McLellan v REGINA, England and Wales Court of Appeal (Criminal Division), Judgment, Law, casemine.com

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Advocates

Simon Heptonstall (instructed by the Crown Prosecution Service) for the Crown
James Wood QC (instructed by the Registrar of Criminal Appeals) for the Appellant James McLellan

Judges

HIS HONOUR JUDGE MARSON QC
MR JUSTICE SPENCER
LORD JUSTICE GROSS

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McLellan v. REGINA

Smart Summary

Factual and Procedural Background

This opinion concerns two distinct cases listed together before the Court, both involving sexual harm prevention orders but raising different legal questions and factual circumstances.

The first case, referred to as McLellan, involves a challenge to the indefinite duration of a Sexual Harm Prevention Order ("SHPO") imposed alongside a suspended sentence for making indecent images of children. The Applicant pleaded guilty in 2016 and was sentenced to a suspended prison term with a SHPO made "until further order". The Applicant seeks an extension of time to appeal the length of the SHPO, arguing it is excessive and indefinite, leading to indefinite notification requirements under the Sexual Offences Act 2003.

The second case, referred to as Bingley, involves a Sexual Offences Prevention Order ("SOPO") imposed in 2005 concurrently with an Imprisonment for Public Protection ("IPP") sentence. The Applicant was released in 2016 subject to licence conditions that conflict with the SOPO terms. The Applicant seeks an extension of time to appeal the SOPO on the basis of a subsequent change in legal approach (post the decision in R v Steven Smith) and the conflict between SOPO terms and licence conditions.

Both cases involve applications for Extensions of Time ("EOTs") to seek leave to appeal, with McLellan focusing on the lawfulness of an indefinite SHPO and Bingley on the retrospective impact of changed legal principles on a properly imposed SOPO.

Legal Issues Presented

Whether an indefinite Sexual Harm Prevention Order (SHPO) is lawful and proportionate, and if it should be limited to a fixed term corresponding to statutory notification periods.
Whether an Extension of Time (EOT) should be granted for an Applicant to appeal the length of a SHPO or the imposition of a SOPO.
Whether a SOPO imposed concurrently with an Imprisonment for Public Protection (IPP) sentence remains valid post-release when its terms conflict with licence conditions.
What is the appropriate legal mechanism to resolve conflicts between SOPO terms and licence conditions, particularly in light of changes in the law after the SOPO was made.
Whether retrospective changes in legal guidance (e.g., R v Steven Smith) justify reopening or appealing decisions on SOPOs properly imposed before such changes.

Arguments of the Parties

Appellant's Arguments (McLellan)

The indefinite duration of the SHPO is manifestly excessive and wrong in principle.
Ordinarily, the SHPO duration should not exceed the statutory notification period linked to the sentence.
If a longer SHPO is contemplated, counsel should be warned to allow representations and reasons should be given in sentencing remarks.
The indefinite SHPO results in indefinite notification requirements, which have onerous effects on liberty and employment prospects.
The Applicant was unaware until autumn 2016 that the SHPO extended notification requirements indefinitely, justifying an exceptional Extension of Time.
On the facts, a fixed SHPO period of 5 years is sufficient given the Applicant’s rehabilitation and low risk of reoffending.

Respondent's Arguments (Crown) (McLellan)

There is no rigid rule that SHPO duration must not exceed notification periods; it depends on circumstances.
Section 103G(1) of the Sexual Offences Act 2003 contemplates SHPOs longer than notification periods.
No duty exists to warn counsel specifically about indefinite SHPO durations; draft orders are circulated allowing opportunity for input.
The proper course is for the Applicant to apply to discharge the SHPO if no longer necessary after the minimum 5-year period.

Appellant's Arguments (Bingley)

The SOPO was unnecessary given the concurrent IPP sentence and its licence conditions.
Post-release, the SOPO terms conflict with the licence conditions, creating a risk of breach despite compliance with licence conditions.
The Applicant was unaware of the SOPO until his parole hearing, justifying an Extension of Time and leave to appeal.
The SOPO terms are excessively wide and should be varied or discharged to align with licence conditions.
Leaving the matter to the Crown Court to discharge or vary the SOPO might be ineffective if the Court treats the issue as one of principle rather than changed circumstances.

Respondent's Arguments (Crown) (Bingley)

The SOPO was properly imposed at the time under the law then prevailing.
The principle of finality weighs against extending time to appeal based on subsequent changes in law.
There can be no "clash of conditions" as the Crown would not oppose an application to vary the SOPO to mirror licence conditions.
The SOPO confers an immediate power of arrest and separate punishment, providing utility beyond licence conditions.
Further management of any inflexibility or conflict should be addressed by the Crown Court through variation applications.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Steven Smith [2011] EWCA Crim 1772	Guidance on the making of SOPOs, including necessity, proportionality, and relationship with notification requirements; especially relevant to cases involving IPP sentences.	Used to clarify that SHPO duration may exceed notification requirements if justified; that indefinite SHPOs require careful consideration; and that SOPOs are generally not appropriate alongside indeterminate sentences unless unusual features exist.
R v Hoath [2011] EWCA Crim 274	Framework for the Crown Court's power to vary SOPOs and the appropriate procedural steps for appeals and variations.	Supported the Court's view that conflicts between SOPO terms and licence conditions should be addressed by variation applications to the Crown Court, with appeals only on unreasonable refusals.
R v MI and others [2012] EWCA Crim 1792	Confirmed that SOPOs should rarely be imposed with indeterminate sentences and addressed the effect of subsequent legal developments on pre-existing SOPOs.	Reinforced that pre-Smith SOPOs, properly imposed, should not be disturbed by subsequent changes in law unless substantial injustice arises; supported finality principle.
R v Spencer [2013] EWCA Crim 2286	Clarified that objections to SOPO terms should be raised by appeal, not by variation applications absent changed circumstances.	Confirmed the principle of finality and that variation applications require changed circumstances; supported approach to managing conflicts via Crown Court applications.
R v Johnson (Lewis) [2016] EWCA Crim 1613	Requirement that "substantial injustice" must be shown to justify extension of time for appeals based on retrospective legal developments.	Applied to reject extension of time in Bingley absent substantial injustice, emphasizing finality.
R v Jogee [2016] UKSC 8	Illustrates caution in reopening cases based on retrospective effect of legal decisions to avoid floodgates.	Referenced as part of the broader principle cautioning against reopening properly decided cases except in cases of substantial injustice.
Roberts [2016] EWCA Crim 71	Confirmed that the demise of IPP sentences does not justify extending time to appeal properly imposed IPP sentences.	Supported the refusal of extension of time in Bingley for appealing the SOPO imposed with IPP.

Court's Reasoning and Analysis

The Court first considered the McLellan case, concluding that the indefinite SHPO was imposed without proper justification or explanation. The Court noted the importance of proportionality and the need for SHPOs to be no longer than necessary. It accepted that indefinite SHPOs extend notification requirements indefinitely, which carry significant practical consequences. The Court found that the Applicant’s rehabilitation and low risk supported a fixed-term SHPO. It granted the substantial Extension of Time to allow appeal and quashed the indefinite SHPO, substituting a five-year SHPO from the date of sentence. The Court also quashed an improperly imposed Rehabilitation Activity Requirement and substituted a supervision requirement.

In Bingley, the Court acknowledged that the SOPO was properly imposed at the time under the law then prevailing. The subsequent decision in R v Steven Smith altered the legal landscape, but the Court emphasized the principle of finality and the need for "substantial injustice" to justify reopening the case. The Court found no such injustice warranting an extension of time or leave to appeal against the SOPO. However, the Court recognized the conflict between the SOPO terms and the licence conditions post-release, which risked unfairly penalizing the Applicant. The Court held that the appropriate mechanism to resolve this conflict is by application to the Crown Court under s.108(4) of the Sexual Offences Act 2003 to vary or discharge the SOPO. To avoid delay and cost, the Court directed that one of its members would exercise Crown Court jurisdiction to deal with the matter.

The Court ultimately varied the SOPO terms to align with the licence conditions, preserving the order but removing conflict. It emphasized that the SOPO provides useful powers, including immediate arrest and separate punishment for breaches, and that the Applicant must be aware of the risks of breaching either set of terms. The Court declined to discharge the SOPO, finding it appropriate to remain in force with varied terms.

Holding and Implications

McLellan: The Court granted a substantial Extension of Time, allowed leave to appeal, quashed the indefinite SHPO, and substituted a five-year fixed-term SHPO from the date of sentence. The Rehabilitation Activity Requirement was quashed and replaced with a supervision requirement. This decision corrects an error in sentencing practice, ensuring proportionality and clarity regarding notification requirements.

Bingley: The Court refused the Extension of Time and leave to appeal against the SOPO imposed concurrently with an IPP sentence, emphasizing the principle of finality and that the SOPO was properly made at the time. The Court directed that the conflict between SOPO terms and licence conditions be resolved by variation applications to the Crown Court. One judge of this Court was empowered to exercise Crown Court jurisdiction to deal with the matter promptly. The SOPO terms were varied to mirror the licence conditions, preserving the order but eliminating conflicting requirements.

The implications are that indefinite SHPOs require careful justification and should not be imposed as a default, while SOPOs imposed before changes in law generally stand unless substantial injustice is shown. Conflicts between SOPOs and licence conditions post-release should be resolved through Crown Court variation applications rather than appeals. No new precedent was set beyond applying existing principles and guidance.