Neutral Citation Number: [2006] EWCA Crim 2519
Case No: 2006/01150/A7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CROYDON
HIS HONOUR JUDGE JOSEPH

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/10/2006
Before :

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
MR JUSTICE HOLLAND
and
MR JUSTICE TUGENDHAT
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Between :

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	Richards		

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Mr M Hillman for the Appellant 
 Mr H Reid for the Prosecution 
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Hearing date: 12th October 2006
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Judgment

President of the Queen's Bench Division : 
1.	This is an appeal against sentence by Christopher Richards.  It raises an important point of principle about the jurisdiction of the court, and possible restrictions on the power created by Sexual Offences Act 2003 to make a sexual offences prevention order. 
2.	The facts can be briefly summarised. On 18th August 2005 Ms Shaw was walking in a public Park.  She described an incident in which she saw the appellant stroking his erect penis. In evidence she acknowledged that he may simply have been adjusting himself, and that his penis may not have been erect.  She also accepted that she had not actually seen any of the appellant’s flesh at this stage.  This incident of alleged exposure was covered by count one in the indictment.  The appellant was found not guilty by the jury on the direction of the judge.
3.	A short while later however Ms Shaw saw the appellant again.  This time he was sitting on the grass and she saw the appellant’s penis protruding from his shorts.  She telephoned the police.  When officers arrived the appellant was arrested.  This activity was reflected in count two.
4.	At interview, the appellant denied that his penis had been erect at any time.  He did not recall seeing any particular person in the locality.  Any touching of his groin area would have been innocent, and for the purpose of adjusting his clothing.  In evidence, he asserted that Ms Shaw had been mistaken.  
5.	This was a simple trial.  It proceeded without difficulty.  No criticism was made of the summing up, and there was no appeal against the appellant’s conviction on count two.
6.	Judge Joseph then dealt with sentence.  The appellant was born in August 1967.  He had two previous convictions.  In 1983 he was fined £40 for burglary and theft.  In 1991 he was made subject to a two year conditional discharge for indecent assault on a female.  In 2003 he was cautioned for gross indecency with a child. He placed a mirror on the floor of a cubicle at the public baths, so that he could observe a ten year old girl in the next cubicle while he masturbated.  
7.	The pre-sentence report indicated that the appellant maintained his innocence of the offence.  He denied any tendency to exhibitionist urges or distorted views of women and young girls.  Nevertheless, the writer concluded that the appellant represented a high risk of similar offending and high risk of harm to the public. Later the report observed that there was a “risk that he will offend again and cause distress to members of the public”.
8.	Judge Joseph is a very experienced and well respected judge, who had presided over the trial.  He was extremely concerned about what he saw as deliberate targeting of the victim, and that the appellant had behaved in this way close to a children’s playground. He believed that there was a very real danger of a repetition of the appellant’s criminal conduct, and that his offending might escalate, with resulting psychological harm to the public.  He reminded himself of the provisions of section 104 of the Sexual Offences Act 2003.  He imposed a sentence of six months imprisonment, and concluded that it was necessary to make the appellant subject to a sexual offences prevention order for an indefinite period, “to prevent members of the public from serious sexual harm”.  The precise conditions of the order were in conventional terms, and have no relevance to this appeal.  No order was made under the provisions of sections 224-229 of the Criminal Justice Act 2003.  
9.	A supplementary report prepared for the Court of Appeal Criminal Division expressed continued concern that in the absence of a sexual offences prevention order the level of seriousness of the appellant’s offending could escalate to a high level.  It was also believed that there was a potential for the commission of more serious sexual offences against children. However provided his opportunities for unsupervised contact with children were restricted, the risk would be a low one.
10.	The first issue in this appeal is whether it was open to the sentencing judge to impose a sexual offences prevention order under section 104 of the Sexual Offences Act 2003 when an extended sentence, as provided by section 227 of the Criminal Justice Act, was not required.  The answer to this question ought to be straightforward.  Unfortunately it is not.  
11.	The legislation which created the sexual offences prevention order, and the scheme for its application and enforcement is found in sections 104-113 of the Sexual Offences Act 2003.  Section 104 provides
“(1)	A court may make an order under this section in respect of a person (“the defendant”) where any of sub-sections (2)-(4) applies to the defendant and
(a)	where sub-section (4) applies, it is satisfied that the defendant’s behaviour since the appropriate date makes it necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant;
(b)	in any other case, it is satisfied that it is necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant. ”
(2)	This sub-section applies to the defendant where the court deals with him in respect of an offence listed in Schedule 3 or 5
(3)	This sub-section applies to the defendant where the court deals with him in respect of a finding……
(4)	This sub-section applies to the defendant where 
(a) an application under sub-section (5) has been made to the court in respect of him, and
(b) on the application, it is proved that he is a qualifying offender
(5)  	A chief officer of police may by complaint to a magistrate’s court apply for an order under this section in respect of a person who resides in his police area or who the chief officer believes is in, or is intending to come to, his police area if it appears to the chief officer that
						(a) the person is a qualifying offender and
(b) the person has since the appropriate date acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made….”
12.	Section 106 is supplemental to section 104.  It defines “protecting the public” in section 104 (1) as
“ ….Protecting the public in the United Kingdom or any particular members of that public from serious physical or psychological harm, caused by the defendant committing one or more offences listed in Schedule 3 ”
A “qualifying offender” for the purposes of section 104 (5) includes an individual who has been convicted of an offence listed in Schedule 3 (except for paragraph 60 of the Schedule) or Schedule 5, or who has been cautioned in respect of such an offence.  It also extends to an individual who has been convicted outside the United Kingdom, but not punished for a relevant offence, or cautioned for a relevant offence outside the United Kingdom.
13.	We note therefore that the sexual offences prevention order is not dependant on a conviction, and that the making of a sexual offences prevention order is not linked to any other form of punishment or disposal.
14.	Section 104(1)(b) and (2) replaced the former provisions in section 5(A)(1)(a) and (2) of the Sex Offenders Act 1997 which enabled the court to make a “restraining order”. The essential qualifying requirement for a restraining order was “serious harm”.  Our attention was drawn to a number of authorities where this court considered restraining orders. R v Halloran [2004] 2 CAR (S) 57: R v Beaney [2004] 2 CAR (S) 82: R v Collard [2005] 1 CAR (s) 34.  The sentences with which these decisions were concerned were subject to section 161 (4) of the Powers of Criminal Court (Sentencing) Act 2000.   This provided that
“ …any reference, in relation to an offender convicted of a …sexual offence, to protecting the public from serious harm…shall be construed as a reference to protecting members of the public from death or serious personal injury, whether physical or psychological, occasioned by further such offences committed by him.”
In Halloren the court reflected that Parliament must have intended the words in the 1997 Act to be construed in the context of the 2000 Act.  Essentially the same reasoning was followed in Beaney and Collard. 
15.	In R v Monument [2005] 2 CAR (S) 57, after a close analysis of the complicated process which culminated in the making of a restraining order, the court concluded that the reference to “serious harm” in the 1997 Act was substantially similar to “serious sexual harm” in section 104 of the 2003 Act. The significant difference arose from the application of the new provisions, and in particular, that the minimum period for a sexual offences prevention order was not less than five years, whereas a restraint order under the 1997 Act could be made for a shorter period.  In R v D [2005] EWCA Crim 3660, when addressing the imposition of a sexual offences prevention order, Scott Baker LJ explained the approach of the court.  The court had “to conduct a risk assessment and consider…the likelihood of the appellant committing a further Schedule 3 offence….”
16.	The survey of the statutory provisions which created the sexual offences prevention order is now complete.  On the face of it, the statutory provisions are straightforward, and no difficulty of jurisdiction should arise.  The order is a valuable one, useful to sentencers, and beneficial for public protection.  The criteria seem clear.  Certainly the power to make the order does not appear to be dependent on the imposition of a simultaneous custodial sentence.  
17.	The question which we must now address is the argument that the judge was prevented from imposing a sexual offences prevention order on the appellant when he considered it appropriate and necessary. 
18.	Mr Hillman relied on the provisions of sections 224-227 of the Criminal Justice Act 2003.  He noted that section 224(3) defined “serious harm” as “death or serious personal injury, whether physical or psychological”.  He drew attention to section 227, and the provisions for an extended sentence on conviction of specified sexual offences, other than serious sexual offences, that is, offences which were punishable with imprisonment for life, or for a determinate period of ten years or more.  He pointed out that section 227 applied in such a case where the court considered that there was “a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences”. Mr Hillman emphasised that under section 227(2) the court was obliged (it “must”) impose an extended sentence of imprisonment on the offender who qualified under section 227(1).   Although this appeal is concerned with section 227, it is important to notice the breadth of the provisions encompassed in section 224-227, and that the arguments in the present appeal would apply with equal force to the sentences of life imprisonment and imprisonment for public protection.  
19.	Mr Hillman therefore argued that if the judge was not satisfied that there was a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences, which require the imposition of an extended sentence, the sexual offences prevention order under the Sexual Offences Act was not available either.  As the judge did not impose an extended sentence, it followed that he was not so satisfied: otherwise he would have complied with his statutory obligation.  It therefore followed that the pre-condition to the sexual offences prevention order was not established.
20.	Mr Hillman reinforced his submissions by citing and adopting the commentary by Dr David Thomas in R v Isa, Criminal Law Review,  April 2006, 356 at 360.  The court was considering a sexual assault which was a serious specified sexual offence.  A sentence of imprisonment for public protection was imposed.  This sentence was quashed.  In his examination of the reasoning of the court, Dr Thomas questioned:
“Can a court in such a case as this make a sexual offences prevention order under the Sexual Offences Act 2003, s.104?”     
He examined the statutory conditions, including the requirement that the court should be satisfied that the order “is necessary for the purpose of protecting the public from serious sexual harm from the defendant”.  Having explained the meaning of the expression “protecting the public…” as defined in section 106(3) of the Sexual Offences Act, he commented:
“The conditions for the imposition of a sexual offences prevention order appear to be substantially the same as those which apply to a sentence of imprisonment for public protection, with the additional requirement that the order should be necessary to prevent harm.  In the case of an offender convicted of a sexual assault, does the decision that he does not qualify for a mandatory sentence of imprisonment for public protection mean that he also does not qualify for a sexual offences prevention order?  It seems to follow that he does not, and that an offender convicted of a “serious sexual offence” cannot be dealt with by a sexual offences prevention order unless he is also sentenced to imprisonment for public protection, in which event the sexual offences prevention order may well be redundant”
In short, therefore, if this is right, a custodial sentence within the scheme created by sections 224-229 of the Criminal Justice Act has become a prerequisite or at least a concomitant to a sexual offences prevention order.
21.	As the argument developed, section 227 of the Criminal Justice Act was examined a little more closely.  Under section 227(2) the extended sentence of imprisonment which the court is required to impose on the offender was a term equal to: 
“The aggregate of  
a)	the appropriate custodial term and
b)	A further period (“the extension period”) for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by him of further specified offences”.  
22.	The phrase “appropriate custodial term” is defined as a term of imprisonment which would be the term imposed in compliance with section 153(2) (a custodial sentence for the shortest term commensurate with the seriousness of the offence) or, if that term would be less then twelve months, a twelve month sentence.  Judge Joseph imposed a sentence of six months imprisonment.  It was not an extended sentence. Hence the appellant could not qualify as an individual from whom the public required protection for the purposes of section 104 of the Sexual Offences Act. The argument, fortified as it is by a commentator of Dr Thomas’s distinction, is formidable. 
23.	The starting point in our analysis is to observe that the Criminal Justice Act 2003 and the Sexual Offences Act 2003 were enacted (although not brought into force), on the same date, 20 November 2003.  If the argument for the appellant were correct the consequence would be that the Act which created the power in the court to make a sexual offences protection order in a carefully structured legislative provision was somehow limited, or indeed controlled, by a different statutory provision in a different Act, enacted on the same day, and silent about its intended effect on the new power.  However appropriate and necessary the order for the protection of the public might appear to the court, and irrespective of the court’s view that the case fell within the ambit of the statutory scheme in section 104 of the Sexual Offences Act, it was precluded from imposing it without simultaneously imposing a custodial sentence of imprisonment of twelve months or longer.  Such a result would be astounding.
24.	Sections 224-229 of the Criminal Justice Act identify particular circumstances in which it is obligatory for the court to impose an identical form of sentence in sexual or violent offences. It is concerned with “dangerousness” as explained in section 229.  A non-custodial sentence is not in contemplation.  On the other hand section 104 of the Sexual Offences Act is expressly concerned with a non-custodial order, available to be imposed by the court as a matter of discretion where satisfied that it is “necessary” for the order to be made. As we have already noted, it may be used for a qualifying offender who has not been convicted, but only cautioned in respect of a relevant offence, or for an offender who has already been punished for it.  No question of a custodial sentence could arise in either of these cases.  The express provisions of the statutory scheme powerfully suggest that the sexual offences prevention order is not governed by or subject to the provisions relating to “dangerousness” found in the Criminal Justice Act.  
25.	There are a number of differences in terminology between the two Acts.  For example, the sexual offences prevention order is concerned with the protection of the public from serious physical or psychological harm, but not encompassing the risk of death, which is part of the definition in section 224 of the Criminal Justice Act, defining serious harm for the purposes of among others, of section 227.  Again, each Act sets out a detailed list of the offences to which their different provisions apply.  For the purposes of sections 224-229, the specified sexual offences are found in part 2 of schedule 15 of the Criminal Justice Act, but we note in passing, that this list of offences is not identical to the equivalent list found in the relevant schedules to the Sexual Offences Act.  Thus, whereas section 2 of the Sexual Offences Act 1956 appears in the appropriate schedule to the Criminal Justice Act, it is not included in the relevant schedule to the Sexual Offences Act.  
26.	These, and other fine distinctions, may provide the black letter lawyer with sufficient material to demonstrate the disconnection between these particular provisions in the Sexual Offences Act and the dangerousness provisions in the Criminal Justice Act.  In our view they serve to fortify the conclusion that the statutes were not intended to be and are not linked so as to enable the provisions of one of them to override the other. The stark reality is that if the Criminal Justice Act was intended to have the impact on a sexual offences prevention order for which Mr Hillman contends, it would have been easy enough for it to say so in terms, or for the Sexual Offences Act expressly to limit or direct that the power of the court to impose a sexual offences prevention order was subject to identified provisions in the Criminal Justice Act.  As it is, section 104 of the Sexual Offences Act says nothing expressly, or by implication, about sections 224-229 of the Criminal Justice Act, and these sections make no corresponding reference to section 104 of the Sexual Offences Act.  Alternatively, and even more simply, the criteria for identifying the qualifying offenders, and the conditions for making the sexual offences prevention order, could have been adopted.    
27.	In our judgment, these schemes were intended to be and are distinct.  Therefore it is not a pre-condition to the making of a sexual offences prevention order that the judge should be satisfied that the offender would also qualify for an extended sentence (or for that matter, a sentence of life imprisonment or imprisonment for public protection), or that he should regard himself as deprived of necessary jurisdiction if they do not.  That presupposes that the risk of re-offending must either be sufficient for the purposes of the dangerousness provisions in the Criminal Justice Act, or, if it is not, that it should be ignored.  In short, although there may well be cases in which the potential overlap between the two sentencing regimes will require close attention, the ambit of the court’s broad discretion to make a sexual offences prevention order is prescribed by the provisions which created it, without reference to section 224-229 of the Criminal Justice Act.  Accordingly, on the issue of principle, Mr Hillman’s submission fails.
28.	After this judgment had been prepared, the Criminal Appeal Office drew attention to the decision of a two judge constitution of this court in R v Rampley, EW [2006] EWCA Crim 2203.  Without the advantage of argument from the Crown, the court used a slightly different route to the same conclusion, largely depending on distinctions in terminology between the two Acts.  Having reflected on the decision, our reasoning remains unaltered. 
29.	We can deal very briefly with the submission that the sexual offences prevention order was inappropriate on the facts of the case.  Judge Joseph explained the reasons for this conclusion in careful sentencing remarks.  There was sufficient material for him to reach the conclusion.  It is not one with which this court should interfere.  This ground of appeal, too, fails.
30.	This appeal against sentence is dismissed.