R v Beeden – Case Comment (Breach of a SOPO)

SummaryAppeal against sentence to the Court of Appeal for 9 months following a guilty plea to breaching a SOPO.

Overview – Mr Beeden had a history of sexual offending against children. This culminated in him receiving a SOPO, one of the terms being a prohibition on  ‘owning or having personal possession of any equipment or device capable of connecting to the internet‘. This was imposed (seemingly) in 2010. He breached this once and was sent to prison the next year. This appeal arose out of a visit to his house in June of 2012 where he was found to have a laptop with a broadband connection. After being released on bail, he was found in his house again with a tablet that could connect to the internet. He pleaded guilty to both and was sentenced to a total of 9 months (3 for the first consecutive to 6 for the second).

However, prior to the sentence, Mr Beeden had successfully applied to the Court to vary the terms of the SOPO (presumably as it was far too restrictive) to allow him access to the internet (with certain conditions). The appeal was on the basis that as the SOPO was amended (and, it was seemingly accepted, should not have been made in the terms that it was) this lowered Mr Beeden’s culpability. The Court gave this argument short shrift – they said that the fact of a subsequent amendment is no mitigation at all. The order, once made, must be obeyed.

Analysis – We don’t have the full transcript (just summaries from Lawtel,  Westlaw and CrimeLine).

Was the Court right? Does the fact that the SOPO was amended make no difference to sentence? It is clear that the fact that it should not have been made is not a defence (see T v DPP [2006] EWHC 728 (Admin) – an ABSO case) – although if the SOPO had not been lawfully made this would be different (Lawson [2008] EWCA Crim 416).

The Court has previously said in relation to ASBOs that if there is a term that appeared in an interim ASBO that does not appear in the final ASBO, then breaching that term does not make the offence less serious. This seems on the face of it to be similar. To that extent, there is ‘authority’ for what the Court are saying.

We have commented previously on the problems with SOPOs being made that should not have been, so this is a problem that will not go away.

Comment – In assessing the seriousness of any offence it is important to go back to consider the reasons why the activity is criminal. Here, the purpose of a SOPO is to protect the public. To do this involves a restriction on the liberty of a citizen and can make a great impact on their freedom. For this reason, rightly, it cannot be imposed unless it is necessary to protect the public.

If it is determined that it is was not, in fact, necessary to have imposed a particular condition, then the rationale for its imposition has gone. Whilst it may not impact on the state of mind of the defendant (although if his lawyer told him that the order could be challenged, it may not be surprising if he took it less seriously), the harm caused by the breach is necessarily less.

For that reason, I would suggest that to say this can make no difference to the sentence is wrong. Whilst it is accepted that the criminality is the breach of a court order, the fact that it was a ‘wrong’ order should be reflected in a lower sentence.

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13 thoughts on “R v Beeden – Case Comment (Breach of a SOPO)

  1. John Allman

    A relevant question of fact might be whether the breach of the original order of which the defendant was convicted, was also a breach of the order as it later became, after it was subsequently amended. Or was the conduct of which the defendant was convicted, conduct that would have been permitted at the time, if the eventual amended order had been made originally, rather than the more restrictive order that was made?

    Reply
  2. Andrew

    I believe that the amended order would have allowed him to do what he did. But it seems to me that the position is properly analogous to acting in breach of a civil injunction which is subsequently set aside or varied – it is still contempt.

    It was not for D to decide that he would not obey. The sentence was correct – although I am not sure about consecutive which seems harsh.

    Reply
  3. Lyndon Harris

    Andrew, the sentence would have to be consecutive (with regard to totality) as the breaches were separate instances. The alternative would be a global term, however the end result would be the same.

    I happen to disagree with Dan on this one – whilst I sympathise with the defendant, and I can certainly see where Dan is coming from, I consider that if the order is in force unless and until it is varied etc., then the breach is a breach as in any ordinary circumstance – the fact that the prohibition was later held to be disproportionate is neither here nor there.

    This also highlights once more the problems with SOPOs. Judges, barristers, solicitors…no one seems to be able to get them right!

    Reply
  4. Dan Bunting Post author

    @JohnAllman – the case summary indicates that the term of the order he was sentenced for was one that was removed. I’ll get back to you when the transcript is published.

    I agree that the later removal of the term does not extinguish the culpability, but I still think that it reduces it!

    Reply
    1. John Allman

      I am not a lawyer. (Perhaps it shows.) But isn’t there a human right to impart and receive information, which is what the internet facilitates?

      If an order shall be shown, at the time it was made, to have been an unlawful interference with a Convention right – either with an unqualified right, or an unnecessary (disproportionate) interference with a qualified right – how shall it then be argued that criminal liability or punishment – ANY AT ALL – imposed as the state’s retribution for the exercising of the Convention right, in disobedience of the unlawful order, is not also itself an unlawful interference with the said Convention right?

      The victory is Pyrrhic, if a high contracting party to the Convention has a margin of appreciation to put people in prison, merely for exercising a human right such that the party (it has conceded) was acting unlawfully, when it ordered the individual humans it now wishes to imprison, to refrain from exercising those rights.

      The high contracting party has the margin of appreciation to create the power to make SOPOs by statute, and to make individual SOPOs whenever this is necessary. It may not make unnecessary SOPOs. It may not punish defendants for breaching unnecessary SOPOs either, for such punishment is unnecessary.

      In this case, the defendant might not have realised that his appeal against the order would succeed. That appeal shows that he knew about the order, presumably the mens rea of the offence of breaching the order, together with knowing that he was accessing the internet. But any finding that the original order had breached his human rights, demolishes the actus reus, surely?

      Reply
  5. Pingback: R v Beeden – Case Comment (Breach of a SOPO) | UKCrimininalLawBlog | Scoop.it

  6. Lyndon Harris

    Dan – Isnt the problem with your argument that the defendant didnt know that the term he breached would be varied/removed and so the breach at the time, as per T v DPP, his actions constituted a flagrant breach of a court order. The need to project the image that ‘court orders must be obeyed or else…’ is obvious – it is unpalatable to say to him, you breached the order but because it was later removed, your breach isnt as serious.

    In cases such as these, defendants have the opportunity to challenge their behaviour orders in an appeal or application to vary. Is it unreasonable to expect him to wait until the outcome of that hearing?

    Reply
    1. John Allman

      “Isn’t the problem with your argument that the defendant didn’t know that the term he breached would be varied/removed and so the breach at the time, as per T v DPP, his actions constituted a flagrant breach of a court order.”

      Isn’t the problem with YOUR argument that the court that imprisoned the defendant DID know at the time when it imprisoned the defendant, that the term he breach HAD been varied/removed, because it breached the defendant’s human rights? So, the court knew that it was sending somebody to prison for enjoying his Convention right, perfectly properly ignoring an unlawful order to refrain from enjoying his Convention right.

      There is almost no limit to how much money one can owe, at the end of a prolonged dispute over a parking ticket. If a court then decides the parking restriction itself was unlawful, one doesn’t only get back the benefit of the original fixed penalty. One gets “back” the uplift, the court costs of registering the uplifted penalty at the traffic court as if it were a fine, the bailiff’s fees for unsuccessful attempts to distrain goods, the wheel clamping fees from when one’s car was confiscated, the recovery charge, car pound fees, the auctioneers fees from when one’s car was sold to pay the parking fine and everything added to it, the value of one’s car sold to pay the parking fine, and so on. The parking ticket becomes a nullity, and everything that flowed from it is cancelled along with the fixed penalty on the face of the parking ticket. And mere vehicles don’t even have human rights.

      It is a foolish gamble, to defy an order one believes is contrary to the Human Rights Act, before one has proved this. But once one has proved this, and the gamble has paid off, one should be put back into the same position as if the unlawful order had never been made, surely?

      Reply
      1. Lyndon Harris

        The parking ticket analogy is interesting. However the material difference is that the defendant in the SOPO case has acted in breach of a court order (which logically must be treated as in force unless and until it is varied). The car owner has not. In that example, the decision to produce a parking ticket was wrong. The car owner has not in the wrong in anyway.

        Whilst I see your argument re ‘being out in the position if the order had not been made’, I would make two points. Firstly, the order was not unlawful (eg there was no power to make it) but merely that the prohibition was disproportionate-contrary to the preceding case law. Secondly, by removing the disproportionate prohibition, there still remains the fact that an order of the court was breached, irrespective of its later removal.

        I think Dan’s argument in relation to a subsequent variation/removal providing mitigation is far stronger.

        Should the courts be sending out the message that gambling with court orders will be rewarded? Or should they be seeking to ensure 100% compliance?

  7. Dan Bunting Post author

    Lyndon – I understand that point of view. However, if I push someone and they have a particular medical weakness that I did not know about, then I am liable for the bad consequences (the ‘egg shell rule’). Surely the corollary is that if my offending is less serious for reasons I didn’t appreciate it, I should receive a lesser sentence?

    Reply
    1. Lyndon Harris

      I absolutely see your point. Perhaps it is a case of the court feeling like the alternative to CPS v T may result in more breaches in such circumstances as you describe (legal advice that the order is likely to be held to be disproportionate, they believe the order to be wrong, they have heard that in some cases breaches aren’t treated as seriously as they once were).

      I’m not suggesting that approach is correct. But it is perhaps an explanation.

      I for one take a harder line, and that is the culpability remains the same because the order was valid until it was varied.

      Reply
      1. John Allman

        Justice delayed is justice denied. Once one believes that the order is contrary to the HRA, and wishes to gamble on that being the court’s decision, then it should not lie in the court’s mouth to punish with imprisonment enjoyment of one’s Convention rights, because one should have waited for the court’s permission to do so, accepting the delay of justice.

        The court that varied the order, gave back rights that should never have been taken away. The court than sent D down for nine months sought to take those rights away again. How does the HRA allow such games to be played?

  8. John Allman

    @ Lyndon

    “the order was not unlawful (e.g. there was no power to make it) but merely that the prohibition was disproportionate”

    Whence in human rights caselaw this proposed distinction between properly “unlawful” for some other reason, and “merely disproportionate” when a qualified convention right is interfered with, in an manner that isn’t necessary?

    Can you cite any case in which the ECtHR or a higher domestic court, has held that it is proportionate to send somebody to prison, for disobeying an order that it wasn’t proportionate to make?

    It was lawful, you say, because the “power” existed, to make *an* order, to whatever extent an order was *necessary*. But, under the Human Rights Act, a public authority’s making that part of the order that wasn’t *necessary*, was an unnecessary interference with a qualified right. An unnecessary interference with a qualified right is unlawful. It was therefore unlawful to make the particular parts of the order that went *beyond* what was necessary.

    It is not *necessary* to punish (especially not with a prison term!) an exercise of a convention right, merely because the convention right is exercised in disobedience of an order that it was unlawful for the court to make in the first place.

    It is no more “necessary” to send somebody to prison for exercising his convention rights in defiance of an unlawful (or disproportionate) order, than it is to charge D with resisting a police officer (or resisting arrest) in the following circumstances: police office arrests D; D escapes, and pushes a wheelie bin into the road, to block the officer’s pursuit aimed at recapturing him; D sues police successfully for unlawful arrest and battery; police charge D with resisting a police officer in the lawful execution of his duty (or resisting arrest), for blocking arresting officer’s pursuit with a wheelie bin.

    “by removing the disproportionate prohibition, there still remains the fact that an order of the court was breached, irrespective of its later removal”

    This is about (if you like) the court’s “ego”, not the legalities. How DARE the defendant “take the law into his own hands”, by disobeying an unlawful order, before the court has quashed the order! He dare do so, because he can read and construe the Convention himself, and obviously understands it better than the court did when it made the disproportionate order that he disobeyed.

    Bottom line: disproportionate interferences with qualified convention rights are now unlawful. The middle ground you assert between completely lawful and completely unlawful – lawful in form even though unlawful in content – isn’t a middle ground that logically exists. It’s the “excluded middle” proposition, like being “a little bit pregnant”. Or at least, so say I.

    “Should the courts be sending out the message that gambling with court orders will be rewarded? Or should they be seeking to ensure 100% compliance?”

    Yes. That’s a “What are you, a man or a mouse?” macho argument. But the courts are nowadays subject to the convention, humiliating petticoat rule though this may seem to some.

    Reply

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