England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		18th September 2008

1. MR JUSTICE LLOYD JONES: On 1st May 2008 in the Crown Court at Aylesbury before His Honour Judge Cripps, the appellant pleaded guilty and on 30th May 2008 was sentenced as follows: on two counts of taking an indecent photograph of a child, he was sentenced to 6 months' imprisonment on each count concurrent; on 16 further counts of having an indecent photograph of a child, he was sentenced on each to a term of 6 months' imprisonment on each count concurrent and concurrent to the sentences on counts 1 and 2. The total sentence was one of 6 months' imprisonment. Not guilty verdicts were entered on three further counts, under section 17 of the Criminal Justice Act 1967. He was disqualified from working with children, under section 28 of the Criminal Justice and Court Services Act 2000. Having been convicted of an offence listed in Schedule 3 of the Sexual Offences Act 2003, he was required to comply which the provisions of Part 2 of that Act. On 13th June 2008 His Honour Judge Cripps imposed a sexual offences prevention order pursuant to sections 104 and following of the Sexual Offences Act 2003 for a term of 5 years. The applicant now seeks leave to appeal against sentence limited to one paragraph of the sexual offences prevention order, a paragraph relating to the access to be afforded to the police to his home. His application has been referred by the Registrar of Criminal Appeals to the Full Court. We have had the benefit of submissions by counsel for the applicant and the Crown.
2. The applicant was arrested on 30th October 2006 following a complaint by a customs officer. A package addressed to him was intercepted. It contained a catalogue and DVD images of naked prepubescent children. This led to a search of the appellant's property, seizure of his computer and various items from within his house.
3. Among the items seized were several home video recordings of two girls who had previously lived next door to him. The recordings had been made between 1993 and 1995. The age of the girls at the time of the videos varied as the videos were taken over a couple of years, but they were between 7 and 4 years of age at the beginning and 9 and 6 years of age at the end. The videos were, for the most part, innocent and showed the girls playing in a paddling pool or in the lounge. Their mother knew that her daughters played at the applicant's home but she was unaware of the videos that he took of them in the paddling pool. Some of videos, however, showed the girls naked and showed that the applicant had zoomed in on the genitalia of the elder girl. Videos were also seized showing recordings of the girls using the toilet in his home. These were covert recordings. Those matters gave rise to counts 1 and 2 on the indictment.
4. The remaining counts related to indecent images of children that were found on the temporary internet cache of his computer when the police searched his house. There were a total of 2562 images found on the cache, 2357 at level 1, 54 at level 2, 68 at level 3, 95 at level 4 and 3 at level 5.
5. There was a basis of plea which was as follows:

"The defendant accepts that he had visited web sites that contained type 1 pornography. His interest in such pornography was restricted to type 1 material. This accounts for the fact that 95 per cent of the images found on his computer were type 1.

Whilst visiting these sites the defendant was aware that type 2 to 4 images were also available on the site.

Whilst he did not deliberately view this material, he accepts that by going onto sites that contained these images, the images were up loaded to his temporary Internet cache. In this way he accepts responsibility for the images being on his temporary cache notwithstanding the fact that he did not go to the site to view them."

6. On behalf of the Crown Mr West, tells us the basis of plea was not specifically accepted. The Crown did not and could not gainsay the basis of plea but it was not signed or formally accepted as the contents fell outside the knowledge of the prosecution.
7. Mr West also draws to our attention that there was before the judge an exhibit, served by the Crown, containing extracts from the applicant's diary which showed that the applicant was expressing a sexual interest in his neighbour's children, the subject of the images in counts 1 and 2, over a lengthy period and there was a clear implication in the diary of the applicant going to Trafalgar Square to look at children.
8. The applicant is a retired school teacher. He is 62 years of age and was of previous good character. A pre-sentence report before the court recommended a suspended sentence order with a requirement that he attend a sex offender programme. It appeared to the author that there was a medium risk of his re-offending in a similar way given the fact that some high level images had been downloaded and his minimisation of his culpability. However, he was considered to be genuinely motivated to address his offending behaviour.
9. We are concerned solely with the sexual offences prevention order. That had been considered by counsel in advance of the hearing. When the matter came before Judge Cripps he was aware that all of the clauses proposed were not objected to by the defence except the clause prohibiting the appellant from refusing access to the police to his place of abode (Clause 6 of the final order).
10. The judge expressed his concern about the wording of some of the other clauses and as a result two clauses were deleted and two were amended. The judge heard full argument about the contested clause. He was referred to the decision of this court in R v Robin Martin Lewis [2007] EWCA Crim 3393. Reference was made to the proportionality of the clause in question, although not expressly to the terms of the Human Rights Act. On behalf of the defence it was contended that it was unduly intrusive and unjustified in the circumstances of the case. What was proposed, it was said, was an open search warrant which could not be justified. The judge then made an order which included the clause sought by the Crown but reducing the hours of access to the period from 8.00 am to 8.00 pm.
11. In making that order the judge observed that it was clear that the applicant was sexually attracted to young females. It was agreed that it was necessary to make a sexual offences prevention order for the purposes of protecting members of the public, namely young females, from serious sexual harm. The intention of Clause 6 was to enable the people charged with overseeing the order unannounced access to the applicant's home to ensure that he was not breaching conditions of the order. That was sensible and was not over intrusive or unjustified or contrary to the applicant's human rights. It was an entirely sensible condition appropriate to his case. The judge said:

"I realise it is intrusive but I take the view that in general and in this particular case it is justified by the background, by the defendant's previous procedure and by the practicality that without it, it seems to me, the order becomes virtually valueless."

12. Although this appeal relates to only one clause of that order it is necessary to refer to all its terms so that Clause 6 can be seen in context. The order reads as follows:

"The defendant is prohibited from:

1. Not to own or possess any computer or electronic device without first notifying the Police Protection Unit and allowing programme 'Net Nanny' or similar programme to be installed.

2. Not to use the Internet (or any successor to the internet) for any purpose other than work, study, seeking employment or non-sexual recreation purposes.

3. Not to view or download from any computer or electronic device any image of a person under the age of 18 years. Not to have in his possession any photograph or image of any person under the age of 18 years unless it is with the permission of that person's parent or guardian except family members and historic photographs recording his career as a teacher.

4. Not to have with him outside his place of residence any photographic equipment (including camera, camcorder or other device capable of capturing an image).

5. Not to have contact with or communicate with any person under the age of 18 years whether in person or by telephone, text message, post, e-mail, Internet forum or in any other way, save for the normal incidental and unavoidable contact in day to day life and save for family members and then only under the supervision of the person's parent or guardian.

6. Not to refuse access to his place of abode to any officer from the Police Protection Unit or any person employed by the Police to interrogate or examine computer equipment and associated programmes, software or storage media, accompanying the officer from the PPU for the purposes of examining any computer or any other electronic device in his possession. Such access is not to be required other than between the hours of 8 am and 8 pm.

7. Not to undertake any activity (paid or unpaid) which by its nature is likely to bring the defendant into contact with a person under the age of 18 years.

8. Not to approach or seek to approach or communicate by any means, directly or indirectly with [three named persons].

9. Not to live with or invite or permit any person under the age of 18 years in his house or any other place of residence at which he may be staying on a temporary basis including semi-permanent structures such as tents, caravans, boats, mobile homes and vehicles, save as set out at paragraph 5 above.

10. To stay away from playgrounds or educational establishments."

Even if clause 6 is excluded from consideration, these are plainly wide ranging and onerous prohibitions.

13. On the hearing of this appeal there is common ground between the parties as to a number of issues. A court may make an order under sections 104 to 113 of the Sexual Offences Act 2003 if the defendant is dealt with for a qualifying offence and if the court is satisfied that it is necessary to make such an order for the purposes of protecting the public or any particular members of the public from serious sexual harm from the defendant. The offences that the applicant has admitted are qualifying offences.
14. Section 107 provides in relevant part:

"(1) A sexual offences prevention order—

(a) prohibits the defendant from doing anything described in the order, and.

(b) has effect for a fixed period (not less than 5 years) specified in the order or until further order.

(2) The only prohibitions that may be included in the order are those necessary for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant."

15. So far as the order other than Clause 6 is concerned, it is accepted that it is necessary to make such an order for the purposes of protecting the public or any particular members of the public from serious sexual harm from the applicant.
16. It has occurred to this court that Clause 6, if considered in isolation, although expressed in terms of the prohibition, is not in substance a prohibition on the conduct of the applicant but is mandatory. It is also a general permission to the police to act in the way specified. However, the power of the court to impose prohibitions, it seems to us, must include the power to impose prohibitions subject to exceptions or conditions. Examples are provided by Clauses 1 and 2 of this order. In the same way it seems to us that the statutory provisions are wide enough to include, in an appropriate case, a prohibition or restriction on the use of the Internet, subject to conditions in relation to the monitoring of the non-prohibited use. That is the substance of the provision to which objection is made in the present case. The provision in question therefore has to be considered in the context of the restriction on the use of the Internet imposed by the order.
17. It appears to us that the correct approach to be adopted by a sentencing judge is to be derived from the judgment of this court in R v Collard [2005] 1 Cr App R(S) 34, a decision concerned with the earlier statutory provision contained in section 5A of the Sex Offenders Act 1997:

1. A prohibition may be imposed only if it is necessary for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant. That is a high threshold. That it may be considered desirable to impose such a prohibition would not be sufficient. There must be material before the judge on the basis of which he can reasonably conclude that a prohibition is necessary for that purpose.

2. The court must consider the number of offences, their duration the nature of the material, the extent of publication and the use to which the material was put.

3. The court must have regard to the offender's antecedents, his personal circumstances and the risk of his re-offending.

4. Where the court makes a sexual offences prevention order, its terms must be tailored to meet the danger that this offender presents.

5. The order must be proportionate to the danger presented. In this regard the judge must have regard in particular to the provisions of the European Convention on Human Rights and the Human Rights Act and in particular the right to private life under Article 8 of the European Convention on Human Rights.

18. In the present appeal it is accepted that the applicant represents a danger of serious sexual harm to the public. The essential question is whether a restriction on use of the Internet, subject to the power of monitoring in clause 6 is necessary for the purpose of protecting the public or any particular members of the public from serious sexual harm from the applicant and, if so, whether it is a proportionate response. Examined in terms of Article 8, the prevention of further crime by the applicant would be a legitimate objective. It would then be necessary to consider the proportionality of the measure aimed at achieving that result
19. On behalf of the applicant it is submitted that the clause is overly intrusive and disproportionate. It allows the police to demand entry to his home as often as they want provided it is between the hours of 8.00 am and 8.00 pm. Mr Aleeson relies on the decision of this court in R v Robert Martin Lewis [2007] EWCA Crim 3393, where a variation of an order to include a similar clause was quashed. Lewis is the only case of which we are aware in which a clause similar to Clause 6 has been considered by this court. The observations made by my Lady, Cox J, who delivered the judgment of the court on that occasion were obiter, but she did describe the clause in question there as "intrusive and unjustified" in the particular circumstances of that case.
20. However, we derive little assistance from Lewis. There an application had been made to amend an existing sexual offences prevention order to include this additional clause while the appellant was still in prison. The court considered that there was no evidence to suggest that the appellant presented any further risk or that fresh circumstances had arisen requiring further restrictions to be imposed in order to protect the public from serious sexual harm.
21. On behalf of the Crown Mr West submits that without Clause 6 the restriction on Internet access, which it is accepted is necessary, would be impossible to police.
22. In addressing the question of proportionality, we consider, first, the offences committed by the applicant. They were committed over a substantial period, but there was a gap in the offending. We are told that most of the downloading offences were committed in 2006. Two of the offences involved the applicant personally making the images involved. This indicates elements of planning and premeditation. Having said that, these offence were not the most serious of their kind. The applicant was not in possession of a substantial number of images at higher levels. The applicant provided an explanation for those higher level images found on the computer. The Crown accepts, here, that there has been no question of distribution of images to others. These offences are serious and deserving of a custodial sentence but there are undoubtedly far worse cases.
23. So far as the applicant himself is concerned, he has no previous convictions. The pre-sentence report states that although the static risk assessment indicates the likelihood of re-offending to be low, in the author's opinion it is medium having regard to the length of time over which the offending occurred, coupled with the fact that some of the offences of downloading contained high level images and also by reason of the applicant's minimisation of his culpability for downloading these images. We have already referred to those specific matters. We also have firmly in mind that we are concerned here with a 63-year-old man, of previous good character, who made full admissions of his offences and readily acknowledged his need for help.
24. We have come to the clear conclusion that in the particular circumstances of this case the provision in Clause 6 of the order cannot possibly be justified. It confers on the police an extremely wide power to enter the applicant's home for the purpose of checking his use of the computer and his use of the Internet. It amounts to the grant of a continuing search warrant which may be executed repeatedly and without the need to demonstrate any further justification over a period of 5 years. That is truly a Draconian measure. We note that there is no reported precedent in this court for the imposition of such a condition.
25. In the present case we do not consider that any provision for monitoring the applicant's use of computers and the Internet can be justified. There is here no good reason to confer on the police any wider powers of search than are vested in them under the generally applicable law.
26. Moreover, in other circumstances where a monitoring requirement may be justified, we would expect that it would normally be possible to do so by means far less intrusive than the measures proposed in the present case. We emphasise that we are not to be taken as saying that a measure such as Clause 6 could never been justified. There may well be cases of dangerous and recusant offenders where such a term would be appropriate. We would expect the application in such cases to be supported by appropriate evidence.
27. However, given the nature and level of offending and the character and circumstances of the offender in the present case, such a measure certainly cannot be justified here. For these reasons, we would grant leave to appeal against sentence and quash Clause 6 of the sexual offences prevention order.