The Court of Appeal considered whether the notification requirements under the Sexual Offences Act 2003 for those convicted of certain offences required a Court order or ruling and whether certificates issued under s.92 of the 2003 Act could be appealed.
The Appellant got into an argument with two women, during the course of the argument one said that he "was acting like a girl", in response to this he exposed his genitals and buttocks. The Appellant pleaded guilty to exposure and was sentenced to a three-year conditional discharge.
Four months before the end of the conditional discharge the Appellant pleaded guilty to possession with intent to supply Class A. As he had offended during the term of the conditional discharge he was re-sentenced to 2 months imprisonment for exposure. He was also issued with a certificate under s. 92 of the 2003 Act and told he must comply with the statutory notification requirements for seven years.
The Appellant appealed on the basis that the notification requirements did not apply in cases where a person was re-sentenced to imprisonment on breach of a conditional discharge, and that the two-month sentence was manifestly excessive.
The Court of Appeal identified five issues that were raised;
(1) Did the Applicant become subject to the notification requirements when he was sentenced to the three-year conditional discharge for exposure?
(2) Did the Applicant become subject to the notification requirements when he was resentenced for the exposure offence having breached the conditional discharge? If so, from what date did they apply?
(3) Does the Court of Appeal (Criminal Divisional) have jurisdiction to hear an appeal against either the notification requirements or the certificate?
(4) Should the appeal against the sentence of two months' imprisonment be allowed?
(5) If so what, if any, are the consequences for the notification requirements and the certificate?
Held: Schedule 3 para 33 of the Act stated that the notification requirements applied in cases where offenders are aged over 18 and convicted of exposure and either the victim was under 18 or the offender was sentenced to a term of imprisonment, detained in hospital or made subject to a community sentence for a minimum of 12 months. Thus, the Appellant was not subject to the notification requirements when originally sentenced. When the Appellant was re-sentenced the notification requirements applied to him from that date as he fell within the terms of s. 80(1)(a).
The Court of Appeal held that there was no ruling capable of being appealed in relation to the notification requirements as they applied by operation of the provisions of s. 80. The s. 92 certificate did not form part of the sentence, as such the Court had no jurisdiction to hear an appeal concerning it. It could be challenged by judicial review if it was wrongly issued.
In this case the custodial sentence of two months for exposure was quashed as manifestly excessive, as the offence was not considered serious enough to have warranted a custodial sentence. This had the effect that the notification requirements also fell away.
Appeal allowed in part.
6 February 2019