England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION
201603219A1

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/03/2017

Mr Justice Soole:

1. By leave of the single judge the appellant appeals against the sentence imposed on him on 15 June 2016 by the Crown Court at Southampton (HHJ Burrell QC) in the form of a Sexual Harm Prevention Order (SHPO) by way of variation of an existing Sexual Offences Prevention Order (SOPO).
2. On 14 January 2015 the appellant was convicted of 6 offences of distributing indecent photographs of children and three offences of making indecent photographs of children, contrary to the relevant provisions of the Sexual Offences Act 2003 ('the 2003 Act'). The sentences imposed on 27 February 2015 comprised a Community Order with unpaid work requirement and a SOPO for an indefinite period. The SOPO prohibitions comprised : '1. Using any device capable of accessing the internet unless : (i) it has the capacity to retain and display the history of internet use; and (ii) he makes the device available on request for inspection by a police officer; 2. Deleting any such history; 3. Possessing any device capable of storing digital images, unless he makes it available on request for inspection by a police officer' and were for an indefinite period. The offences automatically gave rise to the notification requirements under the 2003 Act.
3. With effect from 8 March 2015 the Anti-Social Behaviour, Crime and Policing Act 2014 ('the 2014 Act') replaced the SOPOs with SHPOs. The SHPO regime replaced the SOPO requirement of 'serious sexual harm' with 'sexual harm' (s.103A(2)(b), cf. the repealed s.104(1)). However the 2014 Act contained transitional provisions in respect of existing SOPOs (s.114). These retained the power to vary such orders and by reference to the more stringent test (s.108(1)-(5)).
4. On 9 November 2015 police officers attended the appellant's home address without prior warning in order to inspect his devices. The appellant had in his possession two i-Phones and an iPad mini. He denied that he had any other devices capable of accessing the internet or storing images. In the course of a search the officers found an Apple i-Phone 4 and two USB sticks in a chest of drawers. A search of his Land Rover, a vehicle marked in ambulance livery, found a basic Nokia mobile phone. This did not have internet access but it did show evidence of a Facebook account that he had set up in the name of Albert Munk.
5. The USB sticks were examined and found to contain images from 2008 of a young girl who was related to the appellant through a family member. In interview he said that he had created the fictitious account name in order to see the forums and sale pages he had posted for uniform and equipment related to the ambulance sector in which he had previously been employed.
6. In respect of the Facebook account, he was charged with failure to comply with the notification requirements, contrary to s.91 of the 2003 Act (Count 1). In respect of the USB sticks and the Apple i-Phone 4, he was charged with two offences of breach of the SOPO (Counts 3 and 4), contrary to s.113 of the 2003 Act.
7. By application in Form MG13 dated 16 November 2015 the police applied for an order to 'amend SOPO with SHPO'. At its foot the application identified the 'Officer in Case' and 'Supervisor's name'. The requested further orders included : '1. Owning any device capable of accessing the internet unless the ownership of this device is declared to their designated police officer manager within 3 days of the acquisition…4. Using the internet to contact or attempt to contact any female known or believed to be under 16 years of age. Having any unsupervised contact or contact or communication with any female under the age of 16, other than (i) such as is inadvertent and not reasonably avoidable in the course of lawful daily life, or (ii) with the consent of the child's parents or guardian, who has knowledge of his convictions'.
8. This application was not served on the appellant or his legal advisers, nor was it provided to Prosecution Counsel, until the sentencing hearing 7 months later.
9. On 8 January 2016 the appellant pleaded guilty to Count 1 at a preliminary hearing.
   At the PCMH on 8 March 2016 he indicated pleas of guilty to Counts 3 and 4 on a basis that he had forgotten about the items; had not used them; and that his failure to produce them was an omission not a deliberate act. The Crown thereafter accepted the basis of plea.
10. On 25 May 2016 the appellant pleaded guilty accordingly and the case was adjourned for a pre-sentence report. The subsequent report stated that he had responded well to supervision under the Community Order and completed the unpaid work requirement. The conclusion was that he continued to pose a medium risk of causing serious harm to children due to the previous offences but that the breaches did not raise the risk.
11. At the sentencing hearing on 15 June 2016 Counsel for the Crown Ms Archer, having opened the facts and dealt with antecedents, then told the Court that her attention had just been drawn to an application for an amended SOPO of which the appellant and his Counsel had also had no prior notice. This was the application dated 16 November 2015.
12. Following mitigation and argument in respect of the application, the Judge allowed the addition of the further orders referred to above. The Judge said 'So clauses 1 and 4 of the new wording will be added by way of amendment and it can now be called a Sexual Harm Protection Order'.
13. The resulting Order was drawn up and headed as a SHPO but stated at the end of the Schedule of Prohibitions 'Please Note – This is a variation to the [SOPO] made at Winchester Crown Court on 27 February 2015'.
14. The first ground of appeal is that the Judge's order was unlawful in that he had no power to make a SHPO or to amend a SOPO and to call it a SHPO. The Registrar has raised a further jurisdictional question, namely whether the application to vary the SOPO had been made by one of the persons identified in s.108(2) of the SOA 2003.
15. As to the first ground of appeal, it is accepted by the Crown that the Judge had no power to make a SHPO. This is because the offences which entitle the Court to impose a SHPO do not include the offence of breaching a SOPO : s.103A(2) and Schedules 3 and 5 of the 2003 Act as amended. However the Crown submits, by reference to the terms of the Form MG13, the Judge's sentencing remarks and the footnote to the Order, that the Court's intention was not to make a SHPO but to amend the SOPO and that the Order should be construed in that light.
16. In R v. Pelletier [2012] EWCA Crim 1060 the terms of the SOPO as drawn up by the Crown Court office did not reflect the terms which the Judge had announced when sentencing. This Court held that in such circumstances the terms of the Order were those which the Judge had announced, with the consequence that the appellant's conviction for breach of the order was set aside. In the present case the hybrid Order as drafted by the Court office did reflect the judge's sentencing remarks. However there was no power to impose an SHPO. Accordingly an Order so entitled cannot stand and must be set aside. The question is then whether the same prohibitions could have been imposed by an amended SOPO.
17. This leads to the threshold point, raised by the Registrar, as to whether the application to vary the SOPO satisfied the conditions of s.108(2) of the 2003 Act, as preserved by the transitional provisions in the 2014 Act.
18. Under the heading 'SOPOs : variations, renewals and discharges', s.108 provides so far as material :

'(1) A person within subsection (2) may apply to the appropriate court for an order varying, renewing or discharging a [SOPO].

(2) The persons are – (a) the defendant; (b) the chief officer of police for the area in which the defendant resides; (c) a chief officer of police who believes that the defendant is in, or is intending to come to, his police area; (d) where the order was made on an application under section 104(5), the chief officer of police who made the application.

(3) An application under subsection (1) may be made – (a) where the appropriate court is the Crown Court, in accordance with rules of court; (b) in any other case, by complaint.

(4) 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 [SOPO], that the court considers appropriate.

(5) An order may be renewed, or varied so as to impose additional prohibitions on the defendant, only if it is necessary to do so for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant (and any renewed or varied order may contain only such prohibitions as are necessary for this purpose).

(7) In this section 'the appropriate court' means – (a) where the Crown Court or the Court of Appeal made the [SOPO], the Crown Court…'

19. The relevant rules of court are contained in CPR 31.5 whose provisions include :

'(1) The court may vary or revoke a behaviour order if –

(a) the legislation under which it is made allows the court to do so; and

(b) one of the following applies – (i) the prosecutor…'

Further provisions require written application (31.5(2)(a)) and service thereof (31.5(3)(a)). Further the court 'must not allow an application under this rule unless everyone required to be served, by this rule or by the court, has had at least 14 days in which to make representations, including representations as to whether there should be a hearing' (31.5(5)(b)).

20. Neither of the persons identified at the foot of the application dated 16 November 2015 was a 'chief officer of police'. Accordingly Ms Archer accepted that the application did not comply with the requirement of s.108(2). In oral argument she initially submitted that the position was saved by CPR 31.5(1)(b)(i) which permits an application by 'the prosecutor'. However on further reflection she acknowledged that, as in any event put beyond doubt by the condition in 31.5(1)(a), the rules could not enlarge the exhaustive list of applicants in s.108(2).
21. In our judgment it must follow that there was no valid application before the Judge; and that accordingly he had no power to vary the SOPO. The Order dated 15 June 2016 headed 'SHPO' must therefore be set aside; and the SOPO dated 27 February 2015 will continue in its unamended form.
22. Although we found our decision on the point of jurisdiction raised by the Registrar, we are not satisfied that the evidence in any event met the statutory test for the imposition of these additional prohibitions on the appellant. As already noted s.108(5)(a) empowers the Court to add prohibitions to an existing SOPO '…only if it is necessary to do so for the purpose of protecting the public from serious sexual harm from the defendant (and any renewed or varied order may contain only such prohibitions as are necessary for this purpose)'. In R v. Smith [2011] EWCA Crim 1772 this Court stated that 'it is not legitimate to impose multiple prohibitions on a defendant just in case he commits a different kind of offence. There must be an identifiable risk of contact offences before this kind of prohibition can be justified' (para.22). In this case the pre-sentence report concluded that the breaches had not raised the existing risk. The very lateness of the application had the consequence that there was no adequate opportunity for the parties and the Court to focus on these matters.