Proctor, R. v

Under section 106(14) of the Sexual Offences Act 2003, the length of sentence specified in Schedule 3 must be disregarded when deciding whether an offence may attract a sexual offences prevention order.

A Crown Court order, as an order of a superior court of record, is not a nullity. Judicial review may nevertheless lie against a declaration made by a Crown Court judge where it was not made in the exercise of jurisdiction in a matter relating to trial on indictment. The Court of Appeal may revisit and set aside its own fundamentally erroneous earlier order.

The appellant had been convicted on 11 January 2013 of breaching a sexual offences prevention order made on 11 October 2012 (SOPO No 2). On 22 January 2014, the Court of Appeal had quashed that order following a late appeal against sentence.

Further written submissions established that SOPO No 2 was lawful. Although the sentence for possessing extreme pornography was below the level otherwise specified in Schedule 3, section 106(14) of the Sexual Offences Act 2003 required its length to be disregarded.

The court also considered proceedings before His Honour Judge Crowther on 7 August 2013, including his declaration that SOPO No 2 was a nullity and a later conviction on a fresh information for breaches of SOPO No 1. The issues were the validity of SOPO No 2, correction of the court's earlier order, and the available judicial-review relief.

1. The appeal against conviction was dismissed. Laws LJ, delivering the court's judgment, held that SOPO No 2 was lawful. Section 106(14) of the Sexual Offences Act 2003 required the sentencing threshold otherwise specified in Schedule 3 to be disregarded when considering whether the extreme-pornography offence could attract a sexual offences prevention order.
2. The earlier order quashing SOPO No 2 was set aside. The court had power to revisit that order. It had been fundamentally erroneous because the order was valid. SOPO No 2 therefore remained in force.
3. Judicial review was granted in part. The declaration by Judge Crowther, sitting as a Crown Court judge, that SOPO No 2 was a nullity was quashed. A Crown Court is a superior court of record and its orders are not nullities. The declaration was amenable to judicial review because it had not been made in the exercise of jurisdiction in a matter relating to trial on indictment.
4. The later conviction and sentence were quashed. Acting as a Divisional Court in relation to the orders made under section 66 of the Courts Act, the court treated itself as reviewing a Magistrates' Court decision. It quashed the conviction on the appellant's guilty plea to the fresh information for breaches of SOPO No 1. The concurrent sentences of 16 months' imprisonment consequently fell away.

• Court of Appeal (Criminal Division): In [2014] EWCA Crim 162, the court dismissed the appeal against the 11 January 2013 conviction, set aside its own earlier order quashing SOPO No 2, and granted judicial-review relief concerning the 7 August 2013 proceedings.
• Crown Court: On 11 January 2013 the appellant was convicted of breaching SOPO No 2, which had been made on 11 October 2012.
• Crown Court / section 66 proceedings: On 7 August 2013, Judge Crowther declared SOPO No 2 a nullity and made further orders which resulted in a conviction on a fresh information for breaches of SOPO No 1 and concurrent sentences of 16 months' imprisonment. Those later orders were quashed by this court.