R v Martin Higgins

A charge brought under the wrong statutory regime does not invalidate a guilty plea where the error is technical, the offence is known to law, and the defect does not fundamentally affect the charge. The court should ask whether the conviction is a nullity or unsafe; it need not devise procedural steps to cure a problem that does not arise.

The principle of totality requires consideration of whether the aggregate sentence is just and proportionate to the overall offending. Multiple offences against different victims do not automatically require a downward adjustment. The assessment depends on the circumstances. A sentence at the top of the reasonable range is not necessarily excessive or wrong in principle.

The appellant pleaded guilty in the Magistrates’ Court to six charges alleging breaches of a Sexual Harm Prevention Order under sections 354(1) and (4) of the Sentencing Act 2020. He was in fact subject to a Sexual Offences Prevention Order imposed under section 104 of the Sexual Offences Act 2003, and the breaches should have been charged under section 103I of that Act.

The appellant was committed to the Crown Court for sentence and received a total sentence of six years’ imprisonment. On appeal, the Registrar identified the charging error. The parties agreed that it was technical and had not affected the safety of the guilty pleas. The central issues were whether the charges and pleas were valid, and whether the total sentence was excessive because the sentencing judge had not made a downward adjustment for totality.

The appeal was dismissed.

1. Validity of the charges. The statutory frameworks governing SOPOs and SHPOs were effectively identical and were treated alike in the sentencing guidelines. The appellant had pleaded guilty to an offence known to law, understood the restrictions alleged to have been breached, and had not been misled by the legislative error.
2. The court applied the approach in R v Stocker [2013] EWCA Crim 1993: the question was whether the defect was merely technical or whether the counts were fundamentally flawed. It concluded that charging breaches of an existing SOPO under the SHPO provisions was a technical error which did not affect the validity or lawfulness of the charges.
3. The court also applied the approach in R v Sheldrake [2023] EWCA Crim 95. Where convictions are neither a nullity nor unsafe, the court need not search for a technical procedural solution. The more elaborate procedure identified in R v Gould [2021] EWCA Crim 447, involving the Court of Appeal reconstituting itself for different procedural purposes, was therefore unnecessary.
4. Sentence and totality. The judge correctly placed each breach in category A1 of the guideline. The court held that step 5 required consideration of whether the total sentence was just and proportionate to the overall offending behaviour. It did not require a downward adjustment in every case involving multiple offences or different victims.
5. The offending was exceptionally serious, involved two vulnerable young complainants, and was committed by an offender with a long history of serious sexual offending and breaches of similar orders. The judge had expressly considered totality. Although the six-year sentence was at the top of the reasonable range, it was neither excessive nor wrong in principle. The convictions and guilty pleas remained safe and valid.

1. Court of Appeal (Criminal Division): Dismissed the appeal against sentence. The court held that the charging error was technical and did not invalidate the guilty pleas or convictions, and that the total sentence was not excessive.
2. Crown Court: Imposed a total sentence of six years’ imprisonment after applying a guilty plea reduction to concurrent sentences for the two groups of offences.
3. Magistrates’ Court: The appellant pleaded guilty to six charges which were incorrectly framed as breaches of a Sexual Harm Prevention Order.