Hemsley v R [2010] EWCA Crim 225

Case No 2010/00294 A6[2010] EWCA Crim 225IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BOURNEMOUTH
HHJ HARROW
S20090229
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/02/2010
Before
LORD JUSTICE HOOPERMR JUSTICE OPENSHAWHHJ COOKE QC, THE RECORDER OF CARDIFF(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
Between
Daniel Mark HemsleyAppellantThe CrownRespondent
Miss Anne Brown for AppellantHearing Hearing date: 3 February 2010
JudgmentHIS HONOUR JUDGE COOKE QC:
[1]On the 11th September, 2009 at the Bournemouth Crown Court this Applicant, having earlier pleaded guilty and been committed for sentence was sentenced by HHJ Harrow to 6 months imprisonment, concurrent on each of 23 counts of making an indecent photograph or pseudo-photograph of a child. In relation to that sentence of imprisonment there is no attempt to appeal. It is noteworthy that of the 6,592 images discovered on the Applicant’s computer, 6,565 were at level 1, 20 at level 2, 2 at level 3, 5 at level 4 and none at level 5. There were also 71 moving images, 24 at level 1, 18 at level 2 and significantly 29 at level 4. The Applicant was of hitherto clean character and is now aged 27. No material tending to show that the applicant was progressing towards offending directly against children was discovered.[2]The Applicant was made subject to a Sexual Offences Prevention Order (“S.O.P.O.”) for an indefinite period and it is that order which is now sought to be challenged by Miss Brown for whose assistance we are very grateful. No doubt because there was no material tending to show that the Applicant was progressing towards offending directly against children there was no application for and no S.O.P.O. prohibiting the Applicant from being in the company, unsupervised of the children of friends or family. The terms of the order which was granted was as follows:
“a. Not to own or use any computer, electronic, magnetic or optical device which has the capability of storing, receiving or transmitting data without permitting any police constable to enter the premises upon which they are kept in order that they can examine and if necessary remove any such device for the purpose of carrying out such an examination. b. Not to own or possess any image of a naked child, under the age of 18, whether printed, digitally or electronically stored. This includes any image of a naked child under the age of 18 that has been published in any book or film that has been on general release within the UK. For the purpose of this prohibition naked child means any female under the age of 18 years who has their nipples, genitals or buttocks exposed or any male under the age of 18 years who has their genitals or buttocks exposed. c. Not to work either paid, unpaid or voluntary where he may have access, directly or indirectly to any child under the age of 16. d. Not to have any involvement with any club, team group or organisation that is likely to bring him into contact with children under 16.”
[3]Section 104 of the Sexual Offences Act, 2003 confers a power to make a S.O.P.O. if the Court 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) of the Sexual Offences Act, 2003)[4]Key words or phrases in that statutory provision, often overlooked are “necessary”, “for the purpose of protecting” and “serious harm”. We also consider that it is essential, bearing in mind that a breach of a S.O.P.O. is a criminal offence carrying a maximum sentence of 5 years imprisonment by virtue of Section 113(2) of the Sexual Offences Act, 2003, that such orders are clear on their face, capable of being complied with by the subject thereof without unreasonable difficulty and/or the assistance of a third party and free of the real risk of unintentional breach. Such orders need to be carefully drafted and bearing in mind that, although not the case in this instance, they are often made against those of limited education, simplicity is a virtue. Against that background we find much to criticise in this S.O.P.O.[5]The first prohibition cannot be described as necessary in the relevant context and it is potentially incapable of compliance without the assistance of a third party, e.g. the occupier of the premises upon which the device is used and/or the owner of that device. This prohibition is further an impermissible attempt to confer extensive powers of search and seizure upon the police, pursuant to a statutory provision which only enables an order preventing something from being done to be made. S.O.P.O s should not create a situation in which police powers of search and seizure are extended with none of the procedural safeguards which usually and importantly regulate the exercise of such powers. Further, given this Applicant’s academic and employment background the effect of this prohibition would be seriously to compromise his employability.[6]The second prohibition also cannot be described as necessary in the relevant context. It is clearly capable of unintentional breach because it is impossible in advance to know whether, for example, a film on general release might include an image of the buttocks of a naked baby. It would appear to criminalise the possession of mainstream books, DVD’s and other forms of media dealing with art (because there might be a depiction of the near naked child therein) archaeology (because there might be a depiction of a naked cupid), architecture (for similar reasons) and so on. Such a wide prohibition can have no legitimate object within the contemplation of the statute.[7]The third prohibition is likewise unnecessarily wide and unjustifiable in terms of the statute. Since it extends to contact in the presence of others and also to indirect contact it would, for example, prevent the Applicant from working in any shop or sending a Christmas card to a family member under 16. Such restrictions cannot be “necessary……for the purpose of protecting the public……from serious sexual harm …..”[8]The fourth prohibition falls into the same category and is liable to similar criticism. Since it also extends to contact in the presence of others and applies to any involvement it would arguably prevent him from attending a Church or a football match. Again such restrictions cannot be “necessary……for the purpose of protecting the public……from serious sexual harm ….”[9]Both the third and fourth prohibitions seek to address potential concerns which are better left to be dealt with under the Safeguarding Vulnerable Groups Act, 2006 the detailed provisions of which are better suited to manage risk in a case of this type than a S.O.P.O.[10]As this Court observed in R. v. Terrell [2008] 2 Cr. App. R. (S.) 49, at page 301, supporting and therefore tending to perpetuate a market or distribution network for indecent images may encourage others to commission, take or create images which may involve the causing of serious sexual harm to children. In a case of this type therefore the making of a S.O.P.O. may be necessary so as to protect against that risk and in the instant case as much is conceded. There was however no evidence below or before us enabling the conclusion to be reached that an order as wide as that which was made was necessary. Indeed to a large extent the provisions of the order which was made have no relation to the only identifiable risk.[11]We accordingly quash the existing S.O.P.O. and substitute one in the following terms: 1. Not to use the internet for any purpose other than seeking employment, study, work, lawful recreation or the purchase of goods or services. 2. Not to own or use, save at his place of employment or at a supervised facility open to the public, any computer with access to the internet which does not have a software programme designed to prevent access to child pornography installed and in operation.[12]Bearing in mind the fact that this Applicant has only been convicted on one occasion, has indicated a wish to co-operate with assistance intended to reduce the risk of re-offending and has the benefit of supportive parents we consider that the appropriate period for a S.O.P.O. was 7 years from conviction; the same period as that for which the notification provisions will operate. In so doing we adopt the approach previously taken in this Court in R.v.Hammond [2008] EWCA Crim.1358 in which the view was expressed that it will generally be appropriate for a S.O.P.O. to run for the same period as the notification requirement. The reference to a 10 year period in relation to notification at sentence was an error.

Cited in 7 later judgments