Dragoman, R (on the application of) v Camberwell Green Magistrates Court

An exclusion requirement in a community order may prohibit an offender from entering a specified area within the United Kingdom. It cannot be used to exclude a person already in the United Kingdom from the United Kingdom, or to achieve the person’s expulsion. The statutory purpose is rehabilitative and preventive, rather than punitive. Any exclusion requirement must be proportionate. The magistrates’ court has no power under sections 177 and 205 of the Criminal Justice Act 2003 to impose such an order.

The claimant, a Romanian national, pleaded guilty before the magistrates’ court to theft and going equipped. The court imposed a community order containing a 12-month exclusion requirement prohibiting him from entering the United Kingdom.

He sought judicial review on the issue whether sections 177 and 205 of the Criminal Justice Act 2003 authorised that requirement. The central question was whether an exclusion requirement could operate as a power to exclude an offender from the United Kingdom and secure his departure.

1. Claim allowed and sentence quashed. The exclusion requirement imposed as part of the community order was unlawful.
2. Section 177 permits a community order to contain an exclusion requirement as defined by section 205. The purpose of that power is to exclude an offender from a specified area where attendance may increase the risk of reoffending, thereby supporting reform. It is not a power to punish by exclusion.
3. Section 205 concerns prohibition from entering a specified place or area within the United Kingdom. It cannot authorise a prohibition on entering the United Kingdom itself, particularly where the offender is already present in the country.
4. Parliament had established a separate regime under the UK Borders Act 2007 dealing with exclusion. Nothing in the statutory scheme provided a mechanism for the magistrates’ court to require removal from the United Kingdom. The order was therefore, in substance, an order for expulsion, which the court had no power to make.
5. As established in R v Jacob [2008] EWCA Crim 2002, an exclusion requirement must be proportionate.
6. The matter was remitted to Camberwell Green Magistrates’ Court for reconsideration of sentence. If the claimant returned to the United Kingdom, a warrant for arrest was authorised, backed for bail, so that he could attend for resentencing.

• Camberwell Green Magistrates’ Court: imposed a community order containing a 12-month prohibition on entering the United Kingdom.
• High Court (Administrative Court): quashed the exclusion requirement as unlawful and remitted the matter for reconsideration of sentence.