Trigger v Northampton Magistrates Court

This is the judgment of the court.

The claimant seeks permission to apply for judicial review and, if granted, judicial review to quash a decision of Northampton Magistrates’ Court made on 19 and 29 October 2010 imposing a period of imprisonment on him of 8 weeks.

At the conclusion of the hearing we gave permission to proceed on the claim for judicial review and quashed the sentence of imprisonment and indicated that we would give our reasons for doing so at a later date. We now do so.

At the hearings on 19 and 29 October 2010, the magistrates purported to make use of the powers conferred on them by section 142(1) of the Magistrates Courts Act 1980 (“section 142”) to “vary or rescind” a suspended sentence order which was passed on the claimant on 25 February 2009, following his conviction on 5 November 2008 for exposure, contrary to section 66 of the Sexual Offences Act 2003.

The sentence imposed on 25 February 2009 was a suspended sentence order under Section 189 of the Criminal Justice Act 2003 (“the 2003 Act”). The sentence was one of 12 weeks’ imprisonment with an operational period of 36 months, a requirement of supervision for a supervision period of 36 months and a programme requirement to complete the sex offender groupwork programme. There was also a requirement to register with the police for 7 years from 25 February 2009.

As accepted in the respondent’s representations, the suspended sentence order was an unlawful sentence, because under section 189(3) of the 2003 Act the supervision period and the operational period must each be for a period of not more than two years beginning with the date of the order. In this case both the supervision period and the operational period were three years.

On 27 February 2009 the matter was brought before the Magistrates’ Court for correction of an error pursuant to section 142. At that hearing the supervision period was amended to 24 months but the court ordered that “all other matters remain” so that the operational period remained unlawful because it was still for a period of three years.

On 5 December 2008 the magistrates had imposed a five year anti-social behaviour order on the claimant for conduct which included the wearing of a school girl uniform, including a short skirt, pursuing children and parents, bending over revealing bare legs and tugging a school girl’s sleeve. The order prohibited the claimant from wearing a skirt or showing bare legs on any school day between certain hours or behaving in a manner which caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself.

On 6 May 2010 the claimant was convicted of a breach of the anti-social behaviour order committed on 16 December 2009. That conviction put him in breach of the suspended sentence order passed in February 2009. Under Section 193 of the 2003 Act and paragraph 8(3) of Schedule 12 to the 2003 Act, the Court had to consider whether to activate the suspended sentence order under paragraphs 8(2)(a) or (b) of Schedule 12. They decided that it would be unjust to activate the sentence as the claimant was the sole carer for his aged mother. Instead, under paragraph 8(2)(c)(i) of Schedule 12 they added a requirement for a 12 week curfew between 7am and 9am daily. They also imposed a financial penalty for the breach of the anti-social behaviour order.

When sentencing the claimant on 6 May 2010 it appears that the magistrates did not have the benefit of a report from the Probation Service dated 17 February 2010 which reported on his progress in relation to the suspended sentence order with a view to it being taken into account at that hearing. The conclusion of that report was in the following terms:

“Mr Trigger’s attitude and behaviour towards both the Police and Probation has prevented any effective work being undertaken to reduce his risk with him in the community. It is my assessment that interventions available in the community are unworkable and ineffective in reducing his risk despite the involvement of both the Police Service and Probation Service and therefore I propose that the Court activate the custodial element of the Suspended Sentence Order or revoke the Order and re-sentence, with a view to imposing a custodial sentence, should he be convicted of the Breach of the ASBO.”

On 10 September 2010 the Probation Service made an application to discharge that part of the suspended sentence which required the claimant to attend the community sex offender group work programme. The Probation Service set out the reason as follows:

“Mr Trigger is subject to a Programme Requirement to attend the Community Sex Offender Group work Programme. Northamptonshire Probation Trust cannot deliver this programme. The Suspended Sentence Order is 2 years and it is a 3 year programme. There has been a problem delivering the programme due to Mr Trigger denying his need for it. There are concerns about his on-going risk due to the inability to deliver the programme, however we are unable to deliver the programme due to the length of the Order. I [request] that the Court revoke the Programme Requirement.”

In about July 2010 proceedings were brought against the claimant in the Magistrates’ Court for failure to comply with the notification requirements of the Sexual Offences Act 2003 in relation to the February 2009 sentence and on 6 August 2010 the claimant consented to summary trial and pleaded not guilty. The case was adjourned until 5 October 2010 for trial. He pleaded guilty on 5 October 2010 and the case was adjourned to 14 October 2010 for a probation report prior to sentence.

In the report dated 12 October 2010 the Probation Service said:

“It is my assessment therefore that Mr Trigger remains a high risk of serious harm to children and the public by way of indecent exposure and possible sexual assault. Due to the state of his denial the Programme Requirement will not be completed by Mr Trigger. The Supervision Requirement alone is not sufficient in reducing this risk of serious harm. He has persistently failed to demonstrate any intention to change his behaviours, his attitude towards the victims, the Court and the criminal justice agencies is very poor. Thus Northamptonshire Probation trust is unable to reduce or manage his risk of serious harm.”

On 14 October 2010 the magistrates dealt with the breach of the notification requirements by imposing a financial penalty but failed to take the steps they were obliged to take under paragraph 8(2) and 8(3) of Schedule 12 to the 2003 Act in relation to the suspended sentence order.

Meanwhile the application by the Probation Service in September 2010 to revoke the programme requirement was, it seems, withdrawn on the basis that there was to be a re-opening of the sentence under section 142. This led to the hearing on 19 October 2010.

At the hearing on 19 October 2010 the claimant was not represented. Although his solicitors had made an application in writing for a Legal Representation Order to cover the hearing, that application does not appear to have been considered and an oral application for an adjournment for the purposes of obtaining a Legal Representation Order was refused.

On 19 October 2010, according to the memorandum of an entry in the register for that date, the magistrates dealt with an application under section 142 in relation to the suspended sentence order imposed on 25 February 2009. The outcome was that the suspended sentence was implemented as a sentence of 8 weeks’ immediate imprisonment, with the reason being “credit given for part of the order that has been complied with.” Although the respondent’s representations state that the suspended sentence order was activated pursuant to paragraph 8(2)(b) of Schedule 12 to the 2003 Act without valid breach proceedings having been taken pursuant to paragraph 6 of Schedule 12 to the Criminal Justice Act 2003, that does not appear to be borne out from the memorandum of the entry in the register.

As a result of that hearing the claimant’s solicitors requested a re-opening of the case under section 142 and the hearing took place on 29 October 2010 by which time a Legal Representation Order had been granted.

On 29 October 2010 the magistrates reopened the case under section 142. They set aside the decision of 19 October 2010 which was described as an “incorrect decision”. The magistrates considered that the original sentencing court had been misled on 25 February 2009 regarding the appropriateness and availability of the community sex offender groupwork programme. They said that the Probation Service would not have recommended that programme for less than 36 months. They said that claimant was not a suitable candidate for the course and has “actually disrupted the course” and added that the fact that “he was not been breached by Probation earlier is not acceptable”. They decided there was no good reason for the suspension of the prison sentence imposed on 25 February 2009 and that section 142 empowered them to impose any sentence which could have been passed on 25 February 2009. They said that the offence was clearly very serious and that immediate custody was entirely justified. They decided that the appropriate sentence was one of 8 weeks imprisonment commencing on 19 October 2010.

In these proceedings the claimant seeks permission to apply for judicial review and if granted, judicial review of the decisions of 19 and 29 October 2010 on the basis that the magistrates acted in excess of jurisdiction and in breach of natural justice when imposing an immediate sentence of imprisonment. The claimant relies on the judgment of this Court in Holme v Liverpool City Justices [2004] EWHC 3131 (Admin).

Mr Knight, who appeared on behalf of the claimant, submitted that the magistrates could not use section 142 to resentence the claimant after some 20 months in the light of matters which had occurred since that date. Rather, he submitted that section 142 should be used as a slip rule to deal with mistakes which had been made in the sentence. Whilst section 142 had been amended to remove the original requirement for the provision to be operated within 28 days of the sentence, it could not be in the interests of justice to exercise the power given by that section 20 months after sentence had been passed.

In response, the respondents said that whilst the action taken on 19 October 2010 was not lawful, the action taken on 29 October 2010 was both lawful and in all the circumstances necessary. They said that the case was exceptional and within the scope of statute and case law. In particular they said that there is no limitation on the time within which the court may act under section 142. The claimant could have been the subject of breach proceedings under paragraph 6 of schedule 12 of the 2003 Act which would have justified the action on 19 October 2010, but this did not happen.

Mr Sachdeva, who appeared on behalf of the respondents, submitted that the jurisdiction of the magistrates to vary a sentence under section 142 was wide; it was not limited to mistakes and could be exercised at any time. Here however there had been a mistake. The operational period of three years was unlawful and the magistrates had also included a requirement of attendance at the community sex offender groupwork programme which was a three year course which could not be completed within the supervision period.

In those circumstances he submitted that the magistrates on 19 and 29 October 2010 had jurisdiction to vary the sentence passed on 25 February 2009 and in doing so to impose the immediate sentence of imprisonment of eight weeks.

Section 142 provides as follows:

“142 Power of magistrates' court to re-open cases to rectify mistakes etc.

(1)

A magistrates' court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make.”

In Holme v Liverpool City Justices, Collins J considered the jurisdiction of magistrates to vary sentences under section 142. He referred to the decision in R v Croydon Youth Court ex parte DPP [1997] 2 Cr App R 411 where, in relation to section 142 it was said:

“The purpose of that section was to rectify mistakes. It was generally and correctly to be regarded as a slip rule and the power under the section could not be extended to cover situations beyond those akin to a mistake. Thus it was wholly wrong to employ section 142(2) as a method by which a respondent could obtain a rehearing in circumstances where he could not appeal to the Crown Court by reason of his unequivocal plea of guilty. Nor was it in the interests of justice. The interests of justice also included the interests of the Courts and the public that people who had pleaded guilty with the advice of Counsel should continue to be regarded as guilty and that there should certainly be an end to litigation.”

At paragraph 30 of Holme Collins J said as follows:

“That case indicates that the power under section 142 is to be used in a relatively limited situation, namely one which is akin to mistake or, as the Court says, the slip rule. But there is no reason, on the face of it, to limit it further. It seems to me that if a court has been misled into imposing a particular sentence, and it is discovered that it has been so misled, then the sentence may properly be said to have been imposed because of a mistake; the mistake being the failure of the court to appreciate a relevant fact. That may well give power to the court to exercise the jurisdiction conferred by section 142, but it does not indicate that that power should necessarily be used.”

In relation to the power to increase the sentence under section 142 Collins J referred to the circumstances where the section would apply at [32] to [33] and to the principle of finality at [34]:

“32.

There is no doubt that the power can be exercised even if an increase in sentence is involved. There is authority of this Court to that effect, that being a case where magistrates had decided not to disqualify because they believed special reasons to exist in circumstances where it was quickly appreciated when the matter was put back to them, that they actually had no power in law to regard what they believed to be special circumstances as such. Accordingly rather than have to go to this court in order to correct their mistake, since it was recognised and accepted by everyone involved, it was sensible and desirable that it should be dealt with then and there by the magistrates.

33.

That is an example, but it is a good example because it draws attention to the sort of case which is appropriate for use of the power, namely where the mistake is quickly identified and is accepted on all sides that a mistake had been made.

34.

It seems to me that it is very important to bear in mind the principle of finality in sentencing. This is a matter which has been made clear by the House of Lords in R v Secretary of State for the Home Department, ex parte Pierson[1998] A.C. 539. At page 585, letter G, Lord Steyn said this:

“That brings me to the question whether and legal consequences flow from the characterisation of the Home Secretary’s function as involving a decision on punishment. It is a general rule of the common law that a lawful sentence pronounced by a judge may not retrospectively be increased.”

That is the principle.”

The provisions of section 142 were also considered more recently in Roman Zykin v Crown Prosecution Service [2009] EWHC 1469 (Admin) where in this court Bean J summarised the position as follows at [16]:

“It is clear from the Croydon case and the Holme case that section 142 does not confer a wide and general power on a Magistrates’ Court to re-open a previous decision on the grounds that it is in the interests of justice to do so. It is, as Collins J said in Holme, a power to be used in a relatively limited situation, namely one which is akin to mistake or the slip rule.”

There is no express limit on the period within which the power given by section 142 can be exercised. Originally the section had included a provision that it had to be exercised within 28 days but this was repealed in 1995. In Holme Collins J said at [26] that “if it is appropriate for the powers under section 142 to be used, and if they in truth extend to cover this sort of situation where an increase in sentence is intended, then the power must be exercised very speedily.” The similar power of the Crown Court under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 permits a sentence or other order to be varied or rescinded only within a limited period, which is now 56 days.

The present challenge to the exercise by the magistrates of the power to vary or rescind a sentence under section 142 logically raises two questions: first, whether the exercise of the power was within the scope of the jurisdiction given by section 142 and, secondly, if so, whether it was exercised in a lawful manner.

On the wording of section 142 itself there is no express limitation on the exercise by the court of what is expressed as a wide power to vary or rescind a sentence or other order imposed or made by it when dealing with an offender, except that it must be “in the interests of justice”. The title to the section refers to the power being one “to rectify mistakes etc”. Whilst Croydon Magistrates Court, Holmes and Zykin all refer to the section being used to rectify mistakes and there is no doubt that this is the most likely reason for exercising the power under section 142, the wording of the section does not lead to the conclusion that it could not be used in other circumstances. So far as the time for the exercise of the power is concerned, equally there is now no limit on the time within which it can be exercised.

The wide power and absence of any time limit in section 142 must however be exercised taking account of the principle of finality of sentencing set out by Lord Steyn in R v Secretary of State for the Home Department, ex parte Pierson cited in Holme and referred to above. Section 142 gives the magistrates jurisdiction to vary or rescind the sentence so as to impose a sentence that could have been imposed at the date of the original sentence. However, it must be borne in mind that it would not usually be in the interests of justice to increase a sentence imposed earlier unless the power is exercised speedily after the date of the original sentence.

In this case there was, as the magistrates said on 29 October 2010, “a very sorry catalogue of errors”. In the respondents’ submissions it is accepted that there were, lamentably, a series of serious sentencing mistakes.

The original sentence passed on 25 February 2009 was unlawful and the re-opening on 27 February 2009 still left the operational period at 3 years, which again was unlawful. When the supervision period was reduced to 2 years, the lawful maximum, the programme requirement continued and there was no suggestion in the pre-sentence report at the time of sentencing or, it seems, until September 2010 that the community sex offender groupwork programme needed a period of 3 years. The proposal in the pre-sentence report was for a Community Order for which the claimant was evidently assessed to be suitable and there was no reference at that time to the programme itself being one of three years’ duration.

When the sentence for the breach of the notification requirements was imposed on 14 October 2010 consideration should have been, but was not, given to the suspended sentence order.

Any sentence passed on 19 October 2010 was unlawful because under section 83 of the Powers of Criminal Courts (Sentencing) Act 2000 a magistrates’ court on summary conviction cannot pass a sentence of imprisonment on a person who is not legally represented before it. This rendered the sentence passed at the hearing on 19 October 2010 unlawful: see Regina v Birmingham Justices [1976] 1 W.L.R. 260.

Further, for the reason set out below, it was not appropriate to use the powers under section 142 to impose an 8 week immediate custodial sentence some 20 months after the sentence was imposed on 25 February 2009 and varied under section 142 on 27 February 2009.

Equally, if the respondent is correct and the hearing on 19 October 2010 was a hearing to consider an allegation of breach of the community requirements, then, as the respondent also accepts, the provisions of paragraph 6 of Schedule 12 of the 2003 Act were not implemented, so that the sentence was not validly imposed.

The approach of the magistrates in operating section 142 on 29 October 2010 was not to consider what sentence they would have imposed on 25 February 2009 had they realised that the proposed programme lasted three years and the supervision period could only be two years, which was the basis on which section 142 could be applied on the facts of this case. Had it been, it is likely that they would have had to consider how a community sentence might have been imposed to allow participation in the three year programme or whether a shorter programme might have been appropriate as part of a suspended sentence order. The Pre-Sentence Report made it clear that the recommendation was for a Community Order with a three year supervision period and a requirement to complete the community sex offender groupwork programme.

Instead, without taking any breach proceedings under Part 2 of Schedule 12 of the Criminal Justice Act 2003 for a failure to comply with the programme requirement, the magistrates took into account the evidence that the claimant had failed properly to comply with the programme requirement. In doing so they had regard to matters which were not relevant to the sentence that would have been imposed on 25 February 2009. It is to be noted that the Probation Service had sought to apply for the revocation of the programme requirement under Part 3 of Schedule 12. Again, such an application is not one that can be made under the guise of section 142. Whilst there would be no objection to the magistrates considering a number of applications at the same time, the powers under section 142 cannot be used to deal with an application which properly should be made under other provisions, in particular, the provisions of Schedule 12 to the Criminal Justice Act 2003.

In addition, in imposing an immediate sentence of 8 weeks’ imprisonment some 20 months after a suspended 12 week sentence had been imposed they failed to have regard to the principle of finality of sentencing to which we referred earlier.

In the circumstances we are satisfied that when exercising their powers under section 142 the magistrates erred in taking account of irrelevant matters and in failing to take account of matters that were relevant to the decision whether to vary the claimant’s sentence 20 months after it was originally passed. Their decision was therefore unlawful.