Mortimer, R. v [2010] EWCA Crim 1303

[2010] EWCA Crim 1303Case No 200904287 A9
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 25th May 2010
Between
R E G I N ACrown
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE AIKENS
MR JUSTICE ROYCE
THE RECORDER OF REDBRIDGE HIS HONOUR JUDGE RADFORD QC
(Sitting as a Judge of The Court Of Appeal Criminal Division)
__________________
v
Between
JASON CHRISTOPHER MORTIMER__________________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 D OWEN appeared for AppellantJ U D G M E N T

LORD JUSTICE AIKENS:

This

[1]is an appeal against the orders made in a Sexual Offences Prevention Order imposed by His Honour Judge Stokes upon the appellant on 4 April 2008 following the appellant's conviction after trial on three counts of sexual assault on a child under 13 and one count of causing or inciting a child to engage in sexual activity. Judge Stokes had sentenced the appellant to imprisonment for public protection with a minimum term set at 3 years.[2]The appellant, who is now aged 37, had a history of sex offences against children even before the present offences. In February 2003 he was imprisoned to extended sentences of 32-months plus three years in respect of three offences of gross indecency with a child and also 3 offences of indecent assault against a female under 14.[3]In relation to the present offences the appellant had been released on licence from custody for the previous offences just mentioned and had then befriended a woman who had two young girls aged 4 and 8. The elder one was the complainant concerning the 3 counts of sexual assault on a child under 13 and causing or inciting a child to engage in sexual activity. We do not need to go into the detail of the offences, it is enough to say that they are serious.[4]The pre-sentence report said that the appellant continued to deny his offences, whereas it was clear that he was sexually attracted to young girls and he may have targeted the mother of the complainant in order to get access to the complainant. The report noted a history of repeat offending when on licence and a failure to comply with supervision. There was a concern about the compulsive nature of the appellant's offending and the appellant's own inability to manage his risk to others. The appellant had been recalled from licence four times. The risk of reoffending was assessed as high and the risk of harm to children very high.[5]When Judge Stokes passed sentence he described the appellant as an exceptionally dangerous paedophile who presented a significant risk to young girls. He was quite satisfied that it was a case which called for the protection of the public by a sentence of IPP.[6]The judge appears to have been given a ready prepared draft Sexual Offences Prevention Order with the proposed prohibition set out in manuscript. In relation to the order the judge simply said he would make the order "in the terms I have indicated." There are 16 prohibitions in the order in all. They are all imposed for an in definite period.[7]Complaint is made about those numbered 10 to 16. The terms of those are as follows:
"10. Having in his possession any photo of a child under 16 unless with permission. 11. Possessing a computer. 12. Using the internet or its successor for purposes other than work, study or seeking employment. 13. Operating private internet account. 14. Subscribing to, accessing or attempting to access internet. 15. Downloading and/or viewing on any computer any image of young persons under 16 unless with permission from parent or guardian. 16. Possessing a mobile phone or other technology capable of capturing an image which has been obtained via internet."
[8]On behalf of the appellant Mr Owen has submitted that the terms of these orders are too wide, indefinite and insufficiently clear to fulfill the object for which they are intended to be given. That object is to protect individual members of the public and the public in general.[9]The power to impose Sexual Offences Protection Orders ("SOPOs") is set out in the Sexual Offences Act 2003 sections 104 to 113. The Crown Court has the power to make a SOPPO where the court deals with a defendant for an offence listed in schedule 3 or 5 in that Act, see section 104(2). This power is only available where the court is satisfied it is necessary to make such an order for the purpose of protecting the public, or any particular members of the public, from sexual harm from the defendant: see section 104(1)A. The only permissible prohibitions are those necessary to protect the public or any particular members of the public from serious sexual harm from the defendant.[10]In the case of R v Collard [2005] 1 Cr.App.R.(S.)34; [2004] EWCA Crim 1664, Rose LJ, the Vice President, dealt with the Sexual Offences Act 1997 which gave the criminal courts powers to impose restraining orders when various types of sexual offences had been committed. The principles set out in that case had been applied to the provisions of the Sexual Offences Act 2003 in relation to SOPOs, see for instance R v Terrell [2008] 2 Cr.App.R.(S.) 49; 2007 EWCA Crim 3079. In Collard, Rose LJ emphasised that any SOPO made under the provisions of what are now the Sexual Offences Act 2003 must be tailor made to meet the dangers that the particular offender represents. Moreover the orders must not be oppressive, and must be proportionate. Rose LJ also noted that the computer and the internet are increasingly used for all aspects of work and legitimate leisure.[11]We have to ask ourselves 3 questions, therefore: first, is the order complained of necessary to protect the public generally or any particular member of the public from serious sexual harm. Secondly, if it is necessary at all, are the particular terms of the order that has been made oppressive. Thirdly, are the terms of the particular order made proportionate?[12]We now consider the particular terms complained of; the first is provision 10. We can see that the possession of photographs of particular children under 16 could pose a danger of serious sexual harm to that child. However, we do not think that a blanket prohibition such as is imposed in the present order is justified. It is also vague and indefinite. Paragraph 11, which is a prohibition on possessing a computer at all, is draconian. A similar provision was originally made in Collard. It is in our view neither necessary for the protection of the public generally or of specific individuals. It is oppressive and it is not proportionate.[13]The next provision in 12 is against using the internet for purposes other than work, study or seeking employment. In our view that is neither necessary nor is it proportionate. It is also almost impossible, if not wholly impossible, to police it properly.[14]Provision 14 deals with subscription to the internet and provision 15 deals with the downloading of any images of young persons under 16. 14 suffers from the problem that it is almost impossible to police. 15 is something which does need to be dealt with specifically. 16 prohibits the possessing of a mobile phone at all where it is capable of capturing an image which has been obtained by the internet. Again, it is in our view impossible to have such a provision without preventing the appellant having a mobile phone at all, because of the way technology has advanced and continues to advance.[15]Given our views on these provisions, we are going to alter the terms of the existing order by replacing the current paragraphs 10 to 16 with the following:(1) A new paragraph 10. The order will be (and this is all under the general heading that the defendant is prohibited from doing various things): possessing any photograph in any form of any child under 16 years of age other than a member of the defendant's family and then only with the written permission of that child's parent or guardian which shall not include the appellant.(2) The new paragraph 11 will be: purchasing or leasing or renting or otherwise being in possession of any computer, iPhone or mobile phone without first notifying, within 3 days, the defendant's monitoring police or probation officer of such acquisition.(3) The new paragraph 12 will: be using any computer, iPhone or mobile phone capable of accessing the internet, which computer, iPhone or mobile telephone does not have the capacity to retain and display the history of internet use; and from making any attempt to delete such history on such device; and from refusing to show such a history to a police officer if so requested.[16]Obviously that revised order will be drawn up and there will be a transcript of the judgment for you to check.[17]To the extent indicated this appeal is allowed.

Cited in 4 later judgments