Richards v National Probation Service

Under section 220 of the Criminal Justice Act 2003, a responsible officer may require an offender to notify the officer in advance if he cannot attend unpaid work. The officer may reasonably require the notification to be in writing and supported by documentary evidence. A short concession allowing late notification may also be valid. Section 220 does not authorise a freestanding obligation to provide evidence after the event, enforceable as a breach of the order. The court must determine whether a breach has occurred. A requirement expressed as late evidence may nevertheless be lawful if properly construed as ancillary to a valid advance-notification requirement.

The appellant was subject to a suspended sentence order under the Criminal Justice Act 2003, including a requirement to perform unpaid work. After failing to attend a work session, he was required under probation induction rules to provide written reasons and supporting evidence within seven days. The Magistrates’ Court held that failure to provide the evidence constituted a breach, accepted the appellant’s guilty plea and activated the suspended sentence.

On a case stated, the Divisional Court considered whether the requirement to provide documentary evidence explaining non-attendance amounted to an instruction to keep in touch under section 220(1)(a) of the Act.

1. Appeal dismissed. The question stated by the Justices was answered “Yes”.
2. Section 220 of the Criminal Justice Act 2003 permits a responsible officer to require an offender to notify the officer in advance where the offender knows that he cannot attend an unpaid-work appointment. The requirement falls within the statutory obligation to keep in touch.
3. It is also permissible to require the information to be provided in writing and supported by third-party evidence. That is a reasonable means of ensuring the rigorous enforcement of community punishments. A responsible officer may relax the advance requirement in an individual case and accept information shortly afterwards.
4. There is, however, a material distinction between late information accepted as a concession and an independent obligation to provide evidence after the event. The latter is merely an obligation to provide evidence and falls outside section 220. The provision cannot be used to create a breach by reason of a failure to comply with such a freestanding ex post facto requirement, particularly because breach and any resulting punishment are matters for the court.
5. The document signed by the appellant was capable of being read as making the seven-day requirement ancillary to the valid advance-notification requirement in paragraph 5. On that construction, paragraph 6 was lawful. The court did not determine whether section 222 supplied any alternative power, as that issue had not been argued and no relevant rules existed.
6. The court observed that probation documents should be drafted carefully and consistently so that their requirements remain within the statutory powers.

Magistrates’ Court at Oxford: held that failure to provide the required evidence constituted a breach of the suspended sentence order; the appellant pleaded guilty and the suspended sentence was activated.

High Court (Administrative Court): dismissed the appeal by way of case stated and answered the Justices’ question in the affirmative.