Rampley, R. v

A court may make a Sexual Offences Prevention Order under Sexual Offences Act 2003 even though it has not found the significant risk of serious harm required for the dangerous-offender provisions of the Criminal Justice Act 2003. The statutory thresholds are materially different. Section 229 requires a significant risk and defines serious harm by reference to death or serious personal injury. In contrast, a SOPO requires that the order be necessary to protect the public from serious sexual harm, namely serious physical or psychological harm caused by relevant sexual offending. The difference between injury and harm is one of degree and quality, although it is fine. A finding under section 229 therefore does not preclude a SOPO under section 104.

The appellant pleaded guilty to sexually assaulting a 15-year-old girl at a railway station. On 19 May 2006, the Crown Court at Manchester imposed nine months’ imprisonment for that offence and three consecutive months’ imprisonment for breach of an existing community rehabilitation order. It also made a Sexual Offences Prevention Order (SOPO) until further order.

The appellant did not challenge either custodial sentence. He conceded that the SOPO’s terms were not inappropriate or excessive, but contended that the judge could not make it after finding no risk of serious harm for the purposes of section 229 of the Criminal Justice Act 2003. The central issue was whether that finding precluded a SOPO under section 104 of the Sexual Offences Act 2003.

1. The appeal against making the SOPO was dismissed. The Court nevertheless varied its duration from an order continuing until further order to a term of seven years.

2. Section 229 of the Criminal Justice Act 2003 applies where the court must assess whether there is a significant risk to the public of serious harm from further specified offences. By section 224(3), serious harm means death or serious personal injury, whether physical or psychological.

3. Under section 104(1) of the Sexual Offences Act 2003, a SOPO may be made where it is necessary to protect the public, or particular members of it, from serious sexual harm. Section 106(3) defines that protection as protection from serious physical or psychological harm caused by the defendant committing a Schedule 3 offence.

4. Although the language of the two schemes is similar, their requirements differ. The dangerous-offender assessment requires a significant risk, whereas section 104 does not. More importantly, the statutory definition under section 229 requires death or serious personal injury; the SOPO regime concerns serious physical or psychological harm. Injury and harm differ in quality and degree. The distinction is fine but real.

5. The sentencing judge was therefore entitled to find that the statutory threshold for a section 229 assessment was not met while finding that a SOPO was necessary under section 104. On the appellant’s history and continuing risk to females, the order was both appropriate and necessary. A finite seven-year term was substituted because it gave the appellant certainty; a breach could justify an application to extend the order or restore an indefinite duration.

• Court of Appeal (Criminal Division) Dismissed the appeal against the making of the SOPO, but varied its duration to seven years.
• Crown Court at Manchester On 19 May 2006 imposed a total of 12 months’ imprisonment and made the SOPO until further order.