Monument v R.

A sentencing court may use the slip-rule power in section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 to add an ancillary order within 28 days. Unless it directs otherwise, the varied sentence or order takes effect from the original sentencing date.

An order purportedly made under repealed legislation after repeal is invalid where the court directs it to take effect only from the later date. The saving provisions of the Interpretation Act 1978 cannot validate that nullity. An appellate court cannot substitute a lawful order if its statutory minimum duration would cause the appellant to be dealt with more severely overall.

The applicant pleaded guilty at Teesside Crown Court to 16 specimen counts of making indecent photographs or pseudo-photographs of children, representing a much larger collection of downloaded images. On 23 April 2004 he received concurrent eight-month sentences and notification requirements under the Sex Offenders Act 1997.

Within 28 days, but after the 1997 Act had been repealed and replaced by the Sexual Offences Act 2003, the Crown sought an ancillary order. On 14 May 2004 the judge made a three-year restraining order under the repealed Act, directing that it take effect from that day. The applicant appealed out of time after the judge recognised that the order might be invalid. The central issues were whether the order was saved by the slip rule or transitional provisions, and whether the Court of Appeal could substitute a sexual offences prevention order.

1. Appeal allowed. Leave and an extension of time were granted. The restraining order made on 14 May 2004 was invalid and was set aside.
2. Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 permits more than minor corrections within 28 days. Following Riley [1982] 75 Cr.App.R. 266, it can authorise an additional ancillary order. Under section 155(5), an order so varied normally takes effect from the original sentencing date. Had that default applied, the order would have taken effect on 23 April, before repeal of the 1997 Act.
3. However, the judge expressly directed that the order should take effect from 14 May. By then the power under section 5A of the Sex Offenders Act 1997 had been repealed. Section 17(2) of the Interpretation Act 1978 could not transform the purported order into an order under the 2003 Act, because that argument assumed the validity of the very act done after repeal. Nor could sections 16 or 108 save, vary or renew an order that had never validly been made.
4. A sexual offences prevention order under section 104 of the Sexual Offences Act 2003 could in principle be made for the applicant's pre-commencement offence. The definition of serious sexual harm in section 106(3) substantially preserved the relevant aspect of the earlier regime. On the approach in Beaney [2004] Crim.L.R. 480, downloading such images creates a market that encourages their production and dissemination, and thereby supports a finding of risk of serious psychological harm.
5. But a sexual offences prevention order had to last at least five years under section 107(1)(b). The sentencing judge had declined to impose an order longer than three years. A five-year substitute would therefore deal with the applicant more severely on appeal, contrary to section 11(3)(b) of the Criminal Appeal Act 1968. No substitute order could be made.

• Court of Appeal (Criminal Division): Allowed the appeal and set aside the invalid restraining order. It declined to substitute a sexual offences prevention order because its five-year statutory minimum would be more severe overall.
• Teesside Crown Court: On 23 April 2004 imposed concurrent eight-month sentences. On 14 May 2004, after repeal of the Sex Offenders Act 1997, purported to add a three-year restraining order under that Act.