England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		27 January 2009

1. LORD JUSTICE LATHAM: On 26 August 2005, in the Crown Court at Liverpool, this appellant was convicted of two counts of rape of a child under 13, three counts of causing or inciting a child under 13 to engage in sexual activity, and one count of sexual assault on a child under 13. He was acquitted of two other counts of rape in that same indictment. On 17 October 2005, he was sentenced to 30 months' detention under section 91 of the Powers of the Criminal Courts (Sentencing) Act 2000 on each count concurrent.
2. Having been convicted of those offences, the consequence of the sentence of 30 months' detention was that he was required to comply with the provisions of Part II of the Act, that is the notification provisions of the Act, for an indefinite period. On 16 January 2006, he was granted leave to appeal against that sentence by the Single Judge, but on 2 February 2006 that appeal was dismissed.
3. The matter returns to this court under a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995. The basis of the reference is essentially that the court did not take into consideration either at first instance, or on appeal, the consequences of a sentence of 30 months' imprisonment. Bearing in mind, in particular, the provisions of Article 8 of the European Convention on Human Rights, the consequences could be said to have been disproportionate in the context of the conviction of this appellant, considering, which is the critical feature, that this appellant was, at the time of the commission of the offences, 11 years old. He was 13 at the time of his sentence.
4. The Divisional Court considered an application for judicial review in relation to this case at the same time as this appeal first came before this court at the end of last year; and in a reserved judgment it held that the provisions of Part II of the Sexual Offences Act 2003, in particular in so far as they related to sentences imposed on young persons, were not in conformity with the requirements of Article 8. The particular ground upon which this court considered that the provisions were not in conformity with the Convention were that neither in relation to adults, nor in particular in relation to children, was there any opportunity for those who had been sentenced to a sentence of 30 months, or more, to establish that the notification requirements were no longer a proportionate response to any danger that they may have presented, and accordingly were in breach of the requirements of Article 8.
5. The appellant today through his counsel, Mr Southey, submits that the reference is well made. He submits that despite the fact that this court, on 2 February 2006, held that a sentence of 30 months' detention was neither wrong in principle nor manifestly excessive, neither that court, nor indeed, as we have indicated, the sentencing judge had had drawn to its attention the consequences of that particular sentence in terms of the notification requirements.
6. It is submitted that had the courts in fact been made aware of those notification requirements they would have appreciated that the cutoff point of 30 months produced a disproportionate consequence, which would have resulted, it is submitted, in a lesser sentence. The lesser sentence, pursuant to Part II of the Act, would have been one whereby he would have been subject to a requirement to notify the police, that is the notification requirement, for a period of five years, as opposed to indefinitely.
7. Mr Southey does not shrink from arguing that we are, in a sense, consequent upon the decision of the Divisional Court, in a position where in order for this court to comply with its obligations under Article 8, required to take into account the notification provisions. In doing so, we must be driven, he submits, to the conclusion that it is inappropriate for the sentence to remain as it is.
8. In order to evaluate those arguments it is necessary to say something about the facts and, secondly, something about the position of the appellant both at the time of the original sentence and appeal, and now. The facts were that the appellant and the complainant were members of families who lived next door to each other. The complainant would go to the appellant's house and play with the appellant. The appellant was, at the time, for his age, quite a large young boy. The complainant was six years of age. One day when he came home the complainant told his mother that the appellant had wanted him to play a wrestling game. When asked what he meant the complainant said, "He wanted me to suck his willy". During further questioning from his mother he said that the appellant had asked him to play games such as "Lick the hairs" and "Willy up the bum".
9. The complainant's mother told the appellant's mother. The appellant was asked about it by his mother and denied it. His mother, nonetheless, thought the matter needed to be reported. That was much to her credit, although it must have caused her great distress.
10. The police therefore became involved. The complainant was interviewed. He said that the appellant had placed his penis in his (the complainant's) mouth on one occasion and in his anus on another occasion and the appellant had forced the complainant to do the same to him. The complainant described masturbating the appellant and said that the appellant had sucked his penis. The appellant was arrested.
11. When interviewed he denied committing the offences. He said that all he and the complainant had done was to play computer games together. He persisted in his denial to trial; but he was ultimately, as we have indicated, convicted.
12. It can be seen from the description of the offending that despite the appellant's age these were serious and significant sexual offences. They were offences which at the time that the judge originally dealt with the matter the appellant was still denying. In those circumstances it is not surprising that he concluded that the appropriate sentence was one of 30 months' detention. That was the conclusion of the Court of Appeal.
13. It should be said, however, that in the period of his detention the appellant had come eventually to admit what he had done, which was a significant step forward in terms of assessing the level of risk that he posed. It was clear, so long as he denied the offences, that the risk for the future was likely to be high. Nonetheless, the risk was such at the time of appeal that clearly the sentence of 30 months' detention remained appropriate.
14. There has, since the appeal, been a further evaluation of the risk that this young man now presents. He is, of course, now out of detention. He is at home and has had the opportunity to undergo some courses. The latest assessment that we have, which is, we believe, some six months old now, shows that he is considered to present a low to medium risk for the future. That, of course, remains a risk which is significantly higher than the risk which would be presented by any ordinary adolescent of this appellant's age.
15. We have to consider in those circumstances the extent to which we can accede to Mr Southey's submissions. The consequence of the decision of this court in Attorney General's Reference No. 50 of 1997[1998] 2 Cr App R (S) 155, BAILII: [1997] EWCA Crim 3208, is that as a matter of principle the courts should not reduce a sentence to limit the extent of an offender's obligation to register under the Sex Offenders Act 1997. That decision has been underlined in further decisions of this court. This principle was applied in the case of R v H [2007] EWCA Crim 2622. The basis upon which that principle stands is that the court is the determining body as to the appropriate sentence; parliament has decreed what the consequence of that sentence should be in terms of the notification requirements, which do not form part of the penalty in the strict sense.
16. However, the Divisional Court in the application by this appellant made it plain that it concluded that Article 8 was engaged by the notification requirements. The consequence of the cutoff period of 30 months, particularly in relation to children, produced notification requirements which were disproportionate in all the circumstances. Repeating what we have said earlier, the consequence is that if the sentence is less than 30 months' detention the notification period is only five years, whereas if it is 30 months, or more, it is indefinite. One simply has to state that to show the extraordinary difference in consequence, which the Divisional Court concluded was unjustified in Article 8 terms.
17. What the Divisional Court's decision did not say was, however, that in circumstances such as this a period of five years was the appropriate consequence. That was not the function of the Divisional Court. The decision of the Divisional Court was based on the premise that, in particular, in relation to juveniles, there should be an opportunity for the offender in question to be able to establish that he, or she, no longer presented the sort of risk which justified a notification requirements remaining in place.
18. It follows that the argument of Mr Southey that we should reduce the sentence in order to produce compliance with Article 8 is not one which is compelled by logic. In our judgment we are required to conclude that the sentence, as this court has already said, is one which is a sentence that cannot be categorised as wrong in principle or manifestly excessive.
19. What we can do, however, is to underline the consequence of the Divisional Court's decision in this case, which is that the consequence of an indefinite notification period is one that is disproportionate in so far as it precludes an opportunity for review. For a person, who is a child of 11, who commits an offence, or offences, such as these to be required to be subject to the notification provisions for the rest of his or her life produces, albeit not strictly a penalty, a consequence which is disproportionately harsh. It was for that reason that the Divisional Court came to its conclusion.
20. We dismiss the appeal.
21. MR SOUTHEY: I just raise one matter with the court. I am conscious of the fact that obviously this is the Divisional Court of judgment on appeal. It is not impossible, depending on the outcome and importance of the issues raised, that it will go further.
22. LORD JUSTICE LATHAM: It might even go to the House of Lords.
23. MR SOUTHEY: What I have been contemplating is whether it would be appropriate, in those circumstances, for this court to certify a question not least because if that were to be done -- I am not necessarily suggesting that an appeal would be likely or would even necessarily be appropriate. If the Divisional Court's judgment does not go forward, but at the same time were the Divisional Court's judgment to go to the House of Lords, which is a possibility, it seems to me there would be some merit in both sides of the coin potentially being before the House of Lords. The House of Lords has jurisdiction in those circumstances, I am wondering whether it will be appropriate to certify a question.
24. LORD JUSTICE LATHAM: What question would you want to certify? You cannot say, "something like". We need to look at what the question is.
25. MR SOUTHEY: I recognise that. One of the difficulties I find myself in, in these circumstances, is on one's feet, having listened to the judgment, it is not the best time to draft question. What I would ask for is to have the court's leave to submit a draft within 14 days, bearing in mind the comments I have just made. The sort of thing I am thinking about would be something along the lines, "Is it open to a sentencing court to take account of the registration period when imposing a sentence in order to comply with Article 8 of the European Convention?" Something along those lines.
26. LORD JUSTICE LATHAM: Mr Kemp, do you have anything to say?
27. MR KEMP: Not at this stage, my Lord, no.
28. LORD JUSTICE LATHAM: Mr Southey, we will give you the opportunity to put before us a question which we can then consider. We will be grateful if you can please provide it within 14 days. Thank you very much indeed.