R v Christopher Andrew Richards
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 27 October 2006 |
| Neutral Citation | [2006] EWCA Crim 2519 |
| Court | Court of Appeal (Criminal Division) |
| Date | 27 October 2006 |
| Docket Number | Case No: 2006/01150/A7 |
[2006] EWCA Crim 2519
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CROYDON
HIS HONOUR JUDGE JOSEPH
The President Of The Queen's Bench Division
Mr Justice Holland And
Mr Justice Tugendhat
Case No: 2006/01150/A7
Mr M Hillman for the Appellant
Mr H Reid for the Prosecution
President of the Queen's Bench Division
This is an appeal against sentence by Christopher Richards. It raises an important point of principle about the jurisdiction of the court, and possible restrictions on the power created by Sexual Offences Act 2003 to make a sexual offences prevention order.
The facts can be briefly summarised. On 18 th August 2005 Ms Shaw was walking in a public Park. She described an incident in which she saw the appellant stroking his erect penis. In evidence she acknowledged that he may simply have been adjusting himself, and that his penis may not have been erect. She also accepted that she had not actually seen any of the appellant's flesh at this stage. This incident of alleged exposure was covered by count one in the indictment. The appellant was found not guilty by the jury on the direction of the judge.
A short while later however Ms Shaw saw the appellant again. This time he was sitting on the grass and she saw the appellant's penis protruding from his shorts. She telephoned the police. When officers arrived the appellant was arrested. This activity was reflected in count two.
At interview, the appellant denied that his penis had been erect at any time. He did not recall seeing any particular person in the locality. Any touching of his groin area would have been innocent, and for the purpose of adjusting his clothing. In evidence, he asserted that Ms Shaw had been mistaken.
This was a simple trial. It proceeded without difficulty. No criticism was made of the summing up, and there was no appeal against the appellant's conviction on count two.
Judge Joseph then dealt with sentence. The appellant was born in August 1967. He had two previous convictions. In 1983 he was fined £40 for burglary and theft. In 1991 he was made subject to a two year conditional discharge for indecent assault on a female. In 2003 he was cautioned for gross indecency with a child. He placed a mirror on the floor of a cubicle at the public baths, so that he could observe a ten year old girl in the next cubicle while he masturbated.
The pre-sentence report indicated that the appellant maintained his innocence of the offence. He denied any tendency to exhibitionist urges or distorted views of women and young girls. Nevertheless, the writer concluded that the appellant represented a high risk of similar offending and high risk of harm to the public. Later the report observed that there was a "risk that he will offend again and cause distress to members of the public".
Judge Joseph is a very experienced and well respected judge, who had presided over the trial. He was extremely concerned about what he saw as deliberate targeting of the victim, and that the appellant had behaved in this way close to a children's playground. He believed that there was a very real danger of a repetition of the appellant's criminal conduct, and that his offending might escalate, with resulting psychological harm to the public. He reminded himself of the provisions of section 104 of the Sexual Offences Act 2003. He imposed a sentence of six months imprisonment, and concluded that it was necessary to make the appellant subject to a sexual offences prevention order for an indefinite period, "to prevent members of the public from serious sexual harm". The precise conditions of the order were in conventional terms, and have no relevance to this appeal. No order was made under the provisions of sections 224–229 of the Criminal Justice Act 2003.
A supplementary report prepared for the Court of Appeal Criminal Division expressed continued concern that in the absence of a sexual offences prevention order the level of seriousness of the appellant's offending could escalate to a high level. It was also believed that there was a potential for the commission of more serious sexual offences against children. However provided his opportunities for unsupervised contact with children were restricted, the risk would be a low one.
The first issue in this appeal is whether it was open to the sentencing judge to impose a sexual offences prevention order under section 104 of the Sexual Offences Act 2003 when an extended sentence, as provided by section 227 of the Criminal Justice Act, was not required. The answer to this question ought to be straightforward. Unfortunately it is not.
The legislation which created the sexual offences prevention order, and the scheme for its application and enforcement is found in sections 104–113 of the Sexual Offences Act 2003. Section 104 provides
"(1) A court may make an order under this section in respect of a person ("the defendant") where any of sub-sections (2)-(4) applies to the defendant and
(a) where sub-section (4) applies, it is satisfied that the defendant's behaviour since the appropriate date makes it necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant;
(b) in any other case, it is satisfied that it is necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant. "
(2) This sub-section applies to the defendant where the court deals with him in respect of an offence listed in Schedule 3 or 5
(3) This sub-section applies to the defendant where the court deals with him in respect of a finding……
(4) This sub-section applies to the defendant where
(a) an application under sub-section (5) has been made to the court in respect of him, and
(b) on the application, it is proved that he is a qualifying offender
(5) A chief officer of police may by complaint to a magistrate's court apply for an order under this section in respect of a person who resides in his police area or who the chief officer believes is in, or is intending to come to, his police area if it appears to the chief officer that
(a) the person is a qualifying offender and
(b) the person has since the appropriate date acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made…."
Section 106 is supplemental to section 104. It defines "protecting the public" in section 104 (1) as
" ….Protecting the public in the United Kingdom or any particular members of that public from serious physical or psychological harm, caused by the defendant committing one or more offences listed in Schedule 3 "
A "qualifying offender" for the purposes of section 104 (5) includes an individual who has been convicted of an offence listed in Schedule 3 (except for paragraph 60 of the Schedule) or Schedule 5, or who has been cautioned in respect of such an offence. It also extends to an individual who has been convicted outside the United Kingdom, but not punished for a relevant offence, or cautioned for a relevant offence outside the United Kingdom.
We note therefore that the sexual offences prevention order is not dependant on a conviction, and that the making of a sexual offences prevention order is not linked to any other form of punishment or disposal.
Section 104(1)(b) and (2) replaced the former provisions in section 5(A)(1)(a) and (2) of the Sex Offenders Act 1997 which enabled the court to make a "restraining order". The essential qualifying requirement for a restraining order was "serious harm". Our attention was drawn to a number of authorities where this court considered restraining orders. R v Halloran [2004] 2 CAR (S) 57: R v Beaney [2004] 2 CAR (S) 82: R v Collard [2005] 1 CAR (s) 34. The sentences with which these decisions were concerned were subject to section 161 (4) of the Powers of Criminal Court (Sentencing) Act 2000. This provided that
" …any reference, in relation to an offender convicted of a …sexual offence, to protecting the public from serious harm…shall be construed as a reference to protecting members of the public from death or serious personal injury, whether physical or psychological, occasioned by further such offences committed by him."
In Halloren the court reflected that Parliament must have intended the words in the 1997 Act to be construed in the context of the 2000 Act. Essentially the same reasoning was followed in Beaney and Collard.
In R v Monument [2005] 2 CAR (S) 57, after a close analysis of the complicated process which culminated...
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