Cheyne [2019] EWCA Crim 182
Summary
R v Marco Cheyne [2019] EWCA Crim 182 concerned an appeal by leave of the single judge against the variation of a Sexual Harm Prevention Order (SHPO) imposed by His Honour Judge Kearl QC at Leeds Crown Court, which was dismissed by the Court of Appeal.
Mr Cheyne had pleaded guilty before magistrates in November 2012 to two offences of voyeurism contrary to section 67 of the Sexual Offences Act 2003 and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. He failed to appear for sentence on 27th December 2012, a bench warrant not backed for bail was issued, and he was not arrested until 31st December 2017, five years later, upon his return to the United Kingdom. On 23rd January 2018 Judge Kearl sentenced him to six months’ imprisonment on each count concurrent, suspended for 24 months with a 90‑day treatment programme requirement, and imposed a consecutive two months’ imprisonment suspended for 24 months for the failure to surrender. An SHPO was made at that hearing. On 30th April 2018 Judge Kearl varied the SHPO to include a prohibition on foreign travel expressed (correctly in the order made but erroneously in the written record) to last five years.
The underlying offending involved Mr Cheyne holding a mobile phone under a changing cubicle partition to record a female student undressing at a university sports hall in Leeds in 2012. He had previous convictions including burglary with intent to rape and indecent assault on a female in 2001, for which he received five years’ imprisonment and was placed on the Sex Offenders Register. Those offences involved breaking into a dwelling at night, climbing into the bedroom of a sleeping 16‑year‑old girl, getting into her bed, grabbing her wrist and covering her mouth before the victim raised the alarm.
When the initial sentence and SHPO were imposed in January 2018, the court was not fully informed that Mr Cheyne had spent the five years between his failure to appear and his re‑arrest living in Thailand and neighbouring countries. He was arrested at the airport on his return. Subsequently, Detective Constable Birch of the West Yorkshire Police Integrated Offender Management Unit made a statement dated 4th April 2018 in support of the variation application. DC Birch reported that Mr Cheyne’s passport showed numerous stamps indicating a pattern of leaving Thailand, entering a neighbouring country and returning the same day in order to obtain successive 30‑day tourist visa stamps. Mr Cheyne had confirmed these actions in person. He returned to England with only one suitcase and his passport expired on 11th January 2018; DC Birch stated that his motivation for return was to obtain a new passport. The officer noted that Mr Cheyne had no financial ties, permanent abode, family support or work or community commitment in the United Kingdom. Mr Cheyne told DC Birch that he intended to return to Thailand and had already applied for a new passport. DC Birch expressed concern that Mr Cheyne was a repeat offender who, if abroad, could not be assessed or managed, and that nothing was known of his movements in Thailand. Mr Cheyne said he had worked in hospitality in hotels, casinos and bars, which DC Birch considered highly inappropriate environments given his previous offending involving an attack in a bedroom and voyeurism. The officer emphasised that under the existing order Mr Cheyne was only required to notify the police seven or more days before foreign travel but was not required to return for offender management purposes. DC Birch believed that if permitted to travel, Mr Cheyne would remain abroad as he had in 2012, preventing proper management under the Sex Offenders Register and the protection of children and vulnerable adults both in the United Kingdom and abroad. He noted that Thailand was known for sexual exploitation and that monitoring of sex offenders there was scarce and poor, whereas in the United Kingdom effective monitoring could be achieved. It was on this basis that Judge Kearl made the variation adding the foreign travel prohibition.
On appeal, Mr Cheyne raised two principal grounds. First, he contended that the written record of the order showed a seven‑year prohibition, which would exceed the five‑year statutory maximum under section 103D(1) of the Sexual Offences Act 2003 and thus be ultra vires. The Court of Appeal held that the application had been for a five‑year prohibition, the judge’s notes of the hearing showed that a five‑year term had been ordered, and the error was in the court record, not in the sentence actually imposed. The period was lawful and what was required was correction of the court record, not an appeal. The appellant was to be given a copy of the corrected order once made.
Secondly, and more significantly, Mr Cheyne argued that the variation was unlawful because there had been no change in circumstances since the original order was made in January 2018. He submitted that little in the variation application was not already known at the date of the original order and that, in the absence of a change in circumstances, the variation amounted in substance to an illegitimate appeal against the terms of the original order. Mr Field, the solicitor advocate appearing for the appellant, relied on R v Hoath and Standage [2011] EWCA Crim 274 and contended that there was a general principle requiring a change before a protective order could be varied. He went so far as to submit that a variation was precluded as a matter of law even where the evidence supporting it was not known by the original court but should have been, arguing that a protective order could not be corrected if it could be said that the applicant for the order had initially missed something.
The Court of Appeal rejected that submission, holding that it went far too far. Lord Justice Irwin, giving the judgment of the court, accepted that merely returning to the Crown Court to seek a variation without any basis would be wrong in principle because it would undermine the finality of the original order, and that in general terms a variation must have some basis rather than being an illegitimate attempt to appeal. However, the court held that there could not be a general requirement for a change in circumstances in relation to a protective order that placed on the relevant authority a continuing statutory obligation to protect children or vulnerable adults. The court emphasised that in relation to an SHPO, section 103E(5)(b) of the Sexual Offences Act 2003 confers the power to impose a foreign travel prohibition for the purpose of protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom. The Chief Constable could not abandon that protective duty, which extended to those outside the country. The court held that even if there had been fault on the part of the police in not learning in January what they learned by April, after‑gained knowledge of this kind was a perfectly proper and indeed compelling basis for an application to vary an order that proceeded from a protective duty. The order was based on a statutory protective obligation and the application was justified.
In oral submissions Mr Field further argued that on the facts the variation was not proportionate because there was no evidence of sexual tourism, the instant offences represented a breach of privacy but not serious sexual offending, and there was therefore no proper basis for the order. The Court of Appeal roundly rejected those submissions. The court held that in assessing the risk posed by any sexual offender it was important and necessary to look not merely at the instant offences but at the whole background of the offender, because the authorities had to prognosticate as to future risk. The exercise of estimating future risk properly and necessarily involved consideration of the offender’s entire offending history. The court considered that the order was perfectly properly made and that the application had been made in a proper fashion.
In short, the appeal against the variation adding a foreign travel prohibition was dismissed, the Court of Appeal holding that after‑gained knowledge of an offender’s conduct and circumstances could properly support a variation of a protective order grounded in a continuing statutory duty to protect children and vulnerable adults, and that the variation was proportionate in light of the appellant’s full offending history and his demonstrated intention and ability to evade supervision abroad.
Mr Cheyne had pleaded guilty before magistrates in November 2012 to two offences of voyeurism contrary to section 67 of the Sexual Offences Act 2003 and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. He failed to appear for sentence on 27th December 2012, a bench warrant not backed for bail was issued, and he was not arrested until 31st December 2017, five years later, upon his return to the United Kingdom. On 23rd January 2018 Judge Kearl sentenced him to six months’ imprisonment on each count concurrent, suspended for 24 months with a 90‑day treatment programme requirement, and imposed a consecutive two months’ imprisonment suspended for 24 months for the failure to surrender. An SHPO was made at that hearing. On 30th April 2018 Judge Kearl varied the SHPO to include a prohibition on foreign travel expressed (correctly in the order made but erroneously in the written record) to last five years.
The underlying offending involved Mr Cheyne holding a mobile phone under a changing cubicle partition to record a female student undressing at a university sports hall in Leeds in 2012. He had previous convictions including burglary with intent to rape and indecent assault on a female in 2001, for which he received five years’ imprisonment and was placed on the Sex Offenders Register. Those offences involved breaking into a dwelling at night, climbing into the bedroom of a sleeping 16‑year‑old girl, getting into her bed, grabbing her wrist and covering her mouth before the victim raised the alarm.
When the initial sentence and SHPO were imposed in January 2018, the court was not fully informed that Mr Cheyne had spent the five years between his failure to appear and his re‑arrest living in Thailand and neighbouring countries. He was arrested at the airport on his return. Subsequently, Detective Constable Birch of the West Yorkshire Police Integrated Offender Management Unit made a statement dated 4th April 2018 in support of the variation application. DC Birch reported that Mr Cheyne’s passport showed numerous stamps indicating a pattern of leaving Thailand, entering a neighbouring country and returning the same day in order to obtain successive 30‑day tourist visa stamps. Mr Cheyne had confirmed these actions in person. He returned to England with only one suitcase and his passport expired on 11th January 2018; DC Birch stated that his motivation for return was to obtain a new passport. The officer noted that Mr Cheyne had no financial ties, permanent abode, family support or work or community commitment in the United Kingdom. Mr Cheyne told DC Birch that he intended to return to Thailand and had already applied for a new passport. DC Birch expressed concern that Mr Cheyne was a repeat offender who, if abroad, could not be assessed or managed, and that nothing was known of his movements in Thailand. Mr Cheyne said he had worked in hospitality in hotels, casinos and bars, which DC Birch considered highly inappropriate environments given his previous offending involving an attack in a bedroom and voyeurism. The officer emphasised that under the existing order Mr Cheyne was only required to notify the police seven or more days before foreign travel but was not required to return for offender management purposes. DC Birch believed that if permitted to travel, Mr Cheyne would remain abroad as he had in 2012, preventing proper management under the Sex Offenders Register and the protection of children and vulnerable adults both in the United Kingdom and abroad. He noted that Thailand was known for sexual exploitation and that monitoring of sex offenders there was scarce and poor, whereas in the United Kingdom effective monitoring could be achieved. It was on this basis that Judge Kearl made the variation adding the foreign travel prohibition.
On appeal, Mr Cheyne raised two principal grounds. First, he contended that the written record of the order showed a seven‑year prohibition, which would exceed the five‑year statutory maximum under section 103D(1) of the Sexual Offences Act 2003 and thus be ultra vires. The Court of Appeal held that the application had been for a five‑year prohibition, the judge’s notes of the hearing showed that a five‑year term had been ordered, and the error was in the court record, not in the sentence actually imposed. The period was lawful and what was required was correction of the court record, not an appeal. The appellant was to be given a copy of the corrected order once made.
Secondly, and more significantly, Mr Cheyne argued that the variation was unlawful because there had been no change in circumstances since the original order was made in January 2018. He submitted that little in the variation application was not already known at the date of the original order and that, in the absence of a change in circumstances, the variation amounted in substance to an illegitimate appeal against the terms of the original order. Mr Field, the solicitor advocate appearing for the appellant, relied on R v Hoath and Standage [2011] EWCA Crim 274 and contended that there was a general principle requiring a change before a protective order could be varied. He went so far as to submit that a variation was precluded as a matter of law even where the evidence supporting it was not known by the original court but should have been, arguing that a protective order could not be corrected if it could be said that the applicant for the order had initially missed something.
The Court of Appeal rejected that submission, holding that it went far too far. Lord Justice Irwin, giving the judgment of the court, accepted that merely returning to the Crown Court to seek a variation without any basis would be wrong in principle because it would undermine the finality of the original order, and that in general terms a variation must have some basis rather than being an illegitimate attempt to appeal. However, the court held that there could not be a general requirement for a change in circumstances in relation to a protective order that placed on the relevant authority a continuing statutory obligation to protect children or vulnerable adults. The court emphasised that in relation to an SHPO, section 103E(5)(b) of the Sexual Offences Act 2003 confers the power to impose a foreign travel prohibition for the purpose of protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom. The Chief Constable could not abandon that protective duty, which extended to those outside the country. The court held that even if there had been fault on the part of the police in not learning in January what they learned by April, after‑gained knowledge of this kind was a perfectly proper and indeed compelling basis for an application to vary an order that proceeded from a protective duty. The order was based on a statutory protective obligation and the application was justified.
In oral submissions Mr Field further argued that on the facts the variation was not proportionate because there was no evidence of sexual tourism, the instant offences represented a breach of privacy but not serious sexual offending, and there was therefore no proper basis for the order. The Court of Appeal roundly rejected those submissions. The court held that in assessing the risk posed by any sexual offender it was important and necessary to look not merely at the instant offences but at the whole background of the offender, because the authorities had to prognosticate as to future risk. The exercise of estimating future risk properly and necessarily involved consideration of the offender’s entire offending history. The court considered that the order was perfectly properly made and that the application had been made in a proper fashion.
In short, the appeal against the variation adding a foreign travel prohibition was dismissed, the Court of Appeal holding that after‑gained knowledge of an offender’s conduct and circumstances could properly support a variation of a protective order grounded in a continuing statutory duty to protect children and vulnerable adults, and that the variation was proportionate in light of the appellant’s full offending history and his demonstrated intention and ability to evade supervision abroad.
The appellant was made subject to an SHPO following two offences of voyeurism which were dealt with after he had absconded for a period of five years. He had a previous conviction for burglary with intent to rape. An application to vary the order was subsequently made upon consideration of matters not taken into account when the order was originally made. It became clear that the appellant had spent the five year period in Thailand, crossing the border out and back into the country every 30 days to renew a tourist visa. He had returned to the UK as his passport was due to expire and he was in the process of obtaining a new one, with the probable intention of returning to Thailand. A prohibition on foreign travel was added to the order, he appealed against that variation on the basis there was a requirement in law for there to be a change in circumstances before such a variation can be made.
In this case the basis for the variation of the order was not known by the court who made the original order but should have been. The defence argument that a variation is precluded in these circumstances goes too far. “The order proceeds from a protective duty and after-gained knowledge does justify an application of this kind….This order was perfectly properly made. It was applied for in a proper fashion.” The appeal was dismissed.