England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		24th February 2004

1. MR JUSTICE KEITH: On 19th September 2003 at Maidstone Crown Court the applicant was sentenced by Judge Patience QC to six months' imprisonment on 17 counts of making an indecent photograph of a child, those terms to be served concurrently with each other. He had pleaded guilty to all 17 counts. In addition, he was ordered to forfeit the computer on which he viewed the images to which the counts related, and a restraining order was made against him under section 5A of the Sex Offenders Act 1997. By virtue of his conviction he became subject to the notification requirements specified in Part I of the 1997 Act (colloquially known as a requirement to sign on under the Sex Register) for a period of seven years (and not the ten years as the judge thought). He now renews his application for leave to appeal against the restraining order, leave to appeal having been refused by the single judge.
2. The facts were these. On 28th January 2003 police officers executed a search warrant at the applicant's home. His computer was seized. A number of pornographic images involving children were found on it. The worst was of a partially naked girl aged between four and six. Her head was being held with some force by a man next to his penis while he ejaculated into her mouth. Using the classification adopted in Oliver [2003] 2 Cr App R(S) 15, [2002] EWCA Crim 2766, that image was classified at level 5. There were nine images at level 4 involving partially naked girls sucking men's penises. The other images ranged through levels 1 and 3.
3. The applicant was a subscriber to two pornographic websites. They, however, did not contain indecent images of children. The images to which the children related were downloaded on to the applicant's computer screen by the applicant from another source for which there was no subscription charge. Those images were deliberately viewed by the applicant, the applicant presumably knowing that they were going to be indecent images of children. The applicant did not save any of the images deliberately. They were retrieved from one of the computer's directories, having been automatically stored in the directory by the browser. In all 50,000 images were on the computer's hard drive when the computer was interrogated by the police. 525 of them were images of children. The others were either not pornographic or involved adults. Of the 525 images of children, not all of them were indecent. About 150 were duplicates and about 200 were thumbnail images. In thumbnail form several images would come up on the screen at the same time. About eight thumbnail images had been enlarged.
4. The applicant admitted to the author of the pre-sentence report on him that he had developed a very unhealthy obsession with pornography and had created a secluded environment for himself at his home by having his computer in a room into which no one else in the family went. He recognised that this distanced him from reality and cocooned him from the true horrors of what he was viewing. He said he used the adult pornography as a masturbatory aid, but he denied that he used the child pornography for sexual relief. He is now 40 years, with one child and three stepchildren. His wife has given him great support throughout the worry of his case. He had one previous conviction for driving with excess alcohol.
5. The terms of the restraining order which the judge made were as follows:

"For the purpose of protecting the public in general from serious harm from him, the applicant is prohibited from:

(1) owning, using, possessing, or having access to any personal computer, laptop computer, or any other equipment capable of downloading any material from the internet,

(2) owning, using, possessing or having access to any personal computer, laptop computer, or any other equipment capable of viewing any form of images,

(3) purchasing or possessing any CD Rom discs, recordable CD Rom discs, floppy discs, or any other medium capable of storing or playing images as set out in paragraphs (1) and (2)."

The order also provided that it was not to prevent or prohibit the applicant from viewing lawfully broadcast television programmes, or from using such equipment as was mentioned in paragraphs (1), (2) and (3) of the order for the purpose of any lawful employment of the applicant by another, but only at such place of employment.

6. The judge did not give any reasons for making the restraining order. Section 5A(4) of the 1997 Act provides that a restraining order shall "have effect for the period specified in it or until further order". The judge did not specify any period of the order, but he did say that the order would "continue until further order". Section 5A(6) entitles an offender who is subject to a restraining order to apply for its variation or discharge at any time.
7. The critical provision for present purposes is section 5A(2), which provides:

"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."

This provision was considered recently by the Court of Appeal in Halloren [2004] EWCA Crim 233. Three points were made about section 5A(2). First, there had to be material before the judge to show that the restraining order was necessary, as opposed, for example, to it being merely desirable. Secondly, the judge had to be satisfied that the order was necessary to meet the stated aim of the order, which was to protect either the public in general, or any particular members of the public, from serious harm from the offender. Thirdly, the expression "serious harm" is not defined in the 1997 Act, but guidance as to what it means can be obtained from section 161(4) of the Powers of Criminal Courts (Sentencing) Act 2000, which provides:

"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."

The Court in Halloren concluded that the restraining order in that case, which was not dissimilar in its terms from the order in the present case, should be quashed because there was nothing to indicate that the judge had been satisfied that it was necessary to make the order to achieve the specific aim set out in section 5A(2).

8. It is plain that the particular members of the public who might be at risk of serious harm are the children who are forced to pose, or, worse, to participate in sexual conduct, for the purposes of enabling these images to be produced and disseminated. They would undoubtedly be subject to a real risk (to use the language of section 161(4) of the 2000 Act) to serious psychological injury. They would have been subjected to that risk by the persons responsible for producing and disseminating the images - the adults in the images with whom they are depicted as having sexual contact, the photographers and the like. But would they have been subjected to that risk from people like the applicant who simply downloaded the images and viewed them? Would that risk, in other words, be occasioned by further offences by such people?
9. We think they would. The serious psychological injury which they would be at risk of being subjected to arises not merely from what they are being forced to do, but also from their knowledge that what they are being forced to do would be viewed by others. It is not difficult to imagine the humiliation and lack of self-worth which they are likely to feel. It is not simply the fact that without a market for these images the trade would not flourish. 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 virtue of 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.
10. It is said on behalf of the applicant that children do not need to be protected from him because there is little or no risk of them suffering harm from him. That is because his risk of reoffending is said to be low. Reliance is placed on a report on the applicant by a chartered psychologist. Having interviewed the applicant, and having subjected him to various tests, she concluded in paragraph 6.2 of her report as follows:

"Assessment of Risk

I am not aware of Mr Beaney having any previous contact offences against a child. He claims not to have communicated with anyone regarding his interest in pornography, nor have swapped photographs in this manner. Both these factors would serve to increase the risk posed by Mr Beaney. The former, because internal inhibitions preventing abusive behaviour would have been previously overcome, the latter, because communication can serve to reinforce and maintain deviant beliefs about children and sexuality. Mr Beaney's psychological profile does not reflect the profile typical of a child sexual abuser and in my view, he poses a low risk of committing a contact offence on a child."

But this conclusion related to contact offences with children. Moreover, in the psychometric tests, which she gave the applicant, the tests showed that, although the applicant had no cognitive distortions about children and sexuality - in other words, although he did not believe that sexual contact with children was unharmful, or could be consented to - the indications nevertheless were that he found it difficult to relate to the thoughts and feelings of children.

11. Reliance is also placed on the pre-sentence report on the applicant in which the applicant was recorded as expressing a wish never to repeat these offences. The report concluded that his risk to the public was low and that both his capacity and motivation to change was high. But his assessment as representing a low risk to the public has to be seen in the context of his risk of reoffending being regarded as medium. If there is a medium risk of the applicant reoffending, the risk assessment as low has to have been based on the view of the author of the pre-sentence report that children are not at risk from people who simply view indecent images of them on the internet. For the reasons we have given, we do not share that view.
12. In our judgment, there were sufficient indications in the material before the judge to entitle the judge to form the view that there continued to be, for the time being at any rate, a sufficient risk of the applicant continuing to view indecent images of children on the internet so as to justify the conclusion that it was necessary to protect children from serious harm from him. Although the judge did not say that in so many words, we must assume that this experienced judge was aware of what he had to be satisfied about under section 5A(2) if he was to make a restraining order. As it is, it will be for the Crown Court to decide, on any application made in the future by the applicant under section 5A(6), whether the risk has become so low that the order can be discharged.
13. In a couple of respects, however, we think that the terms of the restraining order are too wide. If the applicant is not to have access at all to equipment of the kind to which the order relates, he may be in breach of the order when he goes somewhere where the public have access to such equipment, and he would be in breach of the order if his wife and children have such equipment at home for their own use. In our view, these concerns can be met by removing the words "or having access to" from paragraphs (1) and (2) of the order, and by adding the word "or" after the word "using". We accept that it may be more difficult to police the non-use of such equipment by the applicant, but it is important that the order does not go further than really is necessary in the circumstances.
14. In addition, the words "capable of viewing any form of images" in paragraph (2), and the words "images as set out in paragraphs (1) and (2)" in paragraph (3), may catch equipment on which indecent images of children cannot be viewed. We therefore propose to remove the words "capable of viewing any form of images" in paragraph (2), and substituting for those words the words "capable of downloading images of indecent children from the internet", and to remove the words "images as set out in paragraphs (1) and (2)" from paragraph (3) and substitute for it "any material from the internet".
15. For these reasons, therefore, it follows that, to that limited extent, this application for leave to appeal must be allowed, and with the ready concurrence of Mr Andrew Baughan for the appellant (as he now is), and the appellant being present, we treat the hearing of the application as the hearing of the appeal. We allow the appeal and we vary the terms of the restraining order made against the appellant in the respects which we have identified.
16. LORD JUSTICE LAWS: I think my Lord in reciting the amendments that we make to the order said "images of indecent children" where clearly it means "indecent images of children".
17. MR BAUGHAN: My Lord, yes. May I also ask for a representation order for these proceedings?
18. LORD JUSTICE LAWS: Today, for yourself?
19. MR BAUGHAN: Yes.
20. LORD JUSTICE LAWS: Yes, representation order for today, one counsel only.
21. MR BAUGHAN: I am grateful.