The Queen v Steven Smith, Wayne Clarke, Bryan Hall & Jonathan Dodd

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeLord Justice Hughes
Judgment Date19 July 2011
Neutral Citation[2011] EWCA Crim 1772
Docket NumberCase No: 201100164 A6 201101795 A7 201006731 A5
Date19 July 2011

[2011] EWCA Crim 1772

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT

LIVERPOOL, MOLD, TEESSIDE & BIRMINGHAM

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Hughes

Mr Justice Maddison and

Mr Justice Supperstone

Case No: 201100164 A6

201004958 A6

201101795 A7

201006731 A5

Between:
The Queen
Respondent
and
Steven Smith, Wayne Clarke, Bryan Hall & Jonathan Dodd
Appellant

Mr Iain Wicks (instructed by the CPS Special Crime Division) for the Respondent

Mr Tom Gent (instructed by Chivers Solicitors) for Steven Smith

Mr Gwyn Jones (instructed by Gamlins Solicitors, Rhyl) for Wayne Clarke

Mr Jonathan Walker (instructed by Freeman Johnson) for Bryan Hall

Mr Raglan Ashton (instructed by Tuckers Solicitors) for Jonathan Dodd

Hearing date: 8 June 2011

Lord Justice Hughes
1

These four cases all raise questions relating to Sexual Offences Prevention Orders ("SOPOs"). We have for that reason heard them together. They do not afford sufficient material for any comprehensive guideline upon the use and framing of SOPOs. There are many areas potentially covered by SOPOs which do not arise at all in the cases before us. In all these cases the offences presently before the court were or included offences of viewing child pornography, although some defendants presented a risk beyond a repetition of that kind of offence. The offences charged did not include ones involving physical sexual contact and we have not had to consider in detail the SOPO terms which may be needed in such cases. It is however necessary for us to address some general questions which may be relevant to those cases also.

2

A SOPO may be a valuable tool in the control of sexual offending and its associated harm. It is properly to be regarded as part of the total protective sentencing package: see Lord Judge CJ in R v C & others [2008] EWCA Crim 2790 at paragraph 14.

3

Nevertheless, in R v Roberts and Curry [2010] EWCA Crim 907 this court said that judges are too often presented with hastily and inadequately prepared drafts of orders at a late stage in the sentencing process, indeed sometimes almost as an afterthought. Our experience confirms that this is still too often so. Sexual offences are difficult to sentence. In most cases the court is concentrating on the crucial question of whether imprisonment is called for, and, if so, for how long. There are several other ancillary orders which may have to be considered. But although the SOPO may appear to be of comparatively less importance, each of its prohibitions creates for the defendant a new and personal criminal offence carrying up to five years' imprisonment for breach. It is likely to remain with the defendant for many years after the end of the principal sentence imposed, whether custodial or otherwise. The terms of the order are likely to have to be considered and applied by probation officers, policemen, defendants and courts for many years to come.

4

The SOPO offers a flexibility in drafting which is in one sense welcome because it enables the order to be tailored to the exact requirements of the case. That flexibility, however, must not lead draftsmen to an inventiveness which stores up trouble for the future. It will do this if it creates a provision which is, or will become, unworkable. That may be because it is too vague or because it potentially conflicts with other rules applicable to the defendant, or simply because it imposes an impermissible level of restriction on the ordinary activities of life. The SOPO must meet the twin tests of necessity and clarity. The test of necessity brings with it the subtest of proportionality.

5

As to clarity, a convenient analogy is the framing of an injunction in a civil court, which also attracts the sanction of imprisonment. The terms of a SOPO must be sufficiently clear on their face for the defendant, those who have to deal with him in ordinary daily life, and those who have to consider enforcement, to understand without real difficulty or the need for expert legal advice exactly what he can and cannot do. Real risk of unintentional breach must be avoided. See R v Hemsley [2010] EWCA Crim 225.

The statutory test of necessity

6

Necessity is made the starting point by the statutory test contained in section 104 (1). The order may only be made where the court 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."

7

As is by now well understood, the expression 'serious sexual harm' differs from the concept of 'serious harm' as used for the purposes of indefinite or extended sentences passed under Part 12, Chapter 5 of the Criminal Justice Act 2003 (dangerous offenders): R v Richards [2006] EWCA Crim 2519, [2007] 1 Cr App R (S) 120 at 734, see paragraphs [24] – [27]. This difference follows from the fact that a SOPO is in no sense conditioned upon an extended or indefinite sentence but will often be appropriate as an adjunct to an non-custodial sentence; indeed it may be made even where there is no conviction but only a caution (s 104 (5) and 106 (5)). 'Serious sexual harm' nevertheless means

"serious physical or psychological harm caused by the defendant committing one or more offences listed in Schedule 3": s 106 (3)."

Thus it is to the prevention of the commission of such offences that the reach of a SOPO must be tailored; it may not prohibit unusual, or socially disapproved, sexual behaviour unless such is likely to lead to the commission of scheduled offences. Further, there must be a real, not remote, risk of harm at this level occurring in consequence.

8

We respectfully repeat the useful succession of questions identified by this court in R v Mortimer [2010] EWCA Crim 1303 and which must be addressed when the making of a SOPO is under consideration. They derive from the earlier judgment of Rose LJ in R v Collard [2004] EWCA Crim 1664, [2005] 1 Cr App R (S) 34.

i) Is the making of an order necessary to protect from serious sexual harm through the commission of scheduled offences ?

ii) If some order is necessary, are the terms proposed nevertheless oppressive ?

iii) Overall are the terms proportionate ?

Other applicable regimes

9

When considering these questions, it must be remembered that a defendant convicted of sexual offences is likely to be subject to at least three other relevant regimes. No SOPO is needed if it merely duplicates such a regime. Nor must a SOPO interfere with such a regime. The following regimes must be considered.

i) The sex offender notification rules. These derive from the Sex Offenders Act 1997 and are now contained in ss 80–102 Sexual Offences Act 2003 and in regulations made thereunder. They follow automatically upon conviction of relevant offences, which include most sexual offences. They require no order of the court. They require a convicted person to notify his local police station of his name (s), address (es), date of birth and NI number. He must then notify from time to time any address which he occupies for any period or periods totalling seven days in any year, and must do so every time before he travels, whether on work, on holiday or otherwise. He must give similar prior notification of any travel abroad, with flight details and place of accommodation. He must attend personally to give these various prior notifications and must submit to fingerprinting and photographing for identification purposes. As is well known, these requirements last for different periods according to the length or nature of sentence. In summary, they last indefinitely if the sentence is imprisonment for 30 months or more, for ten years if the term is more than 6 months but less than 30, for seven years if it is for 6 months or less, for five years if the sentence is non-custodial and for two years if there is a caution. The fixed periods, but not the indefinite period, are halved for those under 18 at conviction. In all cases, breach of the requirements is itself a criminal offence, punishable with up to five years' imprisonment.

ii) Disqualification from working with children. Where offences involve children, the defendant will almost inevitably be disqualified from working with children in future, and indefinitely, either by a court order under section 28 Criminal Justice and Courts Service Act 2000 or by the Independent Safeguarding Authority placing the defendant on the barring list pursuant to the Safeguarding of Vulnerable Groups Act 2006 ("SVGA"). Each statute contains a definitive list of occupations and positions ("regulated activites") which a defendant subject to the disqualification or barring may not undertake. Mutatis mutandis, similar provisions apply to those who have committed sexual offences against other vulnerable complainants. Breach is a criminal offence, again carrying up to five years' imprisonment.

iii) Licence. All defendants sentenced to imprisonment will be released under statute at the half way mark, and will then be on licence until the end of the sentence. The licence may endure for several years beyond the end of the custodial term, especially in the case of an extended sentence. If the sentence is a indefinite one (IPP or DPP) the licence will continue for ever, subject to the power of the Parole Board to lift it ten years after release if satisfied that it is no longer necessary. In any of these cases, the conditions of the licence will be framed at the time of release by experienced probation officers acting as offender managers. The sanction for breach of licence is not the commission of a...

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