Hoath & Anor, R. v

A refusal by the Crown Court to vary a sexual offences prevention order is capable of being a sentence for the purposes of an appeal. Under section 110(3)(a) of the Sexual Offences Act 2003, the Court of Appeal may therefore quash that refusal and make an appropriate order.

An application to vary is not a substitute for a belated appeal against the original order. It will ordinarily require a material change of circumstances or an unanticipated practical difficulty. The Crown Court has a broad discretion, and appellate intervention is justified only where its decision is unreasonable or outside that discretion.

Both applicants had been sentenced in the Crown Court for serious sexual offences and made subject to indefinite sexual offences prevention orders (SOPOs). Neither had appealed the terms of the original SOPO when pursuing earlier sentence appeals.

Each later applied under section 108 of the Sexual Offences Act 2003 to vary the order. The Crown Court refused both applications. The appeals raised a common preliminary issue: whether the Court of Appeal had power, on an appeal under section 110(3)(a), to vary a SOPO after the Crown Court had refused a variation.

The applicants also challenged the refusals on their facts. Hoath relied on restrictions affecting residence and internet use. Standage advanced substantially wider objections to the original breadth of his SOPO while serving a further substantial custodial sentence.

1. Both appeals were dismissed. The court nevertheless held that it had jurisdiction to hear an appeal from a Crown Court refusal to vary a SOPO and, where appropriate, to vary the order.
2. Section 108 of the Sexual Offences Act 2003 empowers the Crown Court to vary, renew or discharge a SOPO. Section 110(3)(a) expressly gives a defendant a right to appeal to the Court of Appeal from a Crown Court refusal to make such an order. Read with sections 9, 50(1) and 11(3) of the Criminal Appeal Act 1968, the refusal is an order made when dealing with an offender and is therefore a sentence. Applying the test in R v Hayden (1975) 60 Cr App R 304, it is sufficiently contingent on the conviction. The deeming provision in section 110(1) did not remove the court’s ordinary appellate powers.
3. An objection in principle to the original form or breadth of a SOPO should be pursued promptly by appeal against sentence. A later section 108 application should identify, promptly and with particularity, an unanticipated difficulty or a change of circumstances. In the short term, absent an original appeal, only minor necessary adjustments would ordinarily be expected.
4. The Crown Court must be satisfied that the original order is no longer necessary to protect the public from serious sexual harm, or that the proposed variation will sufficiently secure that purpose. Section 108(4) confers a discretion. The Court of Appeal will generally interfere only where the Crown Court’s conclusion is unreasonable or falls outside its broad discretion.
5. Hoath’s restrictions remained necessary and proportionate in light of the seriousness and duration of his offending, his continuing licence conditions and his acknowledged continuing risk. Standage’s application was in substance a substantially out-of-time challenge to the original SOPO, rather than a true variation application. His further imprisonment also meant that the order then had no practical effect. Neither refusal warranted appellate intervention.

• Court of Appeal (Criminal Division) Dismissed both appeals from refusals to vary SOPOs, while confirming its jurisdiction under section 110(3)(a) of the Sexual Offences Act 2003. [2011] EWCA Crim 274
• Crown Court Her Honour Judge Williams refused Hoath’s application to vary his SOPO on 28 September 2009. His Honour Judge Gregory refused Standage’s application on 29 January 2009.
• Earlier sentence appeals Hoath’s renewed application for leave to appeal sentence was refused on 15 February 2008. Standage’s sentence appeal was allowed on 16 June 2008 and his sentence reduced. Neither earlier appeal challenged the terms of the SOPO.