Sex Offenders Act 1997: Restraining Orders
| DOI | 10.1350/jcla.2005.69.5.377 |
| Date | 01 October 2005 |
| Published date | 01 October 2005 |
| Subject Matter | Court of Appeal |
they have suffered an Article 6 breach and that in consequence the
conviction is unsafe, but also that they have suffered a substantial injury
or injustice. This follows the decision in R v Hawkins [1997] 1 Cr App R
234. Again, the rationale here seems to be to ensure certainty and to
stave off a ‘floodgates’ problem. Attractive as this may be, it is fairly clear
in this sort of case that a place at which a line could (and maybe should)
be drawn is 2 October 2000, when the Human Rights Act came into
force. Any undue delay in bringing an appeal forward could be viewed
on its merits. Here, a delay of three-and-a-half months (after the deci-
sion in Dundon) hardly seems excessive, considering the complexity of
issues, counsel having to go against previous opinions and the like, if the
object is justice rather than procedural certainty. The appellant in this
case has apparently not made out the additional and arguably un-
necessary burden of a ‘substantial injury or injustice’—despite suffering
imprisonment, loss of career, loss of rank and the ensuing financial loss
through conviction by a system held to be unfair, now reformed, but
about which he did not complain in adequate time! This may make
perfect sense to lawyers, but leaves lay people, whose confidence in the
system is surely paramount, shaking their heads in amazement.
Christopher Gale
Sex Offenders Act 1997: Restraining Orders
R v Monument [2005] EWCA Crim 30
The appellant had pleaded guilty to 16 counts of making an indecent
image of a child contrary to s. 1(1)(a) of the Protection of Children Act
1978 as a result of downloading in excess of 4,000 images of children
from the Internet. He received a sentence of eight months’ imprison-
ment on each count to run concurrently. At the time of the sentence, 23
April 2004, the prosecution had not applied for a restraining order
pursuant to s. 5A of the Sex Offenders Act 1997. The Crown, having
reflected on the case, decided that an order should have been sought and
they applied to have the case relisted under the slip rule. The hearing
took place on the 14 May 2004 and the judge made an order for a term
of three years restraining the defendant from owning, using or possess-
ing any computer or equipment capable of downloading images from
the Internet.
What both parties to the case and the judge missed was that on 1 May
2004 the 1997 Act was repealed and the Sexual Offences Act 2003 came
into force. The judge wrote to the appellant’s solicitor stating that the
order had no legal status, but the appellant applied to the Court of
Appeal for leave to appeal out of time and to quash the restraining order.
The respondent in the matter conceded that the order was made under
the wrong provision but argued that the order was valid either on its
own merit or through the use of the Interpretation Act 1978. In the
alternative, the Crown contended that the Court of Appeal should
Sex Offenders Act 1997: Restraining Orders
377
To continue reading
Request your trial