McLellan, R. v

A sexual harm prevention order need not have the same duration as statutory notification requirements. Its duration must nevertheless be no longer than necessary for the statutory protective purpose. An indefinite order requires a demonstrated need and careful consideration; it should not be imposed as a default, especially because it extends notification requirements indefinitely.

A draft order should identify, or flag for decision, its proposed duration. A separate judicial warning is not required. A later change in sentencing guidance does not ordinarily justify reopening a lawfully imposed historic order. Where later licence conditions conflict with a sexual offences prevention order, however, the Crown Court may vary the order under the Sexual Offences Act 2003 to align the conditions and prevent substantial injustice.

Two applications were heard together. James McLellan had pleaded guilty to seven offences of making indecent photographs of children. At Truro Crown Court he received a suspended sentence and an indefinite sexual harm prevention order under the Sexual Offences Act 2003. He sought an extension of time and challenged only the order’s indefinite duration.

Carl Bingley had received an indeterminate sentence and an indefinite sexual offences prevention order at Maidstone Crown Court in 2005. After his release, the terms of that order conflicted with conditions of his IPP licence. He sought to challenge the original order out of time, relying on later guidance concerning orders imposed with indeterminate sentences.

The issues were whether the McLellan order was disproportionate, whether later guidance justified reopening Bingley’s historic sentence, and whether the conflict in Bingley’s conditions should instead be resolved by a Crown Court variation.

1. McLellan. The court granted an extension of time and leave to appeal. An order’s duration need not match the notification period. Applying the guidance in R v Steven Smith [2011] EWCA Crim 1772, the court held that the order must be necessary and proportionate, and must not last longer than necessary. An indefinite order requires a justified need; it is not a default option.

   The court could identify no consideration or explanation justifying an indefinite order. The applicant’s rehabilitation evidence and low assessed risk showed that a fixed term would suffice. The indefinite order was manifestly excessive and was quashed. It was replaced by a five-year order from 26 February 2016. The statutory notification requirements consequently ran for ten years from that date. The rehabilitation activity requirement had not been lawfully available for offending committed on the relevant dates, so it was quashed and replaced by a 12-month supervision requirement.

2. Bingley. The court refused an extension of time and leave to appeal against the original sexual offences prevention order. The order had been within the sentencing judge’s discretion when made. Later guidance in R v Steven Smith did not retrospectively make it appealable. Finality is a consideration of first importance. A late appeal requires substantial injustice, consistently with Jogee [2016] UKSC 8, R v MI and others [2012] EWCA Crim 1792, and R v Spencer [2013] EWCA Crim 2286.

3. The conflict between the order and Bingley’s IPP licence conditions was itself substantially unjust. The proper remedy was a Crown Court application under section 108(4) of the Sexual Offences Act 2003, not a belated appeal against the original order. HHJ Marson QC, exercising Crown Court jurisdiction, refused discharge but varied the order so that its terms mirrored the licence conditions. The aligned conditions were proportionate and appropriate, while retaining the order’s separate enforcement consequences.

• Court of Appeal (Criminal Division). McLellan was granted an extension of time and leave to appeal. His indefinite SHPO was quashed and replaced with a five-year order. Bingley’s extension of time and leave to appeal were refused, but the court directed that the conflict between his SOPO and licence conditions be determined through Crown Court jurisdiction.
• Crown Court at Truro. McLellan was sentenced on 26 February 2016 to 12 months’ imprisonment, suspended for 24 months, with an indefinite SHPO and a rehabilitation activity requirement.
• Crown Court at Maidstone. Bingley was sentenced on 5 July 2005 to imprisonment for public protection with a two-year minimum term and an indefinite SOPO.
• Crown Court jurisdiction exercised by HHJ Marson QC. The SOPO was retained but varied to mirror Bingley’s IPP licence conditions.