West Midlands Probation Board v Sutton Coldfield Magistrates' Court & Ors

A community order takes effect when imposed and remains enforceable unless quashed, revoked or amended. The lodging of an appeal against the conviction or order does not automatically suspend it. The bare fact that an appeal is pending cannot, without more, constitute a reasonable excuse for failing to comply with the order. Whether particular circumstances connected with an appeal may amount to a reasonable excuse was left open.

The West Midlands Probation Board appealed by way of case stated from the dismissal of informations alleging that two defendants had failed, without reasonable excuse, to attend unpaid work appointments required by community orders. The defendants had lodged appeals against their convictions and relied on those pending appeals as their reason for non-compliance. The district judge held that the pending appeals afforded a reasonable excuse. The central question was whether that conclusion was wrong in law.

1. Appeal allowed. The question stated for the opinion of the court was answered yes. The case was remitted to the district judge with a direction that the defendants be convicted.
2. Under sections 177, 198, 199 and 200 of the Criminal Justice Act 2003 and Schedule 8, a community order and its unpaid work requirement take effect when imposed. The responsible officer must promote compliance and, where appropriate, enforce the requirements. The statutory use of “must” confirms the mandatory nature of the relevant duties.
3. The general principle is that a sentence remains in force and enforceable unless specific provision provides otherwise. An appeal does not itself suspend the operation of a sentence or order. The court referred to The Greater Manchester Probation Committee v Bent and (1996) 160 JP Rep 297, and to R v May and others and [2005] EWCA Crim 367.
4. The fact that an appeal has been lodged cannot, by itself, be stretched into a reasonable excuse under paragraph 9 of Schedule 8. Treating it as sufficient would undermine the principle that the order remains binding and would allow offenders to choose whether and when to comply.
5. The court decided only the effect of the bare fact of a pending appeal. It expressed no view on whether special factors relating to a particular appeal might amount to a reasonable excuse.

• High Court (Administrative Court): The appeal by way of case stated was allowed. The district judge’s ruling was held to be wrong in law, and the case was remitted with a direction that the defendants be convicted.
• Sutton Coldfield Magistrates’ Court: The informations alleging breach of the community orders were dismissed on the basis that the defendants’ pending appeals afforded a reasonable excuse.