R v Ethan Allon

Notification requirements under Part 2 of the Sexual Offences Act 2003 arise by statute, rather than by an order of the sentencing court. A Crown Court judge has no power to determine or order that they apply, although a purported ruling may be set aside on appeal.

For Schedule 3 paragraph 13, the condition that an offender was 18 or over concerns the offender’s age when the offence was committed. Paragraph 95(a) fixes the photographed person’s age when the photograph was taken, while paragraph 95(b) fixes every other relevant person’s age at the time of the offence. A young offender does not lose paragraph 13’s exception merely because conviction occurs after adulthood. An inaccurate section 92 certificate may be quashed on judicial review.

When aged 17, the applicant distributed online an indecent video of himself and C, who was then 15. He later pleaded guilty to an offence under section 1 of the Protection of Children Act 1978 and, aged 20 at conviction, received a community order. No challenge was made to that sentence.

The sentencing judge purported to determine that the applicant was subject to the notification requirements in Part 2 of the Sexual Offences Act 2003, and the Crown Court issued a section 92 certificate. The applicant contended that he was exempt because he was under 18 when he committed the offence. The appeal concerned the court’s jurisdiction, the meaning of Schedule 3 paragraphs 13 and 95, and the correction of the certificate.

1. The appeal was allowed to a limited extent. The judge’s purported order that notification requirements applied was set aside. Those requirements operate automatically under section 80; they are not a sentencing penalty or an order for the Crown Court to make. A judge who merely informs an offender of the requirements does not give an appealable ruling. However, the judge here purported to determine their application, so the ruling was capable of appeal but was beyond the judge’s power.
2. On the proper interpretation of Schedule 3, the notification requirements did not attach. Paragraph 13 limits the relevant Protection of Children Act 1978 offence to cases in which the photographed person was under 16 and the offender was 18 or over, unless the custodial-sentence exception applies. The words concerning an offender who “was 18 or over” refer to the age at commission of the offence. This follows from the structure and purpose of the Schedule, and from the contrast with the separate reference to an offender who “is sentenced”.
3. Paragraph 95(a) concerns the age of the person depicted in an indecent photograph when it was taken. Paragraph 95(b) applies to all other relevant persons, including an offender whose age matters under paragraph 13, and fixes the relevant age at the time of the offence. Section 82, which fixes a notification period once an offence is within Schedule 3, does not alter that conclusion.
4. The section 92 certificate was incorrect. The applicant was not convicted of an offence listed in Schedule 3, because he was under 18 when he committed it and had not received at least 12 months’ imprisonment. Reconstituting as a Divisional Court, the court granted judicial review and quashed the certificate.

• Court of Appeal (Criminal Division) — allowed the sentence appeal to the limited extent of setting aside the Crown Court’s purported notification ruling; reconstituted as a Divisional Court and quashed the section 92 certificate by judicial review.
• Crown Court at Bradford — imposed a community order for the underlying offence, purported to rule that notification requirements under the Sexual Offences Act 2003 applied, and issued a section 92 certificate.