England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		No: 200703760/D4 Royal Courts of Justice Strand London, WC2A 2LL
		29th April 2008

1. Mr Justice Blake: On 7th March 2007, in the Crown Court at Croydon, Mr Odam, this applicant, was convicted following a retrial of an offence of exposure contrary to section 66 of the Sexual Offences Act 2003. At the first trial the jury was unable to agree a verdict. The matter was then adjourned for reports. On 15th June 2007 he was sentenced to a community order with one term only, namely that he was to carry out 120 hours unpaid work. He was ordered to pay prosecution costs. In the course of his sentencing remarks the learned judge indicated that as a result of his conviction he was subject to the notification requirements of section 80 of the Sexual Offences Act, reporting his residence annually to the police for the period of five years.
2. The applicant seeks to appeal out of time against his conviction. The reason why the matter is out of time is that he did not seek to lodge grounds of appeal against his conviction after his conviction in March, but awaited until the sentencing hearing, he says upon the advice of his then counsel. But he did lodge the papers shortly after he was sentenced in June 2007. It appears that he was unhappy with the representation he received on his second trial. Consequently there was a waiver of legal privilege and we have had the advantage of hearing what his counsel had to say about the second trial on these matters. She has made it plain that she did not advise positively in respect of any ground of appeal against conviction. There is another unfortunate factor in this case in that the transcript of the judge's summing-up to the jury is not available because of mechanical failure.
3. The applicant has, however, sent very many written documents explaining his case to the office of the registrar in the intervening ten months or so since his sentence. We have carefully read each of those documents. He has appeared before us to supplement his submissions. Essentially he indicates that the jury were in error in being satisfied of his guilt on the second trial. He says that he has an innocent explanation for his confrontation with the person who reported the matter to the police, that was in respect of her conduct with her dogs. He points out, as is the case, that he has substantial evidence, that was before the jury, of his positive good character, and has brought to our attention comments and letters he has received since this matter came to public attention, indicating that it was very much out of the character. A lot of his personal background is before us in one way or another.
4. The difficulty is that all those matters as to who was to be believed were issues for the jury at his trial and not matters for us. We cannot interfere with the verdict of the jury unless there is a sound legal basis to do so by way of misdirection or procedural irregularity or fresh evidence of a compelling and conclusive variety that goes to the heart of this issue. Understandably, for one reason and another, none of those features arise in this cases.
5. We therefore conclude in respect of conviction there are no grounds which could conceivably allow us to interfere with the verdict of this jury to indicate that this or another court might conclude that this conviction was unsafe. Therefore, we refuse the application for an extension of time to appeal against conviction.
6. There is one matter, however, upon which it is appropriate to comment. As indicated, the learned judge said in his sentencing remarks that the applicant would be subject to the notification requirements for a period of five years. It has been drawn to our attention that that may be wrong, although the legislation is somewhat technical. In this matter any person convicted of an offence contrary to section 66 would only be subject to notification requirements if he had been sentenced to a community order of at least 12 months. One obtains that from Schedule 3 of the Sexual Offences Act 2003 paragraph 32. In this case, as indicated, a community order was imposed, but the only requirement was an unpaid work requirement. The learned judge did not indicate the length of time of the community order itself, but it was apparent that the unpaid work element would come to an end pursuant to section 200 of the Criminal Justice Act 2003 when the period of unpaid work was completed.
7. We have been informed that Mr Odam completed his work requirement very promptly and well within the period specified in the Schedule drawing up the sentence. The record indicates that the requirement had to be completed by 14th June, which is one day short within the 12 month period, but, in fact, it had been completed well before that, on 23rd October 2007.
8. By virtue of section 200(3) of the Criminal Justice Act 2003 a community order containing an unpaid work requirement order comes to an end when the work has been completed. In those circumstances, we conclude that the applicant was not sentenced, as it turns out, to a community order of at least 12 months. His community order lasted in fact some four and a half months and four and a half months only.
9. Therefore, it appears to us that as a matter of law the applicant was not subject to the notification requirements under section 80. Although there is no right of appeal against notification requirements, as the House of Lords made plain in Longworth [2006] UKHL 1, it is appropriate to correct any errors made in the sentencing remarks which may have misled the applicant as to his position. Therefore, we conclude that, although there is no power to interfere with this conviction the applicant has completed the community order sentence and he is not subject to the notification requirements.
10. THE APPLICANT: I came here to -- I have spent the two past two years fighting to prove my innocence. Does this now mean that I don't have to go back to the police, or all the rest of it?
11. MR JUSTICE BLAKE: We have indicated that you are not subject to the notification requirements.
12. THE APPLICANT: All right. But is everything in writing because (inaudible).
13. MR JUSTICE FORBES: What I suggest you do, Mr Odam, is draw the attention of the judgment of this court to the police station with whom you have currently lodged your notification details.
14. MR JUSTICE BLAKE: It is a complicated area which takes a little --
15. THE APPLICANT: When I apply does it mean I don't have to worry about --
16. MR JUSTICE FORBES: Well, in order to try and assist ... (Pause) ... We are going to direct that you should be provided with a transcript of this judgment at public expense and that will enable you to take it to your local police station, draw their attention to the relevant paragraphs, so that it should then be possible to deal with this aspect of the matter on an administrative basis.
17. THE APPLICANT: Innocence is all over and done with?
18. MR JUSTICE FORBES: The judgment of this court is that, given the nature of the sentence imposed on you, there was no power to require you to notify your details to the police in accordance with the Act. Regrettably there is no right of appeal against such an order. However, the fact that such an order should not have been made in your case has been recorded in the judgment given by my Lord -- the judgment of the court given by my Lord. We have directed that you should have a copy of that judgment at public expense. You should then take it to the police station where your details are currently registered so that they can record the fact that there was no requirement on you to be -- to register your details and that that order should not have been made. All right.
19. THE APPLICANT: Thank you very much. Can I have the --
20. MR JUSTICE FORBES: The newspapers have been handed down. Thank you, Mr Odam.