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IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT SNARESBROOK (HER HONOUR JUDGE ENGLISH) (01HT5065722) CASE NO: 202500973 A5 NCN: [2026] EWCA Crim 129 |
Royal Courts of Justice
Strand
London
WC2A 2LL
Before:
LADY JUSTICE ANDREWS
MR JUSTICE PICKEN
RECORDER OF CARDIFF
(Her Honour Judge Tracey Lloyd-Clarke)
REX
v
BABLOO MIAH
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Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
_________
MS CHARLOTTE BRANFIELD appeared on behalf of the Appellant
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JUDGMENT
MR JUSTICE PICKEN:
This is an appeal against sentence after the grant of leave by the single judge.
On 21 April 2024, having pleaded guilty before Thames Magistrates' Court, the appellant was committed for sentenced pursuant to section 14 of the Sentencing Act 2020 in respect of a number of offences, namely: attempting to engage in sexual communication with a child — Charge 1; attempting to cause a child to watch or look at an image of sexual activity — Charge 2; and attempting to cause/incite a girl aged 13 to 15 to engage in sexual activity — Charge 3
Subsequently, on 17 February 2025, in the Crown Court at Snaresbrook, the appellant was sentenced to 12 months' imprisonment suspended for 2 years in respect of Charge 1, to 20 months' imprisonment suspended for 2 years in respect of Charge 2, and to 20 months' imprisonment suspended for 2 years in respect of Charge 3, all those sentences being made concurrent with each other.
The conditions attached to the suspended sentence orders were that the appellant should fulfil a programme requirement, as well as a rehabilitation activity requirement.
The appellant was also, most relevantly for present purposes, made the subject of a sexual harm prevention order, which was expressed to last for 10 years.
Furthermore, having been convicted of an offence listed in Schedule 3 to the Sexual Offences Act 2003, the appellant became subject to a requirement to comply with the provisions of Part 2 of the Act (Notification to the police) for 10 years.
The underlying facts can be straightforwardly described. All the offences were committed between 30 July 2020 and 27 November 2020, and entailed the appellant, who was of previous good character, believing that he was communicating with a 14-year-old girl called Abbey James, in circumstances where in fact Abbey James did not exist since she was an adult decoy operating as part of the vigilante group Justice for Kids.
The appellant added Abbey James as a contact on the social messaging application Kik. His messages quickly became sexual. He sent her pictures of his penis and videos of him masturbating. The appellant told Abbey James that he wanted to have sexual intercourse with her and suggested that he would book a hotel room for them for that purpose. He sent pornographic videos of adults engaging in sexual intercourse and another of a woman masturbating. The appellant encouraged Abbey James to try it herself. The two also communicated via WhatsApp and exchanged telephone numbers. The appellant told Abbey James that nobody should find out that they were talking and that she should delete their conversations.
On 27 November 2020 Justice for Kids contacted the police after going to the appellant's workplace to confront him. The group detained the appellant outside until police officers arrived. The appellant immediately told those officers that he had been speaking with an underaged child and that the nature of the conversations with that believed to be child had been sexual. He also admitted sending pictures of himself masturbating. The appellant was arrested and gave no comment to all questions in interview. His mobile phone was examined and his WhatsApp conversations with Abbey James were recovered.
It is unnecessary, given the limited nature of the appeal, to set out details from the judge's sentencing remarks. All that should be noted is that, when dealing with the sexual harm prevention order that she was being asked by the prosecution to make, the judge explained that, in her view, given the nature and seriousness of the offences, their duration and the fact that the appellant told the decoy to delete their communications, as well as the fact that the level of potential harm that could have been occasioned had Abbey James been a real child, it was necessary and proportionate that an order as sought by the prosecution be made, albeit that the judge made certain modifications to what was proposed. The judge then, importantly and only briefly, said that the order "will run, as with the notification requirements, for a period of 10 years".
It is in relation to this last aspect — the duration of the order — that the present appeal is directed, since Ms Branfield, who appears on behalf of the appellant and to whom we are grateful for her succinct and impressive submissions, submits that 10 years was manifestly excessive, specifically that the judge was wrong to arrive at that length of time simply on the basis that it matched the notification period rather than by considering what duration was necessary and proportionate in the management of the risk of sexual harm. Ms Branfield goes on to submit indeed that the length of the order was disproportionate to the risk posed by the appellant and, furthermore, that it was disproportionate also to the circumstances of the offending behaviour and the appellant himself.
In considering Ms Branfield's submissions, it is convenient to have in mind the provisions contained in the Sentencing Act 2020 which deal with sexual harm prevention orders. These are sections 345 and 346 as follows:
Sexual harm prevention order: availability on conviction
Where a person is convicted of an offence listed in Schedule 3 or 5 to the Sexual Offences Act 2003 (sexual offences, and other offences, for the purposes of Part 2 of that Act), the court dealing with the offender in respect of the offence may make a sexual harm prevention order
Where an offence listed in Schedule 3 to that Act is listed subject to a condition that relates—
to the way in which the offender is dealt with in respect of an offence so listed, or
to the age of any person
that condition is to be disregarded in determining for the purposes of subsection (1) whether the offence is listed in that Schedule.
Exercise of power to make sexual harm prevention order
Where a sexual harm prevention order is available to a court, the court may make such an order only if satisfied that it is necessary to do so for the purpose of—
protecting the public or any particular members of the public from sexual harm from the offender, or
protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the offender outside the United Kingdom.
If a list has been published under section 172 of the Police, Crime, Sentencing and Courts Act 2022 (list of countries where children are at a high risk of sexual abuse or sexual exploitation) and has not been withdrawn, the court must have regard to the list in considering—
whether a sexual harm prevention order is necessary for the purpose of protecting children generally, or any particular children, from sexual harm from the offender outside the United Kingdom, and
in particular, whether a prohibition on foreign travel (see section 348) is necessary for that purpose."
Furthermore, section 347(2) makes it clear that a sexual harm prevention order can be imposed for a fixed period of not less than 5 years or an indefinite period, so that the prohibition has effect until further order, with the exception of a foreign travel prohibition which must be for a fixed period of not more than 5 years in accordance with section 348.
Turning to the case law, the legal test for an order that limits individual freedoms such as the terms of a sexual harm prevention order is one of ‘necessity’, which means "higher … than, for example, ‘desirable’": see R v Collard [2004] EWCA Crim 1664 in the context of a restraining order. In addition, it is well established that the court must consider the question of proportionality.
As made clear in R v Smith [2012] 1 Cr App R (S) 82, this — the need for necessity and proportionality — applies both to the duration and terms of a sexual harm prevention order: see per Hughes LJ (as he then was) at [4-8], [6-17] and [20-21]. Given the issue that arises on this appeal, it is in this context worth setting out in full what Hughes LJ had to say at [16-17], in particular which was this:
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.
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."
This makes it clear that, whilst sexual harm prevention orders and notification requirements should operate in tandem, it does not follow that the duration of a sexual harm prevention order ought generally to be the same as the duration of notification requirements since they are different things. In particular, whilst notification requirements are determined by statute and apply automatically on conviction pursuant to section 80 of the Sexual Offences Act 2003, that is not the position in relation to a sexual harm prevention order since that is inherently discretionary.
In this respect, R v Hanna [2023] EWCA Crim 33 is instructive because in that case the Court of Appeal considered it to be an error to take the view that the sexual harm prevention order had to be of the same length as the notification period — there, an indefinite requirement. Henshaw J put the position in this way at [34]:
" The relevant statutory test under section 346 of the Sentencing Act 2020 is whether a SHPO is necessary to protect the public, or any particular members of the public, from the risk of sexual harm: which is defined in section 344 as physical or psychological harm caused by the commission of offences listed in Schedule 3 to the Sexual Offences Act 2003. The focus is thus necessarily on the risk, if any, of harm caused by unlawful behaviour within that Schedule. The order must be imposed for no longer than necessary, and in R v McLellan, R v Bingley [2017] EWCA Crim 1464 this court made clear that indefinite SHPOs should not be made without careful consideration, nor as a default option. The judge in the present case does not appear to have asked himself the questions necessary to address these matters. He imposed an order relating to contact with female children under 16 despite there being no evidence that the case involved or carried implications for children under 16. The judge also did not, at least expressly, address the considerations relevant to the length of any order. Instead he seems to have taken the view that it had to be the same length as the period of notification under Part 2. This was an error."
There is, however, other authority which might be thought to point in the other direction since in R v Stevens [2023] EWCA Crim 397 the Court of Appeal reduced the sexual harm prevention order from 10 years to 5 years by considering both what was necessary to manage the risk and that the reduction would cause the length of the sexual harm prevention order to equal the notification period. Specifically, Warby LJ stated as follows at [18]:
"The principles that emerge from the authorities we have mentioned include the following: (1) an SHPO should only be imposed if and to the extent of its terms, including the arrangements, are both necessary to protect against an identified risk of harm and proportionate to the nature and scale of that risk; (2) these issues should be the subject of careful consideration by the parties and judge; (3) having identified the appropriate period, the judge should give reasons for this decision on that issue; and (4) the appropriate period of an SHPO will be the same as the period for which the notification requirement needs to last; the two should be in line with one another."
Warby LJ went on to state the following at [20]-[21]:
In this case, these principles were not applied. There was, seemingly, no discussion about the duration of the order. It is certainly not apparent why the judge selected a 10-year period for the SHPO. He does not appear to have appreciated that the effect of the SHPO would be to impose a 10-year notification period. He mistakenly told the appellant that his notification requirement would last for five years. It may be that had the judge been alive to the true position he would at least have paused before imposing a 10-year SHPO. At any rate, we are satisfied that in doing that the judge fell into error.
This appellant had shown a degree of insight and some commitment to addressing the underlying reasons for his offending. There was reason to think that his understanding would improve in the short to medium term and that his risk of re-offending would reduce over time. In our judgment an SHPO was necessary, but the minimum period of five years was sufficient to cater for the risks posed by this appellant on the material before the sentencing judge. That period matched the statutory notification period. There was nothing in the facts of the offending, the appellant's antecedents, or the pre-sentence report to indicate a real need to go beyond that period. A 10-year period was disproportionate, and to that extent unnecessary."
We consider that there is some need for caution here however, since in our view, despite the observations of Warby LJ at [18], specifically in sub-paragraph (4), Warby LJ ought not to be taken as saying that the duration of a sexual harm prevention order must always match the duration of the applicable notification requirements. He was, rather, merely pointing out that the length of the notification period is a factor, or might in a particular case be a factor, to be considered in weighing what is necessary and disproportionate alongside other factors pertaining to the particular case. This is demonstrated, in our assessment, by how Warby LJ went on at [21] to deal with the question of duration. There, he took into account the duration in the notification requirement as part of a wider consideration as to what was necessary and proportionate.
Furthermore, it should be borne in mind that inR v Stevens, as is apparent from [21], the issue was whether the sexual harm prevention order should be longer than the notification requirement (namely 5 years), the sentencing judge having set the sexual harm prevention order in R v Stevens at 10 years. Warby LJ was, therefore, when setting out the principles that he did at [18] focusing on that question rather than the question in the present case; in other words, he was looking at the position, as it were, the other way round.
That the position is as we describe it, we note, is consistent not only withR v Smith and R v Hanna (both cases which we have already mentioned) but also with earlier cases such as R v McLellan [2017] EWCA Crim 1464 and later cases such as R v Mannion [2023] EWCA Crim 1646, albeit that R v Stevens does not appear to have been cited to the court in that latter case.
Moreover, were the position otherwise and the duration of a sexual harm prevention order is set automatically by reference to the notification period, then it is difficult to see how it would ever be necessary to reach a view as to what is necessary and proportionate in relation to the managing of a specific risk in relation to a specific defendant. The sentencing judge would simply have to follow the notification requirement when setting the length of the sexual harm prevention order, without any apparent ability to make his or her own assessment as to what is necessary and proportionate. That assessment, however, is precisely what the court is under an obligation to make, and nowhere in the statutory provisions is it stated that the sexual harm prevention order should always be for the same duration as the notification requirements applicable in a given case.
In such circumstances, if and to the extent that the judge in the present case adopted an approach that involved her fixing the duration of the sexual harm prevention order to the duration of the notification requirements, as appears to have been the case, then this represents an error. It is accordingly open to us to form our own view as to the appropriate duration of the sexual harm prevention order in this case. Alternatively, if the judge arrived at her decision as to the length of the sexual harm prevention order by taking the duration of the notification requirements into account as just one factor, then we consider that nonetheless the judge's assessment concerning duration resulted in an unnecessarily long and disproportionate length, having regard to the risk posed by the appellant and the circumstances of the offending behaviour and the appellant himself.
We are clear that, either way, the 10-year duration of the sexual harm prevention order cannot stand. On the contrary, for the reasons advanced by Ms Branfield, we conclude that the sexual harm prevention order ought to have been set at 5 years, having regard to the criteria of necessity and proportionality. Those reasons include the fact that the appellant was of previous good character; the absence of any further offending since his arrest on 27 November 2020, particularly in the context of the 4-year gap from the offending behaviour and charge; the appellant's full compliance with police bail conditions when imposed, allied with the fact that he was not subject to any police bail for over 3 years prior to his first appearance; the circumstances in which the offending came to be committed, in particular the Covid 19 pandemic and the ending of a long-term stable relationship; the appellant's full confession when first confronted and his co-operation thereafter with the police; the appellant's guilty plea at the first opportunity; the appellant's remorse and feeling of shame; the fact that the appellant was assessed as he was in the pre-sentence report; and the fact that the appellant was made the subject of suspended sentence orders with which there was every reason to believe he would abide.
In addition, as Ms Branfield points out, were the sexual harm prevention order to be reduced to 5 years, then there would be a period of 3 years between the end of the suspended sentence orders and the expiry of the sexual harm prevention order, during which the police will be able to monitor the appellant's activity, as it was put inR v Hammond at [13] "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 [suspended sentence] orders having been successful".
Furthermore, again as Ms Branfield notes, the length of time for which the automatic notification period will continue to apply is 10 years, during which time the appellant will be subject to monitoring by the specialist police jigsaw team, meaning that it is not necessary that the sexual harm prevention order should last for as long as the judge considered appropriate in this case: see in this context the observations made in R v Beedle [2019] EWCA Crim 1672 at [12].
There is, lastly, the fact also that, if the appellant still poses a risk at the end of the 5-year sexual harm prevention order, then the police can apply for an extension of the order pursuant to section 350 of the 2020 Act.
For these reasons, we allow the appeal, and substitute for the 10-year sexual harm prevention order imposed by the judge a sexual harm prevention order which has a duration of 5 years. The other aspects of the sexual harm prevention order which was made by the judge and the other sentences received by the appellant remain unchanged.
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