England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		27 January 2004

1. JUDGE BRODRICK: On 3rd October 2003 at the Crown Court at Lewes the appellant pleaded guilty to a number of offences of making indecent photographs or pseudo-photographs of a child. In effect this is a case of downloading such images from the internet. On 13th November he appeared again at the same court before His Honour Judge Kemp and he was sentenced to eight months' imprisonment on each of thirteen counts concurrent and a restraining order was made under section 5A of the Sexual Offences Act 1997 for an indefinite period and he was ordered to register under the Sex Offenders Act of 1997 for the appropriate period - ten years - and an order was made for the forfeiture of the computer and the disks under section 1 of the Obscene Publications Act 1964. He sought leave to appeal both against the length of the sentence and against the making of the restraining order. Leave was refused in relation to the length of his sentence but granted in connection with the making of the restraint order. Today, it is that latter point, on which leave has been given, which is advanced before us.
2. The facts are these. On 16th December 2002 police officers executed a search warrant at the appellant's home address in Hove. They seized his computer. When it was subsequently examined, it was found to contain a number of indecent images of children. Adopting the grading which is to be found in the guideline case of Oliver [2002] EWCA Crim 2766, [2003] 1 Cr App R 28: there were seven images at level 1, one at level 2, two at level 3, and, much more importantly, three at level 4, those three being moving images and one of them showing a prepubescent girl giving oral sex to an adult male. A number of other offences were taken into consideration: 205 images at level 1, thirteen at level 2 and seven at level 3.
3. When interviewed, the appellant admitted downloading and storing the images. He said that it had started out of curiosity. He maintained that he had not shown or distributed the images to anyone else, and he had not intended to do so, and he had ensured that the files on the computer were stored in such a way that no one else could have access to them.
4. He is 32 years of age and at the time of this conviction was of previous good character. There was a pre-sentence report, recommending a community rehabilitation order, but recognising that, in the light of Oliver, a custodial sentence was likely. It went on to indicate that he was full of remorse and there appeared to be a low risk of reoffending. If a custodial sentence was imposed, the report suggested that consideration should be given to extending the length of the licence period to enable him to complete a sex offender programme.
5. A psychiatric report concluded that he was suffering from an adjustment disorder; that that was a reaction to the stressful events, the main cause of the stress being the proceedings to which he was then subject. That confirmed that he was deeply remorseful about his behaviour and wished to try to understand why he had collected the images. It confirmed that he would make good use of a sex offender programme if provided or offered it.
6. There were six character references, and it was of some considerable importance that his wife was standing by him.
7. In passing sentence, the learned judge gave him full credit for a timely plea, accepted that the downloaded images were purely for his own use and gratification, but pointed out, of course, that by downloading them in the first place he was effectively a customer in a trade which resulted in the creation of those images and the abuse therefore, in the case of many of the images, of prepubescent girls. He went on to deal with other considerations, effectively more important as to the length of sentence.
8. The ground of appeal, which is now advanced with leave, is to the effect that the restraint order ought not to have been made in the circumstances of the present case. What appears to have happened is this -- and we express our gratitude to Mr Wilson, who appears on behalf of the appellant today. In the period which we gave him, he has very helpfully obtained from the Crown Court at Lewes some documentation which was missing and he has endeavoured to establish whether there is any general practice in relation to requests for these orders. We deduce from the material before us that what must have happened was this. Prosecuting counsel was furnished with a bundle of documents by the police. Page 2 of that indicates:

"The offence the subject of this case is one to which the court on conviction can make a restraining order against the defendant providing any sentence of imprisonment is imposed."

It goes on to request that, should there be a prison sentence, an application for a restraint order should be made.

9. Page 1 of the bundle sets out the proposed terms of the restraint order. It has a very wide effect in relation to the owning, using, possessing or having access to any personal computer, laptop computer or other equipment capable of downloading any material from the internet. At the foot of the document it says this:

"The defendant shall not cease to be subject to the notification requirements of Part I of the Sex Offender Act 1997 while this order has effect."

10. That particular statement on the face of the order arises out of section 5A(4) of the 1997 Act, which is in these terms:

"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."

So that is one serious consequence of the making of an order under the 1997 Act. Another potentially serious consequence is that, if a breach of the restraining order is proved in proceedings taken on indictment, the defendant would become liable to a further term of up to five years' imprisonment.

11. In passing sentence the learned judge said this:

"I am asked to consider the question of a restraining order, also under the auspices of the Sex Offenders Act, and I make such an order in these terms: that for the duration of this order (and I will listen in a moment to submissions as to what that length should be) you will be prohibited from owning, using, possessing or having access to any personal computer, laptop computer or any other equipment capable of downloading any material from the internet, save in relation to any computer that you use or have access to in the course of the furtherance of your occupation. Secondly, for the duration of the order you are prohibited from owning, using, possessing or having access to any personal computer, laptop or any other equipment capable of viewing any form of images with the same save and except as in relation to paragraph 1; and three [referring to the draft order], that for the duration of the order you are prohibited from purchasing or posting any CD-Rom disks, recordable CD disks, floppy disks or any other medium capable of storing images or playing images, as items 1 and 2 above, again with the same save and exception."

And that was to enable him to use computers at work. So it is perfectly apparently that the order is to be drawn, if made, in very wide terms indeed. The learned judge went on:

"The provisions of the order do not prohibit the viewing of lawfully broadcast television programmes and the use of any such equipment as mentioned herein for the purpose of any lawful employment at and only at the place of work. That really does cover what I have already said in relation to any job you take up on your release."

Shortly after that, having explained the effect of the prison sentence, the defendant was taken down. At that stage there was a discussion between counsel and the learned judge as to the appropriate length of the order. We repeat: that is a matter not without significance because of its impact on the registration provisions of the same Act. The learned judge was invited to, and made, an order of indefinite duration, giving the defendant the opportunity to seek a variation when so moved to do so.

12. So that is the provision. It is now submitted that that is an order which ought not to have been made in the circumstances of the present case.
13. We turn first to the terms of section 5A of the Sexual Offences Act of 1997, set out conveniently in the current edition 2004 of Archbold's Criminal Pleading, Evidence and Practice at chapter 20-271h:

"(1) This section applies where---

(a) the Crown Court or the 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."

Pausing there, that is the only relevant provision which we need to consider in subsection (1), and quite clearly that was met. So the three conditions, so to speak, to the making of an order were fulfilled. But then we come to subsection (2):

"(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."

14. Mr Wilson, in a very helpful skeleton argument, rightly conceded that the initial condition to the making of a restraint order was fulfilled in this case. However, he submitted that, if proper consideration had been given to the relevant statutory provisions in subsection 2, the judge would have been compelled to conclude that there was no power to make the order in this particular case. Mr Wilson makes three points in relation to subsection (2) of section 5A of the Act. First, he draws attention to the word "necessary". He submits -- rightly, in our judgment -- that there must be material before the judge to show that an order is indeed necessary, as opposed, for example, to being desirable. We agree that there would appear to be no such material put before the judge in the present case. Second, he points out that the subsection requires the judge to be satisfied of certain matters before making the order. He submits that the use of this word requires the judge expressly to consider the statutory criteria for making the order, and, before making the order, to indicate the basis on which they have been met in the case before him. Again, we agree with this point. Again, there would appear in the papers before us to be no reference to the basis on which this statutory criterion was said to be met in the present case. Third, Mr Wilson draws attention to the purpose of the order as stated in section 5A(2), and submits that there is no indication in this case as to how that precondition to the making of the order could be met. Putting it this way: what was the serious harm from which protection was required from this defendant?
15. We pause to observe that in the draft order there is a significant deletion. It may be that that contributed to a misleading of the learned judge, because, after setting out the name of the appellant and the nature of the case, it goes on:

"For the purpose of protecting the public in general ... "

"particular member of the public" is crossed out.

"... namely from serious harm from ... "

"her and him" are crossed out. So one of the significant words in subsection (2) has been removed.

"... the defendant is prohibited from ..."

and so the order continues.

16. At the moment we are unable to see how this restricted test directed to the need to protect the public from serious harm from this defendant was met on the material put before the learned judge. It would appear that the 1997 Act, to which this subsection was added by later amendment, does not itself contain any definition of the expression "serious harm", but that is, nevertheless, an expression which has been used by Parliament from time to time, perhaps most recently in section 161(4) of the Powers of Criminal Courts (Sentencing) Act 2000. Subsection (4) of that Act provides this:

"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 ... "

(So exactly the same form of words.)

"... 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."

We find it difficult to believe that Parliament could have intended the words in the 1997 Act to have any different meaning to those which they have been given in the 2000 Act and in other Acts which preceded it.

17. In those circumstances, we have been driven to the conclusion that there is nothing to indicate that the judge was satisfied in this case that it was necessary to make the order for the statutory purposes set out in subsection (2). In those circumstances, there being no proper basis for the making of the order apparent on the papers, it must, and is, hereby quashed. The appeal is allowed to that extent.
18. We would simply add that 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 learned judge the material which shows that those statutory provisions have been met. Had this been done in the present case, it may be -- we do not know -- that the outcome might have been different. But, with provisions of this nature, with potentially serious consequences for a defendant, it seems to us that a judge must consider those provisions and express his conclusions on each aspect of them before such an order is made.