Although no provision had expressly been made for an appeal against a variation or refusal to vary a Sexual Offences Prevention Order, which was a clear legislative oversight, there was authority that a variation of such an order constituted “an order made by the court when dealing with an offender” falling within the broad context of section 50 of the Criminal Appeal Act 1968. That decision had not been decided per incuriam and was binding. When deciding these appeals the court had been sitting in the Court of Appeal, Criminal Division, rather than the Court of Appeal, Civil Division.

The Court of Appeal, Criminal Division, so held when allowing (i) an appeal by Trevor Niall Aldridge against the variation on 29 July 2011 of a Sexual Offences Prevention Order (“SOPO”) to include further and additional restrictions on him, made by Judge Moss at Guildford Crown Court, the SOPO having originally been made on 27 November 2009 in the Crown Court at Newport, Isle of Wight following his conviction of possessing indecent images of children; and (ii) the appeal by Thomas Gilbert Eaton against a purported correction on 19 July 2012 of a SOPO to run for three years (which was unlawful since the minimum term for a SOPO was five years) made by Judge Glenn at Stafford Crown Court on 23 May 2011 following the defendant’s plea of guilty to five counts of making indecent photographs of a child.

LORD JUDGE CJ said, in the reserved judgment of the court, that both defendants had been made subject to a sexual offences prevention order (“SOPO”) under section 104(1) of the Sexual Offences Act 2003. The orders were subsequently varied by the Crown Court in accordance with section 108 of the 2003 Act, by which SOPOs could be varied, renewed or discharged. Both now appealed against the variation orders under section 110(3)(a) of the 2003 Act, the section which enabled a defendant to appeal “against the making of an order under section 108, or the refusal to make such an order— (a) where the application for such an order was made to the Crown Court, to the Court of Appeal …” The preliminary question was the route of appeal. The debate was whether the court vested with jurisdiction to hear the appeals against the variation orders was the Court of Appeal, Criminal Division (“criminal division”) or the Court of Appeal, Civil Division (“civil division”).

In R v Hoath [2011] EWCA Crim 1656; [2011] 1 WLR 1656 it was decided that a variation of a SOPO constituted “an order made by a court when dealing with an offender” falling within the broad context of section 50 of the Criminal Appeal Act 1968. Section 9 of the 1968 Act provided that a person who had been convicted of an offence might appeal to the Court of Appeal—ie, the criminal division (see section 53(2) of the Senior Courts Act 1981)—against any sentence “passed on him for the offence, whether passed on his conviction or in subsequent proceedings”. Accordingly the criminal division was the appropriate forum to consider any appeal arising from an application to vary a SOPO. In reaching that conclusion the court recognised that no express statutory provision was made for an appeal against a variation or refusal to vary an original order to be treated as if it were an appeal against sentence. That approach did not attract the approbation of the editor of Criminal Law Week and Archbold, Criminal Pleading, Evidence and Practice. At para 20–330 of the 2012 edition it was submitted that an appeal arising in the circumstances of the present cases should lie to the civil division. Whereas a SOPO, when originally made, might be treated as a sentence, and therefore an appeal should lie to the criminal division, an order under section 108 refusing to vary or discharge or renewing a SOPO did not. The appropriate forum therefore was the civil division. In the course of argument in these appeals all the material critical of the decision in R v Hoath was drawn to the court’s attention and it was courteously suggested that if that case might have been decided per incuriam, it should not be followed.

Attention was also drawn to the decision in R v Boggild [2011] EWCA Crim 1828; [2012] 1 WLR 1298, where the prosecution sought leave to appeal a decision of the Crown Court under section 14A(5A) of the Football Spectators Act 1989. Save in the context of unduly lenient sentences, there was, generally speaking, no route of appeal against sentence vested in the Crown. In those circumstances this court decided that the jurisdiction to consider such an appeal was exercisable, not by the criminal division, but by the civil division. The result was “unexpected” and it was seriously doubtful that this could have been Parliament’s intention. However, the decision also emphasised that if the defendant had been made subject to a football banning order he would, subject to leave in the usual way, have been entitled to appeal to the criminal division. The present appeals, and those in R v Hoath, were appeals not by the Crown but by individuals who were defendants in the Crown Court and the right of appeal against sentence was vested in them as the individuals who would be subject to the restrictions in any SOPO, whether as originally ordered, or as varied.

Notwithstanding the importance which was normally attached to questions of jurisdiction when they were in doubt, in practical terms in the present context nothing turned on this question. One or other division of the Court of Appeal was vested with the necessary jurisdiction, and arrangements could be made to ensure that the court would be a properly constituted court of either the civil or criminal division of the Court of Appeal.

No one questioned that these SOPOs depended on the commission of one of the offences listed in Schedule 3 or 5 to the 2003 Act nor that when these SOPOs were made in the Crown Court they could have been the subject of an appeal to the criminal division, as if against sentence, and no one questioned that the criminal division, not the civil division, might vary the SOPO made by the Crown Court.

R v Hoath [2011] 1 WLR 1656 was not decided per incuriam. That decision was binding. Although provision was not expressly made for an appeal against a variation or refusal to vary the original order to be treated as if it were an appeal against sentence, given that appeals relating to the variation of a SOPO, the terms of which might reflect a decision of the criminal division following an appeal against the original SOPO, that was a clear legislative oversight. In the end it was a matter of complete indifference to the defendant convicted of an offence falling within Schedule 3 or Schedule 5 to the 2003 Act, and to the Crown, whether the three judges deciding the case were sitting in the criminal division or civil division. When deciding these appeals, the court had been sitting in the Court of Appeal, Criminal Division.