R v Suleymaan Ar'raa-ee

Notification requirements under Sexual Offences Act 2003 arise by operation of statute. A sentencing court does not impose them by discretion or order; it states in open court and certifies whether an eligibility condition is met.

A person convicted under section 13 who was under 18 when the offence was committed is excluded by paragraph 22 of Schedule 3 unless sentenced to more than 12 months’ custody. A purported order imposing requirements contrary to that exception may be set aside on appeal, and an unlawful certificate may be quashed on judicial review.

The applicant pleaded guilty in the Crown Court at Teesside to two offences of sexual activity with a child under section 13 of the Sexual Offences Act 2003. He was 17 when the offences were committed. The Recorder imposed concurrent 36-month community orders and stated that he was subject to notification requirements for five years.

More than three years later, after a police officer identified the error, the applicant sought permission to appeal out of time. The Crown accepted that the statutory requirements had been wrongly treated as applicable. The applicant also challenged certificates issued under section 92 stating that notification requirements applied.

The central issues were whether the Court of Appeal had jurisdiction to correct the purported order and whether the certificates should be quashed.

1. The court extended time, granted leave, and allowed the appeal to the extent of setting aside the purported notification requirements.

2. Under section 80 of the Sexual Offences Act 2003, notification requirements in Part 2 apply only to a conviction for an offence listed in Schedule 3. Although section 13 is listed, paragraph 22 of Schedule 3 excludes a person who was under 18 at the time of committing a section 13 offence unless that person receives a custodial sentence of more than 12 months. The applicant was under 18 when the offences were committed and received community orders. The Recorder therefore erred in concluding that the requirements applied.

3. Following R v Allon [2023] EWCA Crim 204, notification requirements take effect, if at all, by statute rather than by a sentencing judge’s decision or order. Ordinarily, no appeal lies against their statutory application. However, where a judge goes beyond stating and certifying eligibility and purports to decide the issue or make an order, the Court of Appeal has jurisdiction to entertain an appeal. That occurred here.

4. Reconstituted as a Divisional Court of two judges, the court treated the application for leave as including a judicial-review claim. It granted permission, dispensed with procedural requirements, and quashed the section 92 certificates because they unlawfully certified that notification requirements applied.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 1287, the court extended time, granted leave, allowed the sentencing appeal to set aside the purported notification requirements, and quashed the certificates on judicial review.

• Crown Court at Teesside: The applicant pleaded guilty to two section 13 offences. The Recorder imposed concurrent 36-month community orders and stated that notification requirements under Part 2 of the Sexual Offences Act 2003 applied for five years.