Criminal Law: Breach of a Sexual Offences Prevention Order Regina -v- Pelletier [2012] EWCA Crim 1060

The Appellant appealed against his conviction for breach of a Sexual Offences Prevention Order notwithstanding that he pleaded guilty at the time of his arraignment. It subsequently transpired, through the industry of those representing the Defendant, that the Sexual Offences Prevention Order from 2005 in the form issued by the office of the Crown Court did not conform to the order that the Judge announced.

In allowing the appeal against conviction Hughes LJ held that it seems very likely that the Defendant had had sight of that order, although there is no direct proof of it, since he told the Police that he understood that he was in breach of the order. However, the simple fact is that the order to which this Defendant was subject was not something constructed in the office of the Crown Court by a Clerk who made a mistake. The order to which he was subject was the order which the Judge had announced and he was not in breach of that. It may be that there would have been a perfectly good case for making a wider order at the time but that question simply never arose.

It followed that this was a case in which on the agreed facts the Defendant, despite his plea of guilty, was not guilty of the offence which he admitted and for that short and simple reason his appeal against conviction was allowed.

However, the Court of Appeal proceeded to observe that a disconnection between the order which the Judge makes and the order as recorded in the Crown Court office is an occupational hazard but one which must be avoided. It is particularly a risk when, as these days is common, Judges have to contemplate a large number of ancillary orders after the principal business of sentencing has been accomplished. Much the best method of avoiding what happened in this case and has happened in others is for Judges to insist that ancillary orders are put before them in draft in writing. They then should either make them in the form which is tendered in draft or, if appropriate, amend them. Whichever they do, the document bearing either their approving initial or the amended terms of the order plus such initial should then be placed with the papers by the court associate and that way the order will be translated into proper form in the office afterwards.

It would also be quite sensible if, particularly with orders of this kind, that when they are provided to the Defendant he was asked to sign for receipt. But that is not a formal requirement, it would simply be a very good idea if it happened.