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
		12th December 2017

LORD JUSTICE SIMON:

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence.
2. On 1^st June 2017, in the Crown Court at Manchester, the appellant pleaded guilty to five counts charging indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960.
3. On 24^th July 2017 he was sentenced by Mr Recorder Long to a total term of 20 months' imprisonment, made up of ten months on count 1, ten months on count 2, to be served consecutively, and ten months on each of counts 3, 4 and 5, to be served concurrently. He was also made the subject of a Sexual Harm Prevention Order. It is this order which is the subject of this appeal brought with the leave of the single judge.
4. The Sexual Harm Prevention Order was ordered for a period of ten years. By its terms it prohibited the appellant from:

1. Having any contact with any male under the age of 16 years, except:

(a) contact authorised by a police offender manager for the area where the appellant resides; or

(b) normal, incidental and not reasonably avoidable contact in day to day life (such as speaking to shop assistants); or

(c) a court order pursuant to the Children Act 1989 has been granted authorising contact; or

(d) with the express, written approval of Social Services for the area where the appellant will be staying.

2. Living and/or sleeping in the same dwelling as any male under the age of 16 years unless with the express, written approval of Social Services for the area where the appellant will be staying.

3. Participating or being involved in any capacity whatsoever, directly or indirectly, with any voluntary group, school or any other public or private organisation, which may at any time include participation or attendance by children under the age of 16 years.

5. The offences occurred in the early 1980s when the victim's mother began a relationship with the appellant. In 1982 he moved into her house and remained there until December 1985. At this time the victim was a boy of about 8. The offending began on an occasion when the appellant entered his room at night and lay next to him in bed. The appellant took out his erect penis. The victim's penis also came out and he had an erection. The appellant lay on top of him so that their bodies and penises were touching and rubbed together. The appellant encouraged the victim to masturbate him to ejaculation, and he ejaculated on to the victim's chest. The incident lasted for about half an hour. The appellant told him not to tell his mum. This offending was repeated on four more occasions, reflected by the counts on the indictment.
6. It was not until 1990 that the victim told his mother and much later his father when he became reunited with him in 2004.
7. As a consequence of these crimes, the victim had become confused and insecure about his sexuality and lacking in confidence in relation to sexual matters.
8. The police were eventually contacted and the appellant was arrested. In interview he made full admissions of the offences. He told the officer that he showed the victim how to masturbate by doing it to himself and then letting the victim do it to himself. He had masturbated the boy on several occasions (he estimated between five and ten occasions). He said that he used to look after him a lot in the evenings when his mother was working. It was then that the offending had occurred.
9. The appellant was aged 54 at the date of sentence. He was of previous good character.
10. There was a victim personal statement, which we have read but which does not impact on the point in issue on this appeal.
11. A pre-sentence report recorded that the appellant could not explain why he engaged in such harmful behaviour with a young child and that he did not recall being sexually aroused at the time that this occurred. Since his arrest, he had tried to find the answers with the help of a counsellor. He expressed genuine remorse for the distress he had caused, and took full responsibility for his behaviour. He was assessed as presenting a medium risk of serious harm. The author wrote:

"This reflects the seriousness of the offences and the impact on the victim. It also recognises that [the appellant] is stable in the community and does not present as an imminent risk of further sexual offending."

12. Despite the opinion expressed in the pre-sentence report, the prosecution advanced the need for a Sexual Harm Prevention Order on this basis:

"… your Honour [may] question as to whether, given that the events were 30 odd years ago, one is necessary, but given the still real and raw feelings that are present, I would ask that the order be made effectively until further order."

Quite how this could justify the necessity for the imposition of a Sexual Harm Prevention Order was not made clear.

13. In passing sentence the Recorder set out the facts as we have outlined them. He acknowledged that the appellant had discontinued the abuse when he realised the harm that he was causing and had not subsequently been convicted of similar offending. He provided references that confirmed the positive contribution that he had made to society, not least through his community art work. He would be sentenced applying modern principles of sentencing, albeit these offences occurred nearly 30 years ago. He then passed the sentences to which we have referred.
14. A Sexual Harm Prevention Order was made for ten years for the reason that it would prevent him having anything other than incidental contact with boys under 16.
15. The grounds of appeal raise a short point in relation to the Sexual Harm Prevention Order: namely, that the test of necessity was not satisfied and consequently the judge erred in imposing a Sexual Harm Prevention Order in the case of the appellant. The prosecution does not oppose the appeal.
16. In our view, that ground must succeed. This court has repeatedly stated that there must be a real risk of future harm before the test of necessity is met. In R v O(AJ) [2016] EWCA Crim 2200, Nichol J, giving the judgment of this court, stressed this test of necessity.

"14. … The appellant has realistically not challenged the prison sentence which the recorder passed. However, by section 103A(2)(b) of the Sexual Offences Act 2003, a Sexual Harm Prevention Order can only be made if the court is satisfied that it is necessary for the purposes of protecting the public or any particular members of the public from sexual harm from the defendant. As [counsel] has submitted, the appellant's offending, serious as it was, happened 33 yeas ago. He has not been convicted of any offence subsequently. In those circumstances, it was not possible, in our view, for the recorder to have been satisfied that this condition of necessity was satisfied.

15. We are far from saying that an SHPO could never be justified after a conviction of historic sexual offences. However, since such an order is intended to protect against future harm, it is important for a court to focus on future risk. It is only if there would be a real risk of such future harm that an order could be said to be necessary to prevent it. …"

17. In the present case there was historic offending 35 years before, without any signs of offending, and a finding in the sentencing remarks of positive good character, since then.
18. We would wish to note one further point. The Respondent's Notice contains the following:

"The application for the SHPO was made as an ancillary application during the sentencing exercise. No objection was raised by the defence counsel."

That short submission contains both an implicit error of approach, and appears to make a simple but important misstatement. First, it is for the prosecution to justify the imposition of a Sexual Harm Prevention Order, not for the defence to object to a proforma which is placed before the court during the hearing. Secondly, Mr Buckle says, and we accept, that he did object to the imposition of the Sexual Harm Prevention Order on the very grounds that he has advanced on this appeal. As he put it in his Reply to the Respondent's Notice:

"4. I am unsure how it is that the Respondent's Notice could suggest that I did not raise an objection when I feel that my objections could not have been clearer."

19. In our view, there was no necessity for the Sexual Harm Prevention Order and therefore it should not have been imposed. Accordingly, we quash the Sexual Harm Prevention Order. To that extent the appeal is allowed.