Cooper, R. v

Where the applicable sentencing guideline supplies a range and there is no proper reason to depart from it, the sentencing court should sentence within that range and explain any departure.

During the transitional operation of the safeguarding legislation, a court must continue to make a child-disqualification order under section 28 of the Criminal Justice and Court Services Act 2000. It must also inform the convicted person that the Independent Safeguarding Authority will bar that person under the Safeguarding Vulnerable Groups Act 2006. The obligation to make the order remains because barring takes effect only when the person is actually included on the barred list.

The appellant pleaded guilty at Warwick Crown Court to three rapes of his younger sister. He received three consecutive sentences of six years’ imprisonment, making 18 years, and a disqualification order under section 28 of the Criminal Justice and Court Services Act 2000.

He appealed against sentence. The appeal also raised the correct transitional relationship between that Act and the Safeguarding Vulnerable Groups Act 2006. The Home Office intervened after expressing concern that the court’s recent guidance in Attorney-General’s Reference No 18 of 2011 [2011] EWCA Crim 1300 had been reached without material information about the phased implementation of the new barring regime.

The central issue was whether a court must still make a section 28 order while informing the offender that he or she will be barred under the 2006 Act.

1. Appeal allowed. The total sentence was reduced from 18 years to 12 years’ imprisonment. The six-year sentences on counts 6 and 7 remained consecutive. The six-year sentence on count 8 was made concurrent.

2. The applicable sentencing guideline gave a starting point of 15 years after trial, with a range of 13 to 19 years, for sexual activity of this kind with a child under 13. There was no reason to depart from it. Allowing for the appellant’s prior character, conviction and prolonged conduct, 18 years after trial was appropriate. His prompt guilty plea required the usual one-third reduction to 12 years.

3. The court granted the Home Office leave to intervene. It was open to the court to reconsider its earlier Crown Court practice guidance where material information and argument about legislation and its practical operation had not been before the earlier court.

4. The court held that article 3(2) of the Safeguarding Vulnerable Groups Act 2006 (Commencement No. 6, Transitional Provisions and Savings) Order 2009 preserved the section 28 duty until the offender was actually barred under the 2006 Act. Notification at conviction did not itself bar the offender. Inclusion on the barred list required later administrative steps and usually took about 60 days.

5. Accordingly, judges must make a section 28 order and notify the convicted person of the prospective bar. The contrary construction in Attorney-General’s Reference No 18 of 2011 [2011] EWCA Crim 1300 was incorrect. The court stressed that the dual statutory regime should remain only a temporary transitional arrangement.

• Court of Appeal (Criminal Division)—allowed the appeal against sentence, reduced the total term to 12 years, and corrected the earlier guidance on the section 28 transitional duty: [2011] EWCA Crim 1872.
• Warwick Crown Court—on 20 October 2010, imposed three consecutive six-year sentences for rape and made a section 28 disqualification order.