R v Gary Brown [2024] EWCA Crim 518

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2024] EWCA Crim 518Venue Royal Courts of JusticeThe StrandLondonWC2A 2LLDate Wednesday 13 th March 2024B e f o r e:THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION(Lord Justice Holroyde)MR JUSTICE GOOSEMRS JUSTICE DIAS DBE____________________
Between
R E G I N ACrown- v –
Between
GARY BROWN____________________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground Floor, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)____________________Mr M Simpson appeared for Appellant____________________J U D G M E N T(As Approved)____________________
[1]This appeal is concerned with a challenge to a Deprivation Order made under section 152 of the Sentencing Act 2020. The appellant, Gary Brown, is aged 37. He was made the subject of a Deprivation Order following his conviction on 27th July 2023 for an offence of making indecent photographs of children, contrary to section 1(1)(a) of the Protection of Children Act 1978. His conviction followed a trial held in the Crown Court at Newcastle Upon Tyne before Her Honour Judge Clemitson. On 11th September 2023 he was sentenced to two and a half years' imprisonment. He was also made the subject of a Sexual Harm Prevention Order under section 345 of the Sentencing Act 2020. The appellant does not seek to challenge his custodial sentence or the making and terms of the Sexual Harm Prevention Order.[2]The appeal is based on a single ground: that the court wrongly made a Deprivation Order in respect of a computer server identified as Exhibit AD/15 in the proceedings. No objection is taken to the order in respect of a laptop computer identified as Exhibit AD/10.[3]The appeal is brought with the leave of the Single Judge.

The Offence

[4]On 16th September 2018 the police visited the appellant's home address in Portsmouth Road, Sunderland, following information that the appellant was in possession of indecent images. On arrest, a Samsung laptop computer was seized (Exhibit AD/10), together with a number of other digital devices, including a computer server (Exhibit AD/15). The hard drives of the laptop were interrogated and 75 Class A indecent and illegal images of children were found, which formed the evidence charged in the indictment. The ages of the children were between one and 14 years and some were in clear, discernible pain.[5]When interviewed, the appellant denied making any of the images. He said that he was a computer programmer who spent a considerable amount of time online. He stated also that he allowed a friend, his girlfriend and his mother access to his broadband. A police expert, Miss Raincock, examined the laptop further and found additionally evidence of a minimum of 300 Category A images and 19,394 files with keyword hits indicating that the actual number of illegal images might be significantly higher. The computer server (AD/15) could not be accessed, notwithstanding that the appellant had provided the password codes. No further examination was carried out in respect of that device.[6]After conviction and sentence the judge imposed the Deprivation Order in respect of both Exhibit AD/10 and AD/15. On 5th October and then 13th October 2023, the case was relisted before the judge under section 385 of the Sentencing Act 2020 for adjustment of the sentence in respect of the deprivation order. As a result of submissions made on behalf of the appellant, the judge amended the order to state:
"Exhibits AD/10 and AD/15 not to be destroyed or disposed of before six months, and must not be destroyed until the Crown have come back to court and the judge's decision has been made."
Subsequently, neither party returned to the court, such that the order remains in place and the exhibits have not been destroyed.[7]Although the appellant's custodial sentence is not the subject of this appeal, his previous convictions are relevant to the background and the judge's approach to the Deprivation Order. The appellant had convictions for 12 offences relating to indecent photographs or pseudo-photographs of children between 1st September 2007 and 26th September 2010. He had pleaded guilty to each of those offences and was made the subject of a Community Order for three years, and a Sexual Offences Prevention Order “SOPO” (the appropriate order at the time) was also imposed. That was subsequently varied on 6th April 2018, when the SOPO was discharged on the appellant's application. It was nine months later when the police arrested the appellant for the offences with which this appeal is concerned.

The Making of the Deprivation Order

[8]In sentencing the appellant on 11th September, the judge, in careful sentencing remarks said the following:
"On 26th August 2018, police officers attended your home address and seized a number of items. Subsequent examination of some of those items revealed that you had accessed a large number of indecent images of children on your personal laptop. The images themselves were stored elsewhere, most likely on the server that you had in your flat … …An initial examination by the Digital Forensic Unit using off-the-shelf tools discovered just under 2,500 thumbnail images in hidden folders within your account on one of the disc drives taken from your laptop, of which 275 were Category A for the purposes of the Sentencing Guideline. As a result of your not guilty plea and your defence statement a second examination was undertaken using other or updated tools. That found over 7,500 images, and an expert, [Miss] Raincock, conducting her own investigation found yet more. … … The only rational explanation for those findings is that you received in batches, possibly by way of file sharing, images including videos which were stored by you in a folder on a different device, most likely the server that was found in your flat. …"
[9]The server referred to by the judge was Exhibit AD/15, the subject matter of this appeal. The case was listed for mention further on 5th October 2023 in which the applicant sought to vary the deprivation order, to exclude the server. It was contended on behalf of the appellant by Mr Simpson, who acted on his behalf at trial and does so before this Court, that there was insufficient evidence for the judge to conclude to the criminal standard that the server contained more indecent photographs of children, or might be used for such purposes in the future. The judge made the following observation:
"The evidence of Miss Raincock was only part of the evidence. I am entitled to take into account the defendant's own evidence. … And never was there ever suggested any other device it could possibly have been, the server in question, and therefore I am quite satisfied that the criteria [were] met and [continue] to be met, subject to hearing any further argument about it. … … But having formed a view as to the facts of the case, it would be inappropriate for him to have the media server returned to him when it seems to me that it was either used for or going to be used for, in place of some media server that had been there before it, to process indecent images and therefore may well have indecent images on it."
[10]On 13th October 2023, the case was listed for mention for a second time under section 385 of the 2020 Act, to assess whether any progress had been made with examination of the server. It became clear that the parties were no further forward. This led the judge to amend the terms of the order preventing any destruction or disposal of either AD/10 or AD/15 before six months, and not until the Crown had returned to the court and the judge made a further decision.

The Appellant's Submissions

[11]Mr Simpson, for whose assistance we are grateful in this appeal, submits that the judge did not reach a concluded decision to the criminal standard of proof that the server contained indecent images or that it would be used for that purpose in the future. The reason that the judge did not so find was because the evidence did not support it. The judge's carefully chosen words upon making the order, and in the subsequent mention hearings, did not express a sure conclusion. It is submitted that the judge was unable so to find because the evidence of Miss Raincock, who had examined both the laptop and server, stated:
"The collective evidence suggests to me that this [the storage of the full size images] is via 'mediaserver' although I am unable to state this for certain. In order to comment further in relation to this it would be necessary to examine the AD/15 device to determine other evidence available in relation to its use."
[12]Mr Simpson also submitted that the judge had directed the jury in the trial that they did not have to decide on which device the images were being stored. Consistent with that direction the Jury convicted the appellant. The jury did not reach a sure conclusion on the evidence on which device, AD/15 or another, the images were stored.[13]The evidence effectively established, submits Mr Simpson, that the images recovered from the laptop had been transferred from another device, but that it was not possible to say which. Mr Simpson submits, therefore, that the deprivation order should not have been made in respect of the server, Exhibit AD/15.

Discussion

[14]A Deprivation Order under section 152 of the Sentencing Act 2020 is an Order made in respect of an offender for an offence and deprives that offender of any rights in the property to which the order relates. Section 153 of the Act provides that the Order is available to the court before whom the offender is convicted of an offence, where the property has been lawfully seized from them. Section 153(3) states: (a). has been used for the purpose of committing, or facilitating the commission of, any offence; or (b). was intended by the offender to be used for that purpose."[15]Section 155 of the Act provides:
"Exercise of power to make Deprivation Order (1) In considering whether to make a Deprivation Order in respect of any property, a court must have regard to — (a) the value of the property, and (b) the likely financial and other effects on the offender of making the order (taken together with any other order that the court contemplates making)."
[16]In the recent case of R v Stephen Wright-Hadley [2022] EWCA Crim 446, Carr LJ (as she then was) stated at [17] to [19]:
"17. … The following requirements and general principles are apparent from the legislation and the authorities. 18. As to substance: i) A Deprivation Order will only be available if the requirements in section 153(3) are met, namely that the property has been used for the purpose of committing, or facilitating the commission of, any offence, or was intended by the offender to be used for that purpose; ii) If available, when considering whether or not to make a Deprivation Order, a court must have regard to the factors identified in section 155(1), namely the value of the property and the likely financial and other effects of making the Order; iii) Proportionality is a relevant and important factor. The effect of a Deprivation Order should be considered as part of the total penalty imposed; iv) Deprivation orders should not be made unless they are simple and there are no complicating factors such as the existence of innocent co-owners. 19. As to procedure: i) It is for the prosecution to justify an application for a Deprivation Order. The burden lies on the prosecution to satisfy the court to the criminal standard of proof that such an Order is available; ii) There needs to be a sufficient evidential basis for a deprivation order to be sought and made, so that full and proper investigation of the basis for the Order can take place; iii) The court must make a proper enquiry into the circumstances of the property which is the subject of the application for deprivation and, where necessary, make a formal finding. Where appropriate this may take the form of a Newton hearing; …"
[17]We wish to say at the outset that this very experienced criminal judge was faced with a difficulty in the decision upon the terms of the deprivation order, given the state of the evidence. Against a background of his previous convictions, and shortly after the discharge of a Sexual Offences Prevention Order, the appellant was committing further similar offences. The judge drew an understandable inference that the server contained more indecent images. It is clear from the language used by the judge that she was unable to reach a sure conclusion, even though it was very likely. This highlights the problem when a significant quantity of digital devices or material is seized by the police who prosecute on the basis that part of it, but for reasons of practical financial resources do not examine all of the available material. This does not mean that a judge is unable to reach a sure conclusion in an appropriate case. But in this case, neither the expert witness nor the judge could be sure that the server contained relevant material, or would be used for the purposes of doing so in the future. Undoubtedly, this was the reason that the judge amended the deprivation order to preserve the laptop and server, so that they were not destroyed without a further order by the court. The difficulty with this approach is that a deprivation order cannot be made without, first, the court being satisfied to the criminal standard, that the device contains, or will in the future contain, relevant material.[18]Further, it was incumbent upon the court to take into account section 155 of the 2020 Act. On behalf of the appellant, it is submitted that the server contains personal images and files which belong both to himself and his family, and which are of important sentimental value. The destruction of the server would mean that those images were lost. Additionally, given the terms of the Sexual Harm Prevention Order which was imposed with its stringent prohibitions restricting the appellant from using computer/media devices, a Destruction Order for the server AD/15 was not made on a proportionate basis.[19]Therefore, with respect to the judge, the evidence available to the court was insufficient to reach a sure conclusion for the purposes of section 153 of the 2020 Act. Whilst the amended order has preserved the status quo, it should not have been made in respect of AD/15. It follows, therefore, that the Deprivation Order made by the judge must be quashed, only to the extent that it no longer refers to AD/15. To that extent only, this appeal is allowed.[20]Finally, we wish to echo the words of caution made by this Court in Wright-Hadley at [28]; "… The experience of this case serves to emphasise the need for judges and counsel alike to pay close attention to the statutory requirements of section 153 of the Sentencing Code and, if relevant, section 155 of the Sentencing Code, when considering whether to make a Deprivation Order. Such orders, whilst ancillary, are nevertheless subject to a specific statutory regime. They are not to be made as a matter of routine. They should only be made when the court is satisfied, after due investigation and process, that they are both available in principle and justified as a matter of proportionality." ___________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________