Rowlett, R v

During the transitional regime for sexual-offence prevention orders, an existing SOPO could be varied only under section 108 of the Sexual Offences Act 2003. It could not be converted by variation into a SHPO. The statutory requirement for an application by an authorised person is jurisdictional. A defect in the form of an otherwise valid application is procedural and may be corrected where the statutory merits test is inevitably met and no injustice results.

On an appeal against sentence, section 11(3) of the Criminal Appeal Act 1968 permits the Court of Appeal to quash an invalid order and substitute an order that the Crown Court had power to make. The substituted order takes the place of the original order from its original date of effect.

The appellant had been convicted of rape and was made subject to a SOPO until further order. Following his release, evidence of sexual communications with girls aged 12 and 14, together with concerning internet searches, led the Chief Constable to seek a variation.

On 5 December 2017, the Crown Court at St Albans purported to replace the SOPO with a SHPO. The application relied on provisions which governed SHPOs, although the transitional legislation left the appellant subject to a SOPO. On appeal, the central issues were whether the purported SHPO was a nullity and, if so, whether the Court of Appeal could substitute a lawful order effective from the Crown Court’s order date.

1. Appeal allowed to a limited extent. The court quashed the order made on 5 December 2017 and substituted a lawful variation of the existing SOPO. By the later statutory conversion, that order was now a SHPO.

2. The transitional scheme under the Anti-Social Behaviour, Crime and Policing Act 2014 preserved the appellant’s SOPO until 8 March 2020. Section 108 of the Sexual Offences Act 2003 allowed its variation, but did not permit its replacement with a SHPO. The applicable test remained necessity to protect the public from serious sexual harm.

3. That higher test was plainly met in relation to female children. The appellant’s conviction, very recent release, sexual communications with underage girls and internet activity made such protection necessary. There was, however, no material supporting a finding of risk to male children. The order also required an exception for inadvertent and reasonably unavoidable contact in lawful daily life.

4. The court applied the distinction recognised in R v Hamer [2017] EWCA Crim 192 and Ashford [2020] EWCA Crim 673. An application by a person authorised by statute is a condition of jurisdiction. Here that condition was met because the Chief Constable applied. The mistaken statutory label and form of the application were procedural defects which the court could correct under the applicable procedural rules.

5. Under section 11(3) of the Criminal Appeal Act 1968, the substituted order was made in place of the Crown Court order. It therefore took effect on 5 December 2017. Section 29(4) did not prevent that conclusion because it addressed the term of a sentence, not the terms of the substituted protective order.

• Court of Appeal (Criminal Division): Allowed the appeal to the limited extent of quashing the purported SHPO and substituting a variation of the SOPO, effective from 5 December 2017.

• Crown Court at St Albans: On 5 December 2017, purported to vary the SOPO into a SHPO on the Chief Constable’s application.