The defendant in the first case pleaded guilty in 2016 to seven counts of making indecent photographs of a child, contrary to section 1(1)(a) of the Protection of Children Act 1978. He was sentenced to concurrent terms of 12 months’ imprisonment, suspended for 24 months with a requirement to complete the internet sex offenders’ programme, and a sexual harm prevention order (“SHPO”) was made “until further order”, pursuant to section 103 of the Sexual Offences Act 2003. Having been convicted of an offence listed in Schedule 3 to the 2003 Act, the defendant was required to comply with the provisions of Part 2 of that Act: notification to the police. That requirement arose under the legislation and did not depend on any order of a court. By reason of section 103G(1) of the 2003 Act, where a SHPO was made, the defendant concerned automatically remained subject to the notification requirements while the SHPO had effect and the effect of the SHPO being made “until further order” meant that the defendant remained subject to the notification requirements indefinitely, or until the SHPO ceased to have effect. The defendant appealed against the length of the SHPO on the grounds that the imposition of an SHPO in those circumstances without limit of time was manifestly excessive and wrong in principle.
The defendant in the second case pleaded guilty in 2005 to 25 offences of making indecent photographs of a child, contrary to section 1(1)(a) of the 1978 Act. He was sentenced to concurrent terms of imprisonment for public protection (“IPP”) with a minimum specified term of two years and a sexual offences prevention order (“SOPO”) was made in accordance with sections 104 to 113 of the 2003 Act. In 2016 the defendant was released from custody under the IPP subject to 21 licence conditions, five of which were specifically directed at managing the risk of the defendant making or accessing indecent images of children, The defendant applied for an extension of time of more than 11 years in which to seek leave to appeal against sentence on the ground that the SOPO was unnecessary, bearing in mind the sentence of IPP and a decision of the Court of Appeal in 2011 which had held that it was inappropriate to make a SOPO when an indeterminate sentence was imposed.
On the appeals—
Held, (1) appeal allowed and SHPO varied in the first case. No particular attention had been given, either by the prosecution or the judge, to the justification for an indefinite SHPO. Reports from probation officers assessed the defendant as posing a low risk of repeat offending and, in all the circumstances, a period of five years better reflected the evidence as a whole. In any event, given the length of the defendant’s suspended sentence of imprisonment, he would be subject to the statutory notification requirements for ten years (para 29–33).
(2) Extension of time and leave to appeal refused in the second case. At the time it was imposed and on the law as it was then understood the making of the SOPO was within the ambit of the judge’s discretion, and, accordingly, there was no basis for granting an extension of time in which to apply for leave to appeal. However, since there was a conflict between the terms of the SOPO and the licence conditions the defendant would be at risk of breaching the former despite scrupulous compliance with the former. That would be unacceptable and unjust. The correct route to addressing the conflict between the terms of the SOPO and those of the licence conditions lay in the Crown Court’s power (in the present context) to vary its own orders, pursuant to section 108(4) of the Criminal Justice Act 2003, where circumstances changed, following an application in accordance with Crim PR r 31.5. No substantial injustice would remain once the SOPO’s terms were aligned with the licence conditions (para 58).
Per curiam. (i) There is no requirement of principle that the duration of a SHPO should not exceed the duration of the applicable notification requirements. A SHPO may be made when the court is satisfied that it is necessary for the purpose of protecting the public or any particular members of the public from sexual harm from the defendant: section 103A(1)(2)(b)(i) of the 2003 Act. As with any sentence, a SHPO should not be made for longer than is necessary. A SHPO should not be made for an indefinite period (rather than a fixed period) unless the court is satisfied of the need to do so. An indefinite SHPO should not be made without careful consideration or as a default option. Ordinarily, as a matter of good practice, a court should explain, however briefly, the justification for making an indefinite SHPO, though there are cases where that justification will be obvious. All concerned should be alert to the fact that the effect of a SHPO of longer duration than the statutory notification requirements has the effect of extending the operation of those notification requirements; an indefinite SHPO will result in indefinite notification requirements: section 103G(1) of the 2003 Act. Notification requirements have real, practical, consequences for those subject to them; inadvertent extension is to be avoided (para 25).
(ii) Where a SOPO was imposed prior to the Court of Appeal’s decision which held that it was inappropriate to make a SOPO when an indeterminate sentence was imposed, the Crown Court has jurisdiction to entertain an application made under section 108(4) of the 2003 Act in (at least) the following circumstances: (a) where a SOPO was properly made in accordance with the law and guidance then current and a sentence of IPP was imposed on the defendant at the same time; (b) where the defendant has been released from custody, subject to IPP licence conditions; (c) where there is a conflict between the SOPO terms and the IPP licence conditions; and (d) where a variation of the SOPO is sought to bring its terms into alignment with the IPP licence conditions. Pursuant to section 110(3)(a) of the 2003 Act, an appeal lies to the Court of Appeal, with leave, from the decision of the Crown Court on an application (para 59).
James Wood QC (instructed by the Registrar of Criminal Appeals) for the defendant in the first case.
Farrhat Arshad (instructed by Swain & Co Solicitors) for the defendant in the second case.
Simon Heptonstall (instructed by Crown Prosecution Service) for the Crown