REGINA v JAMES SHIRLEY & ANOR.

An application for a serious crime prevention order must comply strictly with the statutory restriction on who may apply. It must clearly identify the prosecuting authority making the application. A substantive internal approval by a properly delegated prosecutor does not cure notices which were not correctly amended to show a valid applicant.

This formal requirement reflects the serious consequences of an order, breach of which is a criminal offence. Where the application is void, the consequential order must be set aside. A fresh application may be made only through the proper process and on the circumstances then prevailing.

The appellants, brothers convicted of fraud and money-laundering offences, appealed two-year serious crime prevention orders made by the Crown Court at Manchester under the Serious Crime Act 2007.

They challenged the authority of the person applying for the orders, the finding of future risk of serious crime, and the proportionality and workability of the conditions. Evidence before the Court of Appeal established that the Head of the Specialist Fraud Division had delegated authority. The notices served on the appellants, however, did not properly identify that authorised prosecuting authority.

The central issue was whether the defective notices nevertheless constituted valid applications for the orders.

1. The appeals were allowed. The applications for the serious crime prevention orders were void because the appellants had not been served with correctly amended and valid notices identifying the authorised prosecuting authority. The orders were therefore set aside.

2. The Court accepted that the Head of the Specialist Fraud Division had delegated authority under Schedule 2, paragraph 2 of the Serious Crime Act 2007. But that did not resolve the separate question whether a valid application had been made and served. Given the restricted statutory class of applicants, the seriousness of the step, and the criminal consequences of breach, the court and the proposed subject must be precisely informed of the identity of the prosecuting authority.

3. The Court rejected the prosecution’s proposed distinction from R v Hamer [2017] EWCA Crim 192. It did not read that decision as turning on an absence of consideration or approval by a chief officer. The defect in the present notices could not be cured by the subsequently produced material showing internal approval.

4. For completeness, the Court stated that it would not have interfered with the judge’s assessment of future risk. This was a review appeal, not a rehearing. The unchallenged hearsay evidence was admissible in civil proceedings, and the judge was entitled to rely on her observations during the lengthy trial and the appellants’ antecedents. The Court would, however, have found merit in some objections to the proportionality of the conditions.

5. Any further application must be made afresh, in accordance with the applicable guidance and the circumstances then existing, to the Crown Court.

• Court of Appeal (Criminal Division) — Allowed the appeals and set aside the serious crime prevention orders: [2022] EWCA Crim 475.
• Crown Court at Manchester — Her Honour Judge Goddard QC made two-year serious crime prevention orders on 28 June 2021 under the Serious Crime Act 2007.