R v Nicholas Casey Codd

A charging error that causes no prejudice or embarrassment to the defendant does not, without more, invalidate the charge or render the proceedings a nullity. However, a sentencing court must have statutory power to revoke a sexual offences prevention order and impose a sexual harm prevention order.

An SHPO may be imposed only in the statutory circumstances prescribed by the Sexual Offences Act 2003. Breach offences and notification offences which are not listed in the relevant schedules do not confer that power. A SOPO may be discharged or varied only through the prescribed statutory procedure. An unlawful revocation and substitution must be quashed, with the original SOPO revived.

The applicant had been made subject to a ten-year sexual offences prevention order in 2015. In 2019, after guilty pleas to five breaches of that order and two notification offences, the Crown Court imposed concurrent imprisonment, revoked the SOPO and substituted a ten-year sexual harm prevention order.

In 2022, when a purported breach of the SHPO came before the Crown Court, the prosecution accepted that the order was unlawful and offered no evidence. The applicant sought an extension of time to appeal his 2019 sentence. The Crown accepted that the Crown Court lacked power to make the SHPO because the offences of which he had been convicted were not listed in Schedules 3 or 5 to the Sexual Offences Act 2003.

The central issues were whether the charging error invalidated the 2019 proceedings and whether the court had power to revoke the SOPO and substitute an SHPO.

1. Appeal allowed. Time was extended in the interests of justice. The court quashed the 2019 order revoking the SOPO and the substituted SHPO. The original SOPO was revived.

2. The five 2019 breach charges should have alleged offences under section 113 of the Sexual Offences Act 2003. The transitional regime in section 114 of the Anti-Social Behaviour, Crime and Policing Act 2014 preserved section 113 for breaches of an existing SOPO committed before 8 March 2020. Section 103L applied only if the SOPO remained in force after that date.

3. The erroneous statutory citation in the charges was a technical defect. Applying R v Stocker [2014] 1 Cr App R 18 and R v Sheldrake [2023] EWCA Crim 95, a drafting or administrative error does not invalidate a charge where it causes no prejudice or embarrassment. The applicant did not contend that the charges were a nullity.

4. That defect did not validate the sentencing order. The Crown Court had no power, on conviction for SOPO breaches or notification offences, to revoke the SOPO and impose an SHPO. Those offences were not listed in Schedules 3 or 5 to the Sexual Offences Act 2003. Further, discharge of a SOPO required an application by the defendant or a prescribed chief officer of police, consistently with section 108 and Criminal Procedure Rule 31. The court applied R v Hamer [2017] 2 Cr App R(S) 13, R v Ashford [2020] 2 Cr App R(S) 57 and R v Keywood [2021] EWCA Crim 1692.

5. The court added that a chief officer of police or the Director General of the National Crime Agency could, if appropriate, apply to the Magistrates’ Court for an SHPO against a qualifying offender under section 103A(3)–(7).

• Court of Appeal (Criminal Division): Allowed the appeal in [2024] EWCA Crim 339, quashed the revocation of the SOPO and the substituted SHPO, and revived the SOPO.
• Crown Court: On 8 March 2019, imposed 18 months’ concurrent imprisonment, revoked the SOPO and imposed a ten-year SHPO.
• Magistrates’ Court: On 12 January 2019, the applicant pleaded guilty to five SOPO breaches and two notification offences, and was committed to the Crown Court for sentence.
• Crown Court: On 9 January 2015, imposed 20 months’ imprisonment and a ten-year SOPO.