England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2(A 2LL
		10 May 2012

1. THE VICE PRESIDENT: This appellant appeals against a conviction for breach of a Sexual Offences Prevention Order notwithstanding that he pleaded guilty at the time of his arraignment.
2. The history is this. On 11th February 2005 in the Crown Court, the defendant pleaded guilty to a large number of offences of possessing indecent images of children. He was sentenced to 12 months' imprisonment with an extended licence period of three-and-a-half years. Additionally, the sentencing judge announced the making of a Sexual Offences Prevention Order. He did so in these terms:

"I am going to make a prevention order under the Sexual Offences Act, preventing you taking unaccompanied children - outside a member of your family, a relation - in the course of any work which you undertake."

The reasoning of that appears to have been that the defendant had some either full or part-time occupation as a mini cab driver and the fear was expressed that the statutory prohibition on working with children, which would attach to him in any event, would not extend to practice as a mini cab driver. That was the reason why the judge made the order and it was quite clearly intended to be and was announced to be an order which was geared to the defendant's work.

3. On 17th August 2010, within the period of the Sexual Offences Prevention Order, the defendant was found in the company of a 14-year-old in the small hours of the morning having driven the boy away from the home of his mother. The alleged facts, which have never been investigated, were that he had over a period of several weeks showered the boy with gifts, ignored his mother's requests to leave him alone and picked him up when he climbed out of the window late at night. Those, as we say, are the alleged facts which have never been investigated.
4. When the car which he was driving with the boy in it chanced to pass a police car, the defendant made off. When eventually chased and seen he lied about the circumstances in which he was with the boy. He made it clear that he thought that he was in breach of the Sexual Offences Prevention Order, in carrying the boy. In those circumstances, when he appeared in court, charged with (1) abduction and (2) breach of the Sexual Offences Prevention Order, he tendered a plea of guilty, not at the first opportunity but eventually, to the second of those charges. The Crown accepted it and allowed the charge of abduction to lie on the file on the usual terms, that is to say not to be provided with without the leave either of this court or the Crown Court.
5. As it has now transpired, through the industry of those who now represent the defendant, the Sexual Offences Prevention Order from 2005 in the form issued by the office of the Crown Court does not conform to the order that the judge announced. What it says is, under the printed heading, "The defendant is prohibited from", is the following:

"Working with children for a period of 10 years."

And:

"Must not take any unaccompanied children outside your family away."

The point to be observed is that the second of those prohibitions is not limited, as the judge's order was, to the taking of a child in the course of any work which the defendant might do. It seems very likely that the defendant had had sight of that order, although there is no direct proof of it, since he told the police on the occasion which we have just mentioned in August 2010 that he understood that he was in breach of the order. However, the simple fact is that the order to which this defendant was subject was not something constructed in the office of the Crown Court by a clerk who made a mistake. The order to which he was subject was the order which the judge had announced and he was not in breach of that. It may be that there would have been a perfectly good case for making a wider order at the time but that question simply never arose.

6. It follows that this is a case in which on the agreed facts the defendant, despite his plea of guilty, was not guilty of the offence which he admitted and for that short and simple reason his appeal against conviction must be allowed.
7. We offer these further observations. The first is that a disconnection between the order which the judge makes and the order as recorded in the Crown Court office is an occupational hazard but one which must be avoided. It is particularly a risk when, as these days is common, judges have to contemplate a large number of ancillary orders after the principal business of sentencing has been accomplished. Much the best method of avoiding what happened in this case and has happened in others is for judges to insist that ancillary orders are put before them in draft in writing. They then should either make them in the form which is tendered in draft or, if appropriate, amend them. Whichever they do, the document bearing either their approving initial or the amended terms of the order plus such initial should then be placed with the papers by the court associate and that way the order will be translated in proper form in the office afterwards. It would also be quite sensible if, particularly with orders of this kind, that when they are provided to the defendant he was asked to sign for receipt. But that is not a formal requirement, it would simply be a very good idea if it happened.
8. The other thing which we make clear is that the Crown in the present case, given what has happened since, do not now on advice seek to ask this court to give leave to proceed on the outstanding charge of abduction. That is a matter for them and we understand the reasons for it. In particular the defendant has since been convicted of more offences of possessing indecent photographs and there is an extant and properly drafted Sexual Offences Prevention Order which was made on the later occasion. But it is the case that he is currently subject, as a result of his convictions, both to the requirements of the notification rules and to a Sexual Offences Prevention Order. Both those need administering by his local police force. We make it clear that whilst nobody knows whether he was guilty of abduction or not because the issue has never been tried, the alleged facts ought to be known to the police who are administering his case. So they ought to know that he at least thought that he was deliberately in breach of the 2005 Sexual Offences Prevention Order on 17th August 2010 even though, as it has turned out, he was wrong and he was not.
9. With those additional observations this appeal must be allowed and the conviction quashed.
10. MISS BROWN: My Lord, may I raise the issue of costs?
11. THE VICE PRESIDENT: Yes.
12. MISS BROWN: I have been endeavouring to find out. I know that the appellant paid privately for my advice in the initial stage, although I then know that legal aid of course was granted once leave was granted for this appeal. I do not know, and have been trying to find out but have been unable to find out, whether or not he incurred any other private fees to those who were instructing me privately at that initial stage before leave was granted. It is an unattractive appeal in many ways, I understand that entirely, but equally I feel I am under an obligation to seek a defendant's costs order.
13. THE VICE PRESIDENT: You want an order for costs out of central funds?
14. MISS BROWN: I do.
15. THE VICE PRESIDENT: Did he bring it on himself?
16. MISS BROWN: Your Lordship knows the facts.
17. THE VICE PRESIDENT: That is the question, is it not? We will think about it. Do you want to say anything?
18. MR POUNDER: My Lord, no.
19. THE VICE PRESIDENT: We are quite satisfied, Miss Brown, that this is not an appropriate case for a defence costs order. We say no more than that. Thank you for making the application, you are quite right to make it.