England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM TEESSIDE CROWN COURT
HIS HONOUR JUDGE ARMSTRONG
T20031046

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 January 2005

Mr Justice Beatson :

1. On 1 May 2004 the Sex Offenders Act 1997 (the "1997 Act") was repealed and the Sexual Offences Act 2003 (the "2003 Act") came into force: see Sexual Offences Act 2003 (Commencement) Order 2004 S.I. 2004 No 874. This case arises as a result of the fact that the sentencing of the Applicant, Andrew Monument, at the Crown Court at Teesside by His Honour Judge Armstrong occurred on two dates, 23 April and 14 May 2004, between which the relevant legislation changed.
2. On 23 April 2004 the Applicant, who had pleaded guilty to 16 counts of making indecent photographs or pseudo photographs of a child contrary to section 1(1)(a) of the Protection of Children Act 1978 was sentenced to 8 months imprisonment on each count, the sentences to be served concurrently. The 16 counts were accepted to be specimen counts representing a total of some 4,266 indecent images of children downloaded onto his computer including 378 at level 4 and 23 at level 5 of the guidelines in Oliver [2003] 1 Cr.App.R. 28. He was also required to comply with the provisions of section 2 of the Sex Offenders Act 1997 for a period of 10 years.
3. On that occasion no application was made by the Crown for the imposition of a Restraining Order under section 5A of the Sex Offenders Act 1997 apparently as the result of an oversight. On 6 May the Crown made an application to re-list the case within the 28 day period under the slip rule now contained in section 155 of the Powers of the Criminal Courts (Sentencing) Act 2000 in order to add to the sentence a Restraining Order in respect of the defendant using and owning a computer. The application came before His Honour Judge Armstrong on 14 May. At the hearing on 14 May the fact that the legislative landscape had changed was overlooked by all parties.
4. For the purposes of this case the material differences between the 1997 and 2003 Acts are as follows. Section 5A(2) of the 1997 Act empowered the Court to make a Restraining Order in respect of a defendant where it was satisfied that it was necessary to do so in order to protect the public in general or any particular member of the public from serious harm from the defendant. Section 104 of the 2003 Act empowers the Court to make a Sexual Offences Prevention Order in respect of a defendant if (section 104(1)(b)) it is satisfied that it is necessary to do so to protect the public or any particular members of the public from serious sexual harm from the defendant. By section 107(1)(b) of the 2003 Act, the minimum period for such an order is 5 years, whereas, under the 1997 Act a Restraining Order could have been made for a shorter period.
5. It appears from the transcript that on 14 May those representing the Applicant did not resist the imposition of a restraining order. But for the repeal of the 1997 Act, it would have been difficult to do so in view of the decision of this court in Beaney [2004] Crim.L.R. 480. In that case it was held that a Restraining Order could be made in respect of a person who downloaded and viewed indecent images of children because there was undoubtedly a real risk of serious psychological harm to the children who were forced to pose or to participate in sexual conduct for the purpose of allowing the images to be produced and disseminated. The persons responsible for producing and disseminating such images undoubtedly subjected the children involved to that risk. The Court stated that those downloading and viewing the images also contributed to that risk because they provided a market for such images which encouraged their production and dissemination and without which the trade would not flourish. The Court also stated that the serious psychological injury to which the children would be at risk would arise from the childrens' knowledge that what they were to do would be viewed by others and their awareness that there were people getting a perverted thrill from watching them forced to pose and behave in this way.
6. On 14 May the main concern of those representing the Applicant was the length of time of any Restraining Order made. After considering the nature of the images downloaded, the decision in Beaney, and the pre-sentence and psychiatric reports, the learned judge stated he was satisfied it was appropriate to make a Restraining Order under section 5A of the 1997 Act and made an order for a period of three years. He stated (transcript page 7 lines 1-3) that he was not prepared to make an order for longer than three years. The order prohibited the Applicant from owning, using or possessing any computer or other equipment capable of downloading material from the internet and from purchasing or possessing any CD ROMs, discs or other medium capable of storing or playing any material from the internet. When making the order the judge told the Applicant that he was "prohibited for a period of three years and that will be from today" rather than from the date of sentence.
7. Since 14 May the learned Judge has considered the fact that the Restraining Order was made after 1 May. A letter dated 16 August from the Crown Court at Teesside's Court Manager to the Applicant's solicitors states:

"His Honour Judge Armstrong has fully considered the position and is of the opinion that all parties overlooked the change in the law and the Restraining Order is unlawful and ineffective. It is now too late for this Court to take any remedial action and in the circumstances the judge had suggested the following options:

Do nothing – the order remains invalid and unenforceable.

The Defence apply to the Court of Appeal to quash the order - to prevent any future uncertainty regarding its validity.

The Prosecution apply to the Court of Appeal to quash the order – with a view to having it replaced by a Sexual Offences Prevention Order (if that is actually possible)."

8. The Applicant, who has served his sentence of imprisonment, has consequently applied for leave out of time to appeal against the imposition of the Restraining Order on 14 May. As we have stated, the Registrar referred the application to the Full Court. The matter came before the Court on 10 December 2004. Immediately before the commencement of the hearing we received from the Respondent a Skeleton Argument by Mr Hadfield of the Crown Prosecution Service dated 9 December. This document submitted that the Restraining Order made was a valid Order because the Applicant was convicted on 23 April 2004, and by virtue of section 17(2) of the Interpretation Act 1978 it remained lawful and valid despite the judge not being able to hear the application for a Restraining Order until 14 May.
9. The Respondent argues that, as a result of section 17(2)(b) of the Interpretation Act, the effect of making an Order pursuant to section 5A of the 1997 Act has the effect as if a Sexual Offences Prevention Order pursuant to section 104 of the 2003 Act had been made. The strands in this submission included reliance on section 16 of the Interpretation Act 1978 to preserve the effect of the Restraining Order made in this case and on the power in section 108(8)(a) of the 2003 Act to vary, renew or discharge Restraining Orders made under the 1997 Act as supporting the argument that the Restraining Order in this case was not unlawful. Section 16 provides that unless the contrary intention appears the repeal of an enactment does not inter alia affect any liability incurred under that enactment (16(1)(c)), any punishment incurred in respect of any offence committed against that enactment (16(1)(d)) or any remedy in respect of any such liability or punishment (16(1)(e)). It was also submitted that the test applied by the learned judge before making the Restraining Order was no different from the test he would have applied had he been taken to the new legislation because the analysis in Beaney is now to be found in the 2003 Act. Section 106(3) of the 2003 Act provides that "protecting the public or any particular members of the public from serious sexual harm from the defendant" means "protecting the public in the United Kingdom or any particular members of that public from serious physical or psychological harm caused by the defendant committing one or more offences listed in Schedule 3" to the 2003 Act. The offence committed by the Applicant under section 1 of the Protection of Children Act 1978 is so listed: see paragraph 13 of Schedule 3.
10. Alternatively the Respondent submitted that the substance of the penalty in this case was the sentence of imprisonment rather than the ancillary Restraining Order and, relying on Saville (1981) 2 Cr.App.R.(S) 26, the case can be re-listed before the Teesside Crown Court for a formal variation in the Order of the Court.
11. Although at the hearing on 10 December Miss Fagan, on behalf of the Applicant, conceded that a Sexual Offences Prevention Order could have been made on the facts of this case and can be made by this Court, we adjourned the matter to enable her to take explicit instructions on the matters raised in the Respondent's written submissions and to decide whether to make any submissions in response to them. Given the time at which the Respondent's skeleton argument reached us and the number of cases in our list that day the adjournment was also to enable us to satisfy ourselves as to the legitimacy and appropriateness of this Court making a Sexual Offences Prevention Order in this case. It was agreed by the parties that the court would consider the Respondent's written submissions and anything supplied on behalf of the Applicant and produce a written reserved judgment.
12. Since the adjournment we have received submissions from both parties. Mr Hadfield, in a letter dated 13 December, additionally submitted that if the Court was satisfied that it could exercise its discretion pursuant to section 11(3)(b) of the Criminal Appeal Act 1968 to replace the Restraining Order by a Sexual Offences Prevention Order in the same terms, any Sexual Offences Prevention Order would, because of section 107(1)(b) of the 2003 Act, have to be for a period of not less than five years. Miss Fagan submitted that the Restraining Order made on 14 May is unlawful and therefore invalid, and that the only remedy available to this Court is to quash the Restraining Order and replace it with a Sexual Offences Prevention Order in the same terms, but for a minimum period of five years. Miss Fagan's Reply states that the Applicant takes no issue with an order of five years being imposed but would take issue with an order for any period over five years. It was apparent at the hearing on 10 December that we were minded to grant leave and the necessary extension of time and we do so.
13. We first deal with Mr Hadfield's submission based on the decision in Saville (1981) 2 Cr.App.R.(S) 26 that, even after some nine months, the case can be re-listed before the Teesside Crown Court for a variation in the Order of the Court because the substance of the penalty in this case was the sentence of imprisonment rather than the ancillary Restraining Order. We consider this to be unarguable. Saville's case differs fundamentally from the present case. There a criminal bankruptcy order in the sum of £35,000 was made by the trial judge but he did not, as required to by the Powers of the Criminal Courts Act 1973, apportion the sum between the offences for which the defendant had been convicted. More than two months later the judge purported to rectify the order by apportioning the total between the offences. It was held by this court that the apportionment was effective. It was not a "variation" of an order but an adjustment of an inchoate order which had been made and which at that moment existed. We do not begin to see how it is possible to argue that the addition of a three year restraining order to an eight month sentence of imprisonment is not a variation of substance. It is well established that any variation of substance made after the expiration of the 28 day time limit is of no effect.
14. We turn to the question of the validity and effectiveness of the Restraining Order made on 14 May. Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 enables the Crown Court to vary or rescind a sentence imposed or other order within the period of 28 days beginning with the day on which the sentence or other order was imposed or made. In the present case the matter came back to the Crown Court within 28 days and the Restraining Order was made within the period.
15. It has been held in relation to the equivalent power in section 11 of the Courts Act 1971, which in all material respects is identical to section 155 of the Powers of Criminal Courts (Sentencing) Act, that the jurisdiction to vary or rescind a sentence is not restricted to minor amendments but includes making an additional order. In Riley [1982] 75 Cr.App.R. 266 the Appellant was sentenced to a term of imprisonment and disqualification under the Companies Act 1948. The judge in his sentencing remarks stated he did not propose to make a criminal bankruptcy order. He was then reminded by prosecuting counsel that an application for a criminal bankruptcy order had been made. After a short adjournment further material was placed before the court, and it made a criminal bankruptcy order. It was held by this court that section 11 of the 1971 Act empowered variation of the sentence by the imposition of an additional order. The court stated that the authorities showed that a wide view was taken of the meaning of the word "varied" and there was no limit as a matter of law upon the variation which might be made in the circumstances of a particular case.
16. By section 155(5) of the Powers of Criminal Courts (Sentencing) Act 2000:-

"where a sentence or other order is varied under this section the sentence or other order as so varied shall take effect from the beginning of the day on which it was originally imposed or made unless the court otherwise directs".

17. In the present case however the judge's direction that the order was to have effect from 14 May, the day it was made, meant that the default position under section 155(5) did not apply. But for the direction that the order should take effect from 14 May, the provisions of section 155(5) would, in our view, have meant the order was valid because it would have taken effect from the day on which the sentence was originally imposed; i.e. 23 April, before the repeal of the 1997 Act. The purpose of the slip rule now contained in section 155 is to enable the sentencing judge to correct errors and omissions made at the time a person was originally sentenced expeditiously and without the need for an elaborate procedure or an appeal to this court. Riley's case shows that a wide view is taken of the power, and in particular of the word "varied", so that it includes an order not made and a sentence not imposed when a defendant was originally sentenced. It thus includes an additional order and an additional sentence. Moreover, it is seen from section 155(5) that Parliament's intention was that corrections made under the slip rule should take effect from the date on which a defendant was originally sentenced unless a different order is made. It is consistent with this that section 155(5) applies to all variations made pursuant to the slip rule, including those where an additional order is made.
18. We turn to the argument based on section 17(2) of the Interpretation Act 1978. Section 17(2) provides:

"Where an Act repeals and re-enacts, with or without modification, a previous enactment then, unless the contrary intention appears, -

any reference in any other enactment to the enactment so repealed shall be construed as a reference to the provision re-enacted;

in so far as any subordinate legislation or any other thing done under the enactment so repealed, or having effect as if so done, could have been made or done under the provision re-enacted, it shall have effect as if made or done under that provision."

19. Mr Hadfield argued that, as a result of section 17(2)(b) of the Interpretation Act, the effect of making an Order pursuant to section 5A of the Sex Offenders Act 1997 has the effect as if a Sexual Offences Prevention Order pursuant to section 104 of the Sexual Offences Act 2003 had been made. The argument is that the Restraining Order made on 14 May was a "thing done" under the repealed 1997 Act or "having effect as if so done", that it could have been done under the 2003 Act, and that by virtue of section 17(2)(b) it "shall have effect as if … done" under the provisions of the 2003 Act concerning sexual offences prevention orders.
20. There are several difficulties with this. First, the argument assumes that the 2003 Act re-enacts with modifications the provisions in the 1997 Act, notwithstanding the differences in the name of the orders and the conditions attached to them, including the difference in the minimum period of the orders. Even if this difficulty can be overcome and the power to impose a Sexual Offences Prevention Order can be regarded as a re-enactment of the power to impose a Restraining Order, there is a further hurdle we do not consider can be overcome. The Respondent's argument assumes that what was done on 14 May was a "thing done" under the 1997 Act or had effect as if so done although by that date the 1997 Act had been repealed. It thus assumes the very matter at issue; the validity or effectiveness of what was done on 14 May. It would have been open to the Court to make a Restraining Order on 23 April but none was made. Indeed by 1 May, the date on which the 1997 Act and with it the power to make a Restraining Order was repealed, no application for such an order had been made by the prosecution. The application was made on 6 May. While section 155(5) provides as a default rule that an order made under the slip rule within 28 days is to have retrospective effect to the date the sentence was originally imposed, as a result of the judge's order, the default position under that provision did not apply. Accordingly, we have concluded that, while what was done on 14 May was "purportedly" done under the 1997 Act, by that date it could not have been done "under" that Act or have "had effect as if so done" because the 1997 Act had been repealed. The Respondent's submissions based on section 16 of the Interpretation Act and section 108 of the 2003 Act are similarly flawed. They also assume that a Restraining Order purportedly made under the 1997 Act after the date of its repeal is valid and effective so that it is capable of being saved by section 16 and varied, renewed or discharged under section 108. That this assumption is unwarranted can, for example, be seen from section 16(1)(b) which states that the repeal does not affect "anything duly done or suffered under" the enactment repealed (emphasis added). It follows that there was no power to make a Restraining Order with effect from 14 May and thus no order to be saved or preserved by section 16 of the Interpretation Act 1978 or capable of variation, renewal or discharge by section 108 of the 2003 Act.
21. We turn to the argument that the Court should exercise its discretion pursuant to section 11(3)(b) of the Criminal Appeal Act 1968 to replace the Restraining Order by a Sexual Offences Prevention Order in the same terms, but for a period of not less than five years.
22. Section 11(3) of the 1968 Act provides:

"On an appeal against sentence the Court of Appeal, if they consider that the Appellant should be sentenced differently for an offence for which he was dealt with by the court below may–

(a) quash any sentence or order which is the subject of the appeal; and

(b) in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence;

but the Court shall so exercise their powers under this subsection that, taking the case as a whole, the Appellant is not more severely dealt with on appeal than he was dealt with by the court below."

23. The Respondent's submissions on this are contained in the portion of its skeleton argument (paragraphs 5-17) which argues that the Restraining Order made in this case is valid. In paragraphs 6 and 7 it is submitted the offences for which this Appellant was convicted qualify for an Order under section 5A or section 104 and that both Orders can be made so long as the sentencer directs his mind to the correct qualifying test. In paragraph 8 it is submitted that notwithstanding the fact that the 1997 Act referred to the necessity of an order to protect from "serious harm" whereas the 2003 Act refers to necessity of an order to protect from "serious sexual harm", the definition of "serious sexual harm" in section 106(3) shows that what it is necessary to show under the 2003 Act is the same as what it was necessary to show under the 1997 Act. Section 106(3) provides:-

"'Protecting the public or any particular members of the public from serious sexual harm from the defendant' means protecting the public in the United Kingdom or any particular members of that public from serious physical or psychological harm, caused by the defendant committing one or more offences listed in Schedule 3."

24. The Respondent submits that this definition of "serious sexual harm" gives statutory form to the analysis of this Court in Beaney (skeleton argument paragraph 13), and that by virtue of it "serious sexual harm" is subsumed within "serious harm". In paragraph 14 it is submitted that, if the learned judge had been asked to make a Sexual Offences Prevention Order under section 104 of the 2003 Act on 14 May 2004 instead of a section 5A Restraining Order, he would have applied the same qualifying test and have reached the same conclusion, and, in paragraph 15 it is submitted that therefore the judge had power to make a Sexual Offences Prevention Order on 14 May 2004.
25. We accept, for the reasons set out below, that the judge in this case had power to make a Sexual Offences Prevention Order on 14 May 2004. We have noted that the offence committed by the Appellant under section 1 of the Protection of Children Act 1978 is listed in paragraph 13 of Schedule 3. By section 106(4) of the 2003 Act, a Sexual Offences Prevention Order may be made in respect of "acts, behaviour, convictions and findings" before the commencement of the 2003 Act provided that the requirements of section 104 are satisfied. By section 104(2) such Orders may be made where the Court deals with a defendant in respect of an offence listed in Schedule 3 or 5 to the 2003 Act. The behaviour for which the Appellant was convicted is thus not excluded because it occurred before 1 May 2004.
26. The central issue is whether the requirements of section 104 0f the 2003 Act are satisfied. Although prima facie the concept of "serious sexual harm" used in section 104 appears to be narrower than the concept of "serious harm" used in the 1997 Act, the definition in Section 106(3) broadens it by encompassing serious physical or psychological harm caused by the defendant committing one or more offences listed in Schedule 3. Does it, as Mr Hadfield argued, in effect embody the approach in Beaney? To the extent that the section provides that serious sexual harm includes psychological harm it does. Section 106(3) does not explicitly address the question whether a person who only downloads and views images contributes to the risk of psychological harm suffered by the children forced to pose or to participate in sexual conduct captured by the images. Nothing in it, however, suggests any difference in this respect from the regime under the 1997 Act. To this extent we agree with Mr Hadfield that in this respect the test under section 104 of the 2003 Act is substantially the same as that under the 1997 Act and that, on the approach taken by the Judge, he would have concluded that there was a risk of serious sexual harm from the Appellant. We observe that in Beaney two reasons were given for the conclusion that a person who downloads child pornography from the internet contributes to the harm of the children involved. One was that such persons provide a market for such images which encourages their production and dissemination and without which the trade would not flourish. The other was that the serious psychological injury to which the children would be at risk also arises from their knowledge that what they were to do would be viewed by others and their awareness that there were people getting a perverted thrill from watching them forced to pose and behave in this way. The learned judge relied on the first of these reasons, which in our view applies in all cases and does not depend, as the second reason does, on an assumption about the knowledge of the children involved.
27. Although the concepts of "serious harm" and "serious sexual harm" may be substantially similar, the application of the tests necessarily differs because, as a result of section 107(1)(b) of the 2003 Act, a Sexual Offences Prevention Order must be made for a period of not less than five years, or until further Order whereas orders under the 1997 Act could be for a shorter period. We have noted that in the present case the learned judge stated that he was not prepared to make an order for longer than three years. We cannot speculate as to whether he would have been so prepared to do so if he had been considering the provisions of the 2003 Act. Whether he would or he would not, and notwithstanding Miss Fagan not taking issue with an order for a period of five years in this case, we are required by section 11(3)(b) of the Criminal Appeal Act not to exercise our discretion so that, taking the case as a whole, an Appellant is dealt with more severely on appeal than he was dealt with by the court below. Accordingly, we have concluded that we are not able to impose a Sexual Offences Prevention Order in the circumstances of this case.
28. The consequence of the failure of the prosecuting authorities to apply for a Restraining Order on 23 April or to appreciate by 6 May when they made their application and on 14 May when the matter came before the Court that the 1997 Act had been repealed, is that the Order made on 14 May is invalid, of no effect and must be set aside. The consequence of section 107(1)(b) of the 2003 Act is that it is not possible for us to exercise our discretion under section 11(3) of the Criminal Appeal Act to make a Sexual Offences Prevention Order in respect of the Appellant. This appeal is allowed.