Aldridge v R. (Rev 3)

A variation of a sexual offences prevention order made by the Crown Court is appealable in the Court of Appeal Criminal Division as an appeal against sentence. A variation application must be determined through a fair process which observes the evidential safeguards in the Criminal Procedure Rules.

An unlawful sexual offences prevention order cannot be extended after the sentencing court’s power of alteration has expired. The Court of Appeal cannot substitute a longer minimum-term order under section 11(3) of the Criminal Appeal Act 1968 where that would deal with the appellant more severely on appeal.

These otherwise unconnected appeals concerned variations of sexual offences prevention orders (SOPOs).

In Aldridge’s case, Guildford Crown Court varied an existing SOPO after an unsuccessful prosecution for breach. The variation imposed additional restrictions relating to religious services, schools, swimming pools and communication with children. Aldridge challenged both the procedure and the necessity of the conditions.

In Eaton’s case, Stafford Crown Court imposed a SOPO for three years, despite the statutory five-year minimum. The sentencing judge later purported to correct it administratively to run until further order. Eaton appealed against that purported correction and the original unlawful order.

The common preliminary issue was whether appeals from Crown Court SOPO variations lay in the Criminal or Civil Division of the Court of Appeal.

1. The appeals were allowed, with Aldridge’s appeal allowed in part. The court sat as the Court of Appeal Criminal Division and held that it had jurisdiction over an offender’s appeal from a Crown Court decision varying a SOPO. R v Hoath; R v Standage [2011] EWCA Crim 1656 was binding and had not been decided per incuriam. A variation remains an order made when dealing with an offender and is therefore appealable as part of the sentencing jurisdiction.

2. Aldridge. The procedure used to vary the SOPO was unsatisfactory and wrong in principle. The judge acted upon material not put before the court in an admissible form and without the rigour required by Part 50 of the Criminal Procedure Rules. The court quashed conditions g), h) and i), which concerned attendance at religious establishments, entry to specified places, and communication or befriending of children. Condition c), concerning internet access, remained because it was not founded on the procedurally defective material. A chief constable could make a fresh variation application using the material if properly presented under the Rules. The court made no finding on whether Aldridge was likely to progress to contact offending.

3. Eaton. The original three-year SOPO was unlawful because section 107(1)(b) of the Sexual Offences Act 2003 required a minimum term of five years. The sentencing judge had no power to correct it administratively after the time for alteration under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 had expired, particularly without notice or an opportunity for representations.

4. Section 11(3) of the Criminal Appeal Act 1968 did not permit the court to replace the unlawful three-year order with a five-year order. That would impose obligations for two further years and would deal with Eaton more severely on appeal. Nor could the unlawful order be varied under section 108 of the Sexual Offences Act 2003 after the alteration power had elapsed. The three-year SOPO was therefore quashed.

• Court of Appeal (Criminal Division): Allowed the joined appeals. It quashed three additional conditions in Aldridge’s varied SOPO and quashed Eaton’s unlawful three-year SOPO.

• Guildford Crown Court: Varied Aldridge’s SOPO on 29 July 2011 by adding further restrictions.

• Stafford Crown Court: Imposed a three-year SOPO on Eaton on 23 May 2011 and later purported to correct it administratively to run until further order.