§ RIGHT OF APPEAL OF PROBATIONERS ETC
§
Lords amendment: No. 162, after clause 49, insert:
U.—(1) The following subsection shall be inserted after subsection (1) of section 50 of the Criminal Appeal Act 1968 (meaning of "sentence")—
(1A) Section 13 of the Powers of Criminal Courts Act 1973 (under which a conviction of an offence for which a probation order or an order for conditional or absolute discharge is made is deemed not be a conviction except for certain purposes) shall not prevent an appeal under this Act, whether against conviction or otherwise.
582.
(2) The following subsection shall be inserted after subsection (1) of section 108 of the Magistrates' Courts Act 1980 (right of appeal to the Crown Court)—
(1A) Section 13 of the Powers of Criminal Courts Act 1973 (under which a conviction of an offence for which a probation order or an order for conditional or absolute discharge is made is deemed not to be a conviction except for certain purposes) shall not prevent an appeal under this section, whether against conviction or otherwise.".
(3) In the Powers of Criminal Courts Act 1973—
(a) the following subsection shall be inserted after subsection. (1) of section 11 (substitution of conditional discharge for probation) —
(1A) No application may be made under subsection (1) above while an appeal against the probation order is pending."; and
(b) in Schedule 1 (discharge and amendment of probation orders)—
- (i)the following sub-paragraph shall be inserted after paragraphs 1( 1) and 3(1)— "(1A) No application may be made under sub-paragraph (1) above while an appeal against the probation order is pending."
- (ii)the following sub-paragraph shall be inserted after paragraph. 2(1)— "(1A) No order may be made under subparagraph (1) above while an appeal against tie probation order is pending." ;
- (iii)in paragraph 4, for the word "Where" there shall be substituted the words "Subject to paragraph 4A below, where"; and
- (iv)the following paragraph shall be inserted after that paragraph — "4A. No application may be made under paragraph 4 above while an appeal against the probation order is pending."."
§ Mr. MayhewI beg to move, That this House cloth agree with the Lords in the said amendment.
§ Mr. MayhewThe amendments seek to provide for a full right of appeal against sentence where a probation order or an order for conditional or absolute discharge has been made either alone or in conjunction with an ancillary order such as a compensation order.
The present position is that, in a case where a probation order or order for conditional or absolute discharge is made, the offender has a right of appeal against conviction but not against sentence. That is the effect of section 13 of the Powers of Criminal Courts Act 1973.
The rationale behind these provisions is that a right of appeal against sentence seems inappropriate since a probation order can be made only with the offender's consent and an order for conditional or absolute discharge represents the minimum that can be imposed consistent with a finding of guilt. However, an unintended side effect of the legislation has been to exclude any right of appeal against any ancillary order, such as a compensation order, made in conjunction with the probation order or order for conditional or absolute discharge. It was never the intention of the provisions to exclude appeals against ancillary orders in those circumstances. They are appealable when imposed in conjunction with a more serious sentence and, as they can be quite punitive, it seems incongruous for the right to be withdrawn when the principal punishment is less severe. Furthermore, the present position hat; created difficulties in the Court o Appeal, as at least one recent case has evidenced. The court was obliged to conclude that it had no jurisdiction, 583 to vary or overturn an order for costs that accompanied a conditional discharge, although it clearly would have wished to do so.
The amendments correct that anomaly and go further by providing a right of appeal against a probation order or an order for conditional or absolute discharge, whether or not combined with an ancillary order. I need not trouble the House with the consequential amendments.
§ Question put and agreed to.