England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		26 January 2011

THE LORD CHIEF JUSTICE: I shall ask Mr Justice Simon to give the judgment of the court.

MR JUSTICE SIMON:

1. Both these cases raise an initial point as to the powers of the Court of Appeal Criminal Division on an appeal pursuant to section 110(3)(a) of the Sexual Offences Act 2003 in relation to a Sexual Offences Prevention Order ("SOPO"). They have been referred to the full court by the Registrar and we give leave.
2. The issue arises because the jurisdiction and powers of the Court of Appeal are based on statute and there is no express reference to this court's power in section 110 of the 2003 Act. This is in contrast to appeals to the Crown Court, where the Crown Court is given wide and express powers under section 110(4) of the 2003 Act, which provides:

"On an appeal under subsection (1)(c), (2) or (3)(b), the Crown Court may make such orders as may be necessary to give effect to its determination of the appeal, and may make such incidental or consequential orders as appear to it to be just."

3. In both of the present cases a SOPO was made by the Crown Court and in each case there was an appeal to the Court of Appeal against the sentence, although not as to the terms of the SOPO. There was then a subsequent application to the Crown Court to vary the terms of the SOPO under section 108. This section provides:

"(1) A person within subsection (2) may apply to the appropriate court for an order varying, renewing or discharging a sexual offences prevention order."

Subsections (2) and (3) of section 108 set out who may apply and the procedure for making an application. Section 108(4) provides:

"Subject to subsections (5) and (6), on the application the court, after hearing the person making the application and (if they wish to be heard) the other persons mentioned in subsection (2), may make any order, varying, renewing or discharging the sexual offences prevention order, that the court considers appropriate."

It follows that the Crown Court is vested with express powers to vary its own orders under section 108(4) and to vary orders on appeal from the magistrates' court under section 110(4).

4. Under section 110(3) a defendant may appeal

"against the making of an order under section 108, or the refusal to make an order --

(a) where the application for such an order was made to the Crown Court, to the Court of Appeal;

...."

Thus the Act envisages an application under section 108(1) to vary the terms of a SOPO, and an appeal against the Crown Court's refusal to vary the order under section 110(3).

5. The difficulty arises in relation to the powers of the Court of Appeal on the hearing of an appeal where the Crown Court has not varied the SOPO. Under section 9 of the Criminal Appeal Act 1968 a defendant who has been convicted of an offence on indictment may appeal to the Court of Appeal against the sentence passed on him. Section 50(1) of the 1968 Act defines a "sentence".

"In this Act, 'sentence', in relation to an offence, includes any order made by a court when dealing with an offender including, in particular ...."

There then follows a list of "orders" which have been introduced under statutory powers coming into force since 1968. The list is not exhaustive and the word "order" has been interpreted as including an order to pay the costs of the prosecution, although this is not specified in the list: see R v Hayden (1975) 60 Cr App R 304 (referred to in Archbold at 7-120). In Hayden the test was stated to be whether the order was "contingent on a conviction" in the Crown Court (see page 306).

6. If a "sentence" is defined broadly as "any order made by a court when dealing with an offender" on conviction, it would seem to follow that a refusal to make an order on an application to vary is an 'Order made by a court when dealing with an offender". Whether it is an order contingent on conviction might seem to be more questionable, but the Court of Appeal in Hayden seems to have intended to exclude orders which would be made whether or not the defendant was convicted: for example, an order that the defendant contribute to his own legal aid costs. If this is right it follows that:

(a) A defendant can apply to the Crown Court to vary a SOPO made by the Crown Court (section 108(1) of the 2003 Act);

(b) On the hearing of such an application the Crown Court can make an order varying, renewing or discharging the order (section 108(4));

(c) An order refusing to vary is an order made by a court when dealing with an offender and therefore a sentence (section 50(1) of the 1968 Act);

(d) A defendant can appeal to the Court of Appeal against the refusal of the Crown Court to make an order, including a variation (section 110(3)(a) of the 2003 Act);

(e) On such an appeal the Court of Appeal may quash the order and make another appropriate order since it is an appeal against sentence (section 11(3) of the 1968 Act).

7. Mr Mably, who appears for the prosecution, submits that such an interpretation is inconsistent with the scheme of section 110 read as a whole. This is because section 110(1) contains deeming provisions in respect of the initial making of a SOPO under section 104. Section 110(1) provides:

A defendant may appeal against the making of a sexual offences prevention order --

(a) where section 104(2) applied to him, as if the order were a sentence passed on him for the offence;

....

Mr Mably submits that this indicates that, but for the deeming subsection, the making of a SOPO would not be a sentence for the purposes of the Criminal Appeal Act 1968.

8. We agree at least to the extent that section 110 is not as clearly drafted as it might be. It may be that section 110(1)(a) and (b) were drafted as they were because of doubts as to whether every SOPO that was made could properly be described as a sentence or part of a sentence, although most clearly would be. In any event, we do not regard the deeming provisions of section 110(1), which was plainly intended to enlarge a right of appeal, as precluding this court from exercising its normal powers on an appeal in circumstances where a defendant is given an express right of appeal against the refusal to make an order on an application to the Crown Court to vary, by the terms of section 110(3)(a).
9. Both these cases demonstrate the importance of taking care over the form and the wording of a SOPO at the original sentencing hearing; and of applying promptly for leave to appeal if it is sought to argue that the SOPO should not have been made in the form that it was. Objections in principle to the terms of a SOPO imposed by the Crown Court should be raised by an appeal to the Court of Appeal and not by subsequent applications to vary to the Crown Court. Despite this, there may be cases where the form or wording of an order raises difficulties which could not have been anticipated at the time the order was made. Where the defendant relies on particular and unanticipated difficulties arising from the form and/or wording of the order, those difficulties should be identified promptly (in writing and with particularity) and sent to the prosecuting authority so as to see whether the matter can be put before the Crown Court on an agreed basis and in any event to narrow the area of dispute.
10. Although minor but necessary adjustments to the order may be required, in which case application should be made to the Crown Court to vary the order, in circumstances where a defendant has not appealed to the Court of Appeal, we would not expect the Crown Court to make other than minor adjustments to the term of the order, at least in the short term.
11. Usually the defendant will need to rely on a change of circumstances. In such a case, the Crown Court will need to be satisfied that the order in its original form is no longer necessary for the statutory purpose of protecting the public (or particular members of the public) from serious sexual harm from the defendant, or that those objectives can properly and sufficiently be secured by the proposed variation.
12. Section 108(4) makes clear by the use of the word "may" that the Crown Court exercises a discretion. In general, this court will only allow an appeal from an order of the Crown Court refusing to vary a SOPO if the judge has reached a view which is unreasonable or is outwith what is a broad discretion.
13. As we have noted, section 108 vests the Crown Court with a power to vary and section 110 vests this court with power to hear an appeal from the Crown Court and (where appropriate) to vary the order of the Crown Court. The next issue is whether the court should exercise its powers in these cases.

Terence Hoath

14. On 16 April 2007, at Canterbury Crown Court, this appellant pleaded guilty to fifteen counts of making indecent photographs of a child (counts 1 to 15), nine counts of distributing indecent photographs of a child (counts 16 to 24), and a single count of possession of indecent photographs of a child (count 25). On 10 May 2007 he was sentenced to an extended sentence of five years, comprising a custodial term of three years and an extended licence period of two years concurrent on counts 4, 5, 6 and 7, with shorter terms of immediate imprisonment on the other counts to be served concurrently. He was also made the subject of a SOPO indefinitely.
15. The facts can be stated shortly. They are set out in the judgment of this court on 15 February 2008 in refusing the renewed application for leave to appeal against sentence:

4. .... On 24 January 2006 police officers executed a search warrant at his house following the use of his credit card on-line. He was arrested and his computer equipment was taken away for analysis. In interview he said he hoped to contact mothers with young daughters and share fantasies with others, including sending and receiving indecent images. The examination of his computer revealed a moderately large number of indecent images: approximately 100 at Level 4 and 14 at Level 5 on the scale identified in Oliver.

5. His chat room conversation was also examined. It revealed extreme fantasies involving sexual abuse, degradation, torture, and on one occasion even the murder, of young girls. Part of the currency for those exchanges was the sending and receiving of indecent images. He had received a considerable quantity of images to keep the conversation going, and of the images he sent .... 25 were at Level 4 and 6 were at Level 5. They included young girls bound and gagged and a baby being penetrated.

6. He was sentenced on the basis that this activity occurred over a period of about three years. He was able to put before the court evidence of excellent conduct in his ordinary life but, as the judge described him, he was a Jekyll and Hyde figure. ...."

16. On 28 September 2009 Her Honour Judge Williams refused an application to vary or discharge the terms of the SOPO under section 108 of the 2003 Act. The SOPO included four prohibitions:

1. Owning, having in his possession or obtaining access to any computer, laptop or other equipment capable of accessing the internet, save at his place of employment, or at any library or other educational establishment.

2. Using any computer or other equipment capable of accessing the internet, save at his place of employment or at a library or other educational establishment.

3. Undertaking any work or other activity, whether paid, unpaid or voluntary, which exposes him to unsupervised contact with any child under the age of 18.

4. Not to reside in any address whether there is a child under the age of 18 and not to have any unsupervised access to a child under the age of 18.

17. The appellant was convicted of serious offences in relation to making and distributing indecent images of children, of which a number were at levels 4 and 5, the highest levels of indecency. It cannot be suggested that the SOPO was wrong at the time of the sentence, as a matter of principle; and, in any event, it did not form part of the application for leave to appeal against the sentence, which was considered and refused by the full court.
18. It was argued before Her Honour Judge Williams that none of the four prohibitions was necessary. A number of the points raised before the judge have been repeated today in the course of submissions on behalf of the appellant by Ms Muir Wilson. She submits that although the appellant has now been released from custody, he was unable to return home because his 16 year old stepdaughter still lived there and he had to live with his wife's elderly parents. This particular point has now been overtaken by the passing of time because the stepdaughter is now aged 18 and there is no inhibition on him living at home. Secondly, the appellant has a business and is self-employed and the prohibition against using computers and accessing the internet inhibits this. He wishes to use the internet so as to work from home. We note, however, that there appears to be no significant practical difficulty in asking someone else to access the internet on behalf of his business and use the equipment on his behalf. Ms Muir Wilson submits that the terms of the SOPO are unnecessary to meet their purpose, which is public protection. She submits, somewhat tentatively, that there should be a variation to enable him to have a computer when appropriate software has been downloaded on the computer.
19. We are not persuaded by these submissions. Ms Muir Wilson concedes that the order has very little impact on third parties. The judge heard from the appellant's offender manager, Ms Walchak, who regarded the SOPO conditions as a necessary and proportionate measure, bearing in mind the seriousness of the offences. The appellant is still on licence and the terms of the licence mirror the terms of the SOPO for the reasons given by Ms Walchak. Ms Walchak also noted that the appellant accepted that the risk he posed would always be present and would need to be managed; and that to the extent that the order affected his work, he would be able to adapt to it.
20. In refusing to vary the order the judge said this:

"In my judgment it is simply too soon to remove any of the restrictions imposed by the SOPO. The [appellant] is doing well in rehabilitating himself and should be commended for that, but the severity of the offending in the first place, the lack of a clearly identified motivation for the offending and the length of that offending, all combine to lead me to the conclusion that at present this application is simply premature. The application will be far better made at the expiration of the licence conditions in August 2011.

I have been taken through all the conditions of the SOPO in considerable detail. It is of great concern to this court that the way in which the application is put is, effectively, on the basis that the risk management is no longer necessary. The [appellant] has, on the other hand, acknowledged to Miss Walchak that the risk would always be there and of course it is a question of managing that risk."

21. Those conclusions, with the suggestion that a further application might be made in August 2011, cannot properly be challenged on appeal. Accordingly, this appeal is dismissed.

Terence Edward Standage

22. On 3 May 2007, at Birmingham Magistrates' Court, this appellant pleaded to an offence of attempting to engage in sexual activity with a child under the age of 13, and was committed to the Crown Court for sentence. On 9 August he pleaded guilty to a number of further offences which had come to light. These were 23 offences of making indecent photographs of a child, contrary to section 1(1) of the Protection of Children Act 1978. In respect of these offences, too, the appellant was committed to the Crown Court.
23. On 23 August 2007 he was sentenced to six years' imprisonment for the attempt offence and six years' imprisonment concurrent for all of the section 1(1) offences. The total sentence was six years' imprisonment, and he was also made the subject of a SOPO.
24. On 16 June 2008 this court (differently constituted) allowed an appeal against sentence and substituted sentences of two-and-a-half years' imprisonment for the offences of making indecent photographs and twelve months' imprisonment, consecutive, for the offence of attempting to engage in sexual activity with a child. The total sentence was thus three-and-a-half years' imprisonment. There was no appeal against the terms of the SOPO.
25. Subsequently, on 22 December 2008 his solicitors applied to vary the SOPO under section 108 of the 2003 Act. That application was heard by His Honour Judge Gregory on 29 January 2009 and resulted in the refusal of the application.
26. The facts in relation to the offences were that the appellant engaged an 11 year old girl on an internet chat line. He turned his web camera on and proceeded to masturbate openly in front of the camera. The girl's mother was alerted. She carried on the contact with the appellant while calling the police, who arrived and saw the appellant masturbating via the computer. The police traced him. He was a registered sex offender and he was arrested.
27. The girl subsequently revealed that she had chatted with the appellant over the internet on three or four occasions and that he had told her he was 48. She disclosed that in one of their conversations he had asked her to undo her top.
28. When interviewed, the appellant said that he initially thought the girl was 17 but later found out she was 11. He admitted that he had engaged other children in conversations over the internet and had asked them to show him various body parts. He also admitted that he had an unhealthy sexual appetite for females between the age of 9 and 13. He accepted that his attraction was wrong, but said that he could not help it.
29. His computer was seized following his arrest. Upon examination it was found to contain indecent images of children. There were a total of 893 images, of which 27 were at level 3, 64 at level 4 and four at level 5.
30. The police also recovered a video camcorder on which were recordings of the appellant's partner's children, which showed him zooming in on their bottoms and other body parts.
31. There were eight prohibitions in the SOPO, but the application before the Crown Court focused on two: paragraphs (2) and (6). Paragraph (2) prohibited the appellant from:

"Residing in any private dwelling where a male or female child under the age of 18 is present without the written permission of the Chief Constable of the West Midlands Police or appropriate police force for the area in which the defendant resides."

Paragraph (6) prohibited the applicant from:

"engaging in any conversation with, enticing, approaching or associating with, telephoning, arranging to meet or otherwise contacting or seeking to contact by any means any person under the age of 18 without the written permission of the Chief Constable of the West Midlands Police or the appropriate police force for the area in which the [appellant] resides."

32. The appellant was born in 1959 and is now aged 52. He had been cautioned for indecent exposure in 2000 and for sexual assault on a child under the age of 13 in 2006.
33. His Honour Judge Gregory doubted whether he had the power to vary the SOPO where the complaint was as to its breadth, since that was a matter for the Court of Appeal. In his view the powers under section 108(3) should be exercised where there was a change of circumstances. With that we agree. However, he was prepared to deal pragmatically with the complaint about paragraph (6) to make the terms more specific so that the appellant knew what he could and what he could not do. The appellant appears to have refused to confine the application to vary, and so the judge refused the application.
34. It is apparent from the Grounds of Appeal and from the argument of Ms Meads (who did not appear below) that the complaint in relation to the SOPO now extends very considerably beyond the terms of paragraphs (2) and (6). It is said, first, that the fact that it is indefinite rather than stated to be "until further order" is objectionable: see R v Sturt [2009] EWCA Crim 77. Secondly, paragraphs (3) and (6) prevent the appellant being served in a shop by a person under the age of 18. Thirdly, paragraph (8) prevents him using a computer in the course of his employment or study. Fourthly, the appellant was prevented by the terms of the order from having contact with his 17 year old son. Fifthly, paragraphs (1) and (4) could be redrafted by adding the words "inadvertent" in paragraph (1) and "unsupervised" in paragraph (4). The general point is made that the SOPO has not been tailored to the appellant's particular case.
35. In our view the application as it is now put before the court is not an application for a variation at all. It is an appeal (substantially out of time) as to the ambit of the original order, when no such objection was made on the previous hearing before the Court of Appeal. In addition, the basis of the argument has now departed very significantly from what was advanced at the Crown Court.
36. It appears that in April 2010 the appellant was sentenced in respect of further sexual offences to a term of ten years and six months' imprisonment. The effect of this sentence is that he will not be due for release on licence until July 2015. It follows that, at least at the moment, the SOPO is of no practical effect.
37. In these circumstances it seems to us that it would be wrong to vary this order when there is no immediate likelihood of the appellant's release. At a later stage both the appellant and the Crown Court may have the benefit of an up-to-date report from his offender manager, including information about his licence conditions. At that stage the court may be invited to consider the wider points of principle which are advanced by Ms Meads.
38. For these reasons this appeal is dismissed.

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