R v Nafees Ahmad

A technical error in charging a breach of a sexual harm prevention order under the wrong statutory provision does not invalidate the conviction where the defendant was not misled or prejudiced.

In sentencing for repeated breaches, harm may arise from the opportunity created to cause future harm to children. A court may therefore place the offending in a higher harm category despite no evidence of actual contact with children. However, persistence already reflected in the culpability category must not be counted again to justify an upward adjustment beyond the guideline range.

The appellant pleaded guilty in the Magistrates’ Court to three breaches of a sexual harm prevention order and to failing to comply with notification requirements. He was committed to the Crown Court at Manchester, Crown Square, where the Recorder imposed three years’ imprisonment after credit for his guilty plea.

Although the breaches were charged under the Sexual Offences Act 2003, the order had been made under the Sentencing Code. The Court of Appeal considered whether that defect affected the safety of the convictions and whether the Recorder had selected the correct sentencing category and imposed an excessive sentence.

1. Appeal allowed against sentence. The total sentence was reduced from three years’ to two years’ imprisonment.

2. The charging error did not invalidate the convictions. The sexual harm prevention order had been made under section 345 of the Sentencing Code and its breach ought to have been charged under section 354, rather than under the Sexual Offences Act 2003. The appellant had not been misled or prejudiced. The convictions were therefore safe, consistently with R v Stocker [2013] EWCA Crim 1993.

3. The Recorder correctly treated the breach offences as falling within harm category 2. The undisclosed telephone created an opportunity for the appellant to cause harm or distress to children. Given his earlier offending, there was a real and significant risk that he would do so again, even though the identified communications were with adults and there was no evidence of an intention to contact children.

4. However, the sentence before plea credit was excessive. The persistence of the breaches had already been reflected in the assessment of upper-level culpability. It should not also have justified an increase above the top of the applicable guideline range. The notification-requirements offence warranted an increase, but not a total sentence exceeding three years before credit for the guilty plea.

5. The appropriate pre-credit sentence was three years. Applying full credit for the guilty plea produced concurrent sentences of two years’ imprisonment on the three breach offences, concurrent with the notification offence.

• Court of Appeal (Criminal Division) — allowed the appeal against sentence and reduced the total sentence to two years’ imprisonment: [2025] EWCA Crim 87.
• Crown Court at Manchester, Crown Square — on 12 July 2024, imposed a total sentence of three years’ imprisonment following committal for sentence.
• Magistrates’ Court — on 20 May 2024, the appellant pleaded guilty and was committed to the Crown Court for sentence.