Summary – Appeal 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  EWHC 728 (Admin) – an ABSO case) – although if the SOPO had not been lawfully made this would be different (Lawson  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.