Sexual harm

‘Childish’ exposure: Liability to notification

When walking past a woman aged 50 and her friend in public R. aged 18 got into an argument with her. When she shouted at him that he was ‘acting like a girl’, he responded that he was not a girl, pulling down his trousers and underwear to expose his penis and moving his hips back and forth, going on to expose his naked buttocks to her, causing her distress and disgust. He had previous convictions for disorderly behaviour and for using threating or abusive words and for wounding. On his conviction at magistrates’ court of exposure (Sexual Offences Act 2003 s66) he was made subject of a conditional discharge order for three years, the justices ‘no doubt taking the view that this was a stupid piece of behaviour’ rather than a sexually motivated offence.

Some 30 months later, following guilty plea to possession of a Class A drug with intent to supply, committed during the discharge period, R. incurred 3 years’ imprisonment, plus a concurrent term of 2 months for the exposure offence. Following a query by the police, R. was returned to the Crown Court over 4 months later to be informed that he should have been told at time of sentence that, as a consequence of his conviction for a sexual offence, the notification requirements of the 2003 Act Part 2 applied to him for a period of 7 years. He appealed, disputing both the obligation to notify and the 2-month term.

In unpicking this legal tangle, the Court of Appeal (Burnett CJ presiding) began by acknowledging that on his initial conviction, R. had not become subject to sex offender notification. In respect of exposure, those requirements apply (in the case of an offender aged 18 or older) only if either the victim was under 18 or if the offender is dealt with in a particular way, that is, sentenced to a term of imprisonment, detained in a hospital or made the subject of a community sentence of at least 12 months. However, SOA 2003 s.132(3) provides that for the purposes of Part 2 of the Act, a person is to be regarded as convicted of a qualifying offence ‘at the time when the sentencing condition is met’. The effect of sentencing him to a term of imprisonment for his exposure, in place of the breached conditional discharge, was that notification then applied to him, and from that date. The Act specifies that a person sentenced to imprisonment for a term of 6 months or less is subject to notification for a period of 7 years beginning from the relevant date of sentence. For appeal purposes, the certificate of notification requirements issued by the sentencing court does not form part of the sentence since the obligation arises automatically and the certificate is simply a record of conviction that may be used as evidence in any subsequent proceedings for an alleged breach of requirements. The Court of Appeal thus does not have jurisdiction to hear an appeal from notification certification. If it was wrongly issued, an erroneous certificate could be challenged in judicial review proceedings (though the Court of Appeal, if faced with such a matter, could reconstitute itself as a Divisional Court to quash it).

As regards whether 2 months’ imprisonment was manifestly excessive, the Court noted that under the terms of the relevant Definitive Guideline (2013), R.’s exposure counted as a Category 3 offence, as there was no raised harm and no raised culpability, thus providing a starting point of a medium level community order with a range from a fine to a high-level community order. Having regard to the aggravating factors – R.’s previous convictions, committing the offence at night and the presence of two persons – it was justified to lift the offence into Category 2, with a starting point of a high-level community order and the range between a medium level community order and 26 weeks’ custody. However, the Court did not consider that this offence ‘so serious’ that it crossed the custody threshold, notwithstanding those aggravating features. Though it was a childish, stupid act causing distress to others, there did not appear to have been any sexual motivation or sexual gratification involved. If it had stood alone, the likelihood was that a fine or a community sentence would have been appropriate but, given that the applicant was in custody, no additional sentence was required. Being manifestly excessive, the term was quashed. In consequence, notification obligations did not apply to R. but the Court did not deem it necessary to switch to acting as a Divisional Court to quash the associated certificate, as the Court could not see any circumstances in which that certification could be the basis for any claimed liability on R.’s part for breach.

R v RAWLINSON, [2019] 1 Cr App R(S) 51.

SHPOs: Ongoing duty to protect

Having pleaded guilty in November 2012 to two offences of voyeurism, committed by taking covert photographs with a mobile phone of a woman using the changing rooms at a university sports centre, C. was committed on bail for sentence at Crown Court. He failed to surrender. Five years later, he was arrested on arrival back in the United Kingdom and was sentenced to 6 months’ imprisonment suspended for 2 years, also being made subject to a sexual harm prevention order (SHPO). He had previously incurred several convictions for theft, drugs and firearms offences and had also been convicted 11 years prior to his 2012 offending of burglary with intent to rape and indecent assault on a female. He had climbed up a ladder at night into the bedroom of a girl aged 16, getting into her bed and putting his hand over her mouth. She managed to raise the alarm and he had fled.

Having absconded from the jurisdiction, C. had spent the intervening 5 years abroad, mostly in Thailand, and he had returned to the United Kingdom (bringing a single suitcase) only because his passport was set to expire and he wished to renew it. These circumstances had not been fully drawn to the attention of the Crown Court judge. A few weeks after the imposition of the SHPO, the police somewhat belatedly recognised that C.’s adopted mode of life abroad might present risk of sexual harm and that he had no reason to stay in the United Kingdom where he had no financial ties to a permanent abode, no family support or any work/community commitments. He had told his designated police officer that he intended to go back to Thailand. An application was made successfully to vary the SHPO by including a further prohibition, preventing travel to any country outside the United Kingdom. (Though this had been expressed to apply for 7 years, the relevant statutory provisions limit the period of a travel prohibition to 5 years.) The police had argued that nothing was known of his movements and behaviour in Thailand. When asked to account for his actions while abroad, he had not been willing to disclose anything, other than to say he worked in hospitality between hotels, casinos and bars. ‘Given that his previous offending involved an attack in a bedroom and voyeurism, these environments are highly inappropriate and raise significant concerns.’ In their view, unless he was in the United Kingdom, the continuing risk he posed to the public, young people and vulnerable adults could not be assessed or managed. Without the added condition, he would be subject only to a standard requirement to notify the police 7 or more days ahead of intended foreign travel. However, once he had done this, there was nothing requiring him to come back to England for offender management or any other reason.

On C.’s appeal, restricted only to the SHPO variation, it was argued on his behalf that this had been unlawful because a change in circumstances is required before such a variation can be made and when the variation was sought there was little if anything which had not known at the date of the making of the order. The application had amounted in effect to an appeal against its terms. The Court of Appeal agreed that in general terms it was correct that a variation application ‘must have some basis’ rather than being a naked bid to have the terms of a SHPO reviewed as ‘an illegitimate attempt to appeal’. However, it would be going too far to conclude that

there is a general principle through the criminal law of a need for change before a protective order can be varied…. The effect of that would be that a protective order of this kind could not be corrected, if it could be said by any party affected that the applicant for the order in the first place had missed something.

As regards C.’s argument that there was no evidence to suggest that he had engaged in sexual tourism, that his voyeurism had amounted to breach of privacy, not serious sexual offending, and that there was thus no proper basis for the variation, the Appeal Court ‘roundly rejected’ this claim, observing that in looking at the risk posed by any sexual offender, that offender’s background was important.

Risk is a future consideration. Estimating the risk in relation to any offender, where that is required, must involve looking not merely at the instant offences but at the background of the offender, because the authorities have to prognosticate as to the future risk posed by that individual. It is, therefore, proper and indeed necessary in an exercise of this kind to look at the whole.

R v CHEYNE, [2019] 2 Cr App R(S) 14.

Careless drafting of protective order

When aged in his mid-20s and without prior convictions, C. had communicated with a boy online, leading to him asking for a picture of the boy’s genitalia. When the boy had complained to his father who informed the police C. was found to have indecent images and extreme pornography stored on his computer and videos that he had taken of teenage boys in the changing room of a swimming bath, males urinating in public toilets, people in the changing rooms and bathrooms at the psychiatric hospital where he had worked as a nurse and people he had lived with as they showered and used the bathroom, collected over a 4-year period. He incurred a custodial sentence and the judge also imposed a sexual offences prevention order (SOPO), the terms of which he agreed in a rather rushed way at the time but which had not been subjected to detailed scrutiny that would have made it apparent that the terms of the order failed to reflect recent Court of Appeal guidance on the lawful ambit of requirements such as restricting an offender’s access to the Internet.

On C.’s release from prison, it became obvious that the order was unworkable and he sought advice on how to vary the order. Though the police in his area supported variation, there was some initial uncertainty how the SOPO should be changed, it being eventually clarified that this should be pursued by appeal, not variation. There followed a development in that on an occasion when the police called at C.’s home to assess his compliance with the SOPO (as it still stood), he had flushed an undisclosed smartphone down the lavatory, being prosecuted for attempting to pervert the court of justice and two breaches of the order, incurring a further custodial sentence. It followed, in the Court of Appeal’s view, that there have been a number of changed circumstances which would have paved the way for a further application by either C. or the police for a SOPO variation.

In proceeding with the appeal and in correcting the errors in the original order, the Appeal Court reminded courts that a blanket prohibition on computer use or Internet access is not permissible. In respect of a clause requiring C. ‘not to access social websites and engage in any form of communication with person who is/are or appear to be under 18 years old’, the Court observed that

On the face of it the appellant is prevented from accessing all social media (taking a broad interpretation of social websites for this purpose). Further the use of ‘and’ rather than ‘in order to’ has led the appellant to assume that he must not engage in any form of communication with any person under 18 years old. This includes with relatives and others who know of his convictions. Such potentially oppressive prohibitions were not necessary on the evidence that was before the court. The term ‘social website’ is imprecise and unhelpful.

In concluding the appeal, the Court criticised the quality of the order documentation as generated by Crown Court staff. It had not accurately reflected the order made by the judge and gave no thought to whether the resulting version of the order made sense. It contained a number of double negatives which, if read literally, would have the opposite effect to that intended. It also contained spelling and typographical errors. Documents of this nature should be prepared by suitably trained staff who understand the importance of the order and the consequences of a failure to comply with it; ‘all orders sent out from the Crown Court must be in proper form and reflect the order made by the judge’.

R v CONNOR, [2019] 2 Cr App R(S) 19.