R v Martin Higgins

The provisions of section 45 of the Youth Justice and Criminal Evidence Act 1999 are engaged in this case because the complainants are under the age of 18. Accordingly, the identification of them, whether expressly or by information likely to lead to their identification, is prohibited by this Order. The complainants will be referred to during this judgment as “C1” and “C2” to preserve their anonymity.

This appeal concerns the question of the lawfulness of a sentence for breach of a Sexual Harm Prevention Order (“SHPO”) under section 343 of the Sentencing Act 2020, when the appellant was at all material times subject to its statutory predecessor being a Sexual Offences Prevention Order (“SOPO”) under section 104 of the Sexual Offences Act 2023. Also, this appeal is concerned with whether the sentence imposed upon the appellant was excessive so as to require this Court to intervene.

Leave to appeal sentence was granted by the single judge. Subsequently, the Registrar observed that an error had occurred in the charges in the Magistrates’ Court, when the appellant was charged with offences of breach of the SHPO when it should have been for breach of a SOPO. The Registrar invited the appellant and the respondent to assist this Court with the question of whether the charges, to which the appellant had pleaded guilty in the Magistrates’ Court prior to being committed for sentence to the Crown Court, were lawfully and validly drawn. In determining this appeal against sentence, we shall consider the validity of the charges first before turning to the sentences themselves.

The appellant is aged 63. At the time with which the charges are concerned in 2022, the appellant was the subject of a SOPO, which was imposed upon him in the Crown Court at Isleworth on 20 June 2014, under section 104 of the Sexual Offences Act 2003. It had been varied in its terms, the relevant paragraphs of which prohibited him from the following:

“6.

Approaching or communicating with ·any child under the age of 16, directly· or indirectly. This excludes contact, that is inadvertent and not reasonably avoidable in the course of lawful daily life. This communication includes but is not exhaustive of communications: in person, through another, in writing, by telephone, by email, via a social networking site,

internet chat room or forum.

7.

Forming or continuing any friendships with adults who you know or believe to have control or parental responsibility, whether temporarily or permanently, to any child under the age of 16 without disclosing their details to the monitoring Public Protection Unit within 24 hours.”

A breach of the terms of a SOPO was an offence, contrary to section 113 of the Sexual Offences Act 2003. However, on 8 March 2015 that section was repealed by section 113 and section 113(1) and paragraph 3(1) of Schedule 5 of the Anti-Social Behaviour, Crime and Policing Act 2014. At the same time, paragraph 2 of Schedule 5 introduced SHPOs into the Sexual Offences Act 2003 by sections 103A-103K. For existing SOPOs transitional provisions preserved the offence of breach an SOPO under section 113 of the Sexual Offences Act 2003 until 8 March 2020. From that date, any breach of an existing SOPO required a charge contrary to section 103I of the Sexual Offences Act 2003.

Accordingly, at the time of the offending by the appellant in 2022, the charges should have been brought under section 103I of the 2003 Act. In error, the appellant was charged with six offences of breach of an SHPO, contrary to section 354(1) and (4) of the 2020 Act, to which he pleaded guilty and was committed to the Crown Court for sentence.

Once this error was identified by the Registrar, during the course of preparation of this appeal, the appellant and respondent were asked to provide their respective submissions on the effect which the error had upon the safety of guilty pleas and whether the charges to which they related were lawfully and validly drawn.

On behalf of the appellant, Ms Becker submits that the substance of the requirements under either a SOPO or SHPO would have been identical and pertained to risks relating to the appellant’s offending. In her skeleton argument it is conceded as follows:

“The Appellant was aware of the restrictions under his Order, breached these, and accordingly entered guilty pleas in the magistrates’ court. The Appellant was aware of the prosecution case and substance of the allegations... In the Appellant’s mind, it was the terms of the Order that were key, rather than its title, or the legislation under which his Order was made, and breaches charged.

Further, the sentencing regime for breaches under SOPOs and SHPOs is identical. Had the Appellant been charged under the correct legislation, there would have been no practical difference - the case would have been committed for sentence, and counsel would have made identical submissions on the same sentencing guidelines, which in turn were those considered by the sentencing judge.”

On behalf of the respondent, Mr Slater submits in similar terms. Within the respondent’s skeleton argument it is submitted:

“In every material respect beyond the identified drafting errors, the charge was sufficiently clear. The correct SOPO was an exhibit in the case. The correct date of the imposition of the SOPO was used, as was the correct name of the imposing court. The correct prohibitions were opened. The judge referred to the correct sentencing framework. The offence charged, although erroneous, was one known to law. The error in the charge thus did

not mean that the charge could be described as a ‘nullity’.”

Therefore, it is clearly agreed between the parties that the error did not undermine the safety of the guilty pleas, and that while the charges were brought under incorrect legislation, the effect had been a technical error and not one which affects the lawfulness or validity of the charges.

We are grateful to the parties for their realistic assessment of the consequences of the error in the charges to which the appellant pleaded guilty. It is clear that the statutory framework for both SOPOs and SHPOs is effectively identical. It is also treated as such within the Sentencing Guidelines for breaches of those Orders. This is not a case therefore of an appellant having pleaded guilty to or been convicted of an offence unknown to law. This Court considered the issue in R v Stocker [2013] EWCA Crim 1993, in which the error concerned a charge of rape under the Sexual Offences Act 1956 rather than under the 2003 Act. The Court reviewed the authorities when considering the issue of whether the conviction was lawfully and validly obtained and made the following observations in paragraphs 42 and 43:

“42.

In our judgment, there is a clear judicial and legislative steer away from quashing an indictment and allowing appeals on the basis of a purely technical defect. The overriding objective of the Criminal Justice System is to do justice- to ensure the acquittal of the innocent and the conviction of the guilty. To that end, procedural and technical points should be taken at the time of the trial when they can be properly and fairly addressed.

43.

However, the question for us is whether this is a purely technical defect or whether the count itself was fundamentally flawed.”

The Court concluded that the error in charging rape under the 1956 Act rather than 2003 Act was technical and not fundamentally flawed. Further, in R v Sheldrake [2023] EWCA Crim 95, this Court considered the incorrect charging of an appellant under section 5 of the Protection from Harassment Act 1997 which had, by the time of the proceedings, been repealed. The appellant should have been charged under section 5A(2) of the 1997 Act. The parties to that appeal made similar concessions in respect of the effect of the error, namely that it had made no difference to the proceedings. The appellant had not been misled, and his case would have been no different. The Court observed as follows:

“16.

In those circumstances the potential difficulties which are created by the statutory provisions amending section 5A of the 1997 Act, which were drawn to the court’s attention by the Criminal Appeal Office do not fall for consideration. We consider that Miss Scott [counsel] is entirely right in the approach that she has taken to the consequences of the technical error. We are concerned with whether these convictions are a nullity or whether they are unsafe and if they are neither then we do not need to search for any technical solution to overcome problems which do not arise.”

The alternative to the approach taken in the case of R v Sheldrake is to take a number of procedural steps by this Court reconstituting itself into the Divisional Court, then a District Judge within the Magistrates’ Court and thereafter a first instance court for passing sentence, which steps were carefully identified within the case of R v Gould [2021] EWCA Crim 447. We have concluded firstly that the error in charging the appellant with breaches of an SHPO under section 354(1) and (4) of the 2020 Act rather for breaches of an SOPO under section 103I of the 2003 Act was a technical one, which did not affect the validity or lawfulness of the charges drawn. Secondly, we do not therefore need to search for any technical solution to overcome problems which did not arise. The charges in guilty pleas of the appellant are both safe and valid.

We turn to the facts of the offences which led to the sentences imposed upon the appellant.

Between 31 January and 1 March 2022, the appellant breached the terms of his SOPO by forming a relationship with the mother of C1, the circumstances of these breaches comprising charges 1 to 4. The appellant came to the attention of the police when they discovered that he had in his possession indecent images of children contained within a USB key which, when examined, also showed a photograph of the appellant with a child under the age of 16. This was C1, who was, at the time, aged 7. The photograph had been taken during the weekend of the Queen’s Jubilee and showed the appellant with his neighbours and others in the communal garden of a block of flats. It emerged that the appellant knew the grandmother of a neighbour and had, over a period of time, developed his friendship with her, in order to gain access to C1, who was a regular visitor to the flats. The appellant had not given notice of these circumstances to the authorities as was required by the terms of his SOPO. The grandmother of C1 provided evidence that the appellant had been to her address on numerous occasions when she was caring for C1. Approximately a month before speaking to the police, she had been caring for her grandson, who was unwell with a temperature, when she had asked the appellant to go to the shop and buy some medication, he told her that he was unable to read and suggested that he look after C1 while she attended the shop. On that occasion the appellant was alone with C1 for a short period of time. C1’s mother gave evidence to the police in which she stated that they had known the appellant for 4 years, from the time when he had moved into the flats where her mother lived. She described how the appellant regularly called into the flat and how C1 had become close to the appellant. They described the appellant often talking to C1 and watching him play.

Charges 5 and 6 concerned a separate complainant, C2, who was aged 6. He lived with his parents and his grandmother lived in the flats near to the appellant. He had formed a friendship with her and helped with jobs around the home. The evidence demonstrated that the appellant had nurtured the relationship so that he could obtain opportunities to spend time with C2. He gave C2 films to watch on a USB stick.

It was the prosecution case, based upon the evidence, that the appellant was deliberately creating opportunities to spend time with very young complainants. He had been carefully arranging opportunities to groom both the adults and young victims the appellant created a high risk of serious harm to C1 and C2.

The appellant has eight previous convictions for 35 offences, many of them involving sexual offending. In 1980, he was convicted of indecent assault of a male under 16.; in 1985, he was convicted of buggery with a boy under 16; in 1993, he was convicted of 14 offences involving buggery of a boy under 16, indecent assault on a male under 14 and gross indecency with a child under 16, for which he was sentenced to 10 years’ imprisonment; in 2005, he was convicted of further offences of indecent assault on a child and making indecent images of children. In 2014, the appellant was convicted of breach of a SOPO and in 2016 he was similarly convicted of further such offences.

In sentencing the appellant, the judge concluded that each of the charges of breach fell within category A1 of the Guideline, because they comprised of very serious breaches being deliberate, persistent and over a significant period of time and they risked very serious harm and distress to the complainants. The Starting Point for sentence was 3 years with a range of 2 years to 4½ years. There was a statutory aggravating factor, namely the applicant’s extensive previous offending against young people. Additionally, it was an aggravating factor that the complainants were particularly vulnerable because of their age. There was little by way of mitigation. The judge concluded that each of the offences fell towards the top of the sentencing range. He imposed concurrent sentences of 4½ years’ imprisonment for charges 1 to 4 and for offences 5 to 6. He also imposed 4½ years concurrently for each offence. Given that these were two separate complainants, the judge made the sentences on charges 1 to 4 consecutive to those on 5 and 6, allowing for guilty plea discount of a third, the sentence was reduced to 3 years and therefore a total of 6 years’ imprisonment.

In sentencing the appellant, the judge expressly took into account the principle of totality when at page 4C he stated:

“It is rightly said on your behalf that I must have regard to the principle of totality and I make it absolutely clear that I have that principle very much in mind when I arrive at the sentence I am bound to do and about to impose upon you; but I take the view that for offending of this kind it doesn’t get much more serious than this. The total sentence I impose upon you is one of six years’ imprisonment…”

The appellant’s grounds of appeal concern a single issue as to whether the sentence imposed was excessive because the judge did not give effect to the principle of totality. It is argued on behalf of the appellant by Ms Becker, for whose submissions we are grateful, that the judge simply added the sentences in respect of C1 to those in respect of C2 without any adjustment of the total sentence to ensure the total sentence was both just and proportionate.

It is plain from the sentencing remarks that the judge had in mind the principle of totality. No criticism is made about the sentences in respect of each offence. The judge correctly identified the offending as within category A1 of the guideline and 3 years’ imprisonment after guilty plea was justified. The question for this Court is whether the judge gave effect to the principle of totality. By not making any downward adjustment to the sentence was the total of 6 years’ imprisonment wrong in principle or excessive?

We do not conclude that a sentence, where there are multiple offences against different victims and an adjustment downwards has not been made, means that it is necessarily wrong in principle. The judge was required to consider step 5 of the Guideline, whether the total sentence was just and proportionate to the overall offending behaviour. This does not mean that a downward adjustment is always required. It will depend on the circumstances of the case. When the judge adopted the top of the range for the offences respectively against C1 and C2, does that mean that a failure to reduce the total created an excessive sentence? We are not persuaded that it does in the appellant’s case. These were undoubtedly very serious offences of breach of a SOPO, by an offender who has a long history of repeated serious offending against children and breaches of similar orders. The judge concluded that the offences were very serious within the range of sentencing available. With that observation we agree.

Having taken into account totality in the clearest terms, we do not conclude that the sentence was excessive. Whilst it might be observed to have been at the top of the range of reasonable sentences, we cannot conclude that it was excessive or wrong in principle.

In conclusion, the error made in charging the appellant with the offences to which he pleaded guilty did not invalidate the convictions and comprised no more than a technical error with guilty pleas which were correctly and safely entered. Further, we are not persuaded that the sentences imposed were either wrong in principle or excessive. Accordingly, we must dismiss this appeal.