On the 10^th October 2003 at the Crown Court at Lewes this Appellant pleaded guilty to 7 counts of making indecent photographs or psuedo photographs of children (1 – 7) and to 16 counts of possession of indecent photographs or psuedo photographs of children (8 – 24).

On the 4^th November at the same Court H.H.J. Brown sentenced the Applicant on Counts 1 – 7 to one years imprisonment on each count. On counts 8 – 24 two years imprisonment on each count. All sentences to be served concurrently.

5284 similar offences were taken into consideration.

No appeal is made against those sentences.

The Judge also made a restraining order under Section 5A of the Sex Offenders Act 1997. The Appellant was ordered to register under the Sex Offenders Act 1997 and disqualified from working with children under Section 28 Criminal Justice and Court Services Act 2000.

It is against the restraining order that leave to appeal was granted. The Appeal came before the Full Court on the 27^th February 2004 and the hearing was adjourned as there was an apparent conflict between two decisions in this Court. R v Halloren [1004] EWCA Crim 233 and R v Beaney [2004] EWCA Crim 449.

The terms of the Restraining Order imposed by H.H.J. Brown were as follows:

The Judge ordered that the Appellant register under the Sexual Offenders Act for a period of 10 years and that the disqualification from working with children last indefinitely.

These Orders were made in respect of each offence. In fact Section 5A only came into force on the 2^nd May 2001 and so was only available on counts 8 – 24. The Order made on counts 1 – 7 must therefore be quashed.

Section 5A of the Sex Offenders Act 1997 reads:

The effect of Section 5A (4) is to make the requirement to register co-terminus with the period of prohibition when the period of prohibition is longer than the requirement to register. It also provides that the Court can specify the length of the period of prohibition. If the Court does not specify the period, then the order continues indefinitely unless and until the Court orders otherwise under subsection (7).

Subsection 6 sets out who may make the application to the Court. In this case, no period was specified for the prohibition so that it continues unless discharged on application. The requirement to register would continue indefinitely unless the Court discharged the order of prohibition within the 10 year period. It can be seen immediately that this section gives the Court very wide powers indeed, and that breach of the order may result in substantial punishment.

In the R v Halloren (Ref) H.H.J. Broderick, giving the judgement of the Court, analysed the section in this way:

To summarise the position: the Court may make a restraining order if there is material which satisfies the Court that it is necessary to make the order (in the terms that it was made) for the protection of the public or particular members of the public from death or serious personal injury, whether physical or psychological caused by further offences committed by the offender.

H.H.J.Broderick added

The Court in Halloren’s case having considered the evidence concluded that there was no material which could have satisfied the trial judge that it was necessary to make a prohibition order.

In R v Beaney the Court was referred to the judgement in Halloren and did not dissent from the basic propositions advanced in that case. But they analysed the evidence before the sentencing Judge in this way

Mr Justice Keith, giving the judgement of the Court said:

If the logic of the Court in R v Beaney is correct then, potentially every person convicted of this sort of offence qualifies for a restraining order under Section 5A.

We have no doubt that the reasoning is correct. The reasoning behind both the legislation and sentencing policy is that participation in indecent or pornographic activities damages children and that by downloading such material from the internet offenders contribute to such damage.

However, it does not follow that the Court will be satisfied that it is necessary to make a restraining order in every case. That is only one part of the test the Court must apply.

The Court should consider

Where the Court is satisfied that i) there is a real risk of the offender committing further offences and ii) that the further offences will cause serious harm to children, then it will be necessary to make a restraining order.

Where the Court makes a restraining order, its terms must be tailored to meet the danger that the offender presents. It must not be oppressive, it must be proportionate. The Court is well aware of the ever increasing legitimate use of the internet. More and more people use the internet as a source of news, information and entertainment. All sorts of products are advertised on line; and can be purchased on line. Employment may require use of the internet at home as well as in the workplace. The internet is used as a legitimate tool by both adults and children. A wide prohibition on an offender might have the effect of depriving his wife and children of the benefit of legitimate use of the internet.

This Appellant was employed as a teacher and had been for 26 years. He was arrested on the 17^th December 2002 and a search warrant executed at his house. His computer was seized and numerous indecent images of children were found. Counts 1 – 7 related to legitimately taken photographs of female pupils which the Appellant had altered. Counts 8 – 24 related to images at Levels 4 and 5 which he had downloaded from the internet. The offences taken into consideration related mainly to images at Level 1 but there were 261 images at Level 4 and 17 at Level 5. In interview, the Appellant admitted all his offences and the offences. The offences started in 1984 and continued until his arrest.

Miss Thorne, Counsel for the Appellant, makes three submissions. The first is that there was no material before the judge upon which he could decide that this appellant qualified for a restraining order. Mr. Cherrill, who appears on behalf of the Crown, submits that the court was entitled to reach that conclusion simply by looking at the nature of the material, the extent and duration of the offending and the occupation of the appellant. Mr. Cherrill submits that the Court is entitled to look at the facts in relation to the first seven counts in making the judgment as to whether a restraining order should be imposed.

We are satisfied that Mr. Cherrill’s submission is correct. The nature and extent of the material, the period of the offences and his occupation clearly qualified this appellant for a restraining order. Miss Thorne goes on to submit that the period of the restraining order, that is that it was made indefinitely was manifestly excessive. Again, Mr. Cherrill points to the nature of the material itself, the depth of what he describes as the appellant’s addiction or obsession and the fact that there was no material before the court indicating when this particular appellant’s proclivities might cease.

We bear in mid that the appellant can apply to discharge this order at any time. Keeping that in mind, we are satisfied that Mr. Cherrill’s submission as to the appropriateness of the order being indefinite is correct and that the proper order as to duration was made.

Miss Thorne’s last submission is that the terms of the order are too wide. Again, Mr. Cherrill argues otherwise. But we are satisfied that the terms of the order here are in fact too wide and must be curtailed. The prohibition in the order was Draconian. In our view, it would have been sufficient if the order had been in these terms:

The appeal is allowed to this extent. The Restraining Order on Counts 1 – 7 be quashed. The Restraining Order on Counts 8 - 24 be varied as above.