England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Thursday, 27th JULY 2006

1. MR JUSTICE GRAY: This is an appeal against a Sexual Offences Prevention Order (to which we will refer as "a SOPO" brought with the leave of the Single Judge.
2. The SOPO in this case was imposed in the following circumstances. Nearly 3 years ago, on 20th August 2003, at Lime Street railway station in Liverpool the appellant, Kim Rampley, stood behind a female who was waiting to get off a train. He squeezed her bottom with both hands and growled towards her. He then did the same again, whereupon the female left the train. The Liverpool Magistrates' Court, on 23rd September 2003, sentenced the appellant to a 3 year community rehabilitation order in respect of that assault.
3. The facts of the instant offence, which was committed in March 2006, were these. At about 6.15 pm on 9th March 2006 a 15 year old girl was on a platform at Manchester Piccadilly railway station with her mother and her aunt. The appellant stood next to the girl and touched her bottom. The girl's mother saw this and asked what he was doing, at which stage the appellant moved his hand to the girl's belt. The mother shouted: "Get your hands off my daughter" and went to hit the appellant's hand but she missed. The appellant said he was only touching the girl's belt and the mother said: "Well don't." The mother later pointed out the appellant and he was arrested.
4. When interviewed he made no comment.
5. The appellant pleaded guilty to the offence and was committed to the Crown Court for sentence. On 19th May 2006, in the Crown Court at Manchester, the appellant was sentenced by His Honour Henshall as follows: for the sexual assault on the 9th March 2006, a term of 9 months' imprisonment was imposed. The commission of that offence was a breach of the community rehabilitation order which, as we have said, had been imposed back in 2003. For that breach the appellant was sentenced to a consecutive term of 3 months' imprisonment. The total sentence therefore was one of 12 months' imprisonment. The learned judge directed that 70 days spent on remand should count towards sentence.
6. What is relevant for present purposes is that the learned judge also imposed a SOPO the terms of which are, broadly speaking, conventional in this kind of case. We will return to the terms of the order shortly.
7. Before that, however, it is material for the purposes of this appeal to mention the fact, firstly, that in addition to the two offences already mentioned, this appellant has a number of further previous convictions for sexual offences. In particular, he was on 5th April 2002 sentenced to a 12 month community rehabilitation order by the magistrates for indecent exposure with intent to insult a female. Further, on 14th May 2002, not long afterwards, the appellant was conditionally discharged for 12 months for having committed an act outraging public decency. We note also that there are a great number of previous convictions for drunkenness.
8. The second material fact which we should mention is that at the time of the instant offence the appellant was on bail for yet another public order offence which he was alleged to have committed against a 15 year old girl, an offence which we are told also had sexual overtones.
9. There was, further, before the sentencing court a document which evidences police concerns about the conduct of the appellant on a number of other occasions.
10. The appellant is now aged 53. We have two reports about him. Firstly, there is a helpful pre-sentence report which records the appellant as not having accepted culpability for the instant offence. It is said he could not recall planning or committing it, although he does accept that he did commit an act of indecency by touching the girl's bottom. The report also describes a long-term excessive drinking habit. The author of the report considers that the appellant has an established pattern of sexually inappropriate behaviour. He has been now under continuous supervision since April 2002. The sexually intimidating behaviour usually occurs after the appellant has drunk alcohol. It has escalated from exposing himself to masturbating in front of females late at night and on occasions to indecently assaulting females. On each occasion the appellant afterwards claimed, and we have no reason to doubt him, that he remembers nothing about the offence.
11. Also before the sentencing court was a psychological report from Dr Hossack, who concluded that the appellant's coping style was flawed and dysfunctional and that he had traits which impaired the level of personal insight needed to stop him re-offending. In the psychologist's opinion he remains a risk to young naive individuals likely to be females.
12. When he came to sentence the appellant His Honour Judge Henshall noted that at the time of the offence the appellant had been on bail for an offence involving a 15 year old girl and was also subject to a community rehabilitation order. The learned judge said he took account of the two reports to which we have referred whilst he considered that the risk of further specified offences was significant, he felt unable to say that there was a risk of serious harm. For that reason the learned judge imposed a standard determinate term.
13. However, the learned judge considered that the offence was aggravated by the repetitious nature of the appellant's behaviour and his failure to respond to a benefit from the courses he had completed. There was also an element, in the judge's view, of targeting particular victims and frequenting places such as railway stations to commit the offences. He considered that there was in the appellant's character an obsessive streak involving sexual behaviour. The judge then imposed the sentence to which we have already referred.
14. As we have indicated, no complaint is made on behalf of the appellant about the determinate sentence imposed for the instant offence or about the 3 month sentence for breach of the community rehabilitation order. As to the SOPO, which the learned judge was invited to make, the judge said this:

"As to the [SOPO], having considered that matter, Section 104 [of the Sexual Offences Act 2003] requires that I must be satisfied that it is necessary to protect the public from what is described in the Act as serious sexual harm, which means and includes serious physical or psychological harm. Whilst similar to, it is not in my judgment precisely the same as that required under the Criminal Justice Act 2003 Section 224 sub-section (3), which includes death or serious physical injury, which also includes psychological harm, and in my judgment, the conditions for a [SOPO] are in this case fully made out, and the order will be made in the terms that have been drafted, with the exception of paragraph six and seven will not apply. The length of the order will be until further notice."

15. Before us today, Mr Vollenweider has made submissions which are clear and well thought out and we are grateful for them. He opened the case by conceding that, as the learned Single Judge had indicated it is not arguable that the terms of the SOPO which was in fact imposed in this case were inappropriate or excessive. Accordingly, Mr Vollenweider did not pursue his complaint in respect of the width of some of the provisions of the SOPO.
16. As to that, we would only say this. We consider that paragraphs 3 of the order which was imposed and approved in the case of Re: H broadly corresponds with a paragraph of SOPO which was imposed in the present case. We do not accept that the words "stay overnight" are imprecise or too wide. As to paragraph 4 of the present SOPO, we consider that its terms are clear. So we would not have upheld an appeal in relation to the terms of the order.
17. The point which is pursued by Mr Vollenweider is this. He contends that the finding of the learned judge that the appellant did not pose a risk of serious harm to the public harm, within the meaning of section 229 of the Criminal Justice Act 2003 precluded him from making an order under section 104 of the Sexual Offences Act 2003 because under the latter statute it must be shown that the order is necessary to protect the public from serious sexual harm. That requirement is, according to the argument of Mr Vollenweider, materially indistinguishable from the condition which must be satisfied before an order can be made under section 229 of the Criminal Justice Act.
18. We turn to the relevant provisions starting with section 229 of the Criminal Justice Act 2003, which so far as material, is in these terms:

"(1) This section applies where--

(a) a person has been convicted of a specified offence, and

(b) it falls to a court to assess under any of sections 225 to 228 whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences."

We need read no more of the section.

19. Before leaving that Act, however, we should refer to section 224(3) which defines "serious harm" to mean "death or serious personal injury whether physical or psychological". For the purpose of the argument before us those are key words in the Criminal Justice Act 2003.
20. We turn now to section 104 of the Sexual Offences Act 2003 which provides at section 104(1):

"(1) A court may make an order under this section in respect of a person ('the defendant') where any of subsections (2) to (4) applies to the defendant and--

(a) where subsection (4) applies, it is satisfied that the defendant's behaviour since the appropriate date makes it necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant;

(b) in any other case, it is satisfied that it is necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant."

In section 106(3) s the words "protecting the public or any members of the public from serious sexual harm from the defendant" are defined to mean "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."Those are the key words in the Sexual Offences Act 2003.

21. Plainly the terminology employed in the two Acts is very similar. It is difficult to see why "serious harm" in the Criminal Justice Act should not in an appropriate case include "sexual harm." There are, however, differences. The first is that under the Criminal Justice Act the risk has to be shown to be "significant", whereas there is no corresponding requirement under the Sexual Offences Act. Secondly, an SOPO lasts for not less than 5 years, whereas there is no such provision in section 229 of the Criminal Justice Act, which provides for the imposition of a life sentence in a case of an offender who is over 18.
22. The third and, to our mind, most material distinction between the two Acts is what we consider to be the difference in degree between the serious harm needed under the respective Acts. Section 229 of the Criminal Justice Act, 2003 defines serious harm to mean death or serious personal injury, whether physical or psychological, whereas the serious sexual harm required under section 104 of the Sexual Offences Act 2003, is defined simply as including serious physical or psychological harm. As we say, we consider that there is a difference of degree. Moreover, we note that section 229 is expressed in terms of injury, whereas section 104 talks of physical or psychological harm. We consider that there is a qualitative difference between the concept of injury and the concept of harm.
23. We fully recognise, however, that distinction between the two sections is a fine one. But distinction, in our judgment, there is. Accordingly we take the view that the judge was entitled to make an order under section 104, notwithstanding his decision not to make an order under section 229. In those circumstances, the appeal against the making of the SOPO must be dismissed.
24. We only add that we consider that the judge was entirely right in his conclusion that this was a case where it is not only appropriate but also necessary to make a restraining order against a man who has unfortunately, for reasons much to do with alcohol, become a menace to females. Although it was not included in his formal grounds of appeal Mr Vollenweider, at the close of his submissions, invited us to amend the SOPO, if we were intending to uphold the order, by setting a determinate term rather than providing that remains in existence until further order. We have some sympathy with that submission, not least because of the age of the appellant. As we have said he is now aged 53. We think that there are advantages in the appellant knowing that there is a finite term to the order. We are therefore prepared to direct that the order should last for 7 years. If there is any breach of the order by the appellant, application can be made either to increase the term of the order or to reinstate the provision that it should continue until further order.