Garrity, R. v

A conviction for breach of a sexual harm prevention order must rest on the order actually made by the judge in court. An administrative error in processing or issuing a more extensive written version cannot alter the lawful order or create a prohibition which the judge did not impose.

Where the oral order did not prohibit the conduct charged, convictions for its breach are unsafe and must be quashed. The case also underlines the need for those responsible for drawing up such orders to ensure that the issued document accurately records the judicial order.

The appellant had previously received an indefinite sexual harm prevention order when sentenced at Manchester Crown Court on 16 March 2017. The order announced in court imposed limited conditions concerning internet-capable and image-storage devices.

Following his release, the appellant was found with an MP3 player and a smartphone. He was convicted at Manchester Crown Court on 3 August 2018 of two breaches of the order, on the basis of a written version which wrongly included broader notification requirements.

On appeal, it emerged that the written order had been generated from an earlier draft and did not reflect the order made in court. The central issue was whether the convictions could stand when possession of the devices was not prohibited by the order actually imposed.

1. The appeal against conviction was allowed and both convictions were quashed. The Crown accepted that the written sexual harm prevention order issued by the court had been erroneous and that the order made orally by the judge did not prohibit possession of either electronic device without prior notification to a police offender manager.

2. The lawful order was the order made in court by the judge, not the more extensive document later processed and sent out in error. Applying R v Watkins [2015] 1 Cr App R (S) 6, the court held that the appellant had therefore been convicted of conduct which did not breach the lawful order.

3. The court stressed the practical importance of ensuring that an order issued by the Crown Court accurately reflects the terms pronounced by the judge. A defective administrative version cannot supply omitted restrictions.

4. The appellant was permitted to abandon his out-of-time applications concerning sentence, which were dismissed. The court added that, had it considered the sentence application, it would have regarded an indefinite order as justified in light of the repeat offending and breaches of the earlier order, notwithstanding the absence of detailed reasons for its duration.

• Court of Appeal (Criminal Division): allowed the conviction appeal and quashed both convictions; permitted abandonment of the sentence applications, which were dismissed: [2020] EWCA Crim 788.

• Crown Court at Manchester: on 3 August 2018 convicted the appellant of two breaches of the sexual harm prevention order and imposed concurrent sentences of six months’ imprisonment.

• Crown Court at Manchester: on 16 March 2017 imposed an indefinite sexual harm prevention order when sentencing the appellant for further offences involving indecent images of children and breaches of an earlier order.