Newport.

The claimant was given a community rehabilitation order for 18 months on 26th February 2004 for driving whilst disqualified on 17th January~2004. That was not a breach of the ASBO, but it is important to record, as it forms part of the background. However, on 15th February 2004 the claimant breached the term of the ASBO under which he was precluded from threatening, intimidating or causing harassment, alarm or distress to Mrs B, when he swore at her, kicked her dog. For that breach of the ASBO, on 15th April he was given a community punishment order of 100 hours. It is important to record that we do have in the papers before us information in relation to that breach. First, we have the statement of Mrs B and, more importantly, we have the pre-sentence report from the Newport YOTS.

On 27th April 2004 the claimant and A committed a further breach of that order. The information we have on the papers is, to say the least, a bit scant. The claimant and A were found at premises in Newport. Both were arrested and taken into custody. The breach of the ASBO had occurred by reason of the two associating with each other. Beyond that, we know nothing of the circumstances of the offence.

The claimant was charged with breach of the ASBO and, together with A, brought before the justices on 13th May, where the sentences to which I have referred were passed. We have been told that, although there is no information before us, when they were before the justices on that occasion, there were supplements to the pre-sentence report that had been made for the earlier hearing, and we assume there must have been a pre-sentence report in respect of A. Furthermore, there must have been before the justices some information greater than that to which I have just referred dealing with the circumstances of the breach of the ASBO.

The magistrates, after no doubt hearing what had happened and, I assume considering the documents which we do not have, must have proceeded to pass the sentence to which I have referred upon the claimant, but passed on A a sentence of four months for the breach of the ASBO. The only reasoning of the justices available to us is this, that they considered the sentence should be imposed because it was:

There is, as far as appears from the papers before us, no explanation as to why, apart from that, the claimant was given 12 months for a breach of the ASBO and A was given four months. We do not know whether the attention of the justices was drawn to the fact that A had breached the interim ASBO on four separate occasions in November~2003 and been sentenced to four months at that time.

It is, I observe, a matter for regret that the reasoning of the justices was not clearer, as the costs of an appeal to the Crown Court, to which I will refer in a moment, and the further costs of the appeal to this court and the time that the claimant has already spent in custody might have been avoided had fuller reasons been available for what on its face would appear to be a sentence that was markedly different. I say "on its face would appear" because there is, I feel sure, only limited information before us.

I also should observe that, when passing a total sentence of 16 months, the justices should have had regard to the principle of totality and taken into account the fact that they were passing what is a very long sentence on a 16-year old young man. There may well be good reasons for the decision to which they have come, but on the papers before us it is quite impossible for me to discern why.

What then happened was that the matter came before the Crown Court at Newport and, as I have already indicated, that court dismissed the appeal. There is before us what appears to be a full transcript. The transcript is not very satisfactory simply because there are passages where it is marked "inaudible". It does not disclose it seems to me, whether much of the information that I consider a court should have before it when dealing with an appeal against a sentence of this length imposed on a young man, was before it. The judge who heard the appeal said this:

It has been argued forcibly before us in clear written submissions made by Miss Smart that on the face of the documents there is no rational basis upon which there should have been such disparity. She, therefore, says that the claimant can bring himself within the line of authorities most recently summarised in the judgment of Lord Bingham CJ in R v Director of Public Prosecutions ex parte McGeary (1999) 2 Cr App R S 263, and even more recently than that in the judgment of Rose LJ in R (Sogbesan) v Inner London Crown Court (2003) 1 Cr App R S 79. It is not necessary for us to set out those passages because it becomes unnecessary to go on encrusting each judgment with yet further recitations of what clear law.

The test is high. It is quite different from a test that the Court of Appeal Criminal Division considers. Looking at the tests set out in those cases, I am satisfied that on the basis of what is before us the test has been satisfied and I would accordingly, quash the decision of the Crown Court as it is impossible to discern why on the information before us a sentence of such disparity was passed.

I then have to consider what should be done. As is apparent from the account I have endeavoured to give, the information before us is inadequate for this court to reach a view as to what the proper sentence should have been. It is, I think, important that a court, when making a decision to impose a period of imprisonment of such length on a young man, and in particular where it is dealing with another offender at the same time, should have available before it all the up-to-date information, and in particular should give clear reasons that explain why in the case of one defendant one sentence has been passed and in respect of another a different sentence has been passed.

In the circumstances of the current case it seems to this court it was incumbent upon both the magistrates and the Crown Court to have explained the disparity, bearing in mind the fact that A had breached the interim ASBO. It also seems to me that, when the matter came before the Crown Court, there should have been before the Crown Court proper information in relation to the breach of the ASBO, the circumstances in which it had occurred, and there should have been available to the Crown Court the pre-sentence report in respect of A, even if that could not be made available to the claimant in this case.

It is very important when dealing with ASBOs that the principles set down on many occasions by the Court of Appeal Criminal Division are adhered to and careful scrutiny is given, when the matter comes before the Crown Court, to the appropriateness of the sentence.

The court would in the ordinary course of events, therefore, have remitted this matter to the Crown Court at Newport for an urgent rehearing. However, the court has been told by Miss Smart, who has made enquiries at the court's express direction, that the claimant has been in custody since 28th April and has therefore served the equivalent of a 12-month detention and training order.

Taking that into account and taking into account the further delay that might elapse if this court were to remit the matter, I have come to the conclusion, without in any way intending to say what the correct sentence for this offence should be, that this court nonetheless should substitute a sentence of 12 months in all for the breach of the ASBO and the theft of the handbag, divided as to eight months for the breach of the ASBO and four months for the theft of the handbag. I emphasise that I am not in any way indicating that that is necessarily the correct sentence, but it is one that I consider, in the interests of justice, should be imposed now because of the circumstances to which I have referred.

I therefore consider that the correct course is to substitute the sentence I have indicated for the reasons I have given, but the decision that I have made is not in any way to be looked upon as an indication of the appropriate sentence for the breach of an ASBO. I consider this court should impose that sentence merely in the interests of justice because of the unavoidable delay that has occurred in relation to a young person, for whom an extra week or two in custody, after such a long period already in custody, would be a period of time that I do not think, in all the circumstances, is justified.

MR JUSTICE FULFORD: I agree.

LORD JUSTICE THOMAS: Thank you very much, Miss Smart.

MISS SMART: My Lord, may I ask for community legal aid taxation, a detailed assessment of the funding by the CLS on behalf of the claimant?

LORD JUSTICE THOMAS: Yes, of course.

MISS SMART: I am grateful. My Lord, I believe it would be possible to order costs from the central funds so far as the CLS is concerned. I appreciate that I cannot ask for costs for either of the defendants, they not having appeared to contest the matter.

LORD JUSTICE THOMAS: Why is this a case for making an order from central funds?

MISS SMART: Simply that ordinarily costs follow the event.

LORD JUSTICE THOMAS: I think in all the circumstances, if proper information had been before the Crown Court, it would be doubtful whether it would have been necessary to trouble this court.

MISS SMART: My Lord, also may I ask for an order under section 39 of the Children and Young Persons Act in relation to the two codefendants, whose names have been mentioned?

LORD JUSTICE THOMAS: Yes. I think throughout I referred to the second person as "A" because obviously there should be, in respect of A and the claimant, a restriction and the claimant should be referred to as "the claimant" and the case identified as "K".

MISS SMART: I am grateful.

LORD JUSTICE THOMAS: But I, of course, would wish to say that one is concerned with the encrustation of authority and we cannot see that there is anything in this case that would in any way cause it to be reported. There are enough decisions on this subject already.

MISS SMART: My Lord, yes. Finally, can I indicate to the court that the claimant is still being held at Huntercombe Young Offenders, which is Henley-on-Thames, and I would be most grateful if your Lordship's judgment could be sent by fax today, which will enable them --

LORD JUSTICE THOMAS: No, our judgment cannot because it will take the transcriber, with my poor voice, I suspect, longer than she would otherwise take to transcribe the judgment. The order of the court, I hope, can be made available today.

MISS SMART: I am most grateful.

LORD JUSTICE THOMAS: The clerk will do his best. Thank you.

MISS SMART: I am most grateful.