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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> McLellan, R. v [2017] EWCA Crim 1464 (06 October 2017)
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Cite as: [2018] Crim LR 91, [2017] EWCA Crim 1464, [2017] WLR(D) 641, [2018] 1 WLR 2969, [2018] WLR 2969, [2018] 1 Cr App R (S) 18

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Neutral Citation Number: [2017] EWCA Crim 1464
Case No: 201700961 A3 & 201604439 A4

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM TRURO CROWN COURT
JUDGE S. CARR
T20160009
ON APPEAL FROM MAIDSTONE CROWN COURT
HIS HONOUR JUDGE BALSTON
S20050165

Royal Courts of Justice
Strand, London, WC2A 2LL
06/10/2017

B e f o r e :

LORD JUSTICE GROSS
MR JUSTICE SPENCER
and
HIS HONOUR JUDGE MARSON QC
(SITTING AS A JUDGE OF THE CACD

____________________

Between:
REGINA
Respondent
- and -

JAMES MCLELLAN

REGINA
- and
CARL BINGLEY
Appellant

Respondent

Appellant

____________________

(Transcript of the Handed Down Judgment.
Copies of this transcript are available from:
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____________________

Simon Heptonstall (instructed by the Crown Prosecution Service) for the Crown
James Wood QC (instructed by the Registrar of Criminal Appeals) for the Appellant James McLellan
Farrhat Arshad (instructed by Swain & Co. Solicitors) for the Appellant Carl Bingley

Hearing dates : 25 July, 2017

____________________

HTML VERSION OF JUDGMENT AS APPROVED BY THE COURT
____________________

Crown Copyright ©

    Lord Justice Gross :

    OVERVIEW

  1. The two cases listed together before this Court are very different, albeit there is some overlap. McLellan concerns the length of a Sexual Harm Prevention Order ("SHPO") and its relationship with notification periods. Bingley raises questions arising from the imposition of a Sexual Offences Prevention Order ("SOPO") – the predecessor of SHPOs – at the same time as a sentence of Imprisonment for Public Protection ("IPP"); not least, these questions include addressing the differences between the SOPO terms and the licence conditions of the IPP, now that the Applicant has been released. Both McLellan and Bingley (all the more so) require Extensions of Time ("EOTs") for substantial periods. McLellan involves a straightforward challenge to a decision said to have been wrong when made. By contrast, the application in Bingley, hinges on a subsequent change in the law's approach. We deal first with McLellan, before turning to Bingley.
  2. McLELLAN

    Introduction

  3. On the 5th February, 2016, in the Crown Court at Truro, before HHJ Carr, the Applicant, now aged 42, pleaded guilty to seven counts of making indecent photographs of a child, contrary to s. 1(1)(a) of the Protection of Children Act 1978. On the 26th February, 2016, before the same Judge, the Applicant was sentenced to 12 months imprisonment, suspended for 24 months, with a Rehabilitation Activity Requirement ("RAR") for 25 days and a requirement to complete the internet sex offenders programme. A SHPO was made "until further order", pursuant to s.103 of the Sexual Offences Act 2003 ("the 2003 Act"). It is unnecessary to set out the prohibitions contained in the SHPO or to refer to various other orders also made.
  4. Having been convicted of an offence listed in Schedule 3 to the 2003 Act, the Applicant was required to comply with the provisions of Part 2 of that Act, notification to the Police. This requirement arises under the legislation and does not depend on any order of a Court. Had the Applicant's suspended sentence of imprisonment stood alone, its length meant that the Applicant would be subject to the statutory notification requirements for 10 years. However, by reason of s.103G(1) of the 2003 Act, where a SHPO is made, the defendant concerned automatically remains subject to the notification requirements while the SHPO has effect. Accordingly, in this case, the effect of the SHPO being made "until further order" meant that the Applicant remains subject to the notification requirements indefinitely, or until the SHPO ceases to have effect.
  5. The Applicant applies for an extension of time ("EOT") of 342 days in which to seek leave to appeal against sentence – the length of the SHPO only. These applications have been referred to the full Court by the Single Judge.
  6. The facts and the sentence

  7. In April 2014, Police received information that an IP address associated with the Applicant had been used to access and share indecent images of children. A search warrant was obtained and, on 2nd June, 2014, the Applicant was arrested and the property searched.
  8. In brief outline, the upshot was that examination of the items seized revealed indecent images of children on a Sony Laptop and a separate hard drive. There were 114 items at category A, 136 items at category B and 205 items at category C. Most were still images but there were also videos. Evidence of file sharing was discovered but there was no evidence of specific acts of distribution. The youngest child depicted was 3 years of age. The Judge was supplied with a "Thompson Schedule". The offending spanned 8 years, between 2006 and 2014.
  9. The Judge was invited to impose a SHPO but neither the Prosecution Case Summary nor the draft SHPO which had been submitted for consideration, contained any proposal as to the duration of the SHPO.
  10. Passing sentence, the Judge recorded that the Applicant had a significant quantity of material, some at the highest level and involving children as young as three being subjected to penetrative activity. Importantly, however, the Judge went on to observe that the Applicant had been isolated, found difficulty in forming relationships, pleaded Guilty, was remorseful and was of previous good character. The Judge concluded that the sentence could be suspended and that treatment was required.
  11. The Judge imposed – without comment or elaboration – a SHPO until further order. The Applicant was notified that he would be subject to notification requirements under the 2003 Act but the duration of the notification period was not specified. It appears that counsel then instructed was so gratified by the suspending of the sentence of imprisonment that, with respect, he took his eye off the ball and made no submissions as to the duration of the SHPO.
  12. The rival cases

  13. For McLellan, Mr Wood QC (who did not appear below) submitted that the imposition of a SHPO without limit of time was manifestly excessive and wrong in principle.
  14. In Mr Wood's submission, ordinarily, the duration of a SHPO should be no longer than the statutory notification period for the sentence imposed for the offending. If a Judge was minded to depart upwards from the statutory notification period, then counsel should be warned - so that he/she would have the opportunity to make representations - and the reasons for that departure should be set out in the sentencing remarks. Mr Wood emphasised that the effects of a notification requirement are onerous, hampering employment prospects and restricting freedom and liberty for their duration.
  15. On the facts, there was no justification for the SHPO exceeding the statutory minimum fixed period of 5 years (s.103C(2)(a), of the 2003 Act). The unusual support from the Applicant's supervising Probation Officers spoke for itself.
  16. Accordingly, this Court should now restrict the SHPO to the minimum fixed period of 5 years. If an indefinite SHPO was unwarranted, the Applicant should not be left to wait until 2021 before applying to set it aside.
  17. As to the EOT, Mr Wood submitted that, through no fault of his own, the Applicant had not become aware until autumn 2016 that the effect of the SHPO was that his notification requirement was for life rather than for 10 years. Once the Applicant had become aware of this, he sought advice promptly. Exceptionally, an EOT should be granted.
  18. For the Crown, Mr Heptonstall's submissions proceeded as follows. First, there was no rigid or binding principle that the duration of a SHPO should be no longer than the statutory notification period. It all depended on the circumstances. Moreover, the 2003 Act itself provided for extending the notification periods where the SHPO was of a greater duration than would otherwise apply (s.103(G)(1)); that provision would be otiose unless it was contemplated that SHPOs might be of a longer duration than the statutory notification period. So too, the minimum period for a SHPO was 5 years (s.103C(2)(a)), whereas notification periods for those cautioned or conditionally discharged would be for a period significantly shorter than that minimum.
  19. Secondly, there was no duty on the Judge to warn counsel that an indefinite SHPO was contemplated. In practice, draft orders were circulated in advance and provided the opportunity for indicating the period of restriction sought. Further and in any event, the fact of an application for a SHPO put the parties on notice that its length would need to be determined.
  20. Thirdly, the right course here was not for this Court to intervene but for the Applicant to apply to discharge the SHPO, if it could be said to be no longer necessary, after the expiry of the 5 year minimum period, namely, in February 2021.
  21. Discussion

  22. (1) EOT: On the individual facts of this application, we are, exceptionally, persuaded that the substantial EOT sought should be granted. First, the strength of the application is such as amply to warrant consideration by the full Court – though, as is now well-established, by itself that may well not suffice for an EOT of any length to be granted. Secondly, having regard to what we know of the Applicant and the explanation for the delay advanced by Mr Wood, we are satisfied both that there was no fault on the part of the Applicant personally and that overall considerations of justice warrant the grant of the EOT.
  23. (2) Leave to appeal: We grant leave.
  24. (3) Principle: It is unnecessary to refer to authority other than to the guidance furnished by Hughes LJ, VPCACD (as he then was) in R v Steven Smith [2011] EWCA Crim 1772; [2012] 1 Cr App R (S) 82, dealing with the making of SOPOs (not SHPOs).
  25. At [8], Hughes LJ repeated the questions, formulated in previous authority, which needed addressing when the making of a SOPO was under consideration:
  26. " i) Is the making of an order necessary to protect from serious sexual harm through the commission of scheduled offences?
    ii) If some order is necessary, are the terms proposed nevertheless oppressive?
    iii) Overall are the terms proportionate? "
  27. At [17], Hughes LJ addressed the relationship between the duration of a SOPO and the statutory notification requirements:
  28. " We entirely agree that a SOPO must operate in tandem with the statutory notification requirements. It must therefore not conflict with any of those requirements. Secondly, we agree that it is not normally a proper use of the power to impose a SOPO to use it to extend notification requirements beyond the period prescribed by law. Absent some unusual features, it would therefore be wrong to add to a SOPO terms which although couched as prohibitions amounted in effect to no more than notification requirements, but for a period longer than the law provides for. But it does not follow that the duration of a SOPO ought generally to be the same as the duration of notification requirements. Notification requirements and the conditions of a SOPO are generally two different things. The first require positive action by the defendant, who must report his movements to the police. The second prohibit him from doing specified things. Ordinarily there ought to be little or no overlap between them. If the circumstances require it, we can see no objection to the prohibitory provisions of a SOPO extending beyond the notification requirements of the statute. It may also be possible that a SOPO for less than an indefinite period might be found to be the right order in a case where the notification requirements endure for ever; that also is permissible in law. "
  29. Instructively, the flavour of these observations was captured in Judicial College course materials of 2015, under the authorship of HHJ Picton:
  30. " Consider with care the length of any SHPO ….. There is a need to justify a SHPO that extends beyond the automatic …[notification requirement] period but in an appropriate case legitimate for it to do so. Bear in mind that a defendant subject to a SHPO is automatically subject to ….[a notification requirement] by reason thereof."
  31. Returning to Smith, the importance of providing a written draft of a proposed SOPO, to be properly considered in advance of the sentencing hearing, was highlighted at [26].
  32. We were invited by Mr Wood to give guidance as to principle on the correlation between the duration of SHPOs and notification requirements. With respect, we are not minded to go beyond the following observations:
  33. i) First, there is no requirement of principle that the duration of a SHPO should not exceed the duration of the applicable notification requirements. As explained in Smith, at [17], it all depends on the circumstances.

    ii) Secondly (so far as here relevant), a SHPO may be made when the Court is satisfied that it is necessary for the purpose of protecting the public or any particular members of the public from sexual harm from the defendant: s.103A (1) and (2)(b)(i) of the 2003 Act. As with any sentence, a SHPO should not be made for longer than is necessary.

    iii) A SHPO should not be made for an indefinite period (rather than a fixed period) unless the Court is satisfied of the need to do so. An indefinite SHPO should not be made without careful consideration or as a default option. Ordinarily, as a matter of good practice, a Court should explain, however briefly, the justification for making an indefinite SHPO, though there are cases where that justification will be obvious.

    iv) All concerned should be alert to the fact – as this case highlights – that the effect of a SHPO of longer duration than the statutory notification requirements has the effect of extending the operation of those notification requirements; an indefinite SHPO will result in indefinite notification requirements: s.103G(1) of the 2003 Act. Notification requirements have real, practical, consequences for those subject to them; inadvertent extension is to be avoided.

  34. We are likewise not persuaded of the need for a specific warning as such from the Judge merely because a SHPO of longer duration than the applicable notification requirements is contemplated. In our judgment, this topic is best dealt with under the umbrella and by careful observance of, the Criminal Procedure Rules ("Crim PR"), reflecting, in this context, the observations in Smith, at [26]. Thus Crim PR part 31.3 (5) already provides for service by the prosecutor of a draft SHPO not less than 2 business days before the hearing at which the order might be made. Moreover, that draft order must specify the proposed prohibitions. As it seems to us, the draft SHPO should indicate the proposed duration of the SHPO or, at the least, flag the question of duration for consideration. In any event, a defendant's legal representatives should be alert to questions of duration, as part of their ordinary preparation in such cases. Without being unduly critical, inadvertence in the present case serves as a cautionary reminder of what can happen otherwise.
  35. (4) Applying the law to the facts: Pausing here, it is fair to say that our conclusions on questions of principle fall somewhat short of those urged on us by Mr Wood. Turning, however, to the application of the law (or principle) to the facts, the arguments seem to us one way in favour of the Applicant. Our reasons follow and can be very shortly stated.
  36. First, we are unable to discern that any particular attention was given to the justification for an indefinite SHPO. Neither the prosecution opening nor the Judge's sentencing observations purport to justify an indefinite SHPO.
  37. Secondly, there is unusual and powerful material supporting the Applicant's case that a fixed period SHPO would suffice on the facts of this case. Over and above the description of the Applicant in the Judge's sentencing observations – set out above – and, according to the Pre-Sentence Report, a man living with his mother and sister, there is a letter from Mr Mark Swan, dated 8th June, 2017, a Probation Officer and the Applicant's Offender Manager. This letter includes the following:
  38. " Mr McLellan has done more to rehabilitate himself than any other individual I can think of working with over the past 12 years. An example of his commitment to change and desistance is his engagement in counselling ….. Whilst engaging in iSOTP he increased the frequency of his counselling from weekly to twice weekly and this offered him space to evaluate and reflect upon learning from that week's programme. Mr McLellan has realistic and achievable goals for the future, he would like to re-take his degree in Geology and then work within the field of applied Geology…. "
  39. A second Probation Officer, a Ms Davies, has written supporting an alteration of the indefinite SHPO to one of 10 years duration. She writes of the Applicant fully accepting responsibility, engaging well with counselling and having realistic plans and goals for the future. In her assessment, the Applicant poses "…an overall low risk of a repeat of this or any other type of offending." Further, the indefinite notification requirement was "disproportionate to manage the risk currently posed" by the Applicant.
  40. Thirdly, against this background, the indefinite SHPO was manifestly excessive, or, to put it another way, disproportionate. Such risk as was posed by the Applicant could properly be dealt with by a SHPO for a fixed term.
  41. Fourthly, if right so far, it would not be satisfactory to leave the indefinite SHPO, together with the indefinite notification requirements in place, until February 2021 at the earliest. The erroneous sentence can and should be dealt with now.
  42. Fifthly, in all the circumstances, we are satisfied that a SHPO for a fixed term of 5 years is all that is necessary to fulfil the statutory purpose under the 2003 Act. In this respect we determine a duration less than that advocated by Ms Davies but think that the period of 5 years better reflects the evidence as a whole. We accordingly quash the indefinite SHPO and substitute a SHPO for a period of 5 years, running from the 26th February, 2016, the date of sentence. It follows – given the length of the Applicant's suspended sentence of imprisonment – that he will be subject to the statutory notification requirements for a period of 10 years, also running from the 26th February, 2016. To the extent thus indicated, the Applicant's appeal against the indefinite SHPO succeeds, with the consequential impact (also indicated) on his notification requirements.
  43. (5) The Rehabilitation Activity Requirement: As so often, the Registrar and his Office are to be praised for their diligence. In this matter, they have correctly pointed out that the RAR could not lawfully have been imposed, given the dates of the offending. The point is technical but, nonetheless, the RAR cannot stand. It is unnecessary to say more than that we quash the RAR imposed and substitute a supervision requirement for 12 months.
  44. BINGLEY

    Introduction

  45. On the 2nd June, 2005, having pleaded guilty before the magistrates' court, the Applicant was committed for sentence to the Crown Court, in respect of 25 offences of making indecent photographs of children, contrary to s.1(1)(a) of the Protection of Children Act 1978. On the 5th July, 2005, at the Crown Court sitting at Maidstone, the Applicant was sentenced by HHJ Balston, concurrently on each count, to IPP, with a minimum term of 2 years.
  46. The Applicant's initial application for an EOT of some 11 years and 3 months in which to seek leave to appeal against sentence was refused by the Single Judge. Thereafter, the Applicant renewed his application on a non-counsel basis to a different constitution of the Full Court, which (on the 7th June, 2017) adjourned the application, seeking the assistance of counsel and the attendance of the Crown. Treacy LJ flagged for consideration the following matters:
  47. " (1) the issue of an extension of time and the question of real injustice; (2) the need for a SOPO; (3) the terms of this SOPO; (4) the interrelationship between the terms of this SOPO and post-release IPP licence conditions; and (5) whether in the circumstances of a case such as this the appropriate course is to proceed by way of an application to the Crown Court."

    The facts and the sentence

  48. In the briefest outline, the facts are these. At the time of the offending, the Applicant was staying at the home of a church member. In April 2005, that individual discovered that indecent images of children had been viewed on his computer. Police were informed. Following an examination of the computer, it was discovered that there were images present ranging from Levels 1-5 on the COPINE scale.
  49. Passing sentence, the Judge was satisfied that the Applicant, who had had previous convictions for buggery and rape (1988 and 1995), was dangerous; he passed the sentence of IPP already recorded.
  50. In addition, the Judge imposed a SOPO, until further order, in the following terms:
  51. " 1. The defendant for the duration of the order be prohibited from owning, using, possessing or having access to any personal computer, laptop computer or any other equipment capable of downloading any material from the internet, subject to paragraph 3 of this order.
    2. The defendant for the duration of the order be prohibited from owning, using, possessing or having access to any personal computer, laptop computer or any other equipment capable of viewing any such material, subject to paragraph 3 of this order;
    3. The provisions of paragraphs 1 and 2 of this order shall not apply to:
    a. The viewing of any lawfully broadcast television programme.
    b. The use of any such equipment specified in paragraphs 1 and 2 for the purposes of any lawful employment in which the above-named defendant engages, subject to proper notification.
    4. This order shall be of immediate effect and for a period decided by the Court."
  52. At the time in question, ss. 104 – 113 of the 2003 Act made provision for SOPOs. Unlike SHPOs, a Court making a SOPO needed to be satisfied that the order was necessary to protect the public or particular members of the public from "serious sexual harm", as distinct from "sexual harm" simpliciter.
  53. On the 19th December, 2016, the Applicant was released from custody under the IPP on 21 licence conditions. Conditions 9, 10, 11, 12 and 13 all appear to be specifically directed at managing the risk of the Applicant making or accessing indecent images of children – i.e., committing the offences for which he was sentenced to an IPP. These conditions provide as follows:
  54. " 9. He shall make any device capable of making or storing digital images (including a camera and a mobile telephone with a camera function) available for inspection on request by the supervising officer and/or a Police Officer;
    10. He shall not use or access any computer or device which is internet enabled without the prior approval of the supervising officer; and only for the purpose, and only at a public location, as specified by that officer.
    11. He shall not delete the usage history on any internet enabled device or computer used and shall allow such items to be inspected as required by the police or the supervising officer. Such inspection may include removal of the device for inspection and the installation of monitoring software.
    12. He shall not own or possess a mobile phone with a photographic function without the prior approval of the supervising officer.
    13. He shall not own or use a camera without the prior approval of the supervising officer."

    The rival cases

  55. In her very able submission, Ms Arshad, for the Applicant, contended that the SOPO was unnecessary, bearing in mind that the Applicant received a sentence of IPP, as illuminated by the decision of this Court in Smith (supra). Moreover, now that the Applicant had been released, the problem had crystallised: the SOPO terms and the (relevant) licence conditions were inconsistent with one another, so that the Applicant was at risk from different terms. All the more so, given that the SOPO terms were more stringent and less flexible than the licence conditions.
  56. As for the EOT, on instructions, Ms Arshad submitted that the Applicant did not realise that he was subject to a SOPO until informed of it in the course of his parole hearing. The Applicant did not recall being informed of the SOPO at the time he was sentenced. Now that the matter was before this Court, there would be real injustice if an EOT and leave to appeal were not granted. The matter should not be left for the Applicant to make a further application to the Crown Court to discharge or vary the SOPO – an application which might prove fruitless if the Crown Court took the view that the problems of which the Applicant complained were problems of principle and/or existed ab initio, rather than coming about by reason of a change in circumstances.
  57. Alternatively, if the matter was to be left to the Crown Court, then that Court should discharge the SOPO or, at the least, vary its terms – which were excessively wide and disproportionate – so that they were consistent with the licence conditions.
  58. For the Crown, Mr Heptonstall's stance was straightforward. The guidance provided by Smith does not provide the basis for a very substantial EOT and a successful appeal against a SOPO properly imposed under the (pre-Smith) law as it then stood. The Applicant's approach was contrary to the principle of finality. Mr Heptonstall accepted that there could not be a "clash of conditions" between the SOPO terms and the licence conditions. The Crown would not oppose an application to the Crown Court to vary the SOPO terms so that they mirrored the licence conditions. Provided the SOPO terms and the licence conditions were consistent, the continued existence of the SOPO did not cause the Applicant substantial injustice. There was utility in the SOPO continuing to exist; it conferred an immediate power of arrest and meant that if the Applicant again transgressed, he would be subject to separate punishment. Further supervision of the SOPO terms and the licence conditions could be left in the hands of the Crown Court, which could address any unwarranted inflexibility hindering the Applicant's progress.
  59. Discussion

  60. The starting point for discussion of this application is that at the time it was imposed and on the law as it was then understood, the making of the SOPO was within the ambit of the Judge's discretion. As is clear from the dates in question, the SOPO preceded the decision in Smith (supra) by some six years.
  61. In Smith, this Court considered the appropriateness of imposing a SOPO when an indeterminate sentence such as an IPP was imposed. In this regard, the key passages in Hughes LJ's judgment were as follows:
  62. " 10. In both Bolton….and L….this Court expressed the view that generally a SOPO would not be appropriate, because it is unnecessary, if an indefinite sentence is being imposed. Rather…the court should leave the prevention of further offences to the fixing of licence conditions. Mr Wicks, for the Crown in this case, has drawn our attention to the difference between the sanction of recall for breach of licence and the sanction of conviction for breach of the requirements of a SOPO. He suggests that a conviction carries greater transparency and public condemnation, and that if a defendant should be convicted again on a future occasion a conviction for breach of a SOPO may be more readily apparent on his record than would recall for breach of licence conditions. For those reasons he suggests that a SOPO is appropriate even if an indeterminate sentence is passed.
    11. We agree that those distinctions exist. They may be relevant to the licences which will follow fixed term or extended sentences. But it seems to us that they will not generally outweigh the case against making any SOPO if an indeterminate term is imposed. Release under an indeterminate term is not automatic. It is allowed only on very carefully considered licence terms. What those terms ought to be is best considered when release is being contemplated and not many years beforehand when the original sentence is passed. In the context of an indefinite sentence prisoner we do not think that there is any serious danger of a significant breach of licence condition, of the kind which might also be a breach of a SOPO if there had been one, being visited with only a brief recall. Nor do we think that in such a case there is necessity for a further public trial rather than prompt recall. There ought not, if the system works as it should, to be much opportunity for further offending after a breach and recall. If such a sequence of events does arise, the judge will undoubtedly be well apprised of the history of the offender.
    …..
    13. We do not say that no SOPO will ever be appropriate in the case of an indefinite sentence, but we have not on the material before us in these cases been able to envisage an instance when it will. The usual rule ought to be that an indeterminate sentence needs no SOPO, at least unless there is some very unusual feature which means that such an order could add something useful and did not run the risk of undesirably tying the hands of the offender managers later. "
  63. It is thus clear that, post-Smith, some very unusual feature would be required to impose both a SOPO (or SHPO) and an indeterminate sentence at the same time. This case is, however, pre-Smith. The crucial question here is whether the subsequent guidance in Smith entitles or obliges this Court to extend time (by a decade or thereabouts) so as to re-open the decision to impose a SOPO, properly made at the time. The present application in Bingley thus stands in stark contrast to the application in McLellan, dealt with above. In McLellan, we extended time to quash a decision which was wrong when it was made. In Bingley, we are asked to extend time to quash a decision, properly open to the Judge to make at the time, in the light of the changed direction subsequently taken by the law.
  64. As a matter of principle, considerations of finality tell against extending time so as to re-open decisions in cases such as this – and finality is a consideration of the first importance in criminal law, as it is in other branches of the law. Moreover, as a practical matter (and one not to be belittled), it is very relevant that a decision to extend time in the present application and now to hold that the SOPO should never have been made, will, in every likelihood, generate a significant number of similar applications in respect of historic SOPOs. The Courts have generally been wary of adopting such a course, as illustrated in the area of "joint enterprise" convictions where applicants have sought to rely on the retrospective effect of the Supreme Court decision in Jogee [2016] UKSC 8; [2016] 2 WLR 681. Thus, to justify an appeal brought out of time, "substantial injustice" must be shown: Jogee, at [100]; see further: R v Johnson (Lewis) [2016] EWCA Crim 1613; [2017] Crim L.R. 216. So too, the demise of sentences of IPP has not resulted in this Court extending time for applications for leave to appeal where IPP was imposed in circumstances when it was properly open to the Judge to pass such a sentence: Roberts [2016] EWCA Crim 71; [2016] 1 WLR 3249, esp., at [42].
  65. Where, however, substantial injustice can be demonstrated if a particular sentence is left in place, then considerations of finality and concerns as to "floodgates" may have to give way. Unless unavoidable, the law does not countenance substantial injustice. That said, if substantial injustice is found here, the question may then arise as to the appropriate remedy – and, in the present context, whether the answer is to give leave for an appeal to this Court or to indicate that the proper course is by way of an application to the Crown Court to discharge or vary the terms of the SOPO.
  66. Valuable guidance as to the demarcation between appeals to this Court and applications to vary SOPOs in the Crown Court is furnished by R v Hoath [2011] EWCA Crim 274; [2011] 1 WLR 1656. As to the framework, the Court began (at [3]) by underlining that, on an application by (inter alia) a defendant, the Crown Court is given express power to vary its own order, imposing a SOPO, by s.108(4) of the 2003 Act. Should the Crown Court refuse the application to vary, the defendant can appeal to this Court, pursuant to s.110(3)(a) of the 2003 Act, which may quash the order and make another appropriate order: Hoath, at [6] and [8].
  67. Giving the judgment of the Court, Simon J (as he then was) put the matter as follows:
  68. "9. Both these cases demonstrate the importance of taking care over the form and wording of a SOPO at the original sentencing hearing; and of applying promptly for leave to appeal if it is sought to argue that the SOPO should not have been made in the form that it was. Objections in principle to the terms of a SOPO imposed by the Crown Court should be raised by an appeal to the Court of Appeal and not by subsequent applications to vary to the Crown Court. Despite this, there may be cases where the form or wording of an order raises difficulties which could not have been anticipated at the time the order was made. Where the defendant relies on particular and unanticipated difficulties arising from the form and/or wording of the order, those difficulties should be identified promptly (in writing and with particularity) and sent to the prosecuting authority so as to see whether the matter can be put before the Crown Court on an agreed basis and in any event to narrow the area of dispute.
    10. Although minor but necessary adjustments to the order may be required, in which case application should be made to the Crown Court to vary the order, in circumstances where a defendant has not appealed to the Court of Appeal, we would not expect the Crown Court to make other than minor adjustments to the term of the order, at least in the short term.
    11. Usually the defendant will need to rely on a change of circumstances. In such a case, the Crown Court will need to be satisfied that the order in its original form is no longer necessary for the statutory purpose of protecting the public (or particular members of the public) from serious sexual harm from the defendant, or that those objectives can properly and sufficiently be secured by the proposed variation.
    12. Section 108(4) makes clear by the use of the word 'may' that the Crown Court exercises a discretion. In general, this court will only allow an appeal from an order of the Crown Court refusing to vary a SOPO if the judge has reached a view which is unreasonable or is outwith what is a broad discretion."
  69. In R v MI and others [2012] EWCA Crim 1792, the Court was concerned with a number of SOPOs, imposed some time previously. Instructively, the Court dealt differently with those imposed pre- and post-Smith (see at [3], [4], [18], [19] and [50] – [53]). As to Smith, Lord Judge CJ (giving the judgment of the Court), observed (at [2]):
  70. " As a result of Smith it will be rare for a SOPO to be made simultaneously with an indeterminate custodial sentence. Rare, of course, does not mean never. In general, however, SOPOs should not be ordered when a defendant is sentenced to imprisonment for public protection."
  71. Nonetheless, when dealing with the two cases before the Court of SOPOs made pre-Smith, Lord Judge CJ (who was a member of the constitution in Hoath) said this:
  72. " 18. Both RA and MI seek to take advantage of the decision in Smith when, in reality, the SOPOs cause them no prejudice. The orders do not and have not impeded their release. They are both still in custody. If they were caused any inconvenience in relation to the proper application of the conditions under which they may be released on licence, it would be open to them to apply for a variation order under section 108 of the Sexual Offences Act 2003. The basis of the variation would be that the new conditions, as they would then be, of their licences meant that the SOPO (or parts of it) were no longer appropriate.
    19. However, the fresh guidance given by Smith does not provide the basis for a successful appeal against a SOPO imposed long before Smith was decided and which, but for the licensing conditions which be imposed on release, was made with every justification. Sentence is imposed on the basis of the relevant legislation, the principles, practice and guidance, whether from this court or the Sentencing Council, which are current at the date when sentence is imposed. An existing sentence should not be varied on appeal because of subsequent changes to them. ….. this court is not a review body for every SOPO – and that we would emphasise: nor to every SOPO made before the decision in Smith. "
  73. In R v Spencer [2013] EWCA Crim 2286; [2014] 2 Cr App R (S) 18, this Court was concerned with a pre-Smith SOPO, imposed at the same time as a determinate sentence of imprisonment. The appellant contended the SOPO was not "Smith compliant" and sought a variation from the Crown Court. The Judge refused, saying that there had been no change of circumstances; objections in principle should be raised by way of appeal to the Court of Appeal. The appellant appealed from that ruling to this Court. His appeal failed.
  74. Drawing on Hoath and MI ...both supra), Nicol J, giving the judgment of the Court, observed that an attack on the ambit of the original order – absent any change of circumstances – could only be raised, if at all (in the light of MI), by way of an appeal to the Court of Appeal and not by way of an application to the Crown Court: see, at [11] – [12].
  75. Continuing, Nicol J said this:
  76. " 12. ….. We have not examined the merits of the appellant's argument that the provisions of the SOPO do go further than are necessary on the Smith principles. We readily accept that the appellant's argument in this regard may well be right. If that is so we recognise that, unless the SOPO is later varied or discharged, the appellant will be subject to potentially excessive restraints. However, that itself is a consequence of the principle in MI which is itself an example of the wider principle of finality even in criminal litigation.
    13. In the present context, finality is qualified by the power in s.108 to seek a variation of the order. If there is a change of circumstances, then that power can be invoked. This court in …Hoath....at [9] contemplated that a variation might also be appropriate where an order raises difficulties which were not anticipated at the time it was made. The same paragraph of the judgment also contemplates that the proposed change may in such circumstances be put before the Court on a basis agreed between the defendant and the prosecuting authority.
    15. …. It will not necessarily be a bar to the making of the application [to vary] that the circumstances arising are such as could – if thought about – have been foreseen at the time of the making of the original SOPO. What ultimately matters, is whether or not such circumstances that have arisen now make it just to vary the SOPO. "

    Conclusions

  77. Pulling the threads together:
  78. i) The problem which has now crystallised with the Applicant's release from custody concerns the conflict between the SOPO terms and conditions 9-13 of his licence. Self-evidently, those terms and conditions cannot be reconciled. It follows that the Applicant would be at risk of breaching the SOPO terms despite scrupulous compliance with his licence conditions. In our judgment, it would be unacceptable – and substantially unjust – to permit that conflict to stand. Accordingly, we have no doubt that steps should be taken to ensure that the SOPO terms mirror the licence conditions.

    ii) That said, having regard to the facts of this application and the authorities to which reference has been made, we can see no basis for an EOT to permit leave to be given for an appeal against the making of the SOPO. At the time in question, the Judge was entitled to make the SOPO. The matter is unaffected by the subsequent change in guidance contained in Smith. See: MI, supra, at [18] – [19].

    iii) In our judgment, the correct route to addressing the conflict between the SOPO terms and the Applicant's licence conditions – and the resulting injustice to the Applicant - lies in the Crown Court's power (in this context) to vary its own orders, pursuant to S.108(4) of the 2003 Act, should an application be made in accordance with part 31.5 of the Crim PR. As it seems to us, the problem arises from the changed circumstances flowing from the later licence conditions and thus falls squarely within the Crown Court's jurisdiction: see, Hoath, MI and Spencer (all supra).

    iv) Given the extant proceedings, we were next of the view that the parties did not need to be put to the cost and delay of a further application to the Crown Court. Instead, we decided that one member of the Court should act as a judge of the Crown Court for the purposes of dealing with this application. As we understood it, the parties were content with this proposed course and, pursuant to s.8 of the Senior Courts Act 1981, HHJ Marson will exercise the Crown Court jurisdiction. To further facilitate the making of the application, all formalities in that regard will be waived. The decision is for HHJ Marson , exercising the jurisdiction of the Crown Court but this Court's view as to the justice of the matter with regard to the conflict between the SOPO terms and the licence conditions has already been made plain. In any event, we record Mr Heptonstall's very proper acceptance that the Crown would not oppose an application to the Crown Court for the conflicting terms and conditions to be brought into alignment.

    v) As it seems to us, once the injustice occasioned by the conflicting terms and conditions has been addressed, no "substantial injustice" remains by reason of the SOPO remaining in existence. The mere fact that the SOPO remains in force – but now aligned with the licence conditions – when post-Smith it would not have been made, does not constitute a substantial injustice. It is no more than a consequence of the principle of finality: Spencer, at [12].

    vi) We are content that should any residual friction arise in respect of offender management by reason of the continued existence of the SOPO, then it will be contained within the confined limits of the Crown Court's jurisdiction and can be dealt with by way of application to that Court in the future.

    vii) We have not overlooked that the Crown Court has jurisdiction under s.108(4) of the 2003 Act to discharge the SOPO and Ms Arshad, for the Applicant, expressed a clear preference for discharge rather than variation. It is important to appreciate that "discharge" in the context of an application to the Crown Court does not entail a consideration of whether the SOPO should have been made ab initio. A question of that nature would fall outwith the Crown Court's jurisdiction and could only be pursued, if at all (see above), by way of appeal to this Court. Thus the scope for the Crown Court's consideration of "discharge" of the SOPO would be confined to whether it was now appropriate to discharge the Order. Though the decision rests with HHJ Marson QC, exercising the jurisdiction of the Crown Court, we are minded to think that, in the circumstances of the present case the SOPO should be left in place until such time (if at all) when the IPP licence conditions are revoked, for the reasons advanced by the Crown - in particular the availability of a power of arrest and the marking of any such breach as a separate offence appearing on his record, with the availability of separate punishment. The Applicant must be made aware that should HHJ Marson decline to discharge the SOPO and should the Applicant infringe the (now) aligned terms and conditions, he would be at risk under both the SOPO and the licence conditions. For our part, we are not persuaded that there is any injustice in such an eventuality.

  79. Thus far, we have dealt with the decisions required to resolve the present Application. We were invited to give more general guidance for the sake of clarity in the future, in particular as to the proper ambit for applications to the Crown Court in this context. We confine ourselves to expressing the view that the Crown Court has jurisdiction in a pre-Smith case to entertain an application made under s.108(4) of the 2003 Act and in accordance with part 31.5 of the Crim PR in (at least) the following circumstances:
  80. i) Where a SOPO was properly made in accordance with the law and guidance then current and a sentence of IPP was imposed on the defendant at the same time;

    ii) Where the defendant has been released from custody, subject to IPP licence conditions;

    iii) Where there is a conflict between the SOPO terms and the IPP licence conditions;

    iv) Where a variation of the SOPO is sought to bring its terms into alignment with the IPP licence conditions.

    We add that, pursuant to s.110(3)(a) of the 2003 Act, an appeal lies to this Court, with leave, from the decision of the Crown Court on such an application.

  81. Reverting to the present Application, for the reasons given:
  82. i) We refuse the EOT and refuse leave to appeal;

    ii) The Applicant may apply to the Crown Court to seek the discharge or variation of the SOPO;

    iii) HHJ Marson QC will exercise the jurisdiction of the Crown Court to consider these applications;

    iv) While we have indicated our thoughts on these applications, the decision/s will be made by HHJ Marson QC, exercising the jurisdiction of the Crown Court.

    ADDENDUM BY HIS HONOUR JUDGE MARSON QC SITTING ALONE UNDER S.8 OF THE SENIOR COURTS ACT 1981 AND EXERCISING THE JURISDICTION OF THE CROWN COURT:

  83. The power to discharge or vary an order is contained within section 108(4) of the Sexual Offences Act 2003.
  84. It is submitted by Ms Arshad that the Applicant, having been released in December 2016 was subject to SOPO conditions which were inconsistent with some of his licence conditions. The Crown Court should either discharge the order or, at the very least, vary its terms so that they are consistent with the licence conditions.
  85. The Crown does not oppose an application to vary the SOPO terms so that they mirror the licence conditions. It submits that there would be no substantial injustice to the Applicant and the continued existence of the SOPO confers an immediate power of arrest in the event of a breach which would be subject to separate punishment. The arguments are set out in full in paragraphs 42 to 45 of this judgment.
  86. The relevant authorities are considered at [42] to [57] of this judgment and I do not propose to repeat them. I simply emphasise the judgment of Lord Judge CJ in R v MI and others [2012] EWCA Crim 1792 at [18];
  87. " 'if they were caused any inconvenience in relation to the proper application of the conditions under which they may be released on licence, it would be open to them to apply for a variation order….. the basis of the variation would be that the new conditions, as they would then be, of their licences meant that the SOPO (or parts of it) were no longer appropriate."
  88. In my judgment circumstances have clearly changed since the SOPO was imposed in that the appropriate licence conditions now conflict with the conditions of the original order which were appropriate at that time. Having considered all the circumstances of this case I am satisfied that it is not now appropriate to discharge the order for the reasons advanced by the Crown, in particular the availability of a power of arrest and the marking of any such breach as a separate offence appearing on his record, with the availability of separate punishment. I am satisfied on all the material before me that the SOPO should remain in place, but that the terms of it should be varied to mirror the Applicant's licence conditions. These conditions are proportionate and appropriate to address the risk of serious sexual harm from the commission further scheduled offences.
  89. The order is, therefore, varied and the terms will be as follows:
  90. Until further order the defendant shall: –

    1. Make any device capable of making or storing digital images (including a camera and a mobile telephone with a camera function) available for inspection on request by the supervising officer and/or a police officer.
    2. Not use or access any computer or device which is Internet enabled without the prior approval of the supervising officer; and only for the purpose, and only at a public location, as specified by that officer.
    3. Not delete the usage history on any Internet enabled device or computer used and shall allow such items to be inspected as required by the police or the supervising officer. Such inspection may include removal of the device for inspection and the installation of monitoring software.
    4. Not own or possess a mobile phone with a photographic function without the prior approval of the supervising officer.
    5. Not own or use a camera without the prior approval of the supervising officer.


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