Tag Archives: Crime

Ahmed Al-Khatib jailed for life for ‘honour killing’ of Rania Alayed

Manchester Evening News

Manchester Evening News

Introduction

On 4th June 2014 Ahmed Al-Khatib was found guilty of murdering Rania Alayed, his wife. He was sentenced to the mandatory sentence of life imprisonment with a minimum term of 20 years. His brother, Muhaned Al Khatib, was cleared of murder but sentenced to 3 years for Perverting the Course of Justice which he had previously admitted. This related to the hiding of Ms Alayed’s body.

A third brother, Hussain Al-Khatib, was found guilty of Perverting the Course of Justice and sentenced to 4 years in prison. This also related to the disposal of the body (which has still not been found).

The Prosecution alleged that the motive for the killing was a concern that Ms Alayed was “becoming ‘too Westernised’ for her controlling husband’s liking.” We don’t have the sentencing remarks, so we don’t know whether this was accepted by the Judge.

What  we do have from the news reports is the following :

The judge said that he was sure it was Ahmed’s intention to kill and that his ‘main motive was jealousy’.

“How you killed Rania may never be known but I think it’s likely you strangled or smothered her, your actions after you murdered Rania showed no remorse – you thought she deserved to die”, he added.

The judge went on to say that Ahmed may have had a ‘breakdown’ since his arrest, but there was ‘no doubt at all’ that he had ‘hugely exaggerated’ his symptons and that his courtoom outbursts were ‘deliberately staged’.

“Your ridiculous claim that when you killed Rania you were acting in self-defence after seeing her turn into a devil trying to strangle you was a further insult to her memory and the jury’s intelligence.

 

Comment

The sentence ‘feels’ right given the facts. Looking at the aggravating features, the main one is the disposal of the body. There don’t appear to be any mitigating features (bar possibly his mental health, although the Judge wasn’t too impressed by that). The fact that he was intending to kill his wife is not an aggravating feature and there is a bit of concern about the Judge comments about the ‘ridiculous claim’ that Mr Ahmed put forward. A defendant should not be penalised for having a trial.

So, looking at it that way, it wouldn’t be a surprise if there was an appeal. A tariff of 17-18 would not have been one that could be criticised, but I doubt that the Court of Appeal would interfere with this one.

On a separate note, I am surprised that there has not been any calls for there to be a higher starting point for honour killings. In practice, the higher level of planning that is often involved, will commonly lead to a higher sentence, but I wouldn’t bet against seeing someone suggest a 20 or 25 year tariff for such murders.

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The Code for Crown Prosecutors

Why are some offences are prosecuted, whereas some are not?

It’s a frequently asked question.  The answer often comes down to the Code for Crown Prosecutors.

The Code essentially asks two questions:

  1. Is there enough evidence against the accused to bring the case? (“the evidential stage”)
  2. Is it in the public interest to prosecute? (“the public interest stage”)

The Evidential Test

In answering question 1, crown prosecutors must ask themselves whether there is a “realistic prospect of conviction” against the defendant.  In assessing this, the prosecutor will consider what the defence case may be. The test is an objective one.  In considering the evidence, the prosecutor must ensure it is admissible in a criminal court, and that it is reliable.

If there is not enough evidence to bring the case, the matter will not proceed to the public interest assessment and will not go to court.

The Public Interest Test

“[i]t has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution…[There should be a prosecution] wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest”

– Sir Hartley Shawcross, 1951 (the then Attorney General), taken from the House of Commons Debates, Volume 483, 29 January 1951, courtesy of the 2010 Code for Crown Prosecutors.

The Code suggests various factors to be taken into account:

“A prosecution is more likely to be required if:

a) a conviction is likely to result in a significant sentence;

b) a conviction is likely to result in an order of the court in excess of that which a prosecutor is able to secure through a conditional caution;

c) the offence involved the use of a weapon or the threat of violence;

d) the offence was committed against a person serving the public (for example, a member of the emergency services; a police or prison officer; a health or social welfare professional; or a provider of public transport);

e) the offence was premeditated;

f) the offence was carried out by a group;

g) the offence was committed in the presence of, or in close proximity to, a child;

h) the offence was motivated by any form of discrimination against the victim’s ethnic or national origin, gender, disability, age, religion or belief, political views, sexual orientation or gender identity; or the suspect demonstrated hostility towards the victim based on any of those characteristics;

i) the offence was committed in order to facilitate more serious offending;

j) the victim of the offence was in a vulnerable situation and the suspect took advantage of this;

k) there was an element of corruption of the victim in the way the offence was committed;

l) there was a marked difference in the ages of the suspect and the victim and the suspect took advantage of this;

m) there was a marked difference in the levels of understanding of the suspect and the victim and the suspect took advantage of this;

n) the suspect was in a position of authority or trust and he or she took advantage of this;

o) the suspect was a ringleader or an organiser of the offence;

p) the suspect’s previous convictions or the previous out-of-court disposals which he or she has received are relevant to the present offence;

q) the suspect is alleged to have committed the offence in breach of an order of the court;

r) a prosecution would have a significant positive impact on maintaining community confidence;

s) there are grounds for believing that the offence is likely to be continued or repeated.

Some common public interest factors tending against prosecution

A prosecution is less likely to be required if:

a) the court is likely to impose a nominal penalty;

b) the seriousness and the consequences of the offending can be appropriately dealt with by an out-of-court disposal which the suspect accepts and with which he or she complies

c) the suspect has been subject to any appropriate regulatory proceedings, or any punitive or relevant civil penalty which remains in place or which has been satisfactorily discharged, which adequately addresses the seriousness of the offendingand any breach of trust involved;

d) the offence was committed as a result of a genuine mistake or misunderstanding;

e) the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgement;

f) there has been a long delay between the offence taking place and the date of the trial, unless:

• the offence is serious;

• the delay has been caused wholly or in part by the suspect;

• the offence has only recently come to light;

• the complexity of the offence has meant that there has been a long investigation; or

• new investigative techniques have been used to re-examine previously unsolved crimes and, as a result, a suspect has been identified.

g) a prosecution is likely to have an adverse effect on the victim’s physical or mental health, always bearing in mind the seriousness of the offence and the views of the victim about the effect of a prosecution on his or her physical or mental health;

h) the suspect played a minor role in the commission of the offence;

i) the suspect has put right the loss or harm that was caused (but a suspect must not avoid prosecution or an out-of-court disposal solely because he or she pays compensation or repays the sum of money he or she unlawfully obtained);

j) the suspect is, or was at the time of the offence, suffering from significant mental or physical ill health, unless the offence is serious or there is a real possibility that it may be repeated. Prosecutors apply Home Office guidelines about how to deal with mentally disordered offenders and must balance a suspect’s mental or physical ill health with the need to safeguard the public or those providing care services to such persons;

k) a prosecution may require details to be made public that could harm sources of information, international relations or national security.”

The Code was revised in 2010.  There is currently a consultation on a revised edition, which can be accessed here.  The consultation was launched by the DPP, Keir Starmer QC, in July.  In a statement to the CPS, Mr Starmer stated: “This version of the Code is intended to help the CPS take a more focused, proportionate and effective approach to bringing criminals to justice.”

The revisions include an extra factor in the evidential stage: Is the evidence credible?

The consultation also considers a revision in the public interest assessment.  The following questions are considered:

a)    How serious is the offence committed?

b)    What is the level of culpability of the suspect?

c)    What are the circumstances of and the harm caused to the victim?

d)    Is the suspect under 18 years old?

e)    What is the impact on the community?

f)     Is a prosecution a proportionate response?

g)    Do sources of information require protecting?

The consultation is now closed.  Stay turned for the results.

Sharon Lyndsay

Lyndsay pleaded to section 18 wounding and theft. Mr Marsden pleaded to ABH.

Facts

Mr Sheehy who suffered from epilepsy, met Lyndsay and her friend, Mr Marsden, whilst out drinking.

Lyndsay claimed that Mr Sheehy had made unwanted sexual advances. In fact, the court heard that Lyndsay had invited Mr Sheehy back to Mr Marsden’s house. In an unprovoked attack, Marsden punched Mr Sheehy in the head, climbed on top of him to ‘ram a pen in his ear’.  Lyndsay, an observer to this point, then took over the assault before stealing £180 from Mr Sheehy’s pockets.

It was reported that Lyndsay stubbed out a lit cigarette on the eyes and face of Mr Sheehy, pulled down his trousers and boxer shorts and then systematically burnt the top of his thighs and groin with a hot iron while he “screamed for mercy”.

Mr Sheehy suffered extreme pain for a number of days and the trauma worsened his epilepsy. He was embarrassed to wear shorts in public due to the marks on his legs.

Previous convictions

Lyndsay had a history of dishonesty offences, including burglary and theft.

Marsden had a ‘lengthy record of violence’ and was subject to a Suspended Sentence Order imposed 3 weeks prior to this offence.

Judge’s remarks

“This was a nasty example of bullying and humiliation of someone who was overwhelmed because he was intoxicated and outnumbered.

It was a sustained and repeated assault of a vulnerable victim.”

Sentence

Marsden received 20 months, with a discount for his plea. In addition, 3 months as he was subject to a suspended sentence.

Lyndsay received 6½ years, with a discount for her plea. In addition, there was a concurrent sentence of 6 months imposed for theft.

Guidelines

Click here to see an explanation of how the guidelines work.

Click here to see a criticism of the guidelines.

Section 18 wounding: It would appear that the Judge placed the offence at the top of Category 2, i.e. Greater harm and lower culpability or Lesser harm and higher culpability. The starting point is 6 years with a range of 5-9 years.

Mitigating factors may have been: a) she demonstrated remorse.

Aggravating factors may have been: a) her previous convictions, b) the victim was vulnerable, c) he was lured back to the house for the purposes of the theft/assault d) leading role in the attack, e) the victim was intoxicated, f) the serious injuries caused to the victim, g) items used to inflict serious injuries, h) the effect the attack had on the victim, i) the humiliation of the victim.

Starting at 6 years, the Judge will have added an uplift for the number of aggravating factors, notably the serious injuries, causing the victim to scream in pain, inflicted with an iron and a cigarette. The aggravating features take the offence toward the top of Category 2, which is 9 years. With a 1/3 discount for the plea, a sentence of 6½ years is very much in the range of sentences available for this type of offence.

Click here to see the wounding guideline (page 3).

ABH: It would appear that the Judge placed Marsden’s offence between Category 1, i.e. Greater harm and higher culpability, and Category 2 i.e. Greater harm and lower culpability or Lesser harm and higher culpability. The Category 1 starting point is 18 months, and Category 2 starting point is 26 weeks, after a trial of a person of good character. Consequently, the Judge would need to make an adjustment to take into account the particular factors of Marsden’s case.

Mitigating factors may be: a) his involvement was a single blow, b) he demonstrated remorse.

Aggravating factors may be: a) his previous convictions, b) the victim was vulnerable, c) he was lured back to the house for the purposes of the theft/assault d) subject to a Suspended Sentence Order imposed 3 weeks prior to the offence, e) the victim was intoxicated, f) the injuries caused by Lyndsay which Marsden did not prevent, g) the serious injuries caused to the victim.

Starting at 6 months, the Judge will have added an uplift to take into account the aggravating factors. Given the serious injuries, the premeditation, the fact that the victim was vulnerable and his record, a sentence of around 12 months is not beyond the expected sentence. With a discount for the plea, 6 months is not excessive.

Concurrent sentences:

In short, the principle of totality requires that a court sentencing for more than one offence must ensure that the eventual sentence reflects all the criminality. Whether the court arrives at the sentence by reducing the individual sentences and adding them together (consecutive sentences) or whether there is a ‘main’ sentence for the most serious offence which reflects the less serious offences (concurrent sentences) the end result should be the same.

Further, concurrent sentences will usually be appropriate where the offences arise out of the same incident. Here, the theft and the ABH/wounding were all part of the same incident in that they were committed at the same time in the same sequence of events.

ASBOs

Legislation Crime and Disorder Act 1998 s 1

Maximum length Until further order (CDA 1998 s 1(7))

Minimum length 2 years (CDA 1998 s 1(7))

Which court can make an order? Magistrates’ Court

The basics

These orders are another form of civil behaviour orders or ‘preventative’ orders imposed upon conviction (‘post-conviction ASBO’) or upon complaint (‘stand-alone ASBO’).  A third form, the county court ASBO, is outside the scope of this guidance note.  Of the three, post-conviction ASBOs are most common.  Although a civil order, the criminal standard of proof applies.

The orders specify terms which prohibit the person subject to the order from doing certain things. The orders are targeted at anti-social behaviour such as noise nuisance, and are designed to prevent the commission of acts or offences which would cause ‘harassment, alarm or distress’ to others

ASBOs are preventative in nature, targeted at the behaviour of the person subject to the order.  They are available in respect of individuals aged 10 and over where deemed ‘necessary’ to prevent anti-social acts.

Power to order

ASBOs can be applied for only by ‘relevant authorities’, most commonly the police and local authorities.

The power to order is a discretionary one.

Two conditions must be fulfilled:

  1. The applicant must prove that the individual has acted in an anti-social manner; ‘in a manner that caused of was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself’ (s.1(1)(1)), and
  2. The order is ‘necessary to protect relevant persons from further anti-social acts’ (s.1(1)(b))

A witness to the behaviour will usually give evidence as to the behaviour that caused harassment, alarm or distress.

Where a stand-alone ASBO is sought against a person under the age of 16, section 40 of the Crime and Disorder Act 2010 (not yet in force) will require a report to be made in respect of the family circumstances of that person.

Some of the behaviour in question must have occurred within six months of the information being laid (in compliance with the time-limits for summary offences, contained within s.127 of the Magistrates Courts Act 1980).  However, R (Chief Constable of West Mercia Constabulary) v Boorman (2005) 169 JP 669 confirms that evidence of behaviour being carried out at an earlier date may be admissible as it shows the necessity of the order.  Similarly, post-complaint behaviour can be used to evidence that the order is necessary: Birmingham City Council v Dixon [2010] 1 WLR 32.

Drafting the order

The Court of appeal has provided guidance as to the terms of an ASBO in P (Shane Tony) [2004] 2 Cr App R (S) 343:

  1. Must be necessary to protect the public
  2. Terms must be precise and capable of being understood.
  3. Findings of fact must be recorded
  4. The order must be explained to the offender
  5. The exact terms of the order must be stated in open court and the written order reflective of those terms

These five elements were further explored by the Court of Appeal in Boness [2006] 1 Cr App R (S) 690.

ASBOs cannot contain prohibitions which are too wide; a term prohibiting the offender from committing any criminal offence is too wide (R(W) v DPP (2005) 169 JP 435).  Likewise, a term prohibiting the offender from acting ‘in an anti-social manner’, without further definition or limitation was also considered too wide (DPP v T [2007] 1 WLR 290).

Variations etc.

CDA 1998 s.1(8) enables offenders to apply to the Magistrates’ Court to have the ASBO varied or discharged.

Appeals

Appeals can be made to the Crown Court under CDA 1998 s.4(1) and the Magistrates’ Courts Act 1980 s.108(3).

Appeals can be made against the Order itself or the terms contained therein (R v Manchester Crown Court, ex parte Manchester City Council [2001] ACD 53.  The appeal is by way of a full re-hearing, and although in the Crown Court, the matter remains civil in nature.

The Crown Court is empowered to make ‘such orders as may be necessary to give effect to its determination of the appeal’ (s.4(2)(a)).

Breach

Maximum penalties:

Summary 6 months and/or a fine not exceeding the statutory maximum

Indictment 5 years and/or a fine

Youth court (offenders aged 12 to 17): 2 year Detention and Training Order.  If between 12 and 14 years old at the point of conviction, the court must consider the individual to be a ‘persistent offender’ before imposing a DTO.

The court cannot grant a conditional discharge (s.1(11) CDA 1998)

Statutory defence reasonable excuse – considered by the Court of Appeal in Nicholson [2006] 1 WLR 2857 – forgetfulness/misunderstanding as to the terms may afford the defendant the defence of reasonable excuse.  In the Crown Court such a defence will go before a jury.

The Sentencing Guidelines Council Guideline provides detailed guidance. Click here to view the guideline.

Community Orders

Legislation Criminal Justice Act 2003 s 177
Who can get one? 18 years +
Rehabilitation period 5 years (Rehabilitation of Offenders Act 1974 s 5(4a))
Youths The Youth Community Order was replaced in 2009 by the Youth Rehabilitation Order.

The basics

A Community Order is a non-custodial sentence available to over 18s. The orders typically include a number of requirements with which the offender must comply. The requirements can be punitive, e.g. Unpaid work (what many people know as ‘Community Service’), preventive, e.g. an exclusion requirement (requiring the offender to stay out of a pre-defined area) or rehabilitative, e.g. a course aimed at curbing and treating a drug addiction.

Power to order

The order may be made upon conviction, by the Crown Court or the Magistrates’ Court. The court must impose at least one requirement. (CJA 2003 s 177(1))

The offence must carry imprisonment. (CJA 2003 s 150A)

Exclusions a) sentences fixed by law, b) required sentences under FA 1968 s 51A(2) and PCC(S)A 2000 ss 110-111, c) required sentences under VCRA 2006 s 29(4) or (6), d) sentences of IPP or DPP. (CJA 2003 s 150(1))
Multiple offences Where the defendant falls to be sentenced for multiple offences, careful consideration needs to be given to what eventual sentence will be imposed. Guidance should be sought from the Totality Guideline 2012, recently issued by the Sentencing Council.

Test

The court may only impose a community order if it is of the opinion that the offence(s) is serious enough to warrant such a sentence. (CJA 2003 s 148(1))

Any restrictions on liberty must be commensurate with the seriousness of the offence(s). (CJA 2003 s 148(2))

The types of order

Low level
Persistent petty offending, some public order offences, some thefts from shops etc. Where the defendant’s previous convictions mean a discharge or a fine are inappropriate.
Suitable requirements might be: 40-80 hours of unpaid work, curfew requirement within the lowest range, exclusion requirement lasting a few months, prohibited activity or attendance centre requirements.

Medium level
Handling stolen goods worth less than £1,000, some burglaries in commercial premises, some obtaining property by deception, some TWOC (taking a vehicle without consent) cases.
Suitable requirements might be: 80-150 hours unpaid work, activity requirement in the middle range (20-30 days), curfew requirement up to 12 hours for 2-3 days, exclusion requirement around 5 months, prohibited activity requirement.

High level
For offences which only just fall short of the custody threshold, or where the threshold is crossed by a community sentence is more appropriate. An example might be a standard domestic burglary by a first-time offender.
Suitable requirements might be: 150-300 hours of unpaid work, a 60-day activity requirement, a 12-month exclusion order, a curfew requirement of 12 hours per day for 4-6 months.

(New Sentences: Criminal Justice Act 2003 Guideline 2004)

The requirements

Must be suitable The requirements must be tailored to the particular offender. (CJA 2003 s 148(2))

List of available requirements
Activity (18+)
Alcohol treatment
Attendance centre (18-25)
Curfew (18+)
Drug rehabilitation
Exclusion
Mental health treatment
Programme
Prohibited activity
Residence
Supervision
Unpaid work

Imposing requirements Requirements are imposed on a case by case basis; that is, the judge (Crown Court), or the district judge or magistrates (Magistrates’ Court) will assess what is the most appropriate way in which to deal with the offender.

Examples A shop-lifter who steals to fund his drug habit may be suitable for a combination of supervision, drug treatment and unpaid work. The unpaid work will act as a punishment and attempt to establish some routine and consistency in the offender’s life, the drug treatment will address the motivation for offending, and the supervision acts as a method of monitoring the offender’s progress.

A man who has pleaded to cultivation of cannabis may be suitable for punishment and supervision. He may receive 240 hours unpaid work and supervision. With the absence of a drug-addiction (the motivation for the offending being financial), drug treatment would be unnecessary.

Length of the order

Maximum length 3 years (CJA 2003 s 177(5))
Requirements Some or all of the requirements may be imposed for a period shorter than that of the order, or may be completed before the termination of the order. (CJA 2003 s 177(5))

Discount for time spent in custody

Restrictions on liberty Regard may be had to time spent in custody when considering the restrictions to be placed on the defendant’s liberty by the Community Order (CJA 2003 s 149)

General rule Although the statute states that the court may have regard to the period on remand, it is generally accepted that the court ought to do so. (see e.g. R v Rakib 2011 EWCA Crim 870 and New Sentences: Criminal Justice Act 2003 Guideline 2004)

Period on remand not the determinative factor R v Rakib 2011 EWCA Crim 870 held that where the defendant had spent a significant period on remand, but the court considers a community order to be the appropriate sentence, the period spent on remand is not and cannot be a necessarily determinative factor in deciding what the correct sentence is (as R v Hemmings suggests). It may be that the period served on remand is such that the court considers no further punishment is necessary. Where the defendant has served a period on remand equivalent to the maximum sentence, there is still a discretion to impose a community order, even if that includes substantial restrictions on liberty.

Sexual Offences Prevention Orders (SOPOs)

Legislation Sexual Offences Act 2003 s 104-113
Maximum length Indefinite (SOA 2003 s 107(1)(b))
Minimum length 5 years (SOA 2003 s 107(1)(b))
Which court can make an order? Youth Court, Magistrates’ Courts, Crown Courts

The basics

These orders are civil behaviour orders or ‘preventive orders’ imposed upon conviction (‘post-conviction orders’) or upon complaint (‘stand-alone orders’). The former are by far the most common.

The orders specify terms which prohibit the person subject to the order from doing certain things. The orders are targeted at sexual offending and are designed to prevent the commission of acts or offences which would cause serious sexual harm to another person.

SOPOs are from the same family as ASBOs. A SOPO operates in a similar way to an ASBO in that it is preventative in nature, targeted at the behaviour of the person subject to the order. Consequently, many of the principles are the same.

Power to order

Stand-alone orders The power is a discretionary power.

A Chief Officer of Police may by complaint make an application if a) it appears that that the defendant has been convicted of a Schedule 3 offence (list here) or a Schedule 5 offence (list here), or if he has been cautioned for such an offence, and b) the defendant has acted in a way as to give reasonable cause to believe that an order is necessary.

(SOA 2003 s 104(1) and (4))

Post-conviction orders The power is a discretionary power.

Step 1 Is the court dealing with the defendant for a Schedule 3 or 5 offence? (SOA 2003 s 104(2))

Step 2 Is the court satisfied that it is necessary to make such an order for the purposes of protecting the public from serious sexual harm? (SOA 2003 s 104(1)(a) and (b))

NB. The focus of Step 2 must be the risk of further offending. (R v D 2005 EWCA Crim 3660)

Interim orders A court may make an interim order when considering whether to make a stand-alone order. (SOA 2003 s 109)

What is ‘serious harm’?

Death or serious personal injury, whether physical or psychological. (PCC(S)A 2000 s 161(4) and R v Halloren 2004 EWCA Crim 233)

Drafting the order

Serving the draft on the defence to allow for proper scrutiny

A written draft must be properly considered in advance of the sentencing hearing. The normal requirement is that it is served on the court and the defence before the hearing. The Court of Appeal have suggested two clear days as a suitable time period, but in any event the draft is not to be served at the hearing. (R v Smith and Others 2011 EWCA Crim 1772)

The judge and the defence must have proper opportunity to scrutinise the proposed order and discuss its terms. (R v Guest 2011 EWCA Crim 1542)

The terms

Must be prohibitive in nature, as opposed to requiring the defendant to positively do something. (R v Smith 2009 EWCA Crim 785

Must not be oppressive (R v Collard 2004 EWCA Crim 1664)

Must be expressed in simple terms, easily understood by those who are not particularly bright (B v Chief Constable of Avon & Somerset Constabulary 2000 EWHC 559 (Admin)

Must not be vague. The twin tests are necessity and clarity. A subtest of necessity is proportionality. The real risk of unintended breach must be avoided. (R v Smith and Others 2011 EWCA Crim 1772)

A term is not necessary if it duplicates another regime to which the defendant is subject to by virtue of his conviction(s) for sexual offences. The following should be considered: a) notification, b) disqualification from working with children, and c) release on licence. (R v Smith and Others 2011 EWCA Crim 1772)

Where a defendant had shown no sign of progressing from making/possessing indecent images offences to contact offences, an order which prohibited him from having unsupervised contact with a child under 16 and his child while under 16, was unlawful. (R v Lea 2011 EWCA Crim 487)

Variations etc.

Power to vary

The power to vary, renew or discharge a SOPO is contained within SOA 2003 s 108. An order may be varied so as to impose additional requirements. The test remains the same as for imposing a SOPO; is the term necessary for protecting the public from serious sexual harm from the defendant. (SOA 2003 s 108(5))

Discharging an order

An order may not be discharged before the expiration of the 5 year minimum term without the consent of the defendant and the chief officer of police. (SOA 2003 s 108(6)

Where to appeal against a variation

Appeals in relation to variations are to the Criminal Division of the Court of Appeal. (R v Aldridge and Eaton 2012 EWCA Crim 1456)

Appeals

Power to appeal

A defendant may appeal against the making of a SOPO. (SOA 2003 s 110(1))

Where a defendant was prohibited from seeing his son, L, by a term in a SOPO, L did not have the right to apply to vary, renew or discharge the order. (R v D 2005 EWCA Crim 3660)

The test

There are three questions:
a) Is the order necessary to protect the public generally, or any particular member of the public from serious sexual harm?
b) If it is necessary at all, are the particular terms of the order oppressive?
c) Are the terms of the particular order proportionate?

(R v Mortimer 2010 EWCA Crim 1303)

Old, unlawful orders

A defendant appealed a SOPO made in 2006, relying on the decision in R v Smith and Others 2011 EWCA Crim 1772. The Court held that the fresh guidance in Smith did not provide the basis for a successful appeal against a SOPO which was imposed long before that decision. The SOPO was imposed on the relevant legislation and guidance, and should not be varied on appeal because of subsequent changes to them. The Court stated that they are ‘not a review body for every SOPO’. (R v Instone 2012 EWCA Crim 1792 Lord Chief Justice)

Key considerations

Is the order necessary?

Are the terms clear, concise and capable of being understood?

Are the terms proportionate and targeted at the defendant’s behaviour?

Key cases

R v Smith and Others 2011 EWCA Crim 1772
R v Instone 2012 EWCA Crim 1792