Factual and Procedural Background
The court considered two cases raising the same legal question regarding Section 28 of the Criminal Justice and Court Services Act 2000 ("the 2000 Act"). The issue was whether a disqualification order under Section 28, disqualifying an adult from working with children, can be imposed based on an offence committed before the 2000 Act came into force on 11 January 2001.
In the first case, the Defendant was convicted on multiple counts of indecent assault and indecency with a child for offences committed before the Act commenced. He was sentenced to imprisonment and disqualified indefinitely from working with children under Section 28. He sought leave to appeal the conviction and sentence; the appeal against conviction was refused, but leave to appeal the disqualification order was granted. The Secretary of State intervened in the appeal concerning the disqualification order.
In the second case, another Defendant pleaded guilty to offences committed before the 2000 Act commenced and was sentenced to imprisonment and disqualified indefinitely from working with children under Section 28. He sought leave to appeal against sentence and disqualification; leave was refused for the sentence but adjourned for the disqualification to be heard alongside the first case. No additional representations were made in the second case, making the first case determinative.
The court noted that the facts of the convictions were unnecessary to recount in detail for the legal issues presented.
Legal Issues Presented
- Whether a disqualification order under Section 28 of the 2000 Act constitutes "a penalty" such that Article 7 of the European Convention on Human Rights ("ECHR") prohibits its imposition for offences committed before the Act came into force.
- Whether, on proper statutory interpretation, the 2000 Act was intended to apply to offences committed before its commencement.
Arguments of the Parties
Appellant's Arguments
- A disqualification order is a penalty within the meaning of Article 7 of the ECHR.
- Therefore, imposing such an order for offences committed before the 2000 Act came into force breaches Article 7(1), which prohibits heavier penalties than those applicable at the offence time.
- Section 28 should be interpreted as applying only to convictions for offences committed on or after the commencement date.
Secretary of State's Arguments
- A disqualification order is not a penalty within the meaning of Article 7 because it is preventive rather than punitive.
- The order may be made following a conviction or other findings that do not constitute convictions, indicating a protective purpose rather than punishment.
- The purpose of Section 28 is child protection, aiming to prevent future offences rather than punish past conduct.
- Statutory language does not limit Section 28 to offences committed after the Act's commencement.
- The presumption against retrospective legislation does not apply as the order only affects future conduct.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Welch v UK (1995) 20 EHRR 247 |
Criteria to determine whether a measure is a penalty under Article 7 ECHR. |
The court applied the Welch criteria to Section 28 orders, analyzing factors such as nature, purpose, and procedure, concluding Section 28 orders are not penalties. |
| Gough v Chief Constable of Derbyshire Constabulary [2001] EWHC Admin 554; [2001] 3 WLR 1392 |
Whether football banning orders constitute penalties under Article 7. |
Used to illustrate that orders can be made without conviction and still not be penalties, supporting the preventive nature of Section 28 orders. |
| R v M and others [2001] EWCA Crim 2024; [2002] 1 Cr. App. R. 283 |
Proceedings determining whether a defendant did the act charged are not criminal proceedings under Article 6 ECHR and do not impose penalties. |
Supported the view that Section 28 orders made following such findings are not penalties. |
| R (McCann) v Crown Court at Manchester [2001] EWCA Civ 281; [2001] 1 WLR 1084 |
Nature of antisocial behaviour orders as civil and preventive, not penal, measures. |
Analogized Section 28 orders to civil injunctive remedies designed to protect the public, reinforcing the preventive character. |
| B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 |
Sex offender orders are civil and preventive, not penal sanctions. |
Used to demonstrate that severe restrictions do not necessarily amount to penalties. |
| Ibbotson v UK (1998) 27 EHRR CD 332 |
Registration requirements under Sex Offenders Act 1997 do not constitute penalties under Article 7. |
Referenced to distinguish registration requirements from Section 28 disqualification orders but acknowledged similarities in preventive purpose. |
Court's Reasoning and Analysis
The court began by applying the criteria from Welch v UK to determine if a Section 28 disqualification order is a penalty under Article 7 of the ECHR. It considered whether the order is imposed following a criminal conviction and noted that Section 28 orders can also be made following findings that are not convictions, indicating a protective rather than punitive purpose.
The court examined the nature and purpose of the disqualification order, finding it primarily preventive, aimed at protecting children by restricting contact with offenders who pose a risk of re-offending. The indefinite duration and possibility of review after ten years further support this preventive aim.
Characterisation under domestic law was analyzed; although the order is imposed by a criminal court and treated "as if it were a sentence" for appeal purposes, its ultimate purpose and subsequent review mechanisms align more with civil protective orders than criminal sanctions.
The court considered the severity of the order but noted that severity alone does not render a measure penal. It cited authorities showing that civil injunctions may have severe consequences without constituting penalties.
Comparisons with other legislative regimes, such as football banning orders and sex offender orders, reinforced the conclusion that Section 28 orders are preventive civil measures rather than penalties.
On the issue of statutory interpretation, the court found no express limitation in Section 28 restricting its application to offences committed after the Act's commencement. Since the order affects future conduct and is preventive, it does not offend the presumption against retrospective legislation.
Consequently, the court concluded that Section 28 disqualification orders are not penalties under Article 7 and may be applied to offences committed before the 2000 Act came into force.
Holding and Implications
The court DISMISSED the appeal against the sentence relating to the disqualification order in the first case.
As a direct consequence, the application for leave to appeal the disqualification order in the second case was refused. The court held that Section 28 of the 2000 Act applies to offences committed before the Act's commencement and that the disqualification order is not a penalty under Article 7 of the ECHR.
No new precedent beyond the application of established principles was set; the decision clarifies the preventive nature of Section 28 orders and their retrospective application to pre-commencement offences.