H v R.

A sentencing court should not reduce an otherwise proper custodial term merely because it triggers a more onerous statutory notification regime. Notification requirements arise independently by operation of the Sexual Offences Act 2003; they are not part of the sentence.

An Article 8 challenge to indefinite notification failed on the facts. The offender’s serious conduct, assessed risk of reoffending and continuing need for supervision meant that indefinite notification was proportionate, even assuming an individual assessment was available.

H, then aged 17, pleaded guilty in the Crown Court at Norwich to sexual assault contrary to section 3 of the Sexual Offences Act 2003. He received an extended sentence comprising 30 months’ detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 and a 30-month extended licence period.

Because the custodial term was 30 months, indefinite notification requirements applied. After serving the custodial term, H sought to appeal out of time. He contended that the term was excessive, that notification should be calculated by reference to the custodial term alone, and that indefinite notification breached Article 8 of the European Convention on Human Rights.

1. The application was refused. The 30-month custodial term was neither excessive nor manifestly excessive. The offence involved trespass into the complainant’s home, premeditated conduct, an attempt to have intercourse despite her prior refusal, and a serious physical struggle. The judge was entitled to impose detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.
2. The extended licence period was also justified by the evidence of a high risk of reoffending and the need for community measures to address H’s sexual attitudes and behavioural problems.
3. Following Regina v. Longworth [2006] 1 UKHL 1, the notification requirements were not part of the sentence. They arose independently under section 80 of the Sexual Offences Act 2003. A proper custodial term should therefore not be reduced simply because it lay at the threshold for indefinite notification.
4. The court did not determine whether the notification period for an extended sentence should be calculated by reference only to the custodial term rather than the combined term. Although it saw considerable force in the argument based on Regina v. Graham S [2001] 1 Cr App Rep (S) 335, the issue could not affect this case because the 30-month custodial term itself required indefinite notification.
5. On the Article 8 argument, the court left the wider question of principle unresolved. Even if an individual assessment of proportionality were available, indefinite notification was proportionate on these facts. H presented a continuing high risk of sexual offending, and no later evidence showed that maturity or other events had displaced that assessment.

• Court of Appeal (Criminal Division). In [2007] EWCA Crim 2622, the court refused H’s application to appeal his sentence out of time.
• Crown Court at Norwich. Following H’s guilty plea to sexual assault, Roderick Evans J imposed an extended sentence comprising 30 months’ detention under section 91 and a 30-month extended licence period under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000.