The Director of Public Prosecutions v Max Charlesworth

A magistrates’ court retains jurisdiction to consider a sexual harm prevention order after imposing a substantive sentence. The phrase “dealing with the offender” in section 345(1) of the Sentencing Code identifies the court with jurisdiction; it does not impose a requirement that the order be made contemporaneously with sentence. A procedural breach of the four-week limit in section 10(3) of the Magistrates’ Courts Act 1980 does not automatically invalidate subsequent proceedings. The court must consider whether continuing would be unjust, including prejudice to the defendant or prosecution and the wider interests of justice.

The Director of Public Prosecutions appealed by case stated against the dismissal of an application for a sexual harm prevention order. The respondent had pleaded guilty to three offences of making indecent photographs of children. The magistrates imposed suspended terms of imprisonment and adjourned the prosecution’s SHPO application for nine weeks. The district judge later held that the court was functus officio and dismissed the application.

The issues were whether the magistrates had power to adjourn consideration of the SHPO after sentencing, whether the period of adjournment invalidated the proceedings, and whether dismissal was correct.

1. Jurisdiction under the Sentencing Code. Section 345(1) of the Sentencing Code requires conviction of an offence listed in Schedule 3 or 5 to the Sexual Offences Act 2003. The reference to the court “dealing with the offender” identifies the court having power to make the order. It does not impose a temporal condition requiring the SHPO to be made at the same time as the substantive sentence. The court must also satisfy the necessity requirement in section 346 of the Sentencing Code (para [15]).
2. Power to adjourn. Section 10(3) of the Magistrates’ Courts Act 1980 permits adjournment after conviction for inquiries or to determine the most suitable method of dealing with the case. That power was broad enough to permit adjournment of the SHPO application, including where the order was treated as part of the sentence under section 401 of the Sentencing Code (para [17]).
3. Effect of exceeding the time limit. Although the nine-week adjournment exceeded the four-week limit in section 10(3), the breach did not automatically invalidate later proceedings. The relevant question was whether it would be unjust to continue, having regard to the wider interests of justice and any risk of injustice to either party. The approach in R v Ashton [2007] 1 WLR 181 was applied (para [18]).
4. In this case, the respondent had benefited from the adjournment because he contested the application, and the procedural safeguards in Crim PR 31.2(1) remained available. Preventing consideration of the SHPO would prejudice the prosecution, since a later application under section 103A(3) of the Sexual Offences Act 2003 could address only post-conviction conduct (para [19]). The dismissal was therefore quashed and the matter remitted to the magistrates’ court to decide whether to make an SHPO and, if so, its terms (paras [24]–[25]).
5. It remained generally preferable for substantive sentence and behavioural orders to be dealt with on the same occasion, to avoid disproportionate overall outcomes. That was guidance rather than a jurisdictional restriction (para [23]).

• High Court (Administrative Court): allowed the appeal by case stated, quashed the dismissal of the SHPO application and remitted it to the magistrates’ court.
• Thames Magistrates’ Court: imposed suspended sentences and adjourned the SHPO application.
• District Judge (Magistrates’ Court): dismissed the application on the ground that the court was functus officio after sentencing.