West Yorkshire Probation Board v Robinson & Tinker

Under the Criminal Justice Act 2003, a warning for an initial failure to comply with a community or suspended sentence order is not a punishment and does not expunge or spend that breach. The warning gives the responsible officer a single discretion. If a further breach occurs within the prescribed period, an information must be laid. The information may include both the initial breach and the subsequent breach. When determining the appropriate response, the court may consider the full circumstances of every breach proved, including the breach which preceded the warning.

The claimant brought two Cases Stated from Pontefract Magistrates’ Court. One concerned Robinson and was stated by District Judge Bennett; the other concerned Tinker and was stated by a bench of magistrates. Each offender had failed to attend a supervision appointment, received a warning, and then failed to attend again.

The lower courts had ruled that the informations could not include the breaches preceding the warnings and that those breaches were spent because the warnings amounted to punishment. The central issue was the proper construction of the breach provisions in Schedules 8 and 12 to the Criminal Justice Act 2003.

1. The court, comprising Lord Justice Thomas and Mr Justice Silber, held that the decisions of the district judge and magistrates were wrong.
2. The relevant provisions of Schedules 8 and 12 are prescriptive. They give the responsible officer one discretion: whether to issue a warning for the initial failure to attend without reasonable excuse. After that warning, a further failure within the prescribed twelve-month period requires an information to be laid.
3. The statutory requirement to lay an information in respect of the later failure does not restrict the contents of the information. It is open to the probation service to set out both the initial breach before the warning and the subsequent breach after the warning.
4. A warning is not a punishment. It neither deals with nor expunges the initial breach. Its purpose is to avoid an immediate prosecution while preserving a further discretion if the offender complies for twelve months.
5. Where the court finds breaches without reasonable excuse, it may consider the full circumstances of each breach when exercising its powers under paragraphs 8 and 9 of the relevant Schedule.
6. The matters were to be remitted for action in respect of any breaches proved. The court also indicated that a declaration could be made, and costs were ordered to be assessed on a legal aid basis.

• High Court (Administrative Court): On Cases Stated from Pontefract Magistrates’ Court, the court held that the lower courts’ construction of the statutory breach provisions was wrong.