(1)A defendant may appeal against the making of a sexual offences prevention order—
(a)where section 104(2) applied to him, as if the order were a sentence passed on him for the offence;
(b)where section 104(3) (but not section 104(2)) applied to him, as if he had been convicted of the offence and the order were a sentence passed on him for that offence;
(c)where the order was made on an application under section 104(5), to a county court .
(2)A defendant may appeal to a county court against the making of an interim sexual offences prevention order.
(3)A defendant may appeal against the making of an order under section 108, or the refusal to make such an order—
(a)where the application for such an order was made to the Crown Court, to the Court of Appeal;
(b)in any other case, to a county court .
(4)On an appeal under subsection (1)(c), (2) or (3)(b), the county court may make such orders as may be necessary to give effect to its determination of the appeal, and may also make such incidental or consequential orders as appear to it to be just.
(5)Any order made by a county court on an appeal under subsection (1)(c) or (2) (other than an order directing that an application be re-heard by a court of summary jurisdiction) is for the purposes of section 108(7) or 109(6) (respectively) to be treated as if it were an order of the court from which the appeal was brought (and not an order of the county court).
Cases considering section 110 6
[2012] EWCA Crim 1456 · 4 July 2012
The court treated this provision as conferring the defendant’s appeal from a Crown Court SOPO variation decision to the Court of Appeal. It determined that the appeal was properly heard in the Criminal Division. (see paras [5]-[12])
[2011] EWCA Crim 274 · 26 January 2011Interprets
The court construed section 110 as preserving an appeal route from a Crown Court refusal to vary a SOPO. Its scheme, including the deeming provisions, did not exclude the Court of Appeal’s ordinary sentence-appeal powers (see paras [7]-[8]; [13]).
The court held that the deeming provisions, although enlarging the right of appeal against the initial making of a SOPO, did not preclude the court’s normal powers on an express appeal from a refusal to vary (see paras [7]-[8]).
The court interpreted the deeming of an initial SOPO as a sentence as an enlargement of appeal rights. It did not imply that a refusal to vary could not be treated as a sentence under the Criminal Appeal Act 1968 (see paras [7]-[8]).
The court treated this provision as creating the appellate route from a Crown Court determination of a variation application. The court could exercise its ordinary sentence-appeal powers on that appeal (see paras [4]-[8]; [13]).
The court held that the express right of appeal from a Crown Court refusal to make an order on a variation application permits the Court of Appeal to quash the refusal and make an appropriate order under its sentence-appeal powers (see paras [4]-[8]; [13]).
The court used this provision as a contrast. It confirms the Crown Court’s express and broad powers on the specified appeals, but does not determine the Court of Appeal’s powers under section 110(3)(a) (see paras [2]-[3]).
[2020] EWCA Crim 1748 · 18 December 2020
The court noted that this former SOPO appeal route had been repealed in 2015. Its removal created the statutory gap which required consideration of the Criminal Appeal Act 1968. (see paras [42]-[44])
What each judgment says about section 110 is in the case-law panel in the full Act.
227.Section 110 provides for appeals against the making of an order or an interim order. The appeals process should be used where the offender is challenging the fact that an order has been imposed.
228.Subsections (1) and (2) explain the process by which an appeal should be brought depending on the circumstances in which the order was made. Where an order was imposed on the court’s dealing with an offender for an offence listed in Schedule 3 or Schedule 5, the offender should follow the usual appeal process that would apply if he were appealing against sentence. So, where the order was made in the Crown Court, the appeal against the order should be made to the Court of Appeal. Where the order was made in the magistrates’ court or the youth court, the appeal is to the Crown Court.
229.Where the order was made following an application by the police in respect of an offender in the community, the appeal will lie to the Crown Court.
230.Subsection (5) relates to orders made by the Crown Court following an appeal against an order imposed on an offender in the community. It provides that the order made by the Crown Court is to be treated as if it was made by the magistrates’ court that imposed the original order, for the purposes of determining where any application for variation, renewal or discharge should be heard (under section 108 or 109).