England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		30th January 2014

1. LORD JUSTICE LAWS: This case started life as an appeal against the appellant's conviction on 11th January 2013 for breach of a sexual offences prevention order. We will call it "SOPO No 2". The case has undergone something of an odyssey, leading to a hearing today at which, for reasons we shall explain in a moment, we shall sit as a Divisional Court of the Queen's Bench Division. It is not necessary however to go into the details for they are explained in the judgment we gave on 22nd January, to which reference may be made.
2. Since the hearing on that day we have received further written submissions from which it is apparent that SOPO No 2 made on 11th October 2012 was perfectly lawful, notwithstanding agreed submissions to the contrary on the last occasion. The reason is that the offence of possessing extreme pornography may attract a SOPO even though the sentence passed for it was lower than that specified in Schedule 3 of the Sexual Offences Act 2003 because section 106(14) of the statute requires the length of sentence to be disregarded when the imposition of a SOPO is being considered.
3. What is the result of this development? First, we confirm that the appellant's appeal against conviction on 11th January 2013 is dismissed. The SOPO 2 is good. Secondly, we have to consider the order we made on 22nd January by way of a late appeal against the sentence passed on 11th October 2012 quashing SOPO No 2. That order was fundamentally erroneous. SOPO 2, as we have said, is good. We have power however to revisit the order we made earlier in the month - see the authorities collected in the 2014 edition of Archbold, paragraph 77-222 and 223. It is not necessary to go into the jurisprudence. It seems to us this is an obvious case for the court to revisit its previous order. We do so. We set aside the order quashing SOPO No 2. Accordingly SOPO No 2 remains in being.
4. That leaves the proceedings of 7th August 2013 before His Honour Judge Crowther. We will act as a Divisional Court at this stage. By way of judicial review proceedings we grant the following relief:

1. We quash His Honour Judge Crowther's declaration that SOPO No 2 was a nullity. That declaration was bad not only because the Crown Court, as a superior court of record, whose orders are not nullities but also because, we repeat, there was nothing wrong with SOPO 2. In making that declaration Judge Crowther was sitting as a Crown Court judge. The Divisional Court has power to entertain a judicial review in relation to that declaration because it was not made in the course of the exercise of the court's jurisdiction in a matter relating to trial on indictment. If it had been there would be no power of judicial review.

5. As it is, there is such a power. We sit as a Divisional Court; we quash that declaration. Also as a Divisional Court we address the orders made by Judge Crowther sitting under section 66 of the Courts Act as a Divisional Court. Notionally now we are reviewing a decision of a Magistrates' Court. In performing that function we quash the appellant's conviction on his plea of guilty to the fresh information laid for breaches of SOPO 1 and it follows that the sentence or concurrent sentences of 16 months' imprisonment imposed upon that conviction fall away. Those are the orders we make. The result is that SOPO 2 remains extant and the appellant is of course bound by it. But the prison sentence passed on 7th August 2013 is quashed. Those we apprehend are all the matters with which we have to deal.
6. Think very carefully; is there anything else? No last minute changes of mind?
7. MISS WHITEHOUSE: My Lord no. Thank you.
8. LORD JUSTICE LAWS: Very well. Thank you very much.