Buchanan, R. v

A Sexual Offences Prevention Order must contain no prohibition wider than is necessary to protect the public, or particular members of it, from serious sexual harm under Sex Offences Act 2003, section 107(2). Normal lawful activities should not be restricted without evidence, or a proper inference from the evidence, that the restriction is necessary. Restrictions directed at risks not proved at sentence, including risks arising from severed allegations, cannot be justified.

Where several offences are sentenced together, the court must apply totality and assess the overall sentence rather than treat each offence in isolation. An indefinite protective order may remain justified by the offender’s assessed risk and lack of insight, although its terms may later be varied.

The appellant was convicted at the Crown Court at Reading of five indecent assaults on three girls aged 12 or under. The offences took place over a prolonged period in his home and involved the friends of his stepdaughter. He received a total of 30 months’ imprisonment, indefinite notification requirements, and an indefinite Sexual Offences Prevention Order containing six prohibitions.

A single judge refused leave to appeal against the custodial sentence but granted leave concerning aspects of the protective order. The Court of Appeal also permitted the appellant to renew, out of time, his application concerning imprisonment. The issues were whether the sentence was manifestly excessive under the totality principle, and whether the terms and indefinite duration of the order were justified.

1. The appeal was allowed in part. The renewed application for leave to appeal against the 30-month custodial sentence was refused. Given the repeated offences, breach of trust, young age of the complainants, escalation in seriousness and prolonged period of offending, the sentence was within the Sentencing Guidelines and was not arguably excessive. Totality required the five offences to be considered together, rather than separately.
2. The Sexual Offences Prevention Order was varied. Under section 107(2) of the Sex Offences Act 2003, a prohibition may be included only if necessary to protect the public, or particular members of it, from serious sexual harm. An order must not be drawn more widely than necessary, and normal activities must not be restricted without evidence or a proper evidential inference.
3. The evidence established risk to young girls in circumstances involving trust. It did not establish an unhealthy interest in boys, nor did it justify restrictions concerning internet access or photographs. The unproved allegations that might have supported those restrictions had been severed and could not provide the necessary evidential basis. The court substituted four narrower prohibitions directed to unsupervised contact, activities, work and overnight presence involving females under 16.
4. The indefinite duration was retained. The pre-sentence material, the appellant’s assessed risk and his continuing lack of insight justified an indefinite order. He could seek variation of its terms or duration if he later demonstrated the necessary insight into his offending.

The court additionally indicated that counsel should anticipate the possible making of a protective order, seek an adjournment where late service prevents proper instructions, and ensure that proposed terms are available in good time.

• Court of Appeal (Criminal Division). The court refused leave to appeal against the custodial sentence, but allowed the appeal concerning the terms of the Sexual Offences Prevention Order and substituted a narrower order. It retained the order’s indefinite duration.
• Crown Court at Reading. On 19 October 2009, the appellant was sentenced to 30 months’ imprisonment for five indecent assaults, made subject to indefinite notification requirements, and made subject to an indefinite Sexual Offences Prevention Order containing six prohibitions.