D v R. [2005] EWCA Crim 3660

Case No 2005/1283/A5[2005] EWCA Crim 3660
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LUTON
(Judge Breen)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 16 th December 2005
Before
LORD JUSTICE SCOTT BAKERMR JUSTICE GROSSTHE RECORDER OF CARDIFF
Between
DAppellantREGINARespondent
(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Timothy Barnes Q.C.and Richard Stillwell (instructed by Borneo Linnells) for AppellantMrs Frances Oldham Q.C. and Ms Bosmath Sheffi (instructed by the Crown Prosecution Service) for Respondent
Judgment
[1]The issue raised by this appeal is the relationship between a Sexual Offences Prevention Order (“SOPO”) under the Sexual Offences Act 2003 and the powers of a court exercising family jurisdiction under the Children Act 1989 where, as in this case, the order relates to a child of the defendant.[2]The appellant has two children, a daughter C, who was the victim of his sexual abuse, and a boy, L, who was born on 11 August 1995.[3]On 14 December 2004 in the Crown Court at Luton the appellant pleaded guilty to eight counts of sexual abuse of his daughter. The offences occurred between July 2001 and September 2004 when she was aged between 10 and 13. The offences comprised three of indecent assault, two of attempted rape, two of sexual activity with a child and one of assault by penetration. On 1 February 2005 he was sentenced by Judge Breen to concurrent sentences amounting to an overall sentence of six years imprisonment. The counts were sample counts. The detail of the offences is irrelevant. Suffice it to say that these were serious sexual offences by a father on his daughter over a three year period.[4]In addition to the sentence of imprisonment the judge required the appellant to notify the police of his address indefinitely and imposed a SOPO under section 104 of the Sexual Offences Act 2003. It prohibited the appellant from:
“(i) approaching, seeking to approach or communicating directly or indirectly with (C) and (L) (ii) having any unsupervised contact with any young person under the age of 16 (save for inadvertent contact). (iii) having any young person under the age of 16 living in accommodation occupied by him permanently or otherwise. (iv) seeking or undertaking any employment which may at some time allow him access to any child under 16.”
The grounds of appeal relate solely to paragraph (i) of the order and the prohibition of contact or communication with his son, L.[5]The appeal is brought with the leave of the single judge. It was originally listed before a two judge court on 18 October 2005 (Bean J and Sir Charles Mantell) but adjourned to a three judge court with some Family Division experience because an important issue arises concerning the interrelationship between SOPOs and family proceedings. The grounds of appeal are:
“● the judge misdirected himself on this matter. ● no specific offence gave rise to a risk to the appellant’s son. ● the facts did not support such an inference. ● there was no evidence to suggest that the appellant’s son was at risk because of homosexual tendencies on the part of the appellant. ● the terms of the order severely impinged on the appellant’s right to a family life.”
[6]The starting point of the submissions of Mr Barnes Q.C., who has appeared before us on behalf of the appellant, is that the offences were against his daughter; there were no allegations of sexual abuse involving his son, L, or indeed any other child. The appellant has no previous convictions involving children and no conviction for any sexual offence involving men.[7]The relevant provisions of the Sexual Offences Act 2003 are as follows. Section 104 provides that the court may make a SOPO where any of subsections (2) to (4) applies to the defendant. In the present case subsection (2) applied because the court was dealing with the appellant for offences listed in schedule 3.[8]It is apparent from the word “may” in subsection 104 (1) that the court has a discretion whether or not to make an order.

(b) ) that:

“It is necessary to make such an order, for the purpose of protecting the public or any particular member of the public from serious sexual harm from the defendant.”
[9]The word “necessary” imports a higher threshold than, for example that it is simply “desirable” to make an[10]A question at once arises as to the words “the defendant committing one or more offences listed in schedule 3”. It is not immediately clear from the language itself whether these words relate to past conduct or look to the future. However, when regard is had to the wording in the context of section 104 as a whole, it seems clear that the focus of section 104 (1) (b) and hence this definition must be the risk of future offending. In argument, counsel did not suggest otherwise.[11]The court has therefore to conduct a risk assessment and consider, in this case, the likelihood of the appellant committing a further schedule 3 offence and L being caused serious physical or psychological harm as a result. Whilst the harm envisaged has to be caused by the defendant it does not seem to us that the schedule 3 offence has necessarily to be directed against L provided he suffers some harm, which may be psychological harm, as a result. The offence could, for example, be directed at another member of the household in which he resides, or for that matter, an outsider introduced or brought to the household.[12]Section 107 sets out the effect of a SOPO. It prohibits the defendant from doing anything described in the order and has effect for a fixed period (not less than five years) specified in the order or until further order. The only prohibitions that may be included in an order are those that are necessary for the purpose of protecting the public or any particular member of the public from serious sexual harm from the defendant.[13]Section 108 is important to the issue in this case concerning the relationship with family proceedings. Section 108(1) provides:
“A person within subsection (2) may apply to the appropriate court for an order varying, renewing or discharging a sexual offences prevention order.”
The persons within subsection (2) are the defendant and various chief officers of police who have an interest in the matter, but no one else. They do not, for example, include L. Subsection (4) provides:
“Subject to subsections (5) and (6), on the application the court, after hearing the person making the application and (if they wish to be heard) the other persons mentioned in subsection (2), may make any order, varying, renewing or discharging the sexual offences prevention order, that the court considers appropriate.”
[14]Subsection (5) limits the imposition of additional prohibitions to those that are necessary for the protection from serious sexual harm from the defendant. Subsection (6) prohibits discharge of the order within five years from the date on which it was made without the consent of the defendant and the relevant chief officer of police.[15]There is thus in the present case no power for L or anyone acting on his behalf to apply for variation or discharge of the order and, absent the consent of the relevant chief officer of police, the court is prohibited from discharging the order for a period of five years.[16]Counsel for the prosecution when inviting the judge to make a SOPO submitted that the appellant was a danger to both children. He had systematically abused his daughter and there was no reason to believe the same would not or could not happen to his son. Whilst in custody he had been trying to contact both children by letter and C was profoundly disturbed by what had happened to her. The judge observed that the prosecution presumably sought the restriction in relation to L not only because of the abuse to C but because of the background circumstances in the home which included watching pornographic films in the presence of the children. The prosecution agreed.[17]We emphasise that in cases of this kind, as this court said in Halloren, where the prosecution invites a judge to make a SOPO it is incumbent upon it to be familiar with the necessary statutory provisions and to be in a position to put before the judge the material which shows that those statutory provisions have been met. In this case prosecution counsel, who is not counsel who appeared before us, did not outline what had to be established and it was left to Mr Stillwell, for the appellant, to draw the judge’s attention to the relevant statutory provisions. He submitted there was no evidence that L had been subjected to the required physical or physiological harm from schedule 3 offences. The appellant had no inclination to commit sexual offences against L.[18]When

the judge came to impose the order he said this:

“I have considered also very carefully whether I should extend that order to cover approaching, seeking to approach or communicating directly or indirectly with (L), your son, who is, I understand, eleven now. Again, Mr Stillwell has advanced persuasive arguments why he should not be included. The most powerful of the points he has made is that there is not a scintilla of evidence to suggest that you have committed any sexual offence against him; nor that you have any homosexual tendencies which might result in your having the desire to commit any sexual offences of the kind referred to in the Act against him. But, as he has rightly observed, the court is dealing with protection of children here and whilst it is a difficult judgment, I have come to the conclusion that having regard to the background circumstances of the offences to which you have pleaded guilty, and in particular the way in which you behaved generally in the home in relation to sexual matters in front of the children – and I have particularly in mind the showing of pornographic films when they were about – and also based on the experience of other cases where, unhappily, defendants who have committed offences of the kind you have against a child of one sex, have then gone on, again with no other indication of any homosexual tendency, to commit offences against another child of the male sex. In all those circumstances, I am satisfied that it is appropriate to afford (L) also protection of that order.”
[19]Mr Barnes submits that the conditions for making an order in respect of L were not fulfilled. It is not apparent from the judge’s sentencing remarks that he undertook the risk assessment exercise required by the statute. He was not entitled to infer that the requirements of the section were made out from the nature of the offences of which the appellant had been convicted and from his experience that defendants who had sexually abused girls went on to abuse boys, although it is true to say he did also refer to the appellant’s behaviour in the home and in particular showing pornographic films when the children were there. Nor did the judge direct himself that a SOPO was necessary. What he said was that it was appropriate to afford L the protection of an order. That seems to come close to the desirability threshold that was regarded by this court in Halloren as insufficient.[20]These are, as Mr Barnes rightly points out, draconian orders which should not be made as a matter of routine. He submits there simply was not the evidence to justify making an order in this case. The judge had to be satisfied under section 104 that it was necessary to make an order before he was entitled to do so.[21]What was the material before the judge that was relevant to risk to L? In the first place the judge had among the witness statements one from Julianne Slingsby, a residential social worker, whose family knew the Ds. She said:
“From my own observations and having spoken to (her sister and her mother) I have noticed that the whole house was very highly sexualised. I had been told about them watching ‘porn’ movies whilst the children were about and Linda (the appellant’s wife) would think nothing of giving (the appellant) oral sex whilst they had visitors and the children were around.”
[22]Then there was a statement from Steven Kent (served as additional evidence) who was Julianne Slingsby’s former partner who mentioned(i) the appellant asking women who went to the house for a blow job(ii) pornographic films being openly watched on television and Mrs D masturbating the appellant in front of the children.[23]Thirdly there was the Achieving Best Evidence (“ABE”) interview of L. This interview took place in the context that Mrs D was originally charged with neglect of L. However she was cautioned and not further proceeded against. The ABE interview includes a passage where L describes the appellant pinning C down on the floor, giving her love bites and kissing her on the lips. He had seen this “loads of times”.[24]Fourthly there was a pre-sentence report in which the author says in a passage covering his discussion with the appellant:
“I understand that he and his wife would watch pornographic films at the weekend and that these were sometimes in full view of the children.”
[25]As we have said, the judge does not appear to have applied his mind to the relevant criteria in the legislation and then, if the conditions were met conducted a balancing exercise to decide whether in his discretion he should make an order. Mrs Oldham Q.C. who as appeared before us for the Crown, accepts that the judge did not go through all the appropriate steps.[26]In our view there was therefore an erroneous exercise of the judge’s powers under section 104. It therefore falls to this court to exercise those powers afresh. We have some further information. First we have a witness statement from Mr Hawkins, dated 15 November 2005 and secondly we have the minutes of a Child Protection Conference held in respect of L on 4 October 2005.[27]Mr Hawkins has been the allocated social worker for L since November 2004. Following the appellant’s arrest, L lived with his aunt and uncle. Then he moved back in with his mother. More recently he has moved to his maternal grandmother. He is a disturbed child and has been soiling since the social services first became involved with the family in November 2002. His soiling appears to coincide with emotional upset which Mr Hawkins identifies as stemming from his mother’s inconsistent ability to care for him and her upset at correspondence from the appellant speaking of suicide. Initially L wanted to have contact with the appellant (this was consistent with what the appellant’s counsel told the judge) but this has changed, so it is said, following his mother’s discussion with him in July 2005 of his father’s abuse of his sister. L has disclosed to Mr Hawkins, having initially disclosed it to his mother, that one night he woke up to find the appellant lying on top of his sister.[28]The minutes of the Child Protection Conference refer to previous concerns that the appellant had been telephoning L and, more significantly for present purposes, that L had told his mother that he had seen his father abusing C. His mother has decided to divorce the appellant and L has decided, possibly in consequence of this, that he does not want his mother to visit his father. The minutes also illustrate an issue about the extent of L’s contact with his paternal grandparents, whom he sees but to whose house he does not wish to go as the appellant telephones when he is there. All this paints a different picture from the submissions made by Mr Stillwell to the judge that both children wished to keep in touch with their father.[29]There seems little doubt but that L is a disturbed child and that there are difficult issues in respect of him in the context of the wider family. It seems to us that he has already suffered psychological harm.[30]Are the requirements under Sexual Offences Act 2003 met to justify making an order in respect of L? In our judgment they are. Whatever the position might have been on the material before the judge, we have additional material that the judge did not have. We asked Mr Barnes to take the appellant’s instructions upon it. They are as follows. L has been seeing his parents and it is his understanding that L still wishes to see him. He accepts that L has for some time had a bad soiling problem and that his relationship with his wife was a stormy one. He does not accept some of the things L is reported to have said, in particular that he ever abused C in his presence. Against this background, Mr Barnes submits that where the factual basis for a SOPO is in dispute and can not (or not realistically) be resolved in the criminal court, then a SOPO should not be made; the matter should instead be left for consideration by a family court. We are, with respect, unable to accept this submission. First it would involve an abdication of the statutory powers vested in the criminal courts by Parliament. Secondly, it would place a premium on the creation of a factual smokescreen by a recalcitrant defendant; such a course would carry an unacceptable risk or even likelihood of delay; an element of urgency may well attach to the making of a SOPO. Thirdly, there may well be cases where the dispute is of such a nature as to permit resolution by a Newton hearing; that said such a procedure would be inappropriate in cases where (as here) the critical evidence would come from a young child. Fourthly, where a Newton hearing is inappropriate there will inevitably be a spectrum of cases; in all, the judge cannot make an order unless the conditions of section 104 are satisfied. In some the evidence or material will be too weak to justify the making of any order; in others, the cogency of the evidence (even if disputed) may be such as clearly to point to the making of an order. It would be wrong to place a gloss on the statutory wording or to restrict the court’s discretion beyond the statutory conditions. Fifthly, concerns as to the inflexibility of a SOPO can properly be addressed by way of a link to the court’s family jurisdiction (see below).[31]The issues of fact in the present case are limited in nature and not, in our view, such that it is necessary to try and resolve them before making a SOPO. Whether, and if so to what extent L witnessed or was aware of the abuse of C by the appellant is not an issue that it is practical to resolve in SOPO proceedings. In any event it was not necessary to resolve it. As we have said a judge is entitled when considering whether to make a SOPO to take into account hearsay provide he is careful about the weight he attaches to it.[32]Taking the evidence as a whole we think there is a risk that the appellant will in future commit one or more schedule 3 offences, the range of which is quite wide, although not necessarily directly against L. We also think that if the appellant does commit a further schedule 3 offence there is a risk unless we protect L by a SOPO that he will suffer serious psychological harm in consequence of the appellant’s further schedule 3 offending. We have in mind the potentially serious consequence of any further offending in proximity to L and the fact that L is already a damaged child. We think it is necessary to make such an order.[33]As the authors of A Practical Approach to Family Law by Black and others say at paragraph 6.1:
“The needs and circumstances of children are constantly changing and therefore it is right that the orders that regulate their upbringing are sufficiently flexible to reflect those changes as and when it becomes necessary.”
The judge’s order in this case does not have that flexibility. It prohibits the appellant from approaching or communicating with L whether directly or indirectly and it does so without limit of time. This accords with the order sought by the police, namely a lifetime ban. What if L does want to have some contact with the appellant? Or perhaps more relevantly what if his attitude changes in the future and what about his rights under Article 8 of the European Convention on Human Rights? How can his interests be met? He is not one of the persons specified in section 108(2) who can apply to the court to vary, renew or discharge the order, and there is also the prohibition on discharge of the order within five years absent the consent of the chief officer of police.[34]Parliament by this legislation has spelt out strong measures for the protection of the public and individual members of it from the actions of sex offenders and it is important that the courts should give effect to it. But it does raise problems where there has been abuse within a family and particularly in cases such as the present where the court has to consider the protection of a family member who was not the direct target of the appellant i.e. in this case a sibling of the victim.[35]In the family courts the child’s welfare is the first and paramount consideration. It seems to us that there may be occasions in which a SOPO is made to protect a child of the defendant where the family court’s jurisdiction should be reflected in the order because of the additional flexibility it provides. This is such a case. In that way the child’s interests in a possibly changing situation can better be met rather than through the blunt instrument of a SOPO alone. We are satisfied that the court has jurisdiction to make a SOPO in the terms we are proposing to make and this is a view supported by the submissions of counsel on both sides, albeit Mr Barnes primary submission is that the conditions for making a SOPO are not met.[36]Mrs Oldham concedes that the judge’s order is too wide and that the prohibition on contact and communication with L should not extend beyond his sixteenth birthday. He is now ten. She also makes the point that a child’s best interests are ordinarily better served in proceedings where the child has independent representation than where no one speaks specifically for him. This does not, however, mean that his position should be considered by the criminal court as if it were dealing with a contact application. The requirements of the Sexual Offences Act 2003 are clearly set out and the judge must apply them with regard to a sibling of the abused person in the same way as anyone else. However, it seems to us, that in order to protect L’s interests the jurisdiction of the family courts can be invoked to the extent that the order should be varied so that it provides that:
“The appellant shall not, without the order of a judge exercising jurisdiction under the Children Act 1989, communicate or seek to communicate, whether directly or indirectly with (L) whilst he remains under the age of sixteen years.”

Conclusion

[37]The courts should be careful before making a SOPO to ensure that the statutory criteria are met and that both the order and its ambit are necessary. Where the court is considering making a SOPO to protect from abuse within the family, particularly a sibling of the abused person, it may be desirable to draft the order in terms that provide a link with the court’s family jurisdiction as we have done in the present appeal.[38]Any judge considering in family proceedings the welfare of a child who is protected by a SOPO would no doubt wish to have in mind section 108(6) of the Sexual Offence Act 2003 prohibiting discharge within 5 years without the necessary consents.[39]The appeal is allowed and the SOPO varied to the extent indicated.

order

see R v Halloren [2004] 2 Cr App R (S) 301, 306 para 14. Secondly, the conduct against which the protection is necessary is “serious sexual harm from the defendant”. This is defined in Section 106 (3) which provides: “(3) “Protecting the public or any particular members of the public from serious sexual harm from the defendant” means 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.”

Cited in 1 later judgment