Neutral Citation Number: [2011] EWCA Crim 1872
Case No: 2011/01259/A2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WARWICK CROWN COURT
His Honour Judge Harris QC

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26/07/2011
Before :

LORD JUSTICE THOMAS
MR JUSTICE RYDER
and
MR JUSTICE CALVERT-SMITH
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Between :

	Regina	Respondent	
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	Robert James Cooper	Appellant	

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Ms H Kubik for the Appellant
Mr I Wicks for the Crown
Mr M Heywood QC for The Home Office as Interveners 

Hearing date: 1 July 2011
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Judgment

Lord Justice Thomas : 
1.	On 20 October 2010 at the Crown Court at Warwick before His Honour Judge Harris QC the appellant was sentenced to three consecutive sentences of six years imprisonment after a plea to three counts of rape, making a total of 18 years.  
2.	An order was made under s.28 of the Criminal Justice and Court Services Act 2000 (the 2000 Act) disqualifying the appellant from working with children.  He was handed a standard form notice to this effect which he signed to acknowledge receipt.  The judge did not tell the appellant, as he has been required by the Safeguarding Vulnerable Groups Act 2006 (the 2006 Act) to do since 12 October 2009, that he would be barred from working with children under that Act.
3.	The appellant appeals with the leave of the Single Judge on two issues:
i)	Was the sentence manifestly excessive?
ii)	What is the court’s duty under the 2000 and 2006 Acts? Should the court have made an order under s.28 in addition to informing the appellant he would be barred under the 2006 Act?
4.	The second issue has arisen for decision in this case following a lack of certainty as to the continued duty of the courts to make an order under the 2000 Act and a request by the Home Office that the court review its recent decision  in Attorney-General’s Reference No 18 of 2011 [2011] EWCA Crim 1300 in relation to that issue.
Issue 1: Was the sentence manifestly excessive?
5.	S, the victim, was born in 1996.  She lived with the appellant, her brother, and other members of her family.  When she was about 11 the appellant (who had been born in 1984 and is about 12 years older) started to become interested in her sexually.  He began by touching her over her clothes, then touching her vagina under her clothes and then having sexual intercourse with her.  On the first occasion she said that she had asked him to stop but he did not.  From then until about 2010 he had sexual intercourse with her regularly; the frequency varied from time to time, but occasionally it was on a daily basis.  There was some other sexual activity.  He used no form of coercion or force, but told her that if she told anyone he would go to prison.  The last time he had sexual intercourse with her was in 2010.  A little later that year she informed her relatives and confronted the appellant.  The police were informed.  He admitted having sexual intercourse with her but could not accept that it amounted to rape.  
6.	He pleaded guilty at the first available opportunity to two counts of rape when she was under the age of 13 and one count when she was over the age of 13.
7.	The appellant left school without qualifications.  He was employed with a manufacturing company; when he was dismissed he committed an offence of arson against that company in 2004 as revenge, for which he was punished in the community.  He then worked for another company until becoming self-employed as a scrap metal dealer.  He had had no sexual partner during his life.  He was described in the pre-sentence report as having emotional deficits and being a loner.  The pre-sentence report referred to a psychiatric report that had been obtained at the time of the offence of arson where he had been assessed as suffering from depression; records indicated that he had been hearing voices; it also appears that that psychiatric report indicated some of his previous acts of fire setting in woods were deemed to be a form of attention-seeking.  That psychiatric report was not available for the sentencing judge or, despite our enquiries, for this court.
8.	Although the judge was referred to the sentencing guidelines by the advocates for the Crown and for the appellant, he did not refer to them in his sentencing remarks.  Nor did he indicate the starting point he took, though it is clear that the starting point he must have taken was a sentence of 27 years, as the appellant was entitled to a discount of a third for a guilty plea.
9.	The sentencing guidelines applicable indicated a starting point of 15 years after a trial with a range of 13-19 years for sexual activity of this kind with a child under the age of 13.  In our judgement there was no reason to depart from the guidelines in this case.  Had the judge referred to the guidelines and followed the obligation to explain why he was departing from them, we have no doubt he would not have imposed the length of sentence he did.  
10.	In our judgement, taking into account the previous character and conviction of the appellant and the length of the conduct, the appropriate sentence would have been, after trial, one of 18 years imprisonment.  As he pleaded guilty at the first available opportunity the total sentence should have been one of 12 years.  We therefore propose to uphold the sentence on count 6 of six years and on count 7 of six years, and the judge’s order they be consecutive to each other, but make the sentence on count 8 for six years concurrent with the other sentences, making a sentence in total of 12 years, such sentences taking effect subject to credit for time on remand.
Issue 2:  The continued duty of the court under s.28 of the 2000 Act
(1)	The statutory provisions
(i)	The regime under the Criminal Justice and Court Services Act 2000
11.	Under Part II of the 2000 Act entitled Protection of Children, a regime was established for disqualification orders.  S.28 governs mandatory orders for adults; there are corresponding provisions for juveniles.  The general effect is that the court is obliged to disqualify from working with children any person convicted of a qualifying offence against a child where the sentence is 12 months or more.  The court has to do so, unless satisfied that the person will not commit any further offence against a child.  S.29A provides for a discretionary power to disqualify both adults and juveniles when no qualifying sentence was imposed
12.	The consequences of such an Order are set out in s.35 of the 2000 Act – the person disqualified from working with children is guilty of a criminal offence (punishable by 5 years imprisonment) if he knowingly applies for, offers to do, accepts or undertakes work in a regulated position.  A regulated position is defined in s.36.  
13.	That regime has operated, so far as the courts are concerned, satisfactorily. The person is immediately disqualified and a notice is given to him by HMCTS on behalf of the judge whilst still at court after the judge has passed sentence.  That notice notifies the convicted person of the general effect of the order.
(ii)	The Safeguarding Vulnerable Groups Act 2006
14.	However, although the process involving the court under the 2000 Act does not appear to cause any serious problems for the court, the Bichard Enquiry arising out of the Soham murders, showed the apparent need for significant reform of all of the schemes for vetting and barring those working with vulnerable groups.  The result was the 2006 Act, a legislative measure of very considerable complexity.  
15.	The 2006 Act was intended to replace the 2000 Act by a new regime.  As the 2006 Act has been subject to complicated amendment and gradual implementation, it is only possible to follow the provisions of the Act, as they currently are in force, by using a computer print which indicates the current statutory regime.  As we shall explain, not all of the Act has been implemented; the new regime as currently in force has been subject to a review and the Act will be further amended before it is fully brought into force.
16.	 In very broad outline, the regime established by the Act presently operates (insofar as material to the issue before the court) as follows:
i)	The provisions of the 2006 Act extend not only to working with children but to vulnerable adults.  It is not necessary to refer to the provisions relating to vulnerable adults as the issue concerns solely the inter-relationship between the regime of the 2000 Act relating to children and that of the 2006 Act relating to children.
ii)	The 2006 Act establishes what was originally known as the Independent Barring Board, the name of which has been changed by amendment to the Independent Safeguarding Authority (the ISA).
iii)	The terminology of the 2000 Act which speaks of disqualification from working with children has been changed to barring.  The ISA is under a duty to establish barred lists.
iv)	Persons are placed on a barred list under criteria specified in Schedule 3.  The Schedule also gives the Secretary of State power to establish criteria for the ISA to place persons on barred lists.  The relevant criteria were specified under the Safeguarding Vulnerable Groups Act 2000 (Prescribed Criteria Miscellaneous Provisions) Regulations 2009 (2009 SI No. 37).  These regulations came into force on 20 January 2009.  These highly complex regulations include provisions for a list of qualifying convictions which result in an automatic inclusion in the list of barred persons.  It will be necessary to describe how that operates in practice at paragraph 27 below.
v)	When a person is included in the barred list, then the person is barred from engaging in what is described as a regulated activity relating to children (s.3(2)).  A regulated activity is defined by s.5 and Schedule 4. It corresponds to, but is not identical with, the activities described as a regulated position set out in s.36 of the 2000 Act to which we have referred at paragraph 12 above.  
vi)	S.7 of the 2006 Act provides that a person commits an offence if he seeks or offers to engage in a regulated activity or engages in such an activity, though it is a defence for such a person charged to prove he did not know and could not reasonably be expected to know that he was barred from that activity.  The maximum sentence of imprisonment is 5 years.
vii)	Under the regime established under the 2006 Act, the court does not have to make an order as it was required to do under s.28 of the 2000 Act.  Instead the court is required by paragraph 25 of Schedule 3 to inform the person at the time he is convicted that the ISA will include him in the barred list concerned.
(iii)	The commencement and transitional provisions of the 2006 Act
17.	As the Act envisaged a change from the 2000 Act regime to the 2006 Act regime, the 2006 Act provided for the Secretary of State to make transitional provisions and for extensive Henry VIII powers entitling the Secretary of State to make changes to other legislation for the purposes of implementing the scheme under the 2006 Act.  The Act was brought into force by a number of Commencement Orders.  
18.	It is the Commencement Order made on 1 October 2009 by the Parliamentary Under Secretary of State which has given rise to the present issue.  The Order was entitled the Safeguarding Vulnerable Groups Act 2006 (Commencement No. 6, Transitional Provisions and Savings) Order 2009 (the 2009 Commencement Order).  It came into force on 12 October.  Article 3(2) of the Order provided as follows:
“The provisions of CJCSA [the 2000 Act] referred to in paragraph (1) shall cease to have effect for the purposes of enabling a disqualification order to be made in relation to a person who is barred from regulated activity by virtue of section 3(2) of the Act.”
The provisions referred to in Article 3(2) included the provisions relating to the duty of the court to make an order under s.28 of the 2000 Act.
(iv)	The alternative contentions
19.	The issue that has arisen is the effect of this provision.  There are two possible meanings:
i)	Does it mean that the court must continue to make orders under s.28 of the 2000 Act with a consequence that the regime under the 2000 Act continues to apply to such persons, when at the same time it also informs the person that he will be barred under the provisions of the 2006 Act and therefore the regime of that Act will also apply to him? or
ii)	Does it mean that a court is no longer under a duty to make an order under s.28? In that event, the convicted person will not be subjected to the regime under the 2000 Act, but will be informed he will be barred and thus subjected only to the regime under the 2006 Act.
(2)	The statutory language
 (i)	Matters of common ground
20.	A number of matters are not in issue:
i)	If a person is to be barred by the ISA under the provisions of the 2006 Act, the court does not need to make an order.  All it has to do is to comply with the duty to inform the person he will be barred.
ii)	Once a person has been barred under the provisions of the 2006 Act, Article 3(3)-(5) of the 2009 Commencement Order has the effect that a person can no longer be prosecuted under s.35 of the 2000 Act for it ceases to have effect for the purposes of making it an offence if he knowingly applies for, offers to do, accepts or undertakes work in a regulated position (see paragraph 12 above).
iii)	Nonetheless, even though such a person can no longer be prosecuted, he remains subject to the prohibition under the 2000 Act without limitation in time, as well as being barred under the 2006 Act.
iv)	Although there is a very significant overlap between what is prevented under the 2000 Act and what is prevented under the 2006 Act, the activities are not identical.  It is at least possible that there are some activities which are prevented by one Act but not by the other.  There are probably not very many, but there may be some.
(ii)	The decision in Attorney General’s Reference No.18 of 2011
21.	The fact that there was a difference of opinion about the interpretation of the 2009 Commencement Order with the consequences to which we have referred, was highlighted by views expressed by Dr David Thomas at page 112 of his Sentencing Referencer and by the editors of Archbold at paragraphs 5-854 to 5-857 (2011 edition).  In the light of that conflict and the necessity of ensuring that courts know whether they have to continue to make orders under s.28 of the 2000 Act, the Registrar of the Court of Appeal Criminal Division raised the issue with the Crown Prosecution Service and with the Office of the Attorney-General.  He asked if the court could be addressed on the issue when it considered the argument in AG Reference No. 18 of 2011 [2011] EWCA Crim 1300.  That was a case where a judge had not only made an order under s.28 but had also given the information to the convicted person that he would be barred under the 2006 Act.  In a decision given on 12 May 2011 the court held that for the future an order under s.28 was no longer necessary, giving effect to the second meaning of the 2009 Commencement Order set out in paragraph 19.ii).
(iii)	The position of the Home Office
22.	The Home Office informed the Registrar of the Court that it was concerned that the court may have misinterpreted the provisions of the 2009 Commencement Order, as it had not had all the relevant considerations and practical consequences drawn to its attention.  The court wrote to the Home Office inviting its attendance on an appeal where an order for disqualification had been made under s.28.  Arrangements were then made for counsel on behalf of the Home Office to apply to intervene in the present appeal.
23.	Mr Heywood QC appeared before us to seek to intervene.  Counsel for the Crown and counsel for the appellant made no objection to his intervention; in the course of the argument that followed each provided helpful submissions, including drawing to the attention of the court issues of practical significance as appeared to them.  It was a matter of regret to the court that the Home Office did not attend itself by anyone other than counsel, despite the fact that it had asked to intervene and was concerned as to the practical operation of highly complex legislation and statutory instruments for which it was responsible.  We therefore had to adjourn the matter for questions we had asked to be answered; these were matters which counsel could not have been expected to answer without detailed instructions by someone present in court.
(iv)	The grant of leave to the Home Office to intervene
24.	We consider that the Home Office should be granted leave to intervene.  We do so because we consider it is open to this court to reconsider the guidance that it gave on 12 May 2011.  Although it could be argued that the view the court expressed on 12 May 2011 was obiter in the sense that it did not actually set aside the order under s.28, we do not wish to base our decision on that ground.  It is clear that the court which expressed a view on the issue in Attorney-General’s Reference No 18 of 2011 was making a determination as to the position having heard argument.  
25.	We prefer to address the Home Office’s application that we reconsider the position on the basis that if material and argument had not been put before the court at the earlier hearing, it would be open to the court, bearing in mind its role in relation to sentencing and the practical operation of the Crown Court, to reconsider an issue relating to the practice and procedure of the Crown Court.
The further information
(i)	The contention of the Home Office
26.	The Home Office contends that the ordinary and literal meaning of the Commencement Order 2009 is that a court must continue to make an order under s.28, unless the person who has been convicted is actually barred under the 2006 Act.  That literal construction coincides with the intention of the draftsman of the 2009 Commencement Order because the making of an order under s.28 of the 2000 Act is presently essential in ensuring that there is no gap between the time at which the person is convicted and the convicted person is added to the barring list by the ISA; in addition it appears there are a very few offences (including manslaughter and false imprisonment) where a person would be disqualified under s.28 but not automatically be included in the barred list.  Thus considerations as to the practical operation of the regime established under the 2006 Act, as it was being implemented support the literal construction.    
(ii)	The present operation of barring – the gap
27.	In contradistinction to s.28 of the 2006 Act where the disqualification takes place immediately on the making of the Order, the convicted person is not barred under the 2006 Act until he is included on the list.  Although his inclusion is  automatic, it requires the following:
i)	In some courts, though not in the particular Crown Court where this appellant was sentenced, the form used for the purposes of notification under s.28 (to which we referred at paragraph 13) has been amended by the addition of a box at the end which notifies the defendant, subject to written confirmation by the ISA that:
“As a consequence of the Safeguarding Vulnerable Groups Act 2006 (Commencement No 3) Order, this court is required to inform you that the [ISA] will bar you from working with children as a result of the court making this order.”
The notice also informs the defendant that he will also be barred from working with vulnerable adults.  It is clear that the notice is a notice of what will or may happen.  He is not barred.  A number of steps have to follow.
ii)	First, after the judge has passed sentence, that sentence has to be recorded on the court’s Exhibit computer system.
iii)	The record on the court’s computer system has then to be checked and transmitted electronically to the Police National Computer (PNC).
iv)	The data then has then to be analysed in the PNC and transmitted from the PNC to the ISA for the ISA to place the person on the barred list. 
v)	It usually takes 60 days after conviction for the process described to be completed and the person placed on the barred list.  It can take longer in complex cases.
vi)	When the ISA has placed the person on the list, he is notified either by recorded delivery or through the prison governor; the person is informed of his right to make representations, where he has such a right.
28.	As two months elapsed after conviction before he was barred, the convicted person is not prevented under the 2006 Act from working with children. There will be a gap in the protection of children where the convicted person is not imprisoned.  It was, we were told, the intention when drafting the commencement order that this gap be filled by continuing the regime under s.28 of the 2000 Act for the present. 
(iii)	The original intention of Parliament
29.	It is first necessary to see what the intention of Parliament actually was.
30.	When the Act was passed, the original intention was to repeal the whole of the 2000 Act regime; it would have been astonishing if Parliament had had any other intention.  It was intended that the Act be implemented in stages and when implemented in full the 2000 regime would be repealed.  
31.	The steps to implementation which the Secretary of State originally decided to adopt included:
i)	Transferring to the lists barring them under 2006 Act those who are disqualified under the 2000 Act from working in a regulated position;
ii)	Bringing into force s.8 of 2006 Act.  This section would make it an offence to engage in a regulated activity, unless subject to monitoring under the monitoring provisions of that Act (s.24 and following).  The monitoring provisions of the 2006 Act were intended to provide extensive protection to children or vulnerable adults by making it a requirement that those who worked with children or vulnerable adults applied under a further system under which certain checks would be made.  If s.8 was in force, it would not matter that there was a delay between conviction and being placed on the barred list, as the convicted person would be subject to the monitoring provisions and thus could be prevented from working with children.
iii)	Resolving how to deal with offences covered by s.28 but which were not automatic barring offences.
32.	Those disqualified under the 2000 Act and those whose names were notified by the Secretary of State to the ISA were “migrated” to the barred lists under the provisions of the Safeguarding Vulnerable Groups Act (Transitional Provisions) Order 2008 (SI 2008/473) which came into force on 7 April 2008; however although “migrated”, their status continued to be governed by the 2000 Act pending the bringing into force of the provisions prohibiting those on the barred list from working with children – these subsequently commenced under the 2009 Commencement Order.
33.	It was intended by the Secretary of State to commence s.8 and the provisions relating to monitoring at the same time as the commencement of the provisions that barred those on the barred list from working with children.  This would have had the effect that there would have been no gap between conviction and being placed on the barred list, as a person could not work in a regulated activity unless he applied to be monitored.  However, for what we were told were operational reasons which arose in 2009, this was not done at the same time as it was decided to implement the barred lists and the requirement that the court notify a convicted person.
(iv)	The gap 
34.	This left a gap.  The intention was to fill this by continuing the regime under the 2000 Act including s.28 until s.8 was commenced, but mitigating the effects by providing that the convicted person would not commit a criminal offence under the 2000 Act once the person had been placed on a barred list.  It was intended by the then Secretary of State, we were told, that this be a temporary measure, as it was intended to bring s.8 and the monitoring regime into force in late 2010.
35.	However, after the 2010 election, a review was carried out of the monitoring regime. After the publication of a review in February 2011, it was decided to abandon the monitoring regime and to modify other parts of the 2006 regime.  Legislation to give effect to this decision is before Parliament – the Protection of Freedoms Bill.  Clearly provision will have to be made to cover the gap, as continuing the 2000 Act regime alongside the 2006 Act regime for anything other than a temporary period will give rise to serious confusion and would offend against the elementary principles of good governance and administration as well as the necessary clarity of legislation.
Conclusion
(a)	A purposive construction 
36.	It was our view, as was the view of this court in AG Reference No 36 of 2011, until we were provided with the legislative history set out in paragraphs 29 to 34 that Parliament cannot have intended the regime under the 2000 Act to have continued indefinitely alongside the 2006 regime. If the court continued to be under a duty to make an order under s.28 continuing the application of the regime under the 2000 Act to each convicted person in addition to the regime under the 2006 Act, the convicted person would be under that regime in perpetuity (unless he applied to be removed) and the person would, on having his name entered upon the list under the 2006 Act, be subject to the regime under that Act. As this court pointed out in AG Reference No 36 of 2011, the person would be subject to regimes that were not identical.
37.	 It was therefore to be inferred that Parliament must have taken the view that the gap would be of no material importance (as the offender would likely to be in custody), or otherwise it would have devised a solution simpler than keeping the entire regime under the 2000 Act in being for that purpose. The circumstances in which a person might be at liberty to engage in an activity prohibited under the 2006 Act before he had been placed on the barred list are very small.  In the overwhelming majority of cases the person would be in custody; if he was not and had not been sentenced, then it was inevitable that conditions of bail would prevent him working with children.
38.	It would also have been wrong and, as we have said, contrary to elementary principles of good governance and administration as well as the necessary clarity of legislation for a person to be subject in such circumstances to two statutory regimes, unless there were very special reasons, none of which were originally put before the court.
39.	For those reasons, therefore, a literal construction of the Act could not have accorded with the intention of Parliament or the draftsmen of the 2009 Commencement Order.
(b)	The literal construction
40.	However, it is clear that this was not the intention of Parliament.  Once the history of the legislation and the steps that have been taken to implement it were put before the court, the literal meaning of the 2009 Commencement Order could be placed in the context of the draftsmen continuing the 2000 Act regime as part of the transitional provisions.
41.	We have therefore come to the conclusion that the literal meaning must have been what the draftsmen intended as it also accorded with a purposive construction.  For these reasons therefore, the construction given in Attorney-General Reference No. 18 of 2011 was not correct as the court was not provided with the material information necessary in relation to the phased implementation of the Act.  The literal meaning must be given effect, as it gives effect also to the purpose of the 2009 Commencement Order.
42.	Judges must therefore continue to make orders under s.28 as well as notifying convicted persons that they will be barred.  HMCTS should produce to all courts as soon as possible the modified form.
Postscript
43.	There are four important points that emerge:
i)	Criminal justice legislation has been made very complicated.  No draftsman, however skilled he may be in the art of legislative drafting, can begin to produce clear legislation without a proper understanding of the system and its practical operation; courts should generally not be put in a position where they have to be provided with the detailed explanation given in this case before the legislation can be understood.  Very careful thought needs to be given to improving the process by which legislative and transitional provisions in criminal justice legislation can be drafted and implemented so that they operate properly in practice and those who have to operate them can understand them much more easily.  The issues that have arisen on this appeal would have been avoided if there had been better drafting and close consultation between the draftsman and those responsible for the practical implementation of the courts, disqualification orders and the transmission of information.
ii)	As the material provided by the Home Office in answer to questions raised by the court at the hearing demonstrated, it is important that at hearings such as this, a senior civil servant from the Home Office attends so that the Court’s questions in relation to the practical operation of the system can be answered.  It is perhaps unsurprising that, if the Home Office does not assist the court as it should on such issues, material matters are not drawn to its attention.
iii)	It is essential that the present transitional regime is discontinued as soon as possible; it is simply wrong to subject a person to two different and highly complex regimes for any thing other than a temporary transitional arrangement.
iv)	The hearing of this appeal illustrates the ability of this court to reconsider issues of practical importance where a concern arises that all the material considerations had not been placed before the court on an earlier occasion.  We have already explained the steps taken in this case which demonstrate how quickly this can be done.