McLoughlin, R. v

For breaches of notification requirements and sexual harm prevention orders, sentencing must address culpability and the risk of distress under the applicable guideline. An offender’s notification duty remains personal; police awareness does not displace it. Actual absence of distress does not answer an offence concerned with risk. A sentencing court cannot make a fresh sexual harm prevention order for offences outside the relevant statutory Schedules. Nor may it vary an existing order on its own motion. Variation requires an application by a statutorily authorised person, such as the Chief Officer of Police for the area where the defendant resides. Without that application, neither the Crown Court nor the Court of Appeal has jurisdiction to vary the order. The sentence was upheld, but the amended order was quashed and the original order remained in force.

The appellant had been convicted at the Crown Court at Canterbury of two failures to comply with notification requirements and two breaches of a sexual harm prevention order. He received a total sentence of three years’ imprisonment. The sentencing judge also purported to vary the existing order. A single judge refused leave to appeal against the substantive sentence, and the appellant renewed that application before the full court. The central issues were whether the sentence was wrongly categorised and whether the sentencing judge had power to make or vary the sexual harm prevention order.

Disposition. The renewed challenge to the sentence was rejected. The appeal concerning the sexual harm prevention order was allowed to the limited extent that the amended and varied order was quashed. The original order remained in force.

1. Sentence. The sentencing judge applied the applicable Sentencing Council guideline. For the notification offences, the long period of non-compliance justified category A culpability and the intermediate harm category, with a starting point of one year’s custody. For the order breaches, the two separate and persistent refusals justified category A culpability and harm category 2, with a starting point of two years. A consecutive sentence for the later breach would have been permissible, but the sentence imposed was just and proportionate: [13]-[17].
2. Notification and risk of harm. The duty to notify rested on the offender. The police’s knowledge, or ability to discover the position, did not remove that responsibility: [18]-[19]. The relevant question for the order breaches was risk of distress, which was the gravamen of the offences in this case; the absence of proved actual distress did not require a finding of no harm: [20]-[22].
3. Fresh order. The convictions were for offences not listed in the relevant Schedules to the Sexual Offences Act 2003. The sentencing court therefore had no power to make a fresh sexual harm prevention order: Hamer [2017] EWCA Crim 192; [25]-[26].
4. Variation. An existing order could be varied only on an application to the appropriate court by one of the persons specified by the Sexual Offences Act 2003. In this case the relevant person was the Chief Officer of Police for the area in which the defendant resided. No such application had been made, so the sentencing judge had acted without jurisdiction. That conclusion followed Ashford & Others [2020] EWCA Crim 673: [27]-[28].
5. Appellate jurisdiction. In the absence of compliance with the statutory application requirement, neither the Crown Court nor the Court of Appeal had jurisdiction to vary the order, following Rowlett [2020] EWCA Crim 1748: [29]. The Chief Officer of Police remained entitled to apply for a variation, but the court could only quash the invalid amended order. The original order consequently remained operative: [30]-[31].

• Court of Appeal (Criminal Division). The renewed application against sentence was rejected. The appeal concerning the purported variation of the sexual harm prevention order was allowed to the limited extent that the amended order was quashed: [2021] EWCA Crim 165.
• Single judge of the Court of Appeal. Leave to appeal against the substantive sentence was refused.
• Crown Court at Canterbury. The appellant was convicted on 27 July 2019 and sentenced to three years’ imprisonment. The judge also purported to vary the existing sexual harm prevention order.