Richards, R. v

A sexual offences prevention order under Sexual Offences Act 2003, section 104 is a distinct protective and discretionary regime. Its availability does not depend on the offender meeting the dangerousness test for an extended sentence, life sentence, or imprisonment for public protection under the Criminal Justice Act 2003.

The court must apply the criteria in section 104 itself. It must assess the risk of further relevant sexual offending and decide whether an order is necessary to protect the public, or particular members of it, from serious sexual harm. The statutory schemes may overlap, but neither limits the jurisdiction conferred by the other.

The appellant was convicted at the Crown Court at Croydon of an exposure offence after he was found sitting in a public park with his penis protruding from his shorts. The jury had been directed to acquit him on a separate count. He received six months’ imprisonment and an indefinite sexual offences prevention order.

He appealed against sentence. He contended that, because the sentencing judge had not imposed an extended sentence under the Criminal Justice Act 2003, the judge lacked jurisdiction to make an order under section 104 of the Sexual Offences Act 2003. He also challenged the necessity of the order on the facts.

1. Appeal dismissed. Section 104 of the Sexual Offences Act 2003 conferred jurisdiction to make the sexual offences prevention order. The judge was not required first to find that the appellant qualified for an extended sentence under the Criminal Justice Act 2003.

2. The statutory schemes were distinct. Sections 224 to 229 of the Criminal Justice Act 2003 concerned mandatory custodial sentences for dangerous offenders. Section 104 concerned a discretionary, non-custodial protective order where it was necessary to protect the public, or particular members of it, from serious sexual harm.

3. The structure of section 104 confirmed that no custodial-sentence threshold could be implied. It could apply to a qualifying offender who had been cautioned or had already been punished, when a contemporaneous custodial sentence could not arise. The two Acts also used different definitions and offence lists. Nothing in either Act made the section 104 power subject to the dangerousness provisions.

4. The proper approach under section 104 required a risk assessment and consideration of the likelihood of further relevant sexual offending. The sentencing judge had sufficient material to conclude that the order was necessary. His assessment disclosed no basis for appellate interference.

• Court of Appeal (Criminal Division) — the appellant’s appeal against sentence was dismissed: [2006] EWCA Crim 2519.
• Crown Court at Croydon — the appellant was convicted on the second exposure count, sentenced to six months’ imprisonment, and made subject to an indefinite sexual offences prevention order. The first count was withdrawn from the jury by direction.