Ashford, R. v

A court sentencing an offender solely for breach of a sexual harm prevention order or sexual offences prevention order cannot make a fresh sexual harm prevention order, because breach is not an offence in Schedule 3 or Schedule 5 to the Sexual Offences Act 2003.

Variation, renewal or discharge of an existing order requires an application by a person authorised by section 103E and to the prescribed court. Those requirements are jurisdictional. Defects in the form of a valid application or in procedural compliance may instead be procedural defects, to be assessed for legislative intention, prejudice and justice.

A Crown Court judge cannot vary a magistrates’ court order merely while sitting in the Crown Court. A Circuit Judge or Recorder may exercise magistrates’ court powers only on a valid application made to the prescribed magistrates’ court.

Three otherwise unconnected applicants appealed sentences imposed following breaches of sexual harm prevention orders or a sexual offences prevention order. In each case, the sentencing court purported either to make a fresh sexual harm prevention order or to alter an existing one.

Mr Ashford challenged both a six-year sentence and a purported variation of an order made by a magistrates’ court. Mr King challenged a fresh order made in the Crown Court and related orders made by a District Judge. Mr Rogers challenged the extension of a Crown Court order after conviction for a further breach.

The common issue was whether the courts had statutory power to make, vary, renew or discharge the relevant protective orders while sentencing for breach.

1. The appeals were allowed to a limited extent. The court quashed the purported SHPO variation in Ashford’s case, the fresh SHPO in King’s case, and the purported extension in Rogers’s case. Their terms of imprisonment remained unchanged.

2. Under sections 103A(1) and (2) of the Sexual Offences Act 2003, a fresh SHPO may be made only when the court deals with an offence in Schedule 3 or Schedule 5. Breach of an SHPO or SOPO is not listed. Accordingly, a court sentencing solely for such a breach has no power to make a new order. The court followed R v Hamer [2017] EWCA Crim 192.

3. Section 103E is jurisdictional as to both the persons entitled to apply and the court to which an application must be made. An application by a prosecutor or unauthorised police officer, or an application made to the wrong court, gives no jurisdiction to vary an existing SHPO. A chief officer may authorise a junior officer to make a written application on the chief officer’s behalf and in the chief officer’s name, but no such authorisation was shown here.

4. By contrast, defects concerning the form of an otherwise valid application or strict observance of procedural rules may be procedural defects. Applying R v Ashton [2006] EWCA Crim 794, the court must ask whether Parliament intended invalidity and, if not, consider prejudice and the interests of justice. That distinction could not cure the absence of a valid statutory applicant.

5. A Crown Court has no power under section 103E to vary an order made by a magistrates’ or youth court. A Circuit Judge or Recorder may, under section 66 of the Courts Act 2003, act as a District Judge in the prescribed magistrates’ court, but only where a valid application has been made there.

6. Activation of a suspended sentence following a breach does not mean that the court is dealing with the earlier Schedule 3 or Schedule 5 offence. It therefore cannot found a fresh SHPO. In King’s case, the court additionally reconstituted itself as the Administrative Court and quashed the District Judge’s unlawful revocation of the existing SHPO and purported interim order. The original 2016 SHPO consequently remained in force.

1. Court of Appeal (Criminal Division): In [2020] EWCA Crim 673, the court allowed each appeal to the limited extent of quashing the unlawful SHPO order or variation. It upheld the custodial sentences.

2. High Court, Queen’s Bench Division, Administrative Court: In King’s case, two members of the court reconstituted as a Divisional Court, treated the appeal materials as a judicial-review application, and quashed the District Judge’s unlawful orders revoking the 2016 SHPO and making an interim SHPO.

3. Crown Courts and magistrates’ courts: Ashford, King and Rogers had been sentenced in the Crown Court after convictions for breach offences. The relevant existing protective orders had been made by magistrates’ courts in Ashford’s and King’s cases, and by the Crown Court in Rogers’s case.