R v Gary Dean Longworth

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Mance. For the reasons he gives, with which I agree, I would allow this appeal.

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Mance. For the reasons he gives, with which I agree, I would allow this appeal.

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Mance. I agree with him that, although HHJ Hale made an order against which the appellant was entitled to appeal, he had no power to require the appellant to sign the sex offenders register.

I also agree with him that the duty to register under section 1 of the Sex Offenders Act 1997 was a consequence of the appellant's conviction, which took effect at once by force of the statute upon his conviction of sexual offences to which Part I of the Act applies. But it was not part of the proceedings in which the appellant was convicted, so his conviction was not saved by section 1(1) of the Powers of Criminal Courts (Sentencing) Act 2000 when on a later date the judge sentenced the appellant on each of these offences to a conditional discharge.

I too would allow the appeal and answer the certified question in the affirmative.

I have had the advantage of considering in draft the speech to be delivered by my noble and learned friend, Lord Mance. I agree with it and for the reasons he gives I too would allow the appeal to the extent that he proposes.

This is an appeal by leave of this House against the dismissal by the Court of Appeal (Criminal Division) (Potter LJ, Gibbs J and Sir Michael Wright) on 23 ^rd July 2004 of an appeal which the Court of Appeal described as being against that part of a sentence imposed by the trial judge, HHJ Hale, sitting in the Warrington Crown Court on 12 ^th January 2004, whereby the judge found that the appellant was subject to the notification requirements of the Sex Offenders Act 1997. The point of law of general public importance which the Court of Appeal certified on 12 ^th November 2004 is:

"Do the provisions of s.14(1) of the Powers of Criminal Courts (Sentencing) Act 2000 have the effect of preventing an order for conditional discharge made on conviction for an offence other than under the Sex Offenders Act 1997 from being classed as a conviction for the purposes of the 1997 Act and thus avoiding [the] notification requirements under the 1997 Act?"

The appellant was charged on two counts, of making indecent photographs of children, contrary to s.1(1)(a) of the Protection of Children Act 1978, and of possessing indecent photographs of children, contrary to s.160(1) of the Criminal Justice Act 1988. He pleaded guilty to both counts on re-arraignment on 22 ^nd December 2003, when the judge indicated that he proposed to impose a conditional discharge in relation to each offence. Discussion then took place as to whether or not this would result in the appellant being subject to the notification requirements of the 1997 Act. Sentencing was as a result postponed until 12 ^th January 2004, when, after hearing submissions, the judge, in accordance with his previous indication, imposed conditional discharges under s.12 of the Powers of Criminal Courts (Sentencing) Act 2000, in the case of each offence for 12 months, and further ruled that there was a requirement to notify under the Sex Offenders Act 1997, for a period of five years from the date of conviction "subject to any views that the Court of Appeal may have". To enable those views to be obtained he certified that the case was fit for appeal. The certificate of conviction drawn up on 30th November 2004 recites the two offences of which the appellant was convicted and goes on to record that he was sentenced to, respectively:

"1. CONDITIONAL DISCHARGE FOR 12 MONTHS THE DEFENDANT IS TO SIGN THE SEX-OFFENDERS REGISTER FOR 5 YEARS

2. AS ABOVE CONCURRENT"

The notification requirements of the Sex Offenders Act 1997 provide, so far as relevant:

"1.-(1) A person becomes subject to the notification requirements of this Part if, after the commencement of this Part-

(a) he is convicted of a sexual offence to which this Part applies;

(b) he is found not guilty of such an offence by reason of insanity, or to be under a disability and to have done the act charged against him in respect of such an offence; or

(c) in England and Wales or Northern Ireland, he is cautioned by a constable in respect of such an offence which, at the time when the caution is given, he has admitted."

S.1(2) and (3) of the 1997 Act introduced notification requirements in respect of convictions and findings where the offender had "not been dealt with" at the commencement of Part I of the Act (viz. on 1st September 1997), or in respect of which he was still at such commencement subject to imprisonment, a community order, supervision, detention or a guardianship order. By s.1(9) read with Schedule 1 to the Act, any offence under s.1 of the Protection of Children Act 1978 or s.160 of the Criminal Justice Act 1988 is a sexual offence to which Part I of the 1997 Act applies.

S.1(4) of the 1997 Act provides that a person falling within subsection (1) shall continue subject to the notification requirements for a period set out opposite a person of his description in a Table. None of the specific descriptions in that Table refers to a person discharged either absolutely or conditionally, but the Table concludes with a sweep up category covering "a person of any other description" not otherwise specified in the Table, against which category the period stated is 5 years beginning with "the relevant date". HHJ Hale concluded that the appellant fell into this category. The relevant date is defined in s.1(7) as meaning, in the case of a person falling within subsection (1)(a), the date of the conviction, in the case of a person falling within subsection (1)(b), the date of the finding and, in the case of a person falling within subsection (1)(c), the date of the caution.

A person subject to notification requirements in respect of a conviction after the commencement of the Act is, under s.2(1) read with s.2(3), required within a period of 14 days commencing with the relevant date to notify the police of his name(s), address and date of birth. On request, he must under s.2(6A) also allow the police officer or other authorised person to whom he notified such information to take his fingerprints and photograph. Under s.3 of the 1997 Act, a person who fails without reasonable excuse to comply with s.2(1), or who notifies to the police in purported compliance with s.2(1) any information which he knows to be false, is guilty of an offence, and liable on indictment to imprisonment for a term not exceeding 5 years or a fine or both or on summary conviction to imprisonment for a term not exceeding 6 months or a fine or both. Failure to comply with s.2(6A) is made an offence with similar liability by s.3(1B).

The power, in a case where the court considers that it is inexpedient to inflict punishment, to make an order discharging an offender absolutely or on the condition that he commits no offence during a stipulated period not exceeding three years is provided by s.12(1) of the Powers of Criminal Courts (Sentencing) Act 2000. S.12(7) of this Act provides:

"(7) Nothing in this section shall be construed as preventing a court, on discharging an offender absolutely or conditionally in respect of any offence, from making an order for costs against the offender or imposing any disqualification on him or from making in respect of the offence an order under section 130, 143 or 148 below (compensation orders, deprivation orders and restitution orders)."

S.14 provides:

"(1) Subject to subsection (2) below, a conviction of an offence for which an order is made under section 12 above discharging the offender absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under section 13 above.

(2) Where the offender was aged 18 or over at the time of his conviction of the offence in question and is subsequently sentenced (under section 13 above) for that offence, subsection (1) above shall cease to apply to the conviction.

(3) Without prejudice to subsections (1) and (2) above, the conviction of an offender who is discharged absolutely or conditionally under section 12 above shall in any event be disregarded for the purposes of any enactment or instrument which -

• (a) imposes any disqualification or disability upon convicted persons; or

• (b) authorises or requires the imposition of any such disqualification or disability.

(4) Subsections (1) to (3) above shall not affect-

• (a) any right of an offender discharged absolutely or conditionally under section 12 above to rely on his conviction in bar of any subsequent proceedings for the same offence;

• (b) the restoration of any property in consequence of the conviction of any such offender; or

• (c) the operation, in relation to any such offender, of any enactment or instrument in force on 1st July 1974 which is expressed to extend to persons dealt with under section 1(1) of the Probation of Offenders Act 1907 as well as to convicted persons.

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(6) Subsection (1) above has effect subject to section 50(1A) of the Criminal Appeal Act 1968 and section 108(1A) of the Magistrates' Courts Act 1980 (rights of appeal); and this subsection shall not be taken to...