Ovenell v Premier Monitoring Services Ltd.

A breach of a curfew order may be established where the order made by the court included electronic monitoring, even though the copy supplied to the offender failed to record the tagging requirement. The essential question is whether the offender knew the terms of the order and understood the penal consequences of breach. A defective written copy does not prevent enforcement where the evidence shows that the statutory explanation was given, the monitoring condition was known, and the offender understood the consequences of non-compliance.

This was an appeal by way of case stated from a decision of Deputy District Judge Hawgood sitting at Camberwell Green Magistrates’ Court. The claimant had been made subject to a curfew order under the Powers of Criminal Courts (Sentencing) Act 2000, with electronic monitoring. The copy of the order served on him recorded the curfew hours but did not expressly state that he was required to wear a monitoring tag. He removed or damaged the tag, and a fine was imposed for breach.

The Administrative Court considered whether the deputy district judge was entitled to find a breach despite the omission from the written order, and answered that question in the affirmative.

1. Appeal dismissed and question answered yes. The deputy district judge was entitled to find that the claimant had breached the curfew order.
2. The court had in fact made a curfew order under section 36B of the Powers of Criminal Courts (Sentencing) Act 2000, including a condition of electronic monitoring. The omission of that condition from the written form resulted from use of an outdated pro forma and did not alter the order actually made. Section 36B(5) required provision for a responsible person to monitor compliance.
3. The reference in section 37(10) to section 38 had to be read as a reference to section 36B, since section 38 had been repealed. The signed declaration that the court had explained the conditions of the order and what would happen on non-compliance was capable of establishing, to the criminal standard, that the statutory explanation had been given. That explanation included the electronic-monitoring condition and the possible consequences of breach.
4. Section 37(11) required a copy of the order to be given to the offender and responsible officer. Although the copy supplied did not reproduce the full order, the governing principle was that an offender must know the terms of the order and must have proper notice that breach may lead to penal consequences. The evidence was sufficient to show that the claimant knew those terms. The defective copy therefore did not prevent a finding of breach.
5. The argument based on the time stated in the information was unnecessary to decide. In any event, it was open to the court, having considered all the evidence, to find that the breach occurred during the curfew period even though the information referred to 6.40 pm.
6. The respondent’s costs were ordered out of central funds. Any application for certification of a point of general public importance was left to be made in proper form within the applicable time limit.

High Court (Administrative Court): appeal by way of case stated from the decision of Deputy District Judge Hawgood at Camberwell Green Magistrates’ Court. The appeal was dismissed and the stated question was answered in the affirmative.