Inches, R v

A challenge to the current practical effect of an historic Sexual Offences Prevention Order should ordinarily be pursued by a structured application to vary the order in the Crown Court. It is not a function of the Court of Appeal, on a substantially out-of-time sentence appeal, to revise restrictions because circumstances or technology have changed.

An application for variation requires cogent evidence of the alleged change. The applicant must show that the original order is no longer necessary for its statutory protective purpose, or that the proposed variation will adequately secure that purpose. A lengthy extension of time to appeal sentence requires a powerful and justifiable explanation.

The applicant pleaded guilty before magistrates in February 2009 to six offences of possessing indecent photographs of children, contrary to section 160(1) of the Criminal Justice Act 1988. He was committed to Birmingham Crown Court, where he received concurrent sentences of 12 months’ imprisonment and a Sexual Offences Prevention Order.

More than ten years later, he made a renewed application for permission to appeal against sentence and sought an extension of 3,775 days. He contended that the order’s restrictions on camera-enabled mobile telephones, internet-capable devices and computer equipment had become excessive and oppressive because of technological change. The central issue was whether those concerns could properly be advanced through this delayed sentence appeal rather than an application to vary the order in the Crown Court.

1. Both applications were refused. The applicant sought, in substance, to vary the terms of an existing Sexual Offences Prevention Order rather than to challenge an order which had been wrongly imposed in 2009.

2. The Court of Appeal’s function on a sentence appeal is to determine whether the sentence was manifestly excessive or wrong in principle. It is not the appropriate forum to respond, eleven years later, to changes in technology which may affect the practicality or proportionality of restrictions in an otherwise properly imposed order.

3. The correct route is a structured application to the Crown Court to vary the order. Following R v Smith [2011] EWCA Crim 1772 and R v Spencer [2014] 2 Cr.App.R (S) 18, that application must be supported by proper evidence of a material change of circumstances and of difficulties not anticipated when the order was made.

4. Applying the approach described in R v Hoath and Standage [2011] EWCA Crim 274, the Crown Court would need to be satisfied either that the order in its original form is no longer necessary to protect the public from serious sexual harm, or that the proposed variation would sufficiently secure that objective.

5. The exceptional delay required powerful grounds and a justifiable explanation. Neither was shown. The Court expressed no view on the merits of any future variation application, while observing that modern technology may permit more focused restrictions and that the Crown’s response indicated a constructive approach to such an application.

• Court of Appeal (Criminal Division): renewed application for permission to appeal against sentence and application for an extension of time refused: [2020] EWCA Crim 373.
• Birmingham Crown Court: on 24 March 2009, the applicant received concurrent sentences of 12 months’ imprisonment and a Sexual Offences Prevention Order.
• Magistrates’ Court: the applicant pleaded guilty on 24 February 2009 to six offences of possessing indecent photographs of children.