Neutral Citation Number: [2007] EWCA Crim 1608
Case No: 2006/05452 A8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LIVERPOOL CROWN COURT
(His Honour Judge Gilmour QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 9th July 2007
Before :

LORD JUSTICE LATHAM
MRS JUSTICE RAFFERTY DBE
and
MR JUSTICE WYNN WILLIAMS
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Between :

	BOWKER 	Appellant	
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	R	Respondent	
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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No:  020 7404 1400, Fax No: 020 7831 8838
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Cherie Booth QC & John Maxwell  for the Appellant
Iain Goldrein QC (instructed by the CPS) for the Respondent

Hearing dates : 9th May 2007
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Judgement

Lord Justice  Latham: 
1.	The appellant is now 19.  He appeals to this court with leave of the single judge against the sentence imposed on him in the Crown Court at Liverpool on the 18th September 2006 for an offence of violent disorder to which he had pleaded guilty.  He was sentenced to 28 months detention in a Young Offender Institution and made subject to an anti-social behaviour order.  This offence had occurred in the early hours of Sunday 31st July 2005, when the appellant was two days short of his 18th birthday.  The charge arose out of the events outside a night club in the centre of Wigan called Maximes'.  Most of the events were captured on CCTV.  A compilation video was prepared by the police for the purpose of presenting the evidence to the court.  It was clearly the product of numerous detailed viewings of the original video recording.  In addition, a detailed case summary was prepared which in large part is a careful commentary on what is seen in the video.  A further document was prepared which summarised the parts played by the individual defendants.  It is apparent from the exchanges before the judge that all defendants, and all counsel, accepted the accuracy of the identifications made by the police and of the description of the parts that they and their clients had been seen to play.
2.	We have viewed that video, which lasts over 30 minutes, though it does contain a number of pauses and explanatory captions.  Suffice it to say that the events portrayed and those who took part in them, fully merited the comments made by the judge in his sentencing remarks.
“I have had the advantage of seeing a video.  There may be those in court who have not seen the video.  They will have to take my word for it that it shows on occasions scenes of sickening violence, and it is almost a miracle that nobody received permanent or fatal injuries.  There are, in particular, occasions where defenceless individuals who, of course, may themselves have been earlier guilty of violence, having their head kicked as if it was a football.  I can only assume that those who were inflicting those kicks were wearing trainers or other soft shoes.  Had the case been otherwise, brain damage would have been inevitable for those who were completely defenceless on the ground.”
3.	The violence took place between two rival groups of youths who had been in Maximes’ night club.  The incident lasted for approximately 15 minutes.  During the course of it, as is clear from the judge’s comments, there was some savage punching and kicking, and at one point a knife was used as a result of which one of the youths suffered stabbing injuries.
4.	The summary prepared by the prosecution of the participation of the appellant as seen on the CCTV recording is in the following terms:
“He is involved from the very outset squaring up to Banner and fighting with him sparking the large scale disturbance.  Prominently involved in the initial stage of the disturbance he repeatedly adopts a boxing stance and punches out at others and on more than one occasion is clearly pleased with his efforts.  He returns to the fray having walked off and remains to the fore of the group who retreat after the initial incident resisting the efforts of a female to escort him away.  Thereafter he is involved in punching and kicking “Bravo” to the ground and whilst he is on the ground.  He is also one of several males who repeatedly kicked Banner to the head as he lies motionless in the street.”
5.	The judge was, accordingly, fully entitled to treat him as being in the forefront of those involved in this disgraceful incident both when it started and towards it end.  A substantial period of detention was accordingly appropriate.  He concluded that there was a need for deterrent sentences.  Depending upon the part that each of the nine defendants played in the violence, he stated that his starting point was between nine months and three and a half years.   In his sentencing remarks he made no distinction between any of the defendants on the grounds of their age.  They were all 19 or older at the time that they were sentenced.  The sentence imposed on this appellant was based on the judge’s conclusion that he fell into the highest category of culpability and accordingly would have received three and a half years detention but for his plea of guilty, hence the ultimate sentence of 28 months detention in a Young Offenders Institution.
6.	As far as the anti-social behaviour order was concerned he imposed that in respect of all nine defendants.  He was satisfied that were they to attend any of the well known night clubs in Wigan there would be a significant risk of their being involved in violence again.
7.	He continued:
“All of you are capable of violence when you have had too much to drink.  In my view it is necessary for the protection of others who attend clubs in Wigan that you should be prevented from doing so.  Accordingly the statutory requirements are, in my judgment, satisfied in respect of each and every one of you.  Without limitation of time, you are prohibited from entering Wigan Town Centre between the hours of 10 pm and 7 a.m. each and every day of the week.”
8.	It is against both the length of the term of detention and the extent of the anti-social behaviour order that this appellant appeals.  So far as the length of the order for detention is concerned, it is not argued on the appellant’s behalf that the judge was wrong to place him in the category of those whose actions that night place them in the highest category of culpability.  Nor is it suggested that, had the appellant been over 18 at the time of the offence, a starting point of three and a half years was manifestly excessive or wrong in principle.  But he was 17 at the time, albeit by only two days.  It is accordingly submitted on his behalf that this sentence was wrong in principle.  
9.	We have been referred to the decision of this court in R –v- Ghafoor [2003] 1Cr App R (S) 84 in which this court said at paragraph 31: 
“The approach to be adopted where a defendant crosses a relevant age threshold between the date of the commission of the offence and date of conviction should now be clear.  The starting point is the sentence that the defendant would have been likely to receive if he had been sentenced at the date of the commission of the offence.  It has been described as a “powerful factor”. That is for the obvious reason that as Mr Emmerson points out, the philosophy of restricting sentencing powers in relation to young persons reflects both (a) society’s acceptance that young offenders are less responsible for their actions and therefore less culpable than adults, and (b) the recognition that, in consequence, sentencing them should place greater emphasis on rehabilitation and less on retribution and deterrence than in the case of adults.   It should be noted that the “starting point” is not the maximum sentence that could lawfully been imposed, but the sentence that the offender would  have been likely to receive.”
10.	Cherie Booth, QC, on behalf of the appellant, submits that as a result, the proper sentence for this appellant should have been one of 12 months detention in a Young Offenders Institution.  At the time of the commission of the offence, the maximum sentence that could have been imposed on him was a detention and training order for two years pursuant to the provisions of the Powers of Criminal Courts (Sentencing) Act 2000.  The judge concluded that, although the maximum sentence of imprisonment that he could impose was one of five years, the appropriate starting point was three and a half years.   He then gave the appellant credit for his plea.  If that approach is applied to the maximum of two years, the starting point should have been one of 18 months detention, and after giving credit for the guilty plea, the sentence should have been one of 12 months detention.  She points out that the judge nowhere in his sentencing remarks refers to the fact that the appellant was only 17 at the time of the offence.   This is perhaps not surprising as there is nothing to indicate that this fact was drawn to his attention in mitigation.  
11.	Ms Cherie Booth’s further point, therefore, is that the judge would appear to have sentenced him on the basis that there were no constraint on his sentencing powers.  She submits that the approach of the court in Ghafoor is not only correct as a matter of domestic law, prior to the Human Rights Act 1998, but is now required by virtue of that Act in the light of Article 7.1 of the European Convention on Human Rights.  Article 7.1 provides:
“No one should be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.  Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
12.	As far as domestic law is concerned, this court in its judgment in Ghafoor set out the way in which the approach which it described as “clear” had developed.  The starting point was the decision of this court in Danga (1992) 13 Cr App R (S) 408.  That decision settled the question of what sentencing regime should be applied to an offender who had passed a relevant age threshold during the time between the offence and the time of conviction.  Having concluded that it was the time of the conviction, May J said:
“It is, however, important to say that the broad conceptual approach of a sentencing court does not undergo a fundamental change simply because the offender passes his 21st birthday.  If all factors were identical an offender aged 21 years and a few days is likely to receive in substance much the same punishment as one who is 20 years and 11 months, and the court will in substance take account, for instance, of the criteria of section 1(4) and (5) of the 1982 Act with the slightly older person although not in terms strictly required by statute to do so.”
13.	This approach was adopted in Cuddington (1995) 16 Cr. App. R(S) 246, where the court said:
“The most telling point raised before us seems to be the point made that, had the matter been discovered and timorously dealt with, the appellant would have been entitled to be treated as a juvenile and detained for no more than 12 months.  Whilst that is not in itself definitive of any sentence which could later be imposed upon him, it is a powerful factor to be taken into account.”
14.	In Dashwood (1995) 16 Cr App R (S) 733,  the court was dealing with an appellant who had been convicted at the age of 29 of sexual offences against children committed when he was 14 and 15 but not reported until 15 years after the event.  Lord Taylor C.J. affirmed the principle in Danga to the effect that the court’s powers were its powers at the date of conviction.  As to how those  powers should be exercised, he said:
“We take the view that there is no axiomatic approach to a problem of this kind which would entitle the court to say that the right sentencing approach is to look at the matter as at a  particular date, we consider that the matter has to be looked at in the round.  The fact that the series of offences was committed when the offender was 14 to 15 is, as was said in Cuddington, a powerful factor in affecting the appropriate sentence to pass as at to-day.  On the other hand, it is not the sole and determinative factor.  We also have to look at how a 14  to 15 year old might be dealt with today and we have to look at all the circumstances of the case, including the way in which the appellant chose to conduct his defence.”
15.	The same approach was adopted in relation to historic sexual offences in Bowers [1999] 2 Cr App R (S) 97 and Fowler [2002] 2 Cr App  (S). 99.  
16.	It was in the light of those authorities that the court considered the sentence of 4½ years detention imposed on the appellant in Ghafoor.  The circumstances were that the appellant pleaded guilty to an offence of riot in relation to matters which took place in July 2001.  He was then seventeen.  He became 18 in September 2001 and was therefore 18 when he was convicted in February 2002 and sentenced in March 2002.  The court, having noted that the approach only provides the starting point, so that in an appropriate case there may be circumstances which could properly lead to the passing of a sentence somewhat higher than the sentence that would have been passed on the date of the commission of the offence, said at paragraph 34:
“But in a case such as the present where the date of conviction is only a few months after the date of the offence, we think that it would rarely be appropriate to pass a longer sentence than that that which would have been passed at the date of the offence.”
17.	  The court concluded that the maximum sentence would have been 24 months.  He was entitled to credit for his plea of guilty which could not have been less than 6 months, by reason of the restrictions on the length of sentences in detention and training orders, so that the sentence would have been one of 18 months detention and training.  It accordingly allowed the appeal and substituted a sentence of 18 months detention.
18.	Cherie Booth, in her written submissions, further relied upon decisions of this court in R –v- LM [2003] 2 Cr App R(S) 26 and R –v- Jones [2004] 1 Cr App R (S) 18.  These merely reinforce the views expressed by the court in Ghafoor as to the appropriate approach in such cases.  They do not require separate consideration.  
19.	In Britton [2007] 1Cr App R (S) 121, page 745, a decision of this court in October of last year, the court said that Ghafoor is binding on this court.  In dealing with a suggestion in Archbold 2006 Edition, repeated in the 2007 Editon, that Ghafoor admits of too little flexibility, the court said that it had no reservation in adopting and following Ghafoor.  But we think that it is important to remember that Ghafoor itself envisages flexibility.  The sentence that would have been imposed at the time of the commission of the offence is described as a “powerful” not sole or determining factor.  Indeed in paragraph 33 in Ghafoor, the court, with one eye on the Article 7.1 argument which it did not consider it needed to deal with, said: 
“It will rarely be necessary for a court even to consider the passing of a sentence which is more severe than the maximum it would have had jurisdiction to pass at the time of the commission of the offence.”
20.	We think, however, that the nettle has to be grasped in the present case.  The part played by this appellant in the events of that night placed him in the highest category of culpability.  The judge considered, in our view quite rightly that a deterrent sentence was required.  He was only two days short of his 18th birthday at the time he committed the offence.  This is not a case where delays in investigation or trial resulted in the relevant age watershed being passed.  Is it just that he should be treated significantly different from those who were over 18 years at the time of the offence?
21.	In paragraph 31 of the court’s judgement in Ghafoor, the court set out the philosophy behind restricting sentencing powers in relation to young persons.  This currently finds its expression in section 37 of the Crime and Disorder Act 1998 which provides that the principal aim of the youth justice system is to prevent offending by children and other persons under the age of 18.  This philosophy informs not only the length of the appropriate period of detention, but also the nature of the custodial punishment which, in the present case, is expressed as including training.  That form of custodial sentence is determined by section 100 of the Powers of Criminal Courts Sentencing Act 2000 by reference to the date of conviction, and not the date upon which the offence was committed.  
22.	That is now underlined by the provisions of section 102 of the Criminal Justice Act 2003.  This provides:
“Any court dealing with an offender in respect of his offence must have regard to the following purpose of sentencing –
a.	the punishment of offenders
b.	the reduction of crime (including its reduction by deterrence)
c.	the reform and rehabilitation of offenders,
d.	the protection of the public, and
e.	the making of reparation by offenders to persons affected by their offence.”
Subsection (2) of that Act expressly disapplies that provision in relation to offenders under the age of 18 at the time of conviction.  Whilst therefore it is clearly right that a person who has committed an offence whilst under the age of 18 should be sentenced on the basis that his culpability is to be judged by reference to his age at the time of the offence, nonetheless, the necessary sentencing disposal has to take account of the matters set out in section 142(1) if he is convicted after he has reached the age of 18.  When sentencing those under 18, the court will generally focus more on their requirements and their rehabilitation.  Section 142 suggests that for those over the age of 18, however, more general public policy considerations, in particular deterrence, can play a greater part.
23.	That does not mean, however, that Ghafoor and the line of authority it represents is not a fair and just approach in determining the starting point in cases such as this.  To that extent we agree entirely with what was said by the court in Britton.  But it remains the starting point and one of the matters which may well ultimately determine the appropriate sentence will be the need in any given case for a deterrent sentence.  Ghafoor was decided before the enactment of the Criminal Justice Act 2003, the provisions of which were not discussed in Britton.
24.	It is a pity that Ghafoor was not brought to the attention of the judge, so far as we are aware.  Of the nine defendants who had to be sentenced, the judge concluded that three, including the appellant, fell into the category of those for whom prima facie the starting point of three and a half years was appropriate.  The other two were Saul Banner and Scott Worthington.  Saul Banner was two and a half years older than the appellant; and Scott Worthington was 15 months older.  In our judgment these differences in age, coupled with the approach in Ghafoor should have resulted in a lower sentence being imposed upon the appellant.  We consider that a sentence of 24 months detention would properly reflect the appellant’s part in these offences, his age, his plea, and the element of deterrence which the judge rightly considered to be important in the sentences necessary for these offences.
25.	The question which then arises is whether we are constrained to deal with the matter differently because of the provisions of Article 7.1 of the European Convention on Human rights to which we have already referred.  In one sense the matter does not strictly arise for determination because the sentence we propose of 24 months detention does not exceed the maximum available to the court had the appellant been sentenced when he was under 18.  But as we have come to a firm conclusion on the issue, it may be helpful for us to indicate our views.  
26.	The argument can be shortly stated.  Cherie Booth submits that the phrase “nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed” refers not merely to the maximum for the offence, but the maximum available as punishment for the appellant at the time of the commission of the offence.  She accepts that there is no direct authority in her favour.  The decision of the House of Lords in R on the application of Uttley –v- Secretary of State for the Home Department [UKHLR 38] dealt with what might be called “tariff cases”, that is cases where the courts’ policy approach has resulted in an increase in prison terms over time, within the same maximum sentence constraint.  She further accepts that the only decision in point in Strasburg is the decision of the Commission as to the admissibility of the application of Taylor No 48864/99.  In that case the offence was committed when the applicant was 14 years old, when it was said that he could not have anticipated that he might have been sentenced to a term of detention.  When he was ultimately convicted he was 15, and was sentenced to 18 months detention.  The European Commission rejected the argument that this is capable of amounting to a breach of Article 7.1.   It concluded that the law was clear.  The applicant knew perfectly well what the sentencing power of the court would be when he was 15.  He would be liable to detention.  And there had been no impugnable delay in the proceedings.  
27.	Nonetheless Cherie Booth submits that a matter of principle, the relevant date for the purposes Article 7.1 must be the date of the commission of the offence.  The decision of the Commission is not determinative of the matter.  The heavier penalty applicable as a result of the passage of time is, in effect, she submits, a retroactive punishment precluded by Article 7.1.   We have no hesitation in rejecting that argument.  Quite apart from the view of the Commission in Taylor that the question was simply whether or not the applicant knew the effect of passage of time on the powers of the court, it seems to us that the provisions of Article 7.1 are clearly directed to the mischief of retroactive or retrospective changes in the law.  In the present case, there was no change in the law.  The penalties for violent disorder remained the same.  All that changed was the penal regime to which the appellant would be exposed as a result of the normal operation of existing law to his age at the time of conviction.  For those reasons, we do not consider that the court is constrained in any way by the provisions of Article 7 in situations such as the present.
28.	We then turn to consider the appeal against the terms of the anti-social behaviour order.  It is submitted that it is too wide in its scope, in that it precludes the appellant from entering the whole of Wigan Town Centre, and too extensive in terms of time in that it was made without limitation of time.  The judge was clearly affected by the need to prevent the menace of night time mindless violence in the centre of Wigan.  He concluded, and the evidence fully supports his conclusion, that there was significant risk that the appellant and others involved that night would indulge in violence again were they to be at liberty to attend the night club area of Wigan.  In determining whether or not the extent of the terms of the order were necessary, it must be born in mind that the appellant does not live in Wigan.  And he is only precluded from going to Wigan between the hours of 9 p.m. and 7 a.m. when the only likely purpose of any such visit would be to go to a night club for evening or night entertainment.  We can see nothing accordingly which could justify the conclusion that this aspect of the order was in any way inappropriate.  As far as the length of the order is concerned, that has caused us more concern.  But in the end bearing in mind the fact that an appropriate application can be made to the court at any time for the order to be modified, we do not consider that it would be right to interfere with an order which the judge clearly considered to be necessary in the context of the problem of violence in Wigan town centre of which he was all too familiar.
29.	For these reasons we allow the appeal, but only to the extent of reducing the period of detention from 28 months to 24 months.