England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th May 2004

Mr Justice Grigson :

1. On the 10^th October 2003 at the Crown Court at Lewes this Appellant pleaded guilty to 7 counts of making indecent photographs or psuedo photographs of children (1 – 7) and to 16 counts of possession of indecent photographs or psuedo photographs of children (8 – 24).
2. On the 4^th November at the same Court H.H.J. Brown sentenced the Applicant on Counts 1 – 7 to one years imprisonment on each count. On counts 8 – 24 two years imprisonment on each count. All sentences to be served concurrently.
3. 5284 similar offences were taken into consideration.
4. No appeal is made against those sentences.
5. The Judge also made a restraining order under Section 5A of the Sex Offenders Act 1997. The Appellant was ordered to register under the Sex Offenders Act 1997 and disqualified from working with children under Section 28 Criminal Justice and Court Services Act 2000.
6. It is against the restraining order that leave to appeal was granted. The Appeal came before the Full Court on the 27^th February 2004 and the hearing was adjourned as there was an apparent conflict between two decisions in this Court. R v Halloren [2004] EWCA Crim 233 and R v Beaney [2004] EWCA Crim 449.
7. The terms of the Restraining Order imposed by H.H.J. Brown were as follows:

"that you be prohibited from owning, using, possessing or having any access to any personal computer, laptop computer or any other equipment capable of downloading any material from the Internet. That prohibition does not apply to any such equipment which you have and use for the purpose of any lawful employment at and only at a place of such employment."

8. The Judge ordered that the Appellant register under the Sexual Offenders Act for a period of 10 years and that the disqualification from working with children last indefinitely.
9. These Orders were made in respect of each offence. In fact Section 5A only came into force on the 2^nd May 2001 and so was only available on counts 8 – 24. The Order made on counts 1 – 7 must therefore be quashed.
10. Section 5A of the Sex Offenders Act 1997 reads:

"(i) This section applies when –

a) the Crown Court or Court of Appeal imposes a sentence of imprisonment or makes a hospital or guardianship order, in respect of a person convicted of a sexual offence to which this Part applies.

b) The Crown Court or the Court of Appeal orders that a person who has been found not guilty of such an offence by reason of insanity, or to be under a disability and to have done the act charged against him in respect of such an offence, be admitted to hospital or make a guardianship order in respect of him.

c) a Youth Court makes a Detention and Training Order for a term of twelve months or more or a hospital or guardianship order in respect of a person convicted of such an offence.

d. a Youth Court makes a hospital or guardianship order in respect of a person who has been found not guilty of such an offence by reason of insanity, or to be under a disability and to have done the act charged against him in respect of such offences.

2) The Court may make an order under this Section in respect of the person ("the offender") if it is satisfied that it is necessary to do so in order to protect the public in general or any particular members of the public, from serious harm from him.

3) The order may prohibit the offender from doing anything described in the order.

4) The order shall have effect for the period specified in it or until further order; and the offender shall not cease to be subject to the notification requirements of this Part while the order has effect.

8) If without reasonable excuse the offender does anything which he is prohibited from doing by an order under this section, he is guilty of an offence.

9) A person guilty of an offence under this section is liable –

a) On conviction an indictment to imprisonment for a term not exceeding five years or a fine or both.

b) on summary conviction. To imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both."

11. The effect of Section 5A (4) is to make the requirement to register co-terminus with the period of prohibition when the period of prohibition is longer than the requirement to register. It also provides that the Court can specify the length of the period of prohibition. If the Court does not specify the period, then the order continues indefinitely unless and until the Court orders otherwise under subsection (7).

"On the application, the Court may, after hearing the Applicant and the other persons mentioned in subsection (6) above (if they so wish) make any order under this section varying or discharging the previous order which the Court considers appropriate."

12. Subsection 6 sets out who may make the application to the Court. In this case, no period was specified for the prohibition so that it continues unless discharged on application. The requirement to register would continue indefinitely unless the Court discharged the order of prohibition within the 10 year period. It can be seen immediately that this section gives the Court very wide powers indeed, and that breach of the order may result in substantial punishment.
13. In the R v Halloren (Ref) H.H.J. Broderick, giving the judgement of the Court, analysed the section in this way:

1) that the Court had a discretion as to whether to exercise its power to make a restraining order.

2) that before the Court can exercise its discretion it must be satisfied that it is necessary to do so in order to protect the public in general or any particular members of the public, from serious harm from him (the offender). The Court explained that 'necessary' was a higher qualifying test than, for example, 'desirable'.

3) that there must be material upon which the Judge can reach the conclusion that such an order is necessary in order to protect the public from serious harm.

4): that 'serious harm' had the same meaning as appears in subsection (4) of Section 161 of the Powers of Criminal Courts (Sentencing) Act 2000, namely

"In this Act any reference, in relation to an offender convicted of a violent or sexual offence, to protecting the public from serious harm from him……….shall be construed as a reference to protecting members of the public from death or serious personal injury, whether physical or psychological, occasioned by further such offences committed by him."

14. To summarise the position: the Court may make a restraining order if there is material which satisfies the Court that it is necessary to make the order (in the terms that it was made) for the protection of the public or particular members of the public from death or serious personal injury, whether physical or psychological caused by further offences committed by the offender.
15. H.H.J.Broderick added

"…….where the Crown invite a judge to make an order of this nature, it seems to us that it is incumbent upon them to be familiar with the necessary statutory provisions and to be in a position to put before the judge the material which shows that those statutory provisions have been met."

With those sentiments we entirely agree.

16. The Court in Halloren's case having considered the evidence concluded that there was no material which could have satisfied the trial judge that it was necessary to make a prohibition order.
17. In R v Beaney the Court was referred to the judgement in Halloren and did not dissent from the basic propositions advanced in that case. But they analysed the evidence before the sentencing Judge in this way

a) that in cases of this sort the members of the public at risk of serious psychological harm were the children who 'are forced to pose or worse to participate in sexual conduct, for the purpose of enabling these images to be produced and disseminated'.

b) that such children were subjected to risk from 'people like the applicant who simply downloaded the images and viewed them'.

18. Mr Justice Keith, giving the judgement of the Court said:

"If people like the Applicant continue to download and view images of this kind, even when they have not had to pay for the images downloaded, the offences which they commit can properly be said to contribute to the psychological harm which the children in those images would suffer by the children's awareness that there were people out there getting a perverted thrill from watching them forced to pose and behave in this way."

19. If the logic of the Court in R v Beaney is correct then, potentially every person convicted of this sort of offence qualifies for a restraining order under Section 5A.
20. We have no doubt that the reasoning is correct. The reasoning behind both the legislation and sentencing policy is that participation in indecent or pornographic activities damages children and that by downloading such material from the internet offenders contribute to such damage.
21. However, it does not follow that the Court will be satisfied that it is necessary to make a restraining order in every case. That is only one part of the test the Court must apply.
22. The Court should consider

a) the offences: the number of offences, their duration, the nature of the material, the extent of publication and the use to which the material was put.

b) the offender: his antecedents, his personal circumstances and the risk of re-offending.

23. Where the Court is satisfied that i) there is a real risk of the offender committing further offences and ii) that the further offences will cause serious harm to children, then it will be necessary to make a restraining order.
24. Where the Court makes a restraining order, its terms must be tailored to meet the danger that the offender presents. It must not be oppressive, it must be proportionate. The Court is well aware of the ever increasing legitimate use of the internet. More and more people use the internet as a source of news, information and entertainment. All sorts of products are advertised on line; and can be purchased on line. Employment may require use of the internet at home as well as in the workplace. The internet is used as a legitimate tool by both adults and children. A wide prohibition on an offender might have the effect of depriving his wife and children of the benefit of legitimate use of the internet.
25. This Appellant was employed as a teacher and had been for 26 years. He was arrested on the 17^th December 2002 and a search warrant executed at his house. His computer was seized and numerous indecent images of children were found. Counts 1 – 7 related to legitimately taken photographs of female pupils which the Appellant had altered. Counts 8 – 24 related to images at Levels 4 and 5 which he had downloaded from the internet. The offences taken into consideration related mainly to images at Level 1 but there were 261 images at Level 4 and 17 at Level 5. In interview, the Appellant admitted all his offences and the offences. The offences started in 1984 and continued until his arrest.
26. Miss Thorne, Counsel for the Appellant, makes three submissions. The first is that there was no material before the judge upon which he could decide that this appellant qualified for a restraining order. Mr. Cherrill, who appears on behalf of the Crown, submits that the court was entitled to reach that conclusion simply by looking at the nature of the material, the extent and duration of the offending and the occupation of the appellant. Mr. Cherrill submits that the Court is entitled to look at the facts in relation to the first seven counts in making the judgment as to whether a restraining order should be imposed.
27. We are satisfied that Mr. Cherrill's submission is correct. The nature and extent of the material, the period of the offences and his occupation clearly qualified this appellant for a restraining order. Miss Thorne goes on to submit that the period of the restraining order, that is that it was made indefinitely was manifestly excessive. Again, Mr. Cherrill points to the nature of the material itself, the depth of what he describes as the appellant's addiction or obsession and the fact that there was no material before the court indicating when this particular appellant's proclivities might cease.
28. We bear in mid that the appellant can apply to discharge this order at any time. Keeping that in mind, we are satisfied that Mr. Cherrill's submission as to the appropriateness of the order being indefinite is correct and that the proper order as to duration was made.
29. Miss Thorne's last submission is that the terms of the order are too wide. Again, Mr. Cherrill argues otherwise. But we are satisfied that the terms of the order here are in fact too wide and must be curtailed. The prohibition in the order was Draconian. In our view, it would have been sufficient if the order had been in these terms:

"that you be prohibited from downloading any material from the Internet, that prohibition not applying to downloading for the purpose of any lawful employment or lawful study."

30. The appeal is allowed to this extent. The Restraining Order on Counts 1 – 7 be quashed. The Restraining Order on Counts 8 - 24 be varied as above.