Tom Cockroft appears in the Court of Appeal (Criminal Division)

DW appealed against his conviction for arson based on fresh evidence that he was under a disability when he did the act. DW was drunk at the time of the offence. Assuming his appeal were to succeed, the court feared DW would eventually turn back to drink and re-offend. DW’s condition did not warrant a hospital order, so the court had two options: a supervision order or an absolute discharge. In what has become a frequently recurring issue nationwide, probation would not undertake the supervision required, saying that the local authority

should do so, and vice versa. The court warned both agencies that it might impose a mandatory order on them to supervise DW.

Defending probation’s stance, Tom submitted that the Explanatory Notes for the relevant

statute indicated that a supervision order was intended solely to provide a framework for treatment. It was not punitive and so was not enforceable. The Law Commission had recommended making the provisions enforceable but to no avail. The only treatment from which DW was assessed as likely to benefit (residential alcohol treatment) was expressly excluded under the statute. Conditions of residence and contact could not be enforced and DW was unlikely to comply. Accordingly, probation’s decision was not Wednesbury unreasonable and a mandatory order was not warranted. The court agreed and imposed an absolute discharge.

Tom Cockroft appeared for the National Probation Service instructed by the Government Legal Department