England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM The Crown Court Newport
Indictment No: S20070531

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 December 2007

Ouseley J :

1. The Appellant, aged 21, pleaded guilty before Magistrates to 4 offences of making indecent photographs of a child contrary to section 1 of the Protection of Children Act 1978. He was committed for sentence to Cardiff Crown Court under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000, where he asked for 36 similar offences to be taken into consideration. The 4 offences to which he pleaded guilty involved single images at Levels 1, 2, 3 and 5 on the scale in R v Oliver [2002] EWCA Crim 2766, [2003] 2 Cr. App. R(S)15. The 36 offences taken into consideration were at Levels 1, 2 and 3, mostly at Level 1. 20 indecent images, on video clips, had been duplicated and copied onto a CD.
2. On 25 July 2007 the Appellant was sentenced by HHJ Morris to imprisonment for public protection under section 225 of the Criminal Justice Act 2003 with a minimum term of 5 months concurrent on each count, less 2 days on remand.
3. Associated orders included one under section 28 of the Criminal Justice and Court Services Act 2000 disqualifying him from working with children and he was also required to register indefinitely as a sex offender.
4. In granting leave to appeal, Irwin J considered it arguable that although there obviously was a significant risk of re-offending in a similar fashion and although those who downloaded such images contributed to the market in them and to the harm done thereby to children, sections 224-229 of the CJA 2003 required a more direct link between the offence and serious harm than was present here. A previous constitution of the CACD then adjourned the hearing of the appeal to enable the prosecution to be represented for further argument on how repetition of the offence of making indecent photographs might occasion serious harm to members of the public. A related issue concerned whether the language of the public protection regime in this respect, similar to but not the same as section 104 of the Sexual Offences Act 2003 dealing with the Sexual Offences Prevention Order regime, should be interpreted by reference to decisions under the SOPO provisions.
5. A little more needs to be said about the facts. In August 2006 the Appellant was a student. His desktop computer was kept at his parent's home where he was based during the holidays. The computer and a CD were seized by the police and the indecent images found. The Appellant admitted the offences in interview, with an untruthful gloss which he later withdrew, and pleaded guilty at the first opportunity. He had searched the internet for video images of male children between the ages of about 7 and 13, and he had then downloaded them and copied them onto a CD. He viewed them, some more than once. He had used chat rooms in which he obtained user names and passwords to enable him to access the images.
6. There were in addition, although not giving rise to any offence, photographs of adults with children in swimwear on the beach in the background apparently, taken by the Appellant or his associates. He also had a laptop which contained a file bearing a similar name to that under which the indecent images on his desktop had been found. But he said that he could no longer remember its four line access code. The Appellant had already been convicted in February 2003 when he was 16, of 26 offences of making indecent photographs of children; over 1200 images were recovered, largely at Levels 1 and 2 with some at Levels 3 and 4. For this he was sentenced to a 4 month Detention and Training Order.
7. The Judge had a Pre-Sentence Report. The Appellant had tried to pursue a University career but with limited success and with obvious disruption more recently. He was living with his brother, away from his parents because of their reaction to these latest offences. He had no alcohol problem but he was isolated and wanted to talk to counsellors, though at the end of his Detention and Training Order he had not wanted to address his offending on a voluntary counselling basis. He had spoken of this interest in indecent images of young males as a problem which was ruining his life.
8. The PSR included an eOASys assessment that the Appellant posed a "medium risk of re-offending". The Appellant said that it was "quite possible" that he would re-offend if he had internet access and felt lonely. He posed on this assessment "a high risk of sexual harm to male children aged 7-12". The RM 2000/S assessment put the Appellant into the very high risk category. Nonetheless, a recommendation was made in the Report for a Suspended Sentence Order with a view to treatment in the community. A Sexual Offences Prevention Order was considered, including provisions relating to ownership of a computer, internet access and unsupervised contact with any child under the age of 18. It turned out that the Suspended Sentence Order and community treatment was not an option available locally. The Probation Officer gave further evidence to the Judge.
9. The Judge rightly concluded that the offences were serious specified sexual offences within section 224 of the Criminal Justice Act 2003 and because of the previous conviction the Judge was obliged to consider the application of section 225 in the light of the statutory requirements in section 229 (1) and (3). He concluded as follows:-

"But it is plain to me now, taking into account the nature and circumstances of your current and those previous offences which do establish a pattern of behaviour and having regard to what is set out in the Pre Sentence Report that it would not be unreasonable for that presumption to apply.

Therefore, I am duty bound to impose upon you a sentence of imprisonment for public protection. I do so because you are assessed at being at a high risk of causing serious harm to young male children because of your compulsion which is revealed in the Pre Sentence Report and which has been helpfully amplified this morning by the author of the report in giving oral evidence to me.

It is quite plain that there is a significant risk that you will commit such offences in the future. As to whether that is likely to cause serious harm to children whose images you will feel unable or unwilling not to obtain and view, I think it is a reasonable inference that such images being produced as they are, is likely to cause serious harm of a psychological nature to the victims of the abuse which results in these images."

10. He had concluded that the images were for the most part at the lowest level and in none of the moving images which he had seen did any of the young male children appear under coercion or in distress. He also referred to aggravating features which we have already identified. The Judge concluded that but for the sentence for public protection, he would have passed a sentence of 10 months imprisonment, particularly in view of the early plea. He made no Sexual Offences Prevention Order because he thought, without the benefit of argument or intervention by counsel, that a SOPO could only be imposed where a determinate sentence of 12 months or greater had been imposed.
11. Turning to the issues, it is convenient at this stage to set out the relevant provisions from the Criminal Justice Act 2003.

Section 225: "(1) This section applies where –

(a) a person aged 18 or over is convicted of a serious offence committed after the commencement of this section, and

(b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.

(3) In a case not falling within subsection (2), the court must impose a sentence of imprisonment for public protection."

We pause to note that the Appellant has been convicted now on two occasions of a serious and specified sexual offence, as defined. Subsection (2) does not arise and, as the Judge rightly accepted, once the criterion in s225(1)(b) was satisfied, a sentence of imprisonment for public protection was required by statute.

"Serious harm" is defined in section 224 (3) as:

"Death or serious personal injury, whether physical or psychological."

12. Section 229 (1): "This section applies where –

a) person has been convicted of a specified offence, and

b) it falls to a court to assess under any of sections 225 to 228 whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences;

c) if at the time when the offence was committed the offender was aged 18 or over and had been convicted in any part of the United Kingdom of one or more relevant offences, the court must assume that there is such a risk as is mentioned in subsection (1)(b) unless, after taking into account –

a. all such information as is available to it about the nature and circumstances of each of the offences,

b. where appropriate, any information which is before it about any pattern of behaviour of which any of the offences forms part, and

c. any information about the offender which is before it,

d. the court considers that it would be unreasonable to conclude that there is such a risk."

That obligatory but rebuttable assumption arose here and was the basis for the Judge's conclusion.

13. Section 143(1) also provides:

"In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused."

14. In view of the submissions raised in relation to the SOPO regime, it is also necessary to set out parts of sections 104 and 106 of the Sexual Offences Act 2003. Section 104(1)(b) and (2) provide that a SOPO may be made where the court deals with an offence listed in Schedule 3 or 5 if:

"it is satisfied that it is necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant."

Section 106(3) states:

"Protecting the public or any particular members of the public from serious sexual harm from the defendant" means protecting the public in the United Kingdom or any particular members of that public from serious physical or psychological harm, caused by the defendant committing one or more offences listed in Schedule 3".

Those are sexual offences; Schedule 5 offences are not inherently offences of a sexual nature.

15. Mr Cobbe accepted that it was clear from the decisions of this Court in R v Beaney [2004] EWCA Crim 449, [2004] 2 Cr App R(S) 82 and R v Collard [2004] EWCA Crim 1664 [2005] 1 Cr App R(S) 34 that the previous restraining order provisions in section 5A of the Sex Offenders Act 1997 could be satisfied by the harm done through the downloading of indecent images, and that the same reasoning applied to sections 104 and 106 of the Sexual Offences Act 2003, the SOPO provisions. Downloading indecent images perpetuated the market or distribution networks and so encouraged the making of further images; children of whom such images had been made might also be harmed by knowledge of the perverted gratification, which adults, whether known to them or not, gained from looking at those images of them, even if they only came to realise that as they grew older. On the basis of those decisions, Mr Cobbe accepted that the statutory criteria for the imposition of a SOPO were satisfied. However, he submitted that sections 224-9 of the CJA required much closer links between the further specified offences which the individual offender might well commit and the causing of serious harm to members of the public. Links of the sort discussed in Beaney and Collard were too indirect. He also submitted that the degree of gravity shown here was not sufficient to show serious harm for the purposes of the CJA.
16. Irwin J had refused him permission to argue that the judge had erred in finding that there was a significant risk of re-offending, and indeed that view appears to have had support from the previous constitution of the CACD. Mr Cobbe however developed the point, which we give him leave to argue, in this way. The judge was wrong to suppose that a SOPO could only be imposed in conjunction with a determinate sentence of at least 12 months. Had he realised that no such restriction existed, he would have been able to take into account, in assessing the significance of any risk and the seriousness of any harm, the potential effect of an SOPO which contained restrictions of the sort discussed in the PSR.
17. Mr Hughes for the Crown submitted that it was now established that there were differences as well as close similarities between the SOPO and sentence for public protection regimes; R v Richards [2006] EWCA Crim 2519 [2007] 1 Cr. App. R(S)120 and R v Rampley [2006] EWCA Crim 2203. He said that the distinctions were seen as fine. R v Howe [2006] EWCA Crim 3147 established that there could be a sufficiently direct connection between simply downloading indecent images and serious harm to a child for sections 224-229 to be satisfied. Howe involved downloading some 380 indecent images of children, the vast majority of which were at Level 1 but there were also 32 at Level 3 and 53 at Level 4. The court approached the issue of whether a sentence of imprisonment for public protection should be imposed on the basis that there was no risk of direct physical assault on children by Howe and that what mattered was the general risk to children if Howe were again to look at material of the kind which had brought him before the court. This identified risk did not involve particular children such as family members. Sir Igor Judge, President of the QBD, said that the judge was fully entitled to reach the conclusion, in imposing a sentence of imprisonment for public protection, that Howe satisfied the statutory criteria. No detail is provided of any particular features which might have been drawn from any of the reports. Mr Hughes submitted therefore that the harm as found to arise in Beaney and Collard was relevant harm for the purposes of section 229.
18. In our judgment there are two decisions of particular value in understanding these statutory provisions: R v Lang and Others [2005] EWCA Crim 2864 [2006] 2 CrApp R(s) 3 and Richards, above. Lang dealt with sentences of imprisonment for public protection. At paragraph 17 (iv), Rose LJ said:

"repetitive violent or sexual offending at a relatively low level without serious harm does not of itself give rise to a significant risk of serious harm in the future. There may, in such cases, be some risk of future victims being more adversely affected than past victims but this, of itself, does not give rise to significant risk of serious harm".

19. As he said in paragraph 17 (iii), the fact that an offence is a serious specified sexual offence does not mean that its commission inevitably involves serious harm as defined being caused to members of the public. Most importantly in paragraph 17 (viii) Rose LJ said this:

"it cannot have been Parliament's intention, in a statute dealing with the liberty of the subject, to require the imposition of indeterminate sentences for the commission of relatively minor offences. On the contrary, Parliament's repeatedly expressed intention is to protect the public from serious harm, (compare the reasoning of the Court in relation to automatic life sentences in R v Offen [2001] 2 CR App R (S) 44, pps 96-99.)"

20. Richards contrasts the statutory regimes for the imposition of a sentence of imprisonment for public protection and for the imposition of a Sexual Offences Prevention Order. In Richards, a SOPO was made under section 104 of the Sexual Offences Act 2003 but no sentence of imprisonment for the protection of the public was imposed under sections 224-229 of the Criminal Justice Act. The assertion was that if the "dangerousness" provisions of the CJA were not satisfied on the facts, those in sections 104 and 106 of the SOA could not be satisfied either in view of the similarity of this wording.
21. The President of the QBD distinguished the two regimes and concluded that section 104 could be applied even when the tests in the CJA were not satisfied. As the President pointed out in paragraph 24, a non-custodial sentence is not contemplated by the provisions of sections 224-229, whereas section 104 of the Sexual Offences Act is expressly concerned with a non-custodial order which may not require a sentence of imprisonment to be passed at all, let alone one which satisfies sections 224-229. In paragraph 25, he emphasised the greater harm required by the CJA because it encompasses the risk of death which is not within the specific contemplation of section 104. The scheduled offences for the purposes of the Sexual Offences Act are different. He continued and it is useful to repeat what he said in paragraphs 26 and 27:

"These, and other fine distinctions, may provide the black letter lawyer with sufficient material to demonstrate the disconnection between these particular provisions in the Sexual Offences Act and the dangerousness provisions in the Criminal Justice Act. In our view they serve to fortify the conclusion that the statutes were not intended to be and are not linked so as to enable the provisions of one of them to override the other. The stark reality is that if the Criminal Justice Act was intended to have the impact on a sexual offences prevention order for which Mr Hillman contends, it would have been easy enough for it to say so in terms, or for the Sexual Offences Act expressly to limit or direct that the power of the court to impose a sexual offences prevention order was subject to identified provisions in the Criminal Justice Act. As it is, section 104 of the Sexual Offences Act says nothing expressly, or by implication, about sections 224-229 of the Criminal Justice Act, and these sections make no corresponding reference to section 104 of the Sexual Offences Act. Alternatively, and even more simply, the criteria for identifying the qualifying offenders, and the conditions for making the sexual offences prevention order could have been adopted.

In our judgment, these schemes were intended to be and are distinct. Therefore it is not a pre-condition to the making of a sexual offences prevention order that the judge should be satisfied that the offender would also qualify for an extended sentence (or for that matter, a sentence of life imprisonment or imprisonment for public protection), or that he should regard himself as deprived of necessary jurisdiction if they do not. That presupposes that the risk of re-offending must either be sufficient for the purposes of the dangerousness provisions in the Criminal Justice Act, or, if it is not, that it should be ignored. In short, although there may well be cases in which the potential overlap between the two sentencing regimes will require close attention, the ambit of the court's broad discretion to make a sexual offences prevention order is prescribed by the provisions which created it, without reference to section 224-229 of the Criminal Justice Act."

22. Some general comments are apposite. Richards shows that, although a sentence of imprisonment for public protection and a Sexual Offences Prevention Order both aim to protect the public from serious harm caused by re-offending, the similarity of language has served to disguise rather than to illuminate the differences between the provisions. Fine linguistic distinctions have obscured the larger considerations which are entailed by the different, though sometimes overlapping, circumstances in which the two sets of provisions are to be applied and the different consequences which they have for any offender.
23. The CJA requires that a sentence of imprisonment is appropriate; the SOA does not. The person on whom a sentence of imprisonment for public protection is passed is not released at the end of the notional determinate period; he faces, if the system works as intended, the possibility that release will be refused on safety grounds. If and when released he remains subject to the licence provisions indefinitely and for what may be a very long time. The nature of the restrictions imposed during a SOPO, which could be the only sentence passed, may be no greater than those imposed during the period of licence served after release from prison following consideration of risk by the Parole Board. It is plain that the threshold of dangerousness for the imposition of a sentence of imprisonment for public protection must be higher than for the imposition of a SOPO. The provisions of the CJA must be interpreted purposively and with those statutory consequences in mind if they are not to be applied far more extensively than Parliament intended. These serious consequences signal the degree of risk and gravity of harm which the offender's specified re-offending must occasion. The seriousness of the harm required by the CJA is emphasised by the words "death or serious personal injury." The latter phrase is deliberately coloured by the associated word "death", and stands in contrast with the language of the SOA. And it is on the serious harm occasioned by that offender's re-offending which the CJA requires attention to be focused.
24. As Rose LJ pointed out in Lang, it was not Parliament's intention to require the imposition of indeterminate sentences for relatively minor offences. Although it may be possible for the statutory criteria to be satisfied in certain cases where the notional determinate sentence is fairly short, e.g. a matter of months only, and if so the sentence is mandated by the terms of the CJA, judges should be astute to recognise and avoid the more obvious potential contradiction between the imposition of a sentence of imprisonment for public protection based on a comparatively short notional determinate period and the satisfaction of the statutory criteria, properly understood, in the light of the purpose and effect of the provisions.
25. We shall return to the question of the degree of risk which the Judge found when we consider how the Sexual Offences Act might have applied to this offender. But on the assumption he made that a SOPO was not available to him as a matter of jurisdiction, he was clearly entitled to conclude that the Appellant posed a significant risk of specified re-offending. However, in this case, the Judge did not find that the offences which might be committed in the future were different from or graver than those which the Appellant had already committed. It was not suggested that the Appellant risked progressing to physical contact offences, or becoming a photographer of or commissioner of indecent images; there was no evidence that his role in perpetuating the market would become more significant or that he would play a more important role in a distribution network. There was no suggestion that the images he was interested in would become graver or contain a higher proportion of Levels 3, 4 or 5. There was no suggestion of greater frequency of offending. We recognise the troubling indicators in relation to photographs which he or his associates had taken, which were not indecent however, and the more worrying inaccessible file on his laptop. But those factors did not play any explicit part in the assessment of risk or of the seriousness of the further offences which the Appellant was thought to be at risk of committing. The risk was of repetition of the same offence committed in the same way, albeit that that is a serious sexual offence.
26. The serious harm thus relied on here is the harm to children through the perpetuation of the market or distribution networks for indecent images. This puts children at risk of being forced to participate in the activities leading to such images, or causes psychological harm to a child who realises either at the time or later that images of him or her are being used as objects of perverted sexual gratification. There is no suggestion here however that the Appellant has any contact with children whom he might seek to photograph or to commission others to photograph, for himself, for sharing or for using as a means of gaining access to a network.
27. In all these circumstances, the re-offending which is at risk would make a direct but small contribution to the market or distribution of such indecent images; that in turn would make an indirect but small contribution to the risk that indecent images of children would be taken. A child groomed or made to participate in sexual acts for those purposes may suffer serious harm of one sort or another, depending on the activity. A child who becomes aware that he or she has been photographed for the sexual gratification of an adult, who may not even be known to them, may suffer serious psychological harm.
28. In our judgment it cannot reasonably be said, in the context of these particular statutory provisions, that there is a significant risk of this Appellant's re-offending occasioning harm to a child or children whether through perpetuating the market, or through further indecent images being taken, or through a child becoming aware of the indecent purposes to which photographs might be put. The link between the offending act of downloading these indecent images and the possible harm which might be done to children is too remote to satisfy the requirement that it be this Appellant's re-offending which causes the serious harm. At worst there would be an indirect and small contribution to a harm which might or might not occur, depending on whether further photographs were taken in part as a result of the Appellant's contribution to the market, or depending on whether a child found out about the uses to which they were put as a result. The imprisonment for public protection provisions of the CJA do not apply in the circumstances here, where simply as a matter of generalisation, a small, uncertain and indirect contribution to harm may be made by a repeat of this offender's offending. No significant risk of serious harm of the requisite gravity, occasioned by a repetition of the offending in this case by this offender can reasonably be said to exist.
29. In so saying, we do not underestimate the unpleasantness of this offence, nor the problems created by the participation of many individuals in the market for such images. The question for us however is whether the quite severe provisions of this part of the CJA are apt here; they are not. This is not a case in which the re-offending at risk involves any particular children, or a progression in terms of contact or gravity of image, or of the offender widening the network. Such circumstances could give rise to the application of these provisions.
30. In Lang, Rose LJ referred to Collard as an example of serious psychological injury arising from the downloading of indecent images of children. Collard was thought to provide a good illustration of how the 2003 CJA might apply. Howe might have been regarded as authority for the proposition that downloading indecent images could create serious harm within the CJA, merely through perpetuating the market or through the harm to the child who became aware of the use to which the photographs might be put. It would be wrong to treat that particular part of Lang and the decision in Howe as laying down any such general proposition. They did not seek to do so in this respect. The issue was not argued in Howe and did not arise for argument for Collard.
31. We briefly consider the application of the SOPO provisions of the SOA in the light of Mr Cobbe's third point for the Appellant which we have given permission for him to argue. The Judge was wrong to suppose that a SOPO was not available in the absence of a 12 month minimum determinate sentence or possibly notional determinate sentence. No statutory provision imposes such a limit.
32. We accept Mr Cobbe's point of principle that, if a SOPO could be imposed in any particular case, the restrictions which it would contain would be relevant to the decision as to whether the statutory criteria for the imposition of a sentence of imprisonment for public protection were satisfied. If apt and effective restrictions could be imposed through a SOPO, e.g. use of a computer, internet access, possibly contact with individuals or children, which would address the degree of risk and the seriousness of harm, the statutory criteria might not be satisfied. The same effect would be true of other penalties or orders. An indeterminate sentence is not required by the Act where other available sentences mean that the criteria are not met.
33. Finally, in the light of our conclusion in relation to a sentence of imprisonment for public protection, could a SOPO have been imposed here? As Richards and this judgment emphasise, the two sets of provisions should be approached differently, even though the range of circumstances in which they apply may overlap.
34. The potential utility of a SOPO in a case such as this does not mean that the tests of section 104 are necessarily satisfied. A sentencing judge however, could have been satisfied in these circumstances that a SOPO was necessary, but would not have been driven to such a conclusion. Perpetuating the market or distribution network for indecent images encourages others to commission, take or create indecent images of a level which may be capable of causing "serious" harm to children, and the child or children who might be photographed could well become aware of the use to which those photographs would be put. The indirect and uncertain harm arising from the contribution to the harm which any downloading of indecent images may have does not necessarily fall outside the scope of the SOA provisions, as discussed in Beaney and Collard.
35. So far as this case is concerned however, we quash the sentence of imprisonment for public protection, and impose instead a determinate sentence of 10 months, less the 2 days on remand.