Smith & Ors, R. v (Rev 1) [2011] EWCA Crim 1772

[2011] EWCA Crim 1772Case No 201100164 A6201004958 A6201101795 A7201006731 A5IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT
Venue LIVERPOOL, MOLD, TEESSIDE & BIRMINGHAM, Royal Courts of Justice, Strand, London, WC2A 2LLDate 19 July 2011
Before
LORD JUSTICE HUGHESMR JUSTICE MADDISONMR JUSTICE SUPPERSTONE
Between
THE QUEENRespondentSTEVEN SMITH, WAYNE CLARKE, BRYAN HALL & JONATHAN DODDAppellant
Mr Iain Wicks (instructed by the CPS Special Crime Division) for RespondentMr Tom Gent (instructed by Chivers Solicitors) for Steven SmithMr Gwyn Jones (instructed by Gamlins Solicitors, Rhyl) for Wayne ClarkeMr Jonathan Walker (instructed by Freeman Johnson) for Bryan HallMr Raglan Ashton (instructed by Tuckers Solicitors) for Jonathan DoddHearing Hearing date : 8 June 2011
Judgment
[1]These four cases all raise questions relating to Sexual Offences Prevention Orders (“SOPOs”). We have for that reason heard them together. They do not afford sufficient material for any comprehensive guideline upon the use and framing of SOPOs. There are many areas potentially covered by SOPOs which do not arise at all in the cases before us. In all these cases the offences presently before the court were or included offences of viewing child pornography, although some defendants presented a risk beyond a repetition of that kind of offence. The offences charged did not include ones involving physical sexual contact and we have not had to consider in detail the SOPO terms which may be needed in such cases. It is however necessary for us to address some general questions which may be relevant to those cases also.[2]A SOPO may be a valuable tool in the control of sexual offending and its associated harm. It is properly to be regarded as part of the total protective sentencing package: see Lord Judge CJ in R v C & others [2008] EWCA Crim 2790 at paragraph 14.[3]Nevertheless, in R -v- R & C [2010] EWCA Crim 907 this court said that judges are too often presented with hastily and inadequately prepared drafts of orders at a late stage in the sentencing process, indeed sometimes almost as an afterthought. Our experience confirms that this is still too often so. Sexual offences are difficult to sentence. In most cases the court is concentrating on the crucial question of whether imprisonment is called for, and, if so, for how long. There are several other ancillary orders which may have to be considered. But although the SOPO may appear to be of comparatively less importance, each of its prohibitions creates for the defendant a new and personal criminal offence carrying up to five years’ imprisonment for breach. It is likely to remain with the defendant for many years after the end of the principal sentence imposed, whether custodial or otherwise. The terms of the order are likely to have to be considered and applied by probation officers, policemen, defendants and courts for many years to come.[4]The SOPO offers a flexibility in drafting which is in one sense welcome because it enables the order to be tailored to the exact requirements of the case. That flexibility, however, must not lead draftsmen to an inventiveness which stores up trouble for the future. It will do this if it creates a provision which is, or will become, unworkable. That may be because it is too vague or because it potentially conflicts with other rules applicable to the defendant, or simply because it imposes an impermissible level of restriction on the ordinary activities of life. The SOPO must meet the twin tests of necessity and clarity. The test of necessity brings with it the subtest of proportionality.[5]As to clarity, a convenient analogy is the framing of an injunction in a civil court, which also attracts the sanction of imprisonment. The terms of a SOPO must be sufficiently clear on their face for the defendant, those who have to deal with him in ordinary daily life, and those who have to consider enforcement, to understand without real difficulty or the need for expert legal advice exactly what he can and cannot do. Real risk of unintentional breach must be avoided. See R v Hemsley [2010] EWCA Crim 225.

The statutory test of necessity

[6]Necessity is made the starting point by the statutory test contained in section 104(1). The order may only be made where 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.”
[7]As is by now well understood, the expression ‘serious sexual harm’ differs from the concept of ‘serious harm’ as used for the purposes of indefinite or extended sentences passed under Part 12, Chapter 5 of the Criminal Justice Act 2003 (dangerous offenders): R v Richards [2006] EWCA Crim 2519, [2007] 1 Cr App R (S) 120 at 734, see paragraphs [24] – [27]. This difference follows from the fact that a SOPO is in no sense conditioned upon an extended or indefinite sentence but will often be appropriate as an adjunct to an non-custodial sentence; indeed it may be made even where there is no conviction but only a caution (s 104(5) and 106(5)). ‘Serious sexual harm’ nevertheless means “serious physical or psychological harm caused by the defendant committing one or more offences listed in Schedule 3”: s 106(3).” Thus it is to the prevention of the commission of such offences that the reach of a SOPO must be tailored; it may not prohibit unusual, or socially disapproved, sexual behaviour unless such is likely to lead to the commission of scheduled offences. Further, there must be a real, not remote, risk of harm at this level occurring in consequence.[8]We respectfully repeat the useful succession of questions identified by this court in R v Mortimer [2010] EWCA Crim 1303 and which must be addressed when the making of a SOPO is under consideration. They derive from the earlier judgment of Rose LJ in R v Collard [2004] EWCA Crim 1664, [2005] 1 Cr App R (S) 34. i) Is the making of an order necessary to protect from serious sexual harm through the commission of scheduled offences ? ii) If some order is necessary, are the terms proposed nevertheless oppressive ? iii) Overall are the terms proportionate ?

Other applicable regimes

[9]When considering these questions, it must be remembered that a defendant convicted of sexual offences is likely to be subject to at least three other relevant regimes. No SOPO is needed if it merely duplicates such a regime. Nor must a SOPO interfere with such a regime. The following regimes must be considered. i) The sex offender notification rules. These derive from the Sex Offenders Act 1997 and are now contained in ss 80-102 Sexual Offences Act 2003 and in regulations made thereunder. They follow automatically upon conviction of relevant offences, which include most sexual offences. They require no order of the court. They require a convicted person to notify his local police station of his name(s), address(es), date of birth and NI number. He must then notify from time to time any address which he occupies for any period or periods totalling seven days in any year, and must do so every time before he travels, whether on work, on holiday or otherwise. He must give similar prior notification of any travel abroad, with flight details and place of accommodation. He must attend personally to give these various prior notifications and must submit to fingerprinting and photographing for identification purposes. As is well known, these requirements last for different periods according to the length or nature of sentence. In summary, they last indefinitely if the sentence is imprisonment for 30 months or more, for ten years if the term is more than 6 months but less than 30, for seven years if it is for 6 months or less, for five years if the sentence is non-custodial and for two years if there is a caution. The fixed periods, but not the indefinite period, are halved for those under 18 at conviction. In all cases, breach of the requirements is itself a criminal offence, punishable with up to five years’ imprisonment. ii) Disqualification from working with children. Where offences involve children, the defendant will almost inevitably be disqualified from working with children in future, and indefinitely, either by a court order under section 28 Criminal Justice and Courts Service Act 2000 or by the Independent Safeguarding Authority placing the defendant on the barring list pursuant to the Safeguarding of Vulnerable Groups Act 2006 (“SVGA”). Each statute contains a definitive list of occupations and positions (“regulated activites”) which a defendant subject to the disqualification or barring may not undertake. Mutatis mutandis, similar provisions apply to those who have committed sexual offences against other vulnerable complainants. Breach is a criminal offence, again carrying up to five years’ imprisonment. iii) Licence. All defendants sentenced to imprisonment will be released under statute at the half way mark, and will then be on licence until the end of the sentence. The licence may endure for several years beyond the end of the custodial term, especially in the case of an extended sentence. If the sentence is a indefinite one (IPP or DPP) the licence will continue for ever, subject to the power of the Parole Board to lift it ten years after release if satisfied that it is no longer necessary. In any of these cases, the conditions of the licence will be framed at the time of release by experienced probation officers acting as offender managers. The sanction for breach of licence is not the commission of a criminal offence, but it is recall for such period up to the expiry of the licence as the Secretary of State deems appropriate. If the offence was a ‘specified offence’ within Schedule 15 of the Criminal Justice Act 2003 or if the Secretary of State takes the view either that the defendant will present a risk of serious harm to the public or that it is necessary for the protection of the public not to release him, his recall may be indefinite. Otherwise, it is likely to be for 28 days: s 255A(2) and 255B CJA 2003.

IPP/SOPO

[10]In both R v Bolton [2010] EWCA Crim 1177 and R v L [2010] EWCA Crim 2046 this court expressed the view that generally a SOPO would not be appropriate, because it is unnecessary, if an indefinite sentence is being imposed. Rather, it was said, the court should leave the prevention of further offences to the fixing of licence conditions. Mr Wicks, for the Crown in this case, has drawn our attention to the difference between the sanction of recall for breach of licence and the sanction of conviction for breach of the requirement of a SOPO. He suggests that a conviction carries greater transparency and public condemnation, and that if a defendant should be convicted again on a future occasion a conviction for breach of a SOPO may be more readily apparent on his record than would recall for breach of licence conditions. For those reasons he suggests that a SOPO is appropriate even if an indeterminate sentence is passed.[11]We agree that those distinctions exist. They may be relevant to the licences which will follow fixed term or extended sentences. But it seems to us that they will not generally outweigh the case against making any SOPO if an indeterminate term is imposed. Release under an indeterminate term is not automatic. It is allowed only on very carefully considered licence terms. What those terms ought to be is best considered when release is being contemplated and not many years beforehand when the original sentence is passed. In the context of an indefinite sentence prisoner we do not think that there is any serious danger of a significant breach of licence condition, of the kind which might also be a breach of a SOPO if there had been one, being visited with only a brief recall. Nor do we think that in such a case there is necessity for a further public trial rather than prompt recall. There ought not, if the system works as it should, to be much opportunity for further offending after a breach and recall. If such a sequence of events does arise, the judge will undoubtedly be well apprised of the history of the offender.[12]R v N [2010] EWCA Crim 1624 contains nothing to the contrary. There, the sentence was an IPP. The argument which this court had to consider was whether the availability of a SOPO rendered an IPP unnecessary, which in that serious case of prolonged sexual abuse it did not (contrast non-contact pornography offences: see R v Terrell [2007] EWCA Crim 3079). The reverse proposition, that IPP rendered a SOPO unnecessary, did not fall for consideration.[13]We do not say that no SOPO will ever be appropriate in the case of an indefinite sentence, but we have not on the material before us in these cases been able to envisage an instance when it will. The usual rule ought to be that an indeterminate sentence needs no SOPO, at least unless there is some very unusual feature which means that such an order could add something useful and did not run the risk of undesirably tying the hands of the offender managers later.

Determinate, extended and suspended terms/SOPO

[14]By contrast, a SOPO may plainly be necessary if the sentence is a determinate term or an extended term. In each of those cases, whilst conditions may be attached to the licence, that licence will have a defined and limited life. The SOPO by contrast can extend beyond it and this may be necessary to protect the public from further offences and serious sexual harm as a result.[15]The same is true, only more clearly, where the sentence is a suspended sentence.

Notification/SOPO

(b) Notification/SOPO

[16]In R v Hammond [2008] EWCA Crim 1358, this court remarked that any SOPO has to run in parallel with the notification requirements. It added that accordingly it would normally be important that the terms of any SOPO were consistent with the duration of the notification requirements. In R v Hemsley [2010] EWCA Crim 225 this court, in reducing the length of a SOPO, relied in part on this proposition and, although this was unnecessary to the decision, appears to have read Hammond as meaning that the duration of a SOPO ought ordinarily to mirror that of the notification requirements.[17]We entirely agree that a SOPO must operate in tandem with the statutory notification requirements. It must therefore not conflict with any of those requirements. Secondly, we agree that it is not normally a proper use of the power to impose a SOPO to use it to extend notification requirements beyond the period prescribed by law. Absent some unusual feature, it would therefore be wrong to add to a SOPO terms which although couched as prohibitions amounted in effect to no more than notification requirements, but for a period longer than the law provides for. But it does not follow that the duration of a SOPO ought generally to be the same as the duration of notification requirements. Notification requirements and the conditions of a SOPO are generally two different things. The first require positive action by the defendant, who must report his movements to the police. The second prohibit him from doing specified things. Ordinarily there ought to be little or no overlap between them. If the circumstances require it, we can see no objection to the prohibitory provisions of a SOPO extending beyond the notification requirements of the statute. It may also be possible that a SOPO for less than an indefinite period might be found to be the right order in a case where the notification requirements endure for ever; that also is permissible in law.

Computer use and internet access

[18]In cases where the defendant has committed offences by use of the internet, the question is likely to arise whether it is necessary to prevent him from doing so again by imposing, through a SOPO, some restriction on computer use or internet access. Over the years different courts have adopted varying approaches to this problem. To an extent, the variation has been the result of the explosion of everyday internet use by a very large proportion of the public. In the early days, terms completely barring the defendant from possession of a computer or access to the internet were not uncommon. Latterly terms of that kind have been quashed as unnecessary and disproportionate: see for example R v Mortimer [2010] EWCA Crim 1303, R v Joslin [2010] EWCA Crim 2430, R v TO [2010] EWCA Crim 2511, R v Lea [2011] EWCA Crim 487 and R v Chamberlain [2011] EWCA Crim 517.[19]In recent cases, a number of different formulations have been adopted to restrict, without altogether removing, the defendant’s use of computers or access to the internet. One formula which has from time to time attracted this court is as follows: “Not to use the internet for any purpose other than seeking employment, study, work, lawful recreation or the purchase of goods or services.” (Hemsley) In other cases, different forms of restriction have been approved: “Not to have any computer or other form of internet access in his possession without informing the police of it.” (Mortimer and TO) and/or “Not to purchase or download any evidence elimination software” (Hammond) and/or “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.” (Hemsley and Lea) and/or “Not to use any computer or other form of internet access which does not have the capacity to retain and display the history of such use, from deleting or attempting to delete such history, and from refusing to show such history to a police officer on request.” (Mortimer,Joslin and TO)[20]It is not appropriate to attempt to lay down a rule that one particular provision be adopted in all cases. The circumstances of cases vary greatly and orders must be tailored to them. That said, we set out some conclusions. i) A blanket prohibition on computer use or internet access is impermissible. It is disproportionate because it restricts the defendant in the use of what is nowadays an essential part of everyday living for a large proportion of the public, as well as a requirement of much employment. Before the creation of the internet, if a defendant kept books of pictures of child pornography it would not have occurred to anyone to ban him from possession of all printed material. The internet is a modern equivalent. ii) Although the Hemsley formulation restricting internet use to job search, study, work, lawful recreation and purchases has its attractions, it seems to us on analysis to suffer from the same flaw, albeit less obviously. Even today, the legitimate use of the internet extends beyond these spheres of activity. Such a provision in a SOPO would, it seems, prevent a defendant from looking up the weather forecast, from planning a journey by accessing a map, from reading the news, from sending the electricity board his meter reading, from conducting his banking across the web unless paying charges for his account, and indeed from sending or receiving Email via the web, at least unless a strained meaning is given to ‘lawful recreation’. The difficulties of defining the limits of that last expression seem to us another reason for avoiding this formulation. More, the speed of expansion of applications of the internet is such that it is simply impossible to predict what developments there will be within the foreseeable lifespan of a great many SOPOs, which would unexpectedly and unnecessarily, and therefore wrongly, be found to be prohibited. iii) Some courts have been attracted to a prohibition upon the possession of any computer or other device giving access to the internet without notification to the local police. It may be that this might occasionally be the only way of preventing offending, but the vast increase in the number and type of such devices makes it onerous both for defendants and the police. Its effect is, inter alia, to require the defendant to tell the police when he buys a new mobile telephone, or a play station for his children. It seems to us that in most cases the police will need to work on the basis that most defendants, like most people generally, will have some devices with internet access, and that a requirement that they be notified of it adds little of any value. iv) There are fewer difficulties about a prohibition on internet access without filtering software, but there is a clear risk that there may be uncertainty about exactly what is required and the policing of such a provision seems likely to be attended by some difficulty. v) Of the formulations thus far devised and reported, the one which seems to us most likely to be effective is the one requiring the preservation of readable internet history coupled with submission to inspection on request. There is no need for the SOPO to invest the police with powers of forcible entry into private premises beyond the statutory ones which they already have. It is sufficient to prohibit use of the internet without submitting to inspection on request. If the defendant were to deny the officers sight of his computer, either in his home or by surrendering it to them, he would be in breach. One suitable form of such an order appears in Smith below. vi) Where the risk is not simply of downloading pornography but consists of or includes the use of chatlines or similar networks to groom young people for sexual purposes, it may well be appropriate to include a prohibition on communicating via the internet with any young person known or believed to be under the age of 16, coupled no doubt with a provision such as we mention in (v). In some such cases, it may be necessary to prohibit altogether the use of social networking sites or other forms of chatline or chatroom. See for an example Clarke’s case, with which we deal below at paragraph 33(3).

Personal contact with children: age

[21]Any provision in a SOPO must be tailored to the necessity to prevent sexual offending which causes serious harm to others. The majority of offences relating to children are committed only when the child is under the age of 16. The exceptions are offences committed under ss 16-19 Sexual Offences Act 2003 against those in respect of whom the defendant stands in a position of trust, as defined in section 21, together with family offences under ss 25 and 26. If the risk is genuinely of these latter offences, prohibitions on contact with children under 18 may be justified. Otherwise, if contact with children needs to be restricted, it should relate to those under 16, not under 18.

Personal contact with children: generally

[22]Care must be taken in considering whether prohibitions on contact with children are really necessary. In Lea (supra) the defendant had been convicted of offences of viewing child pornography. The SOPO imposed contained provisions prohibiting him from having unsupervised contact with any child under the age of 16 except in the presence of a parent or appropriate adult, and from permitting any such person to be in any house where he lived or stayed. This court rejected the submission of the Crown that those provisions were justified in case the defendant graduated to contact offences. There was no indication whatever of any likelihood of such progression. The case is a good example of overuse of a SOPO. Preventive these orders are; it does not follow that anything is permissible. It is not legitimate to impose multiple prohibitions on a defendant just in case he commits a different kind of offence. There must be an identifiable risk of contact offences before this kind of prohibition can be justified.[23]Prohibitions on contact with children may however be necessary in some cases of predatory paedophiles who seek out children for sexual purposes. Even then, care must be taken with their terms. The defendant may have children of his own, or within his extended family. If his offences are within the family, or there is a risk that offences of that kind may be committed, then those children may need protection. But if they are not, and there is no sign of a risk that he may abuse his own family, it is both unnecessary and an infringement of the children’s entitlement to family life to impose restrictions which extend to them. Even if there is a history of abuse within the family, any order ought ordinarily to be subject to any order made in family proceedings for the very good reason that part of the family court process may, if it is justified, involve carefully supervised rehabilitation of parent and child.[24]In those cases where it really is necessary to impose a prohibition on contact with children (of whichever age) it is essential to include a saving for incidental contact such as is inherent in everyday life. Otherwise the defendant commits a criminal offence if he is dealt with by a 15 year old at a shop checkout, or has dealings with a child in other similarly inevitable circumstances. The inevitably imprecise nature of this essential saving is a further reason for exercising considerable caution before imposing a prohibition of this kind. One possible form providing for such a saving is set out in the case of Clarke below at paragraph 33(5).

Occupations or activities and children

[25]Terms seem commonly to be included in SOPOs which prohibit the defendant from activities which are likely to bring him into contact with children. As to those our conclusions are as follows. i) Such a term must be justified as required beyond the restrictions placed upon the defendant by the Independent Safeguarding Authority (“ISA”) under the Safeguarding Vulnerable Groups Act 2006 (“SVGA”). If there is a real risk that he may undertake some activity outside the ISA prohibitions, then such a term may be justified. Otherwise it is not. What is covered by the SVGA needs examination in each case. The key provisions are to be found in s 5 and Schedule 4 Part 1, which defines regulated activities relating to children. Generally speaking, paragraph 2 prevents the defendant from engaging in any form of teaching, training or instruction of children, any form of care, advice, guidance or therapy, and from acting as a driver for children’s activities. That will cover most unpaid as well as formal paid occupations which carry a risk of contact offences. It will for example cover football or other sports clubs and youth groups. We suggest that judges should ordinarily require the Crown to justify an application for a SOPO term relating to activity with children by demonstrating what the risk is which is not already catered for by the SVGA. ii) The age ought ordinarily to be under 16; free association with 16 and 17 year olds is not an offence. It is otherwise if the defendant would be in a position of trust, as defined by section 21 Sexual Offences Act 2003, but in the ordinary way no such position will be permitted by the SVGA restrictions.

Providing a draft

[26]Arrangements for the provision of a draft order will necessarily vary from court to court. We say no more than that it is essential that there is a written draft, properly considered in advance of the sentencing hearing. The normal requirement should be that it is served on the court and the defendant before the sentencing hearing – we suggest not less than two clear days before but in any event not at the hearing. This will usually be possible because sentencing in such cases only occasionally follows immediately on conviction. Because the draft is likely to require amendment before it is issued by the court staff, it is sensible for it to be available in electronic as well as paper form. If a judge finds that insufficient time for consideration has been given, he has ample power to put the issue back to another hearing, but this is wasteful and the occasion for it ought to be avoided by prior service of the draft.

Wayne Clarke

[27]This defendant is now 34 years of age. In 2006 he was convicted of child pornography offences. A community order with an unpaid work requirement was made together with a SOPO lasting 5 years and he became subject to the notification requirements. He failed to comply with the initial notification requirement and he disobeyed both the community order and the SOPO. Additional hours of unpaid work were imposed in July 2007 in consequence. By November 2008 it was necessary to revoke the community order for breaches of it, together with offences of failing to surrender and further disobedience to the SOPO. He served a sentence of eight months imprisonment.[28]On his release from that term, he failed to reside at the address which he had notified to the police, which was a breach of the notification requirements. He was circulated as wanted. On 10th December 2009 he was traced to North Wales where he appeared to be living a solitary life largely confined to a rented room where he accessed the internet and consumed cocaine. Found in his room were a laptop, a memory stick, two Blackberry mobile phones and a game station; possession of internet-capable devices was contrary to his SOPO. The laptop and the memory stick contained recently downloaded female child pornography: 136 still and 2 moving images at level 1; 7 still and 2 moving images at level 2; 56 still images at level 3; 51 still and 44 moving images at level 4; and 2 still images at level 5. One Blackberry revealed that he had sent and received hundreds of text messages concerning pre-teen child pornography. Some had passed between him and a woman from his home area, whom he had ‘met’ through a dating website. She turned out to be the mother of a four year old daughter, as he knew. He had sent the woman an indecent image of a female child performing oral sex on a male.[29]In consequence he fell to be sentenced for(1) the downloading of the child pornography,(2) distributing the photograph sent to the woman friend,(3) breach of the notification provisions and(4) breach of the SOPO. There was also an offence of possessing a rock of cocaine. He pleaded guilty. His sentence totalled three years imprisonment; there is now no appeal against that term.[30]Of that three year sentence, various components totalling twenty seven months related to offences which are listed in Schedule 3 to the Sexual Offences Act 2003, whilst nine months consecutive related to the breach of the notification requirements which is not a Schedule 3 offence. The result of that is that the notification requirements resulting from the most recent convictions last for 10 years, and not for life as would have been the case if a three year sentence had all been attributable to scheduled offences. The Judge, who like everyone else at the time thought that the notification requirements would run for life, imposed a SOPO also for life. Thus in this case the question arises whether the SOPO must be limited to the duration of the notification requirements. For the reasons which we have given at paragraph 17 above, we do not think that it must, and this case is an illustration of why there is no necessary identity of duration. There is otherwise no reasoned challenge to an indefinite order and we think it was justified given the history of determined disobedience to orders, a disorganised lifestyle, drug-taking and the commission of further sexual offences. If things change, application can be made under section 108 Sexual Offences Act 2003 to vary or discharge the order.[31]The terms of the SOPO prohibited the appellant, without reasonable excuse, from the following:
“(1) Not allowing Police officers (or investigators accredited by the Chief Constable) of the area of which you are residing (whether on a permanent or temporary basis) to examine any computer equipment, mobile telephone or device capable of storing digital images (in any format) that is in your possession immediately upon request. (2) Whilst at your home, in premises at which you are residing temporarily or merely visiting or in any premises which allow internet access to the public, from having access to the internet by any means whatsoever. (3) Not co-operating with the public protection department (or department with similar remit) of the Police Force area in which you are residing whether on a permanent or temporary basis. (4) Causing, permitting or allowing any person under the age of 16 years to enter into or remain in any dwelling house or any semi-permanent structure (e.g. Tent, Caravan, Boat, Mobile Home) at which he is resident. (5) Entering, visiting or attempting to enter or visit, or be present in any dwelling house or any semi-permanent structure (e.g. Tent, Caravan, Boat, Mobile Home) where any person under the age of 16 is present. (6) Seeking to contact or seeking to communicate in any way with a person under the age of 16 years save for such contact as is inevitable in daily life. (7) Contacting or communicating in any way with any person with the intent to arrange to meet with any person under the age of 16 (whether supervised or otherwise). (8) Intentionally touching or otherwise intentionally having any physical contact whatsoever with any person under the age of 16 years. (9) Obtaining any employment whether paid or unpaid, in any role that would be likely to bring you into direct contact with any person under the age of 16 years old.”
[32]Mr Jones concedes that there is an identifiable risk, principally of internet offences, but also, on all the background information available, of progression to contact offences. However, for the reasons which we have set out in the general part of this judgment, these terms are wider than necessary. i) The blanket ban on internet use contained in clause 2 is wrong. ii) Clause 3 adds little to the notification requirements and in any event is too vague to be enforceable. iii) Clauses 4-7 prevent any social contact with boys, who there is no reason to think are at risk from this defendant; these terms would prevent him, for example, from ordinary family contact with his brother and nephews; this is unnecessary and unrealistic on the facts of this case and indeed because it would tend to isolate him further it might even increase the risk of offences; this man does however call for a prohibition on contact with, and social networking aimed at, girls under 16. iv) We are unable to see the usefulness of clause 8; if any touching were an offence it would be prosecuted independently of any breach of the SOPO; if it were not, the prohibition is unnecessary and in any event it is too wide. What is needed is control of unsupervised contact with female children. v) Clause 9 is not suggested to meet any risk not already met by the statutory barring from working with children.[33]Accordingly we allow the appeal to the limited extent that we substitute the following as terms of the SOPO:
“The defendant is prohibited from: (1) using any device capable of accessing the internet unless (i) it has the capacity to retain and display the history of internet use, and (ii) he makes the device available on request for inspection by a police officer; (2) deleting such history; (3) using the internet to contact or to attempt to contact any female known or believed to be under the age of 16; (4) possessing any device capable of storing digital images unless he makes it available on request for inspection by a police officer; (5) having any unsupervised contact of any kind with any female under the age of 16, other than (i) such as is inadvertent and not reasonably avoidable in the course of lawful daily life, or (ii) with the consent of the child’s parent or guardian, who has knowledge of his convictions.”
Like the judge, we make that order to run indefinitely. (i) it has the capacity to retain and display the history of internet use, and (ii) he makes the device available on request for inspection by a police officer; (i) such as is inadvertent and not reasonably avoidable in the course of lawful daily life, or (ii) with the consent of the child’s parent or guardian, who has knowledge of his convictions.”

Bryan Hall

[34]Hall is now 54 years of age and has no previous convictions. He had lived alone for most of his adult life. He was in regular employment. He pleaded guilty to offences of female child pornography. They came to light when he took a bin liner full of broken CDs, magazines and photographs to the local tip and someone spotted the contents. On his computer at home there were 6197 images. Of those 5940 were at level 1, 73 at level 2, 56 at level 3, 97 at level 4 and 1 at level 5. The children depicted were all girls, primarily in the age range 5–12. When first taxed with the offences the defendant said that the material must belong to a lodger, but in the end he accepted his guilt and entered a prompt plea. He was sentenced to a total of 6 months’ imprisonment suspended for 24 months with a supervision requirement for 2 years, and, crucially, a requirement that he attend a Sex Offenders Treatment Programme.[35]The Judge had a pre-sentence report which recorded that, notwithstanding his pleas of guilty, the appellant maintained that he had only been in possession of level 1 images, which he regarded as “normal”. He had been accessing pornographic material on his computer since 2003, initially adult material but later progressing to indecent images of children. He would seek these images out to satisfy his sexual urges, and print out the images he found most attractive. He would often masturbate while viewing such images. The writer of the report considered that he had a sexual pre-occupation with children, and that his use of child pornography was addictive. He appeared oblivious to the fact that the victims of such offences were the children shown on the images, or that he had contributed to a market which encouraged their abuse.[36]He had visited Thailand on a number of occasions. The report writer expressed the opinion, unsupported by any evidence that we have seen, that he had made such visits to have sexual encounters with children. The defendant said that he and a group of friends had been seeking adult female companions, and some of them were now in relationships as a result. In 2008 or 2009, during one such visit, he had married a Thai woman of around 40 years. She had subsequently come to England. She had a son and a daughter who were living with their grand-parents in Thailand, but the appellant and his wife had spent much time and money applying for visas to enable the children to live in the United Kingdom. It may be that the attempt to dispose of the pornography was made because his wife was shortly coming to stay with him. Her son is now 12 and her daughter is now 8.

The Judge made a SOPO for 7 years prohibiting the defendant from:

“(1) Living in the same household as any person under the age of 18. (2) Contacting or seeking to contact or communicate with, via any means, any person under the age of 18 years without the prior approval of the child’s parent or guardian and safeguarding children’s services save for inadvertent contact such as when shopping or in a restaurant. (3) Undertaking any activity (whether paid, voluntary or recreational) which is likely to bring him into contact with a person under 18 years of age. (4) Purchasing, leasing or renting or otherwise being in possession of any computer, i-phone or mobile phone without first notifying within 3 days the defendant’s monitoring police or probation officer of such acquisition. (5) Using any computer, i-phone or mobile phone capable of accessing the internet which computer, i-phone 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.”
[38]We agree that a SOPO was justified. There was some confusion in the pre-sentence report over the application of pre-set factors in the risk assessment process, but we do not think that there can be any doubt, given the defendant’s longstanding sexual interest in pre-teenage girls, in photographic form, that there was an identifiable risk of further child pornography offending. Just as this was a clear case for a sex offender treatment programme, so it called for some restraint on the defendant’s propensity to commit that kind of offence. The internet clause (5) is appropriate, but needs the addition of an inspection condition. Clause (4) is impracticable in its requirement for notification of acquisition but photographic and storage devices should likewise be prohibited unless available for inspection.[39]The principal argument before us related to clauses (1) and (3) which, together with (2), raise the question whether there is a risk of contact offending. But for two features of the case, it is clear that the identifiable risk presented by this defendant is of further pornography offences, rather than of contact offences. But for those two features, he is in similar case to the defendant in Lea (supra paragraph 22).[40]The principal difference lies in the possible addition to the defendant’s household of a pre-teenage girl. In our view, the combination of sexual fascination for girls of that age and the close proximity which would ensue if such a girl, unrelated except by marriage, were suddenly to arrive in his home, creates a very clear danger of the temptation to contact offences being greater than he can resist. Equally, it is perfectly possible that if the marriage is a success, and if his wife is a strong companion and mother, and with the benefit of the challenging sex offender programme behind him, he will not feel the same need as he did when living an isolated life to satisfy himself via an interest in young girls, in person or in photograph.[41]The reality is that, given his convictions, the local children’s social services will take a very close interest in the welfare of the two children of his wife, especially the girl. Even if they are given leave to reside here, which is not certain, Social Services will not permit them to live with the defendant unless satisfied that they will be safe. The understanding of that reality no doubt lies behind the terms of clause (2) which excepts from its prohibition contact with children with the approval of Social Services. In our view, the same applies to (1). The family services can be trusted to exercise the necessary control and will be in a position to examine the exact circumstances, and the attitudes of all parties, in a manner which is simply not open to a sentencing judge. If Social Services should be satisfied that the child will be safe, then it would be wrong for the terms of the SOPO to override that judgment and prevent the family living together. Conversely, if Social Services are not so satisfied, the child will not be living with the defendant and there is no occasion for terms preventing contact with children. We understood counsel on both sides to agree that clause (1) should be qualified so as to permit residence with the approval of Social Services. Since the defendant would, if the girl comes to live with him, be her stepfather, the appropriate age limit for any prohibition is 18.[42]The second relevant factor is of much less significance. In the past the defendant operated a discotheque. It is unclear whether he proposes to continue to do so or not, but if he did it would undoubtedly be the kind of activity which would be likely to present him with significant temptations. Nor is it an activity prevented by the SVGA. It is accordingly appropriate that there should be a specific prohibition on it.[43]For these reasons we allow this appeal to the limited extent of modifying what are broadly proper terms of the SOPO so that it reads as follows:
“The defendant is prohibited from: (1) living in the same household as any female under the age of 18 unless with the express approval of Social Services for the area; (2) having any unsupervised contact or communication of any kind with any female under the age of 18, other than (i) such as is inadvertent and not reasonably avoidable in the course of lawful daily life, or (ii) with the consent of the child’s parent or guardian (who has knowledge of his convictions) and with the express approval of Social Services for the area. (3) practising as a discotheque operator at events attended by children under 16; (4) using any device capable of accessing the internet unless (i) it has the capacity to retain and display the history of internet use, and (ii) he makes the device available on request for inspection by a police officer; (5) deleting such history; (6) possessing any device capable of storing digital images unless he makes it available on request for inspection by a police officer.”
Like the judge, we make that order for a term of seven years. (i) such as is inadvertent and not reasonably avoidable in the course of lawful daily life, or (i) it has the capacity to retain and display the history of internet use, and (ii) he makes the device available on request for inspection by a police officer;

Steven Smith

[44]This defendant is 36. He pleaded guilty to offences of male child pornography. He was sentenced to imprisonment for public protection with a minimum term of 28 months, representing a notional determinate term of just under five years. The indefinite sentence is not challenged. The defendant had previous convictions for rape of a boy under 16. He had previously attended a sex offender treatment programme but remained sexually aroused by males under age and had made social contact with other attenders at the programme, contrary to clear instructions. The present offences were committed on licence and both pre-sentence and psychiatric reports concluded that the defendant was manipulative, potentially predatory and feigned compliance. Indications of depression and personality maladjustment influenced and perpetuated his risk of offending.[45]On the application of the Crown, the judge made a SOPO prohibiting unsupervised contact with children under 16, the possession of photographic or picture storage devices and the use of the internet except at an educational establishment. Subject to the qualifications explained above, these were appropriate topics to be addressed by a SOPO if the sentence had not been an indefinite one. Since, however, it was indefinite there was no necessity for any SOPO. The framing of restrictions on the activities of the defendant if and when he is released is best left to the assessment of those charged with his supervision at that time. That is especially so since a critical question will be his psychological condition at the time and the reliability of any professed change of attitude; this is very difficult to assess in advance now and there is no need to attempt to do it because the exercise will have to be done if and when release is contemplated. Those considering his case then will also know where he is likely to live and what risk factors are present. Since the sentence is indefinite they will remain responsible indefinitely for the terms and conditions under which he lives; there is nothing useful which a SOPO can add. For those reasons we allow the appeal and quash the SOPO.[46]There was also one small technical error in the sentence. Alongside the 16 offences of making indecent images, which properly attracted the sentence of IPP, there was one offence of possession. That has a maximum of five years’ imprisonment and accordingly cannot be met by a sentence of IPP. We quash that sentence and impose no separate penalty for that count, it having been taken into account in fixing the minimum term: see O’Brien [2007] 1 Cr App R (S) 75 at 442.

Jonathan Dodd

[47]Dodd was 22 years of age when convicted by a jury of three offences of making an indecent photograph of a child. He is a highly intelligent and talented young man, a high-flying student studying engineering, an unusually gifted musician, and a skilled computer programmer and engineer who has been writing software since a very young child.[48]An examination of his computers revealed six images, all level 1, of young boys. The defendant declined to be cautioned and contested the case on the ground that the images must have got onto his computer unwittingly whilst he was accessing one or more websites called “Boyzoom” or with associated names. The six images were separately charged. As to three, the jury was not persuaded that the defendant had known of their existence and acquitted. As to the other three, it convicted. The judge dealt with the defendant on the basis that he was not shown to have viewed the photographs. It follows that the criminal activity of which the defendant was convicted was at about as low a level as it is possible to encounter in an offence of child pornography. The judge imposed a community order with a requirement for supervision. He also made a SOPO. He did so because the overall picture of this defendant, after conviction, was a great deal more extensive than the facts of the conviction alone.[49]The defendant is homosexual, or perhaps bisexual. That of course represents by itself no risk of committing criminal offences. But he frankly told the court that he had a strong sexual attraction to boys in the age range 10 to 15 and fantasised about sexual activity with them; those things do carry such risk. The court had available very extensive written material of his own authorship which engaged in an academic, but also in places highly personal, study of paedophilia and child sexuality, together with the limits of the norms of society and the law. Those documents revealed a struggle over some years with his sexuality. The computers in his possession also revealed that in the past there had been countless internet searches for child pornography. Although the defendant contended that some or all might have been undertaken by other family members who had access to his machines, the natural inference to be drawn from them, in combination with his professed sexual propensities and his avowed membership of internet communities such as “Boylover” and “Boyzoom” is that there is an identifiable risk of child pornography offending. That was reinforced by the fact that he disagreed with the legal norms by which level 1 photographs (and perhaps also level 2) are treated as criminal, and with the proposition that they are abusive. The judge aptly characterised him as a mixture of naivety and the intellectual arrogance of youth. For those reasons we reject the submission that no risk of future offending exists. We do accept that his documents appeared to support his assertion that he was aware of the problems created by his sexuality and that the indications were that he would not translate his fantasies about sexual activity with minors into contact offending.

The judge made a SOPO for 5 years in the following terms:

“(1) The defendant is prohibited from using the internet for any purpose other than seeking employment, study, work, lawful recreation or the purchase of goods and services without prior written permission of the Chief Constable….. (2) The defendant is 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 without the prior written permission of the Chief Constable… (3) The defendant is prohibited from interfering with, removing, bypassing, disabling or attempting to interfere with, to remove, to bypass or disable any components or settings relating to the installed security software without prior written permission of the Chief Constable…. (4) The defendant is prohibited from having unsupervised access to a child or young person under the age of 18 without the written permission of the Chief Constable…”
[51]We admire the effort which the Judge made to render the internet provisions workable. However, for the reasons which we have given above, we conclude that clause (1) is too wide. This man’s life revolves around the use of computers and the internet. It is simply not practicable to define in advance the kinds of use which he can make of it, and as we have explained an order in this form leaves significant legitimate use prohibited. The software provisions in clauses (2) and (3) are understandable but the policing of them is difficult, he is likely to have legitimate need beyond a place of employment or public facility to use computers which are not his own and which do not contain such software, and these terms would require to be supported by provision for inspection in any event. In this case also, we conclude that an order requiring a readable history and submission to inspection will better protect against the risk.[52]There is insufficient risk of contact offending in this case to justify clause (4) or anything like it. It is, moreover, a very far-reaching provision which ought not to be imposed unless the clear necessity for it is shown. The defendant should understand that the SVGA restrictions to which he will be subject may well impact on some of his musical activities especially any tuition.[53]For those reasons we allow this appeal to the limited extent of varying the terms of the SOPO to the following:
“The defendant is prohibited from: (1) using any device capable of accessing the internet unless (i) it has the capacity to retain and display the history of internet use, and (ii) he makes the device available on request for inspection by a police officer; (2) deleting such history; (3) possessing any device capable of storing digital images unless he makes it available on request for inspection by a police officer.”
Like the judge, we make that order for the period of five years. (i) it has the capacity to retain and display the history of internet use, and (ii) he makes the device available on request for inspection by a police officer;

Cited in 35 later judgments

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