Neutral Citation Number: [2010] EWCA Crim 907 
Case No: 200903940 A8/200905095 A9 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Wednesday, 14th April 2010
 
B e f o r e:

LORD JUSTICE MOSES 

MR JUSTICE HENRIQUES 
 
HIS HONOUR JUDGE R QC 
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) 
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R E G I N A 

v 

R

R E G I N A 

v 

C 
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Mr S R appeared on behalf of R
Ms C Howell appeared on behalf of C 
Mr M Collins and Mr SR Yeung appeared on behalf of the Crown 
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J U D G M E N T 

1.	MR JUSTICE HENRIQUES:  We deal with the cases of R and C together as they raise similar points of law.
2.	On 19th May 2000, at the Crown Court sitting at Leeds, the applicant R pleaded guilty to five counts of sexual activity with a child.  On 15th June 2000, he was sentenced on each count to a term of two years' imprisonment to run concurrently with an order that six days spent on remand was to count towards the sentence.  
3.	He is 24 years of age.  The girl concerned was 14 years of age and lived with her mother.  In April of 2009, she went missing from home and, whilst away from home, she met and befriended the applicant and they spent time together.  At the end of April, the complainant returned home and informed her mother about her friendship with the applicant.  Her mother was concerned but said that she would like to meet the applicant.
4.	In early May, all three met in the town centre.  Around the same time the applicant also attended at the complainant's home.  The police became involved and they warned the applicant that the complainant was 14 years of age.  He thereafter left the house and the complainant's mother assumed that that was the end of the relationship.  On 8th May, the girl went missing again but returned home the following day.  She had a cut to her hand caused by climbing into a derelict building.  She went to hospital, returned home and, after about ten minutes, left home again.  The police again spoke to the applicant concerning his harbouring of the complainant and he was again reminded of her age.  
5.	Over the next two days the complainant stayed with the applicant in a derelict building where they repeatedly had unprotected sexual intercourse.  On 11th May, they were captured kissing and cuddling on CCTV at the bus station.  The police were called and the applicant arrested.  The complainant was taken home and disclosed to her mother and the police where she had been staying and the fact that she had had sexual intercourse with the applicant.  She made a brief statement to that effect.  The applicant was interviewed and, following initial denials, he went on to fully admit the offences.  
6.	Notice of an intention to abandon the application in relation to the length of sentence was received by this court and now no complaint is advanced as to the length of the sentence.  The applicant was, however, made subject to a Sexual Offences Prevention Order which was ordered to have effect until the complainant in question obtained 16 years or until further order.  This aspect of the sentence was referred to the full court by the Registrar.  Since the complainant is due to obtain the age of 16 in September of this year, the order is for a period of less than five years.  
7.	Section 107 reads thus: 
"A sexual offences prevention order— 
 (a) prohibits the defendant from doing anything described in the order, and
 (b) has effect for a fixed period (not less than 5 years) specified in the order or until further order."
The submission was at one stage made to us that an application could be made within the period of five years but that has not been persisted with and it is plain to us that the period of the order must continue for at least a period of five years and be made for a minimum of five years before any application can be made to the court.  Accordingly, the order having been made for a period of less than five years, the order as made is unlawful.
8.	We have considered whether we have the power to regularise the order, either by making it until further order or for a period of not less than five years.  Our attention has been brought, both in this and in the conjoined appeal, to section 11(3) of the Criminal Appeal Act 1968.  That section permits this court, on quashing any sentence or order, in place of it to pass such sentence or make such order as they think appropriate for the case and, as the court below have power to pass or make when dealing with him for the offence, that the court shall so exercise their powers under this subsection that, taking the case as a whole, the applicant is not more severely dealt with on appeal than he was dealt with by the court below.  Any order which potentially extended the length or duration of the order initially imposed could be said to be dealing with an appellant more severely than he was dealt with before.
9.	We have reminded ourselves of the case law touching upon this subject.  We have considered R v Harrison [2008] EWCA 3170.  In that case this court did impose a mandatory order disqualifying the appellant from working with children where none had been imposed in the court below.  However, having read that transcript, it is plain that no consideration was given to section 11(3) of the Criminal Appeal Act and there was no argument upon the topic.  It is clear from R v Reynolds [2007] EWCA Crim 538, paragraph 23, that section 11(3) precludes this court from interfering with any sentence even if provisions of a statute mandate a different ex hypothesi more severe sentence.  The case which has concerned us most is that of R v Field and Young [2002] EWCA Crim 2913.  In that case, the court held that a disqualification order was not a penalty for the purposes of Article 7 of the European Convention on Human Rights.  That court was not considering the effect of section 11(3) upon their powers to impose or vary an order.  It was considering whether an order of disqualification from working with children constituted a penalty such that Article 7 of the ECHR precluded any such order being made in relation to an offence before the section came into force.  This court ruled that the effect of disqualification was entirely prospective because it only affected future conduct.  In such circumstances, the statute does not offend against the presumption against retrospective effect merely because it depends for its future application upon events that may have occurred before it came into force.  If a disqualification order is not a penalty, then it is argued that section 11(3) is not breached because the applicant has not suffered a more severe penalty than before his appeal.
10.	The question for us is, however, is this: would an appellant who had not been disqualified from working with children consider himself more severely dealt with if this court imposed such a disqualification, none having been made in the court below.  By reason of other conclusions that we have reached, we need not finally dispose of that point.  We need say only this however, that we are impressed with the argument advanced to us by Ms Howell in the conjoined case of C.  Without finally disposing of the matter, we find it difficult to say that an appellant would not consider himself, leaving this court with an order which had not previously been made, to have been dealt with less than more severely.  An order disqualifying an appellant from working with children plainly puts him at a considerable disadvantage in the job market, quite apart from rendering him liable to a court order.
11.	We return to the facts of the case in R.  In that case, the learned Recorder of Leeds was confronted with a draft Sexual Offences Prevention Order and passed comment that in such cases prosecutors always do ask for such an order.  We would draw prosecutors' attention to the judgment of this court in the case of R v Daniel Mark Hemsley [2010] EWCA Crim 225, in which it was pointed out that section 104 of the Sexual Offences Act 2003 confers a power to make an order if 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.  Key words or phrases in that statutory provision are overlooked and those words are "necessary for the purpose of protecting" and "serious harm".  It is plain to us that orders are as a matter of routine placed before judges who have had no opportunity to consider their contents simply as a matter of routine.  There then follows between bench and advocate a debate as to the various provisions within that draft document and orders are made very much on the hoof.  That is plainly what occurred in the present case.  There is no criticism made of the Recorder of Leeds in that respect.  Indeed, he expressed his disapproval of the fact that such applications were made as a matter of routine and indeed struck out substantial parts of the document before him.  
12.	In the present case we must consider whether there was any necessity for a Sexual Offences Prevention Order.  The term of imprisonment was imposed in June of 2009.  The appellant can expect to be released from custody at the very latest in June of 2010.  Some three months later the girl in question will obtain her 16th birthday.  During those three months or so, the appellant will be on licence.  It will doubtless be a condition of his sentence that he does not in any way contact the girl in question.  Upon the girl obtaining the age of 16 years, there is no reason why he should not contact the girl in question.
13.	Accordingly, we have no difficulty at all in concluding that the making of a Sexual Offences Prevention Order was entirely unnecessary.  We note that no order was made disqualifying the applicant from working with children.  Since the applicant was sentenced to a term of imprisonment of more than 12 months, the court was obliged under section 28 of the Criminal Justice and Court Services Act 2000 to disqualify the applicant from working with children or to otherwise state its reason for not doing so.  
14.	The failure to specifically state a reason was in our judgment no more than an oversight on the part of the judge.  The reasons for not doing so can be deduced from his observations during legal argument.  He said it was not a predatory case.  He thought that she was of legal age when they met and he had already stated that it was not necessary or appropriate to impose a restriction upon the applicant working with children as sought under paragraph 4 of the Sexual Offences Prevention Order which was a broader prohibition than would have applied to a disqualification order under section 28 of the 2000 Act.  
15.	We would remind prosecutors of the provision that was inserted into the Criminal Justice and Courts Services Act 2000 by section 299 of the Criminal Justice Act 2003, schedule 30, paragraphs 1 and 2, namely now section 29(b) of the 2000 Act: where section 28 applies, that the court has neither made an order under that section nor complied with subsection (6) of that section, the prosecutor may at any time apply to that court for an order under section 28 or 29.  It appears to be a fact of life that from time to time judges do, through an oversight, fail to make orders under section 28 of the Criminal Justice and Courts Services Act 2000.  Such failure should be in fact be corrected by prosecuting counsel.  Alas, it is not always so corrected.  The ability to apply to the Crown Court, either through oversight or through the defendant at some later stage misconducting himself, should be borne in mind.  We think it unlikely that it should under any circumstances fall upon this court to correct an omission, whether or not section 11(3) of the Criminal Appeal Act would prohibit such a course. 
16.	Accordingly, in all the circumstances of this case, we quash the order that was made under the Sexual Offences Prevention Order and we make no order under section 28.
17.	Turning to the case of C, he is now 24 years of age and on 27th July, at the Crown Court at Northampton, he pleaded guilty to the offence of sexual activity with a child.  On 24th August 2009, he was sentenced to two years' imprisonment and disqualified from working with children for a period of five years.  He was made subject to a Sexual Offences Prevention Order for a period of five years.  He was subjected to notification requirements for a period of ten years.  
18.	The facts can be comparatively shortly stated.  The girl in question was 15 years of age.  At the time the applicant was 23 years.  They met through an internet chat site in 2007 and arranged to meet.  At this stage the complainant lied about her age, stating that she was 17 years old.  When they did meet up, she told the applicant her real age and decided not to see him again due to their age difference.  The applicant subsequently started text messaging her, stating that he loved her and during the summer of 2008 asked her questions about her sexual activity.  He texted him back but told him to stop texting her and that his behaviour was sick due to the difference in their ages.  
19.	In February 2009, the complainant split up with her boyfriend.  The applicant texted her to ask if she wanted a new boyfriend and she responded by stating that she just wanted to be friends.  They saw each other on two occasions prior to 21st March 2009, when the complainant attended the applicant's home.  She turned up at midnight and was drunk.  They initially talked and listened to music and kissed and cuddled each other.  The applicant then removed the complainant's clothes and they had consensual sexual intercourse.  The applicant ejaculated inside her.  The complainant made disclosure of the incident to her ex‑boyfriend and then her brother the following day.  
20.	The applicant was arrested and admitted the offence in interview.  He said that they had met when the complainant was 13 years old and he had shared a bed with her on one occasion when she was that age, although there had been no sexual contact until she was 15 years old.  The applicant pleaded guilty on the basis that he and the complainant had been friends for years.  She had wanted to come and stay with him on the night of the incident and he had agreed.  She it was who initiated the sexual intercourse, although the applicant did know her age and should therefore have stopped it.  This basis of plea was accepted by the Crown.  
21.	This application was referred to the full court by the Registrar in relation to the disqualification from working with children, that being limited to a period of five years.  The applicant's sole ground of appeal related to the Sexual Offences Prevention Order.  We grant an eight day extension of time.
22.	The Registrar has brought to our attention the fact that section 28(4) of the Criminal Justice and Courts Services Act provides that the court must order the individual to be disqualified from working with children subject to subsection (5).  Subsection (5) provides that: 
"An order shall not be made under this section if the court is satisfied, having regard to all the circumstances, that it is unlikely that the individual will commit any further offence against a child."
Nothing in the Act indicates that the court has power to disqualify for any lesser period than indefinitely.  It is clear from section 33(4) that the statutory disqualification period envisaged was indeed in excess of ten years since a condition for review of the disqualification is that at least ten years has elapsed since the relevant date.  
23.	We are satisfied that there is no provision for any disqualification order for a period other than an indefinite period.  That is a view shared by the editors of Archbold at paragraph 5‑854 and at Blackstone E21.11.  Accordingly, the order is unlawful and is quashed.
24.	For reasons that we have already canvassed, we hesitate to make an indefinite order lest that would represent a breach of section 11(3) of the Criminal Appeal Act 1968.  However, before reaching that stage, it is necessary for us to consider whether there is any basis for any apprehension that the applicant might commit any further offence against a child and, on the evidence available, we must consider whether the judge should have concluded that it was unlikely that the applicant would commit any further offence against a child and accordingly should have declined to make any order.
25.	Under section 104 of the Sexual Offences Act 2003, as we have already stated, a court may only make an order if it is satisfied that it is necessary to make such an order.  The appellant's case is simple.  It was not necessary in the present case.  He was aged 23 at the time and a man of good character.  He has not been convicted of any grooming offence.  The offence was committed in the context of a friendship that began when the complainant pretended that she was 17 years of age.  Although the complainant had contacted the appellant since the offence, there had been no response by the appellant.  There were before the court numerous character references indicating that the appellant accepted his behaviour was wrong.  Sexual intercourse only took place when the girl turned up at midnight and was drunk and it was she who initiated the sexual act.  The appellant expressed his remorse to the writer of the pre‑sentence report.  The conclusion in the report was that there was a low risk of general offending.  
26.	We accept that submission.  We do not see the necessity specified in section 104 as having been made out.  Accordingly, we quash the Sexual Offences Prevention Order.  Accordingly, both the order disqualifying the appellant from working with children and the Sexual Offences Prevention Order are quashed.  
27.	We are grateful for the assistance that we have received from counsel, particularly in the latter case.