REGINA v JAMIE PRICE

A court imposing a community order with an accredited programme requirement must itself specify that the defendant is required to participate. It cannot delegate that decision to the probation service. Amendments allowing the responsible officer to select an appropriate programme and place of attendance do not remove that judicial duty.

Under section 11(3) of the Criminal Appeal Act 1968, whether a substituted sentence is more severe must be assessed pragmatically in the particular circumstances. Imprisonment is not inevitably more severe than a community order. A custodial term that results in immediate release may be less onerous than a community order carrying a continuing risk of imprisonment for breach.

The appellant pleaded guilty in the Crown Court at Huntingdon to assault occasioning actual bodily harm after he headbutted a prison officer in court. The basis of plea was that the act was unpremeditated and reckless, rather than intentional. There had been substantial delay before charge and sentence, partly connected with the appellant’s mental health treatment.

The Recorder imposed a community order with supervision and a contingent requirement to attend the General Offending Behaviour Programme. The appellant appealed against sentence. He contended that the programme requirement was unlawful because its operation had been left to probation, and that an absolute discharge was appropriate because a community order prolonged his exposure to recall or resentencing.

1. Appeal allowed. The community order was quashed and replaced with six months’ imprisonment, deemed to run from the original sentencing date. The term had already been served.

2. Section 202(1) of the Criminal Justice Act 2003 required the sentencing court to specify that the defendant must participate in an accredited programme if such participation was to form part of the order. The court could not leave to the probation service the anterior decision whether a programme requirement should be imposed. The order was therefore unlawful because it did so and did not specify the number of days.

3. Section 75(5) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 gave the responsible officer broad discretion over the appropriate programme and place of attendance. It avoided a return to court merely because an originally identified programme proved unsuitable. It did not permit delegation of the sentencing decision to require programme participation.

4. An absolute discharge would not reflect the gravity of an assault on a prison officer. Taking account of the basis of plea and mental health difficulties, the appropriate sentence was six months’ imprisonment.

5. In applying section 11(3) of the Criminal Appeal Act 1968, severity had to be assessed in context, from the standpoint of an ordinary person, rather than by treating imprisonment as invariably more severe than a community sentence. The substituted term would have resulted in immediate release and only a short licence period overlapping with the existing licence. It was therefore less onerous than the community order, which exposed the appellant to imprisonment for breach until February 2014.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted six months’ imprisonment: [2013] EWCA Crim 1283.
• Crown Court at Huntingdon: On 12 February 2013, following a guilty plea, imposed a community order with supervision and a contingent programme requirement.