Hammond, R v

MR JUSTICE FORBES: On 6th December 2007, at the Luton Crown Court, this appellant pleaded guilty on rearraignment to a five count indictment. On 15th February 2008 he was sentenced as follows. On counts 1 to 4 inclusive, each of which charged him with making an indecent photograph of a child, concurrent community orders with requirements of supervision for three years and attendance on a sex offender programme were imposed on each. On count 5, which charged him with possession of an indecent photograph of a child, a further identical community order was also imposed. In addition, the judge imposed an indefinite Sexual Offences Prevention Order pursuant to section 104 of the Sexual Offences Act 2003 ("the 2003 Act"). He ordered the appellant to pay £250 prosecution costs and also ordered the forfeiture of the images and computer equipment in question pursuant to section 1 of the Obscene Publications Act 1964. Having been convicted of an offence listed in Schedule 3 of the 2003 Act, the appellant was required to comply with the notification provisions of the Act for a period of five years.

The terms of the Sexual Offences Prevention Order were to the effect that the appellant was: (i) not to purchase or download any evidence elimination software; (ii) not to have unsupervised access to any child under the age of 16; (iii) not to refuse a police officer access to any computer he owns or has access to whilst under the terms of the Sex Offenders Register; (iv) not to download any material from the internet save that applying to downloading for the purpose of any lawful employment or lawful study.

The appellant now appeals against the terms of the Sexual Offences Prevention Order pursuant to leave granted by the single judge.

The specific aspects of the Sexual Offences Prevention Order to which the appeal is directed are (1) the indefinite term of the order and (2) the breadth of terms (iii) and (iv) of the order.

The brief facts of the matter are as follows. As a result of a police investigation of people who had viewed indecent images of children through a particular site on the internet, officers executed a search warrant at the appellant's home address on 17th November 2006 and seized his computer and associated equipment. The appellant was arrested but when interviewed denied having accessed the site in question. He said that he had only viewed adult pornography when accessing the internet. He suggested that somebody else must have come into his house in order to access the child pornography site through his computer.

The computer and other equipment were analysed and the officers found a total of 25 indecent images of children.

The appellant is now aged 57. He has a number of previous convictions. They include eight previous convictions for indecent exposure, three for taking indecent photographs of a child, one for indecent assault on a female and one for permitting indecent photographs of a child to be taken.

In the pre-sentence report, dated 4th February 2008, the probation officer expressed the view that there was a high risk of further sexual offending. The probation officer also acknowledged that the appellant accepted that he needed help. In all the circumstances, the probation officer recommended a community order with appropriate requirements of supervision and attendance on a sex offender programme. The recommendations of the probation officer were accepted by the judge when imposing the sentence that he did.

As we have already indicated, the only matter that is the subject of the appeal against sentence is the Sexual Offences Prevention Order and, in particular, its indefinite term and the terms of prohibitions (iii) and (iv)

So far as concerns the indefinite period of the order, it is submitted that it is longer than is necessary and is disproportionate having regard to the other orders made by the judge. On behalf of the appellant, Miss Hunter submitted that the Sexual Offences Prevention Order should have been for a term of five years. Such a period would make it consistent with the terms of condition (iii) of the order, in which the right of access by a police officer to the appellant's computer equipment was expressed to be for the period that he was subject to the notification requirements of the 2003 Act.

We have been informed, and accept, that in circumstances such as this the notification requirements of the 2003 Act have to run parallel to the term of a Sexual Offences Prevention Order. Although the judge imposed the correct period of time in respect of the notification requirements, that period of time is overridden by the provisions relating to Sexual Offences Prevention Orders. This means that there is an inconsistency between the terms of the Sexual Offences Prevention Order imposed by the judge and the term of the notification requirements made under Schedule 3 of the 2003 Act.

We are persuaded that these submissions are correct. In general terms, when imposing a Sexual Offences Prevention Order at the same time as imposing the requirement to register under Schedule 3 of the 2003 Act, it will normally be important to ensure the terms of the Sexual Offences Prevention Order are consistent with the duration of the notification requirements.

In our judgment, the appropriate period for the Sexual Offences Prevention Order in this case would have been five years. In the event that there is any cause for concern, it would be open to the police to apply for an extension of the order. There will be a period of two years between the end of the community orders and the expiry of the Sexual Offences Prevention Order during which the police will be able to monitor the appellant's computer activity to ensure that the benefits that one hopes will be achieved as the result of the programme to which the appellant is committed under the community orders having been successful.

So far as concerns condition (iii) of the order, Miss Hunter submitted that it was unnecessary and disproportionate to enable police officers to have access to any computer to which the appellant has access, as opposed to having access to any computer that he owns.

We do not agree with that submission. In our view, the terms of the original Sexual Offences Prevention Order are entirely satisfactory in that respect. If we were to accede to Miss Hunter's submission, the modification to term (iii) which she suggested, namely the removal of the words "or has access to", would give the appellant an obvious way of avoiding the effectiveness of the right given to the police to search his computer equipment. In our view, the original term is not disproportionate, nor is it too wide.

However, we do agree that term (iv) is too wide. For example, currently expressed, the term would prevent the appellant from accessing the internet to order a train ticket or to book a holiday. The purpose of a Sexual Offences Prevention Order is to do exactly what it says, namely the prevention of sexual offences of the type that the subject of that order has committed, and any term of the order must be both proportionate and designed to achieve that purpose.

In our view, the current term (iv) is far too wide and should be quashed. For it we would substitute the following term which will achieve the necessary protection against the risk of this appellant exploiting or otherwise using or accessing child pornography, namely this, that "he is not to download any photographs or pseudo photographs of any person under the age of 18". Accordingly, we quash the current term (iv) and for it we substitute one in the terms that we have just expressed.

To that extent, and for those reasons, this appeal against sentence is allowed. The Sexual Offences Prevention Order will be for a term of five years, term (iv) will be quashed and for it will be substituted the one in the terms to which we have just referred.