Neutral Citation Number: [2012] EWCA Crim 1456
Case No: 2011/04795 (ALDRIDGE) AND 2011/07058 (EATON)
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM GUILDFORD CC (Aldrige)
ON APPEAL FROM STAFFORD CC (Eaton)
HH Judge Moss (Aldridge); HH Judge Glenn (Eaton)
T2011/0102 (Aldrige); T2011/0058 (Eaton)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 04/07/2012
Before :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE OPENSHAW
and
MR JUSTICE IRWIN
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Between :

	Trevor Aldridge 	Appellant	
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	R
Thomas Eaton
- and -
R	Respondent
Appellant

Respondent
	
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M Cousens for Aldrige
L Mably for the Respondent
C A Clark (Solicitor Advocate) for Eaton
N Burn for the Respondent

Hearing date: 23rd May 2012
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Judgment

The Lord Chief Justice of England and Wales: 
1.	This is the judgment of the court in these otherwise unconnected appeals which were listed together to enable the court to address a preliminary feature common to both.  Each member of the court has dealt with a separate aspect of the appeals, and each agrees with the contribution of the other members.
2.	Both appellants were made subject to a sexual offences prevention order (“SOPO”) under s.104(1) of the Sexual Offences Act 2003 (the 2003 Act).  The orders were subsequently varied by the Crown Court in accordance with s.108 of the Act, by which SOPOs may be varied, renewed or discharged. Applications for this purpose may be made by the defendant subject to the order, or by any Chief Officer of Police coming within the ambit of s.108(2).  Where the original SOPO was made by the Crown Court or the Court of Appeal, the variation application must be made to the Crown Court.  The court will then make the appropriate order:  (s.108(4)). Perhaps we should start by emphasising that, for the purposes of enhancing the protective effect of a SOPO, the variation may significantly increase its restrictive consequences on the offender.
3.	Aldridge was made subject to a SOPO on 27th November 2009 in the Crown Court at Newport, Isle of Wight.  The order was varied at Guildford Crown Court on 29th July 2001 so as to include further and additional restrictions on him.
4.	Eaton was made subject to a SOPO for 3 years in the Crown Court at Stafford on 23rd May 2011.  On 19th July 2012 there was a purported correction of the order under s.155 of the Powers of Criminal Courts (Sentencing) Act 2000 from 3 years “until further order”, although the schedule of prohibitions attached to the order continued to refer to the 3 year period, which we have treated as a variation of his original SOPO.
5.	Both now appeal with the leave of the court against the variation orders under s.110(3)(a) of the Act.  This enables a defendant to appeal “against the making of an order under s.108, or the refusal to make such an order – (a) where the application for such an order was made to the Crown Court, to the Court of Appeal…”  The preliminary question is the route of appeal.
6.	The debate is whether the court vested with jurisdiction to hear the appeals against the variation orders is the Court of Appeal Criminal Division (“criminal division”) or the Court of Appeal Civil Division (“civil division”).
7.	In R v Hoath; R v Standage [2011] 1 WLR 1656, [2011] EWCA Crim 1656 in a different constitution of this court over which I presided, after hearing argument on the point, we decided that a variation of a SOPO constituted “an order made by a court when dealing with an offender” falling within the broad context of s.50 of the Criminal Appeal Act 1968.  S.9 of the Act provides that a person who has been convicted of an offence may appeal to the Court of Appeal – that is, the criminal division (see s.53(2) of the Senior Courts Act 1981) – against any sentence “passed on him for the offence, whether passed on his conviction or in subsequent proceedings”.  Accordingly the criminal division was the appropriate forum to consider any appeal arising from an application to vary a SOPO.  In reaching that conclusion the court recognised that no express statutory provision was made for an appeal against a variation or refusal to vary an original order to be treated as if it were an appeal against sentence.
8.	Our approach did not attract the approbation of Mr James Richardson QC, the distinguished editor of Criminal Law Week, and indeed of Archbold, Criminal Pleading Evidence and Practice.  At para 20 – 330 of the 2012 edition it is submitted that an appeal arising in the circumstances of the present cases should lie to the civil division.  Whereas a SOPO, when originally made, may be treated as a sentence, and therefore an appeal should lie to the criminal division, an order under s.108 refusing to vary or discharge or renewing a SOPO did not.  The appropriate forum therefore was the civil division.  What is more, in his commentary in Criminal Law Week, issue 28, 2011 at page 9, Mr Richardson suggested that leave to appeal in relation to a variation order was not required.  If he were right, the decision in Hoath; Standage created a barrier (the leave requirement) which would not be present in the civil division.  However in view of s.54(1) of the Access to Justice Act 1999, and CPR rule 52.3, if the case had proceeded through the civil division, permission would still have been a prerequisite.  As to criminal appeals, it would be rather odd for an individual to require leave to appeal against the imposition of a SOPO, and not to require it when appealing against a variation or refusal to vary it.
9.	In the course of argument in these appeals all the material critical of the decision in Hoath; Standage was drawn to our attention and it was courteously suggested that if Hoath; Standage may have been decided per incuriam, it should not be followed.  Attention was also drawn to the decision in R v Boggild [2011] EWCA Crim. 1828, where the prosecution sought leave to appeal a decision of the Crown Court under s.14A(5A) of the Football Spectators Act 1989.  Save in the context of unduly lenient sentences, there is, generally speaking, no route of appeal against sentence vested in the Crown.  In those circumstances this court decided that the jurisdiction to consider such an appeal was exercisable, not by the criminal division, but by the civil division.  The result was “unexpected” and it was seriously doubtful that this could have been Parliament’s intentions.  However, the decision also emphasised that if the defendant had been made subject to a football banning order he would, subject to leave in the usual way, be entitled to appeal to the criminal division.  The present appeals, and those in Hoath: Standage, were appeals not by the Crown, but by individuals who were defendants in the Crown Court and the right of appeal against sentence was vested in them as the individuals who would be subject to the restrictions in any SOPO, whether as originally ordered, or as varied.
10.	Notwithstanding the importance which is normally attached to questions of jurisdiction when they are in doubt, in practical terms in the present context nothing turns on this question.  One or other division of the Court of Appeal is vested with the necessary jurisdiction, and sitting as we are, arrangements have been made, as they very easily can, to ensure that we would be a properly constituted court of either the civil or criminal division of the Court of Appeal.
11.	No one questions that these SOPOs depend on the commission of one of the offences listed in Schedule 3 or 5 of the Act.  No one questions that when these SOPOs were made in the Crown Court they could have been the subject of an appeal to the criminal division, as if against sentence.  No one questions that the criminal division, not the civil division, may vary the SOPO made by the Crown Court.
12.	Hoath: Standage was not decided per incuriam.  We had the characteristically valuable assistance of Mr Louis Mably for the Crown.  The decision is binding on us.  We repeat that provision is not expressly made for an appeal against a variation or refusal to vary the original order to be treated as if it were an appeal against sentence.  Given that appeals relating to the variation of a SOPO, the terms of which may reflect a decision of the criminal division following an appeal against the original SOPO, this is a clear legislative oversight.  In the end it is a matter of complete indifference to the defendant convicted of an offence falling within Schedule 3 or Schedule 5 of the Act, and to the Crown, whether the three judges deciding the case are sitting in the criminal division or civil division.  When deciding these appeals, we have been sitting in the Court of Appeal Criminal Division.
Mr Justice Irwin:
R v Aldridge
13.	The appellant was born on 25 June 1973, and is now 38.  He was for 8 or 9 years a primary school teacher.  In 2008, he was a man with no convictions.  While the appellant was on holiday on the Isle of Wight in 2008, he used a computer at an Internet café.  When the police subsequently searched the computer’s memory 186 indecent images of children were found and a further 122 on a memory stick.  When his hotel was searched the police found another 632 images of children which had been printed onto paper.  The images ranged from level 1 to level 4.
14.	A pre-sentence report, dated 25 November 2009, found that he posed a medium risk of causing serious harm to children and a medium risk of re-offending.  A SOPO with restrictive conditions was imposed to assist in the management of the risks.
15.	On 27 November 2009, the appellant was sentenced to 6 months imprisonment suspended for 2 years.  The appellant was made the subject of a SOPO.  The terms of the Order imposed on 27 November 2009 were broadly expressed.  They prohibited him using any computer in any public facility, taking any photographs or video images of children or young people under the age of 18 and from entering any park or playground that had recreational equipment for the use of children or young people.
16.	He later admitted breaching that order by entering an Internet café in London in February 2010.  It was not shown that he attempted to misuse internet access; the breach was to use a computer in a public facility.  He pleaded guilty to the breach before the North West Surrey magistrates in March 2010.  He was committed to the Guildford Crown Court and on 15 April 2010 and made subject to a suspended sentence.
17.	In 2011 the appellant was again charged with breaching the SOPO.  The matter came up again before the Crown Court at Guildford.  At the first hearing, on 28 July 2011, HHJ Moss correctly expressed the view that the existing order “did not have that clarity that one needed to ensure that a jury, properly directed, could conclude there was a breach”.  The Crown decided to offer no evidence on the alleged breach and a verdict of not guilty was recorded.  However, the judge had the matter listed again in court on the following day to address the terms of the SOPO, in the light of what was alleged to have occurred.  On 29 July, the Court was made aware of the decision in Smith, Clarke etc [2011] EWCA Crim 1772.  With the terms of that decision in mind, Judge Moss considered whether a SOPO was necessary, and, if so, in its terms.
18.	As the Crown accepts, this hearing was not satisfactory.  Neither side referred the judge to the relevant provisions of the Criminal Procedure Rules.  The entire process appears to us to have been inappropriately informal. The prosecution asserted that concerns arose from the appellant’s attendances at a church in Guildford.  They related to events between 22 November 2009 and February 2010, well over a year earlier.  A chronology had been prepared by the vicar, Rev. Cotton.  It appears that the factual contents of this were not heavily contested.  The appellant had formed the habit of attending church whenever the youth choir was singing, and sitting as close as possible to the choir.  The boys found his behaviour disturbing.  The vicar had attempted to reach agreement with the appellant which would ensure that his presence was less obvious and less intrusive, but according to the way the matter was put to the judge, these arrangements had not always lasted.  It was said the appellant had “pushed the boundaries”, particularly while the vicar was away.  However none of this was placed before the court in admissible form.
19.	In the course of the hearing before us, we were shown an email dated 1 April 2010 from the Rev. Cotton, written to the Surrey police.  The copy produced appears to be countersigned by him in confirmation that it was a genuine email.  He wrote “I freely admit that Trevor has stuck to any agreements he and I have made – such as the one currently in place with his not attending until May”.  That does not sit well with the conclusion reached by the judge that the “arrangements had not always lasted”.  It is not clear if this email was produced to the judge in the course of the hearing.
20.	There was further information that the appellant had brushed past a boy at a museum and the child’s father had punched him as a result.  He claimed to be an entirely innocent party so far as that incident was concerned.  Again this information was not in any admissible form.
21.	The appellant was also said to have attended swimming baths and there were unconfirmed reports that he had been seen masturbating there, which the appellant did not accept.  He was said to have been asked by staff to leave the swimming baths because of his inappropriate behaviour.  It is however clear that this information dated from well before the offending in 2008, which had led to the original conviction and the original SOPO.  In any event the information about this incident was no more than a report and could not be verified.
22.	The judge was also invited to rely on passages from Pre-Sentence Reports in the case, and in particular from a report dated 16 April 2010.  The author of that report wrote that the appellant “has the propensity to justify his behaviour and push boundaries, which is of concern considering he presents as having a sexual interest in children and has restrictions on his behaviour”.  By the time of the hearing on 29 July 2011, the appellant had, since October 2010, been supervised by a different probation officer, Tracy McClure.  It does not appear that any report from her was before the judge.  A very recent report, dated 21 May 2012, from her was provided to us.  It gives a rather different emphasis, it suggests that there is nothing to show that he has broken any of the restrictions imposed on him.
23.	The judge then varied the Order, so that it read as follows:
“The Applicant is prohibited from
a)	Using any device capable of accessing the internet unless it has the capacity to retain and display the history of internet use and he makes the device available on request for inspection by a police office.
b)	Deleting such history referred to above in paragraph 1.
c)	Accessing the Internet on any computer or internet device which does not have monitoring software installed by Surrey Police or the police force where the defendant resides unless that computer is at a place of work or work training facility (such as jobcentre plus or skill training UK) or public library where a supervisor is fully aware of this order, and monitoring of the usage takes place with the prior agreement of Surrey Police or the police force where the subject of this order resides,
d)	Taking any photographic image including moving images of any person under the age of 16 years.
e)	Using the Internet to contact or attempt to contact any child known or believed to be under the age of 16 years.
f)	Possessing any device capable of storing digital images unless the defendant makes it available on request for inspection by a police officer.
g)	Attending Holy Trinity Church, Guildford, Surrey or any other religious establishment for services where a youth choir is present except with the prior written permission of that church and after the establishment has been made aware of its terms.
h)	Entering or remaining in or on any school or college premises/grounds or swimming pool whether educational or recreational that caters for the education or training of children under the age of 16 years between the hours of 08.00 hrs and 18.00 hrs,
i)	Speaking or communicating with directly or indirectly about matters of a personal nature or befriending a child under the age of 16 years or attempting so to do whether by himself or with another.”
24.	On appeal, it was argued on the appellant’s behalf that the judge heard no evidence in the course of the variation hearing, but acted on the basis of information put forward on paper or by way of summary – contrary to the approach suggested in R (Cleveland Police v H) [2009] EWHC 3231 [2011] 1 WLR 2512.  The procedure adopted on 29 July 2011 was not satisfactory.  Even if the material had been presented in evidence and accepted, it did not suggest that the appellant would go on to commit a contact offence.  Before a court makes a particular condition part of a SOPO it must be “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” –s104(1) Sexual Offences Act 2003”.  S.108(5) is in similar terms.  In the absence of evidence to suggest progression to contact offences, there was no basis here for a significant risk of “serious sexual harm”.  Such harm cannot reasonably be though to arise from the appellant looking at boys, even if that makes them or their families uncomfortable.  Condition c) is unworkable.  Further, conditions c) g) h) and i) are wrong in principle as being neither necessary under the Act nor proportionate.
25.	The Crown acknowledged in general terms the deficiencies of the procedures adopted before the judge.  However it was contended that the appellant appears to accept, as he did to the probation officer, that although he has no intention of touching them, he does get pleasure from observing young boys.  The material from Holy Trinity was very detailed, and in fact uncontested as to the facts, if not the interpretation.  The other material advanced is similarly “specific and consistent”.  Taken together, this is “a compelling body of material which indicates … an identifiable, obvious, pressing and imminent risk of contact offences”:  Comparing this material with the evidence in the original Isle of Wight case, the appellant’s interests have “progressed from the general to the specific”.  There is an identifiable risk in relation to Holy Trinity and other churches, and the report from the swimming pool indicates an identifiable risk of offences, leading to physical or psychological harm.    There is a general identifiable risk concerning young boys, and so the orders, both general and particular, are necessary and proportionate.  The terms of the order are crafted consistently with Smith.  
26.	By Part 50.5 of the Criminal Procedure Rules, as they affect the SOPO process, notice requirements and procedural provisions are set out.  Part 50.6 makes provision for the receipt of hearsay evidence, Part 50.7 provides for the cross-examination of witnesses in relation to hearsay material, and Part 50.8 addresses challenges to the credibility of hearsay evidence.  The provisions are intended to be practical but to ensure a degree of rigour in the treatment of evidence in the course of a variation application.  
Conclusion
27.	In our judgment, the procedure adopted before the judge on 29 July was unsatisfactory and wrong in principle.  Not only was it arguably in conflict with the remarks of Collins J in R (Cleveland Police) v H, but the approach did not conform to the broad requirements of the Criminal Procedure Rules designed to ensure the fairness of the process.
28.	We shall quash the variations ordered by Judge Moss to the extent of quashing paragraphs g), h) and i) of the Order.  Paragraph c) of the Order will remain, since that variation was not based on any procedural failure in relation to the presentation of the material.  Our decision does not preclude the Chief Constable seeking by way of fresh application to vary the SOPO in this case in accordance with the Rules and nor would the Chief Constable be precluded from relying on some or all of the material before Judge Moss, properly presented in accordance with those Rules.  In the circumstances we do not propose to address the question in whether the appellant is likely to progress to “contact offending”, or not, because this is a factual decision to be decided on the evidence presented to the Crown Court.
Mr Justice Openshaw 
R v Eaton
29.	On the 23 May 2011 in the Crown Court at Stafford the appellant pleaded guilty to 5 counts of making indecent photographs of a child, contrary to section 1(1)(a)  of the Protection of Children Act 1978; he was sentenced by HHJ Glen to a community sentence with a requirement that he participated in a Sex Offender Groupwork Programme; he was also made subject to a SOPO for 3 years.  At that hearing, no one alerted the judge to section 107(1)(b) of the Sexual Offences Act 2003 by which the minimum term for a SOPO was not less than 5 years.  A SOPO to run for only 3 years is an unlawful sentence.
30.	By letter dated 1 July 2011, the Chief Constable of Staffordshire wrote to the Crown Court, pointing out this statutory provision and suggesting that the order made ‘must be incorrect’.  The letter did not propose a remedy but the matter was referred to the sentencing judge, who on 19 July purported to correct the SOPO ‘administratively’ to run ‘until further order’.
31.	We have had to consider what power the judge was exercising or purporting to exercise.  It was suggested before us that judge was exercising his powers of ‘alteration’ under section 155 of the Powers of Criminal Court (Sentencing) Act 2000.  Such an ‘alteration’ of sentence would have been objectionable on two grounds; first, the variation was not made within the 56 days and secondly, although CrimPR Rule 42.4(2)(b) does permit the court to exercise its power of alteration on its own initiative, Rule 42.4(4)(b) provides that the court must not exercise its power in the defendant’s absence, unless he has had the opportunity to make representations; here neither the appellant, nor his representative – nor, we might add the prosecution – were notified of the intention to consider this variation.  The judge seems to have had these points clearly in mind for he has made clear in a letter to the Registrar that he was not purporting to alter the sentence under section 155.
32.	The judge, it is now clear, thought that at the original sentence hearing he had ordered the SOPO to run for 5 years, and thought that he had said so; therefore he thought that he was merely correcting an administrative error in recording what he had said.  However, as the judge accepts, the transcript shows he was mistaken.  He said “… I will make a Sexual Offences Prevention order for 3 years”.  It follows that the judge had no power to act as he did.
33.	It has been tentatively suggested by Mr Burns for the prosecution that this Court might exercise its powers under section 11(3) of the Criminal Appeal Act 1968 to regularise the position by quashing the SOPO imposed 3 years, which is unlawful, with a SOPO to run for 5 years, which is the statutory minimum.  
34.	Section 11(3) provides as follows:
‘On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may –
a)	quash any sentence or order which is the subject of the appeal;
and
b)	in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence
but the Court shall exercise their powers under this subsection that taking the case as a whole, the appellant is not more severely dealt with on appeal then he was dealt with by the court below’
35.	This highlights the difficulties with the application of Mr Burn’s argument in this case, because section 11(3) does not permit this court to deal with an appellant more severely on appeal than he was dealt with by the court below.  In our judgment, we cannot substitute a SOPO to run for 3 years by a SOPO to run for 5 years, which is undoubtedly more severe: it imposes obligations for 2 more years, the breach of which renders the appellant liable on conviction for a maximum sentence of 5 years.
36.	Mr Burn did not give up so easily.  He suggested that the original unlawful SOPO might be ‘varied’ by an application under section 108 of the Sexual Offences Act 2003.  We have concluded that an unlawful SOPO cannot be varied once the power to make “alterations” under s.155 of the 2000 Act has elapsed, whether by the sentencing judge, or indeed by us.
37.	Since the hearing, Mr Burn has drawn our attention to R v Bukhari [2008] EWCA Crim 2915, where the Crown Court had erroneously made a confiscation order under the provisions of the Criminal Justice Act 1988, when the order should have been made under the Proceeds of Crime Act 2002.  In that case, this court, using the powers under section 11(3), quashed the order made under Criminal Justice Act 1988 and substituted an order in precisely the same terms made under the Proceeds of Crime Act 2002.  There was no question of this court passing a sentence which was more severe than that imposed by the Crown Court: the same order was made, under a different Act.  In a further written submission Mr Burn suggested that another decision, CPS v T [2006] EWCH 728 (Admin) was consistent with the approach exemplified in R v Bukhari, but this decision takes him no further.
38.	The Chief Officer of Police may, of course, make a fresh complaint to the magistrates court under s.104(5) for a SOPO but that power is only triggered if the offender has since (our emphasis) the date of the conviction “acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made”.  In the absence of the relevant material, we decline to make any observations whether it would be appropriate for such an order to be made, or not.
39.	Accordingly, as the 3 year SOPO passed in this case was unlawful, we cannot now extend its term nor can we vary it; consequently it must be quashed.
40.	In the circumstances, it is not now appropriate to consider whether or not the statutory criteria, justifying the imposition of the SOPO in the first place were fulfilled, nor do we need to consider the precise terms of the order, which was made before the guidance given by this court in the case of  Smith [2011] EWCA Crim 1772, and which were – as the prosecution now concedes – in any event seriously defective.