Constantine, R. v [2009] EWCA Crim 2092

[2009] EWCA Crim 2092Case No 200901900 A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 8th October 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HOOPER
MR JUSTICE JACK
MR JUSTICE COOKE
Between
R E G I N ACrownv
Between
MARK CONSTANTINE
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr M Joyce appeared for AppellantMr R Shetty appeared for Crown
J U D G M E N T
[1]MR JUSTICE JACK: On 6th January 2009, at the Crown Court at Kingston-upon-Thames, the appellant, Mark Constantine, pleaded guilty to two counts of making indecent photographs of children. On 6th March he was sentenced by His Honour Judge Samuels QC to a community order with a requirement of three years' supervision and attendance on a sex offender programme. On 20th March the case was again before His Honour Judge Samuels and a Sex Offence Prevention Order was made under section 104 of the Sexual Offences Act 2003. The terms of the order prohibiting him from certain conduct was in these terms:
"(i) not to possess a personal computer save at place of work; (ii) not to access internet including World Wide Web save for purpose of access to e-mail and at place of work; (iii) not to possess a mobile phone capable of accessing the internet."
The order was of indefinite length; that is to say, it would last until an application was successfully made to have it set aside.[2]The appeal is against the second paragraph of the order and also against the indefinite length of the order. The meaning of paragraph 2 is not wholly clear, but it was intended by the judge, and has been understood by those representing the appellant, as preventing him from using internet at work save for the purposes of e-mail.[3]The facts relating to the offending were that on 5th March 2008 the police executed a search warrant at the appellant's home address and seized his two computers. They were examined and found to contain 18 indecent images of children. One was at level 5, three were at level 2 and 14 at level 1. It was also found that a programme called Window Washer had been installed on the computers to over-write material on the hard drive so that it could not be seen what had previously been downloaded onto the hard drive.[4]The appellant is now aged 36. He had one relevant and important previous conviction. On 27th May 2005 he had been sentenced to a three year community rehabilitation order on eight counts of taking indecent photographs of children.[5]There was a psychiatric report before the sentencing court. It stated that the appellant did not suffer from mental illness, but did suffer from a general type of personality order as a result of which he had great difficulty in relating to others. It stated that he would require treatment for at least 12 months.[6]There was also a pre-sentence report, which recommended a community order with requirements of supervision and a programme of treatment and also prohibited activity order. That was followed by the judge.[7]In discussion with counsel prior to the making of the order on 20th March 2009, the judge refused to accept that the appellant would lose his job if he could not have full access to the internet at work. He stated that an employer should not take that attitude. We were told that the appellant is no longer in his job, but that the circumstances in which it ended were unclear.[8]The order was made under section 104(1)(b) of the Sexual Offences Act 2003. That provides that the court may make an order 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 107(2) is also relevant. It provides that:
"The only prohibitions which may be included in the order are those necessary for the purpose of protecting the public or particular members of the public from serious sexual harm from the defendant."
So the requirement that any prohibition must be necessary is contained in both sections.[9]The case of Collard [2005] 1 Cr App R (S) 34 related to restraining orders under section 5A of the Sex Offenders Act 1997. That provision was not materially different to the present provisions. Collard has now been applied by this court in a number of cases arising under section 104. In Collard, as in Beaney [2004] 2 Cr App R (S) 82, it was said that the harm in these situations is to the children who are abused in the taking of the photographs which may later be downloaded. It was stated in Collard that where the court makes an order, its terms should be tailored to meet the danger which the offender presents:
"It must not be oppressive, it must be proportionate"
. The court then referred to the very wide use made of the internet for all kinds of purposes, both in employment and domestically and socially.[10]We do not consider that in the circumstances of this case it was necessary to prohibit the appellant from using the internet at work for the purposes of his work. We say that in the knowledge of the defendant's previous conviction and his use of Windows Washer. In the modern world there is commonly a need for persons who have office jobs to make use of computers and of the internet in the course of their work. Here the appellant needed to do so. Also, it is evident that the risk of an employee downloading indecent images when he is at his place of work is a much lower risk than the risk that he may do so at his home. We do not consider here that it was necessary, or to use the word from Collard "proportionate", to prohibit the appellant from making use of a computer and the internet during his employment.[11]Mr Joyce submitted that paragraph 2 should be amended to read:
"Not to access the internet, including the World Wide Web, save for work purposes at place of work"
. We accept that amendment as being appropriate.[12]We turn to the length of the order. The judge made an order that was of indefinite length, that is that any time after five years from it being made it is open to the offender to apply to the court to have the order set aside, but otherwise it remains in force. He may apply within five years but the order may not be discharged unless the chief officer of police for the area in which he resides consents: section 108(6).[13]In view of the previous conviction and in view of the use of Window Washer, we think that an order of some substantial length would certainly be required. Mr Joyce suggested to us that a five year order would be appropriate. We think that it is plain that such an order would be much too short. If an order were to be made for a period, it would have to be an order of some really quite substantial length to take the appellant to an age at which one could feel some confidence that this sort of offending was unlikely. If an order was made in such terms, for example that it should last for 20 or 30 years, that might make it more difficult for the appellant to apply to the court and to satisfy the court that his circumstances had changed and now the order was unnecessary. That is because the court to whom he applied might say that the Court of Appeal thought that an order of that length was necessary and decline to interfere with it, rather than looking at the particular circumstances at the time. We therefore do not propose to interfere with the order made by the judge that the order should be of indefinite length.[14]The appeal will be allowed to amend paragraph 2 of the order as we have stated.