Imprisonment for public protection – Indecent photographs of children – Risk of re-offending

R v Robert Lwellyn Hicks: CA (Crim Div) (Lord Justice Thomas, Mr Justice Blake, Mr Justice Burnett): 21 April 2009

The appellant (H), appealed against his sentence of imprisonment for public protection that had been imposed on him for counts of making indecent photographs of children. H had been previously sentenced, on two separate occasions, for offences of making and possessing indecent photographs of children. The offences committed during the second occasion had taken place soon after he had been released on licence in respect of the first sentence. In the present case, H pleaded guilty to offences of making and possessing indecent photographs of children, which were committed after he was released from his second sentence of imprisonment. The pre-sentence report gave details of the offences committed during the second occasion and suggested that H had in the past become involved in actual contact with children.

In particular, the report pointed out that H had advertised a fake photography business on the internet, had lured unsuspecting teenage girls to pose for him in skimpy outfits under the pretence of creating a modelling portfolio and had doctored the images to depict semen smeared on the faces of the girls concerned. The sentencing judge held that the higher level of serious harm specified in the Criminal Justice Act 2003 was present in H’s case. The question for the present court was whether the sentence of imprisonment for public protection could stand in light of a subsequent decision in R v Terrell (Alexander James) [2007] EWCA Crim 3079, (2008) 2 All ER 1065.

Held: (1) The court in Terrell made it quite plain that serious harm of the level required to justify imprisonment for public protection could be made out where an offender risked progressing to physical contact offences, or becoming a photographer, or a commissioner of indecent images, or playing a more significant role in a distribution network, Terrell followed. Also, it was not enough that there was a possibility of future offending that might occasion serious harm. The risk of such harm being occasioned by future offending had to be significant. That required some evidential basis from which it could be assessed that either serious harm caused in the past would be repeated, or that the offender would move on to more serious offences that gave rise to a significant risk of serious harm, R v Lang (Stephen Howard) [2005] EWCA Crim 2864, [2006] 1 WLR 2509 followed.

(2) In the present case, it could not be said that in the past H had in fact committed contact offences as opposed to offences of possession or making images. None of the images arising from the photographic sessions were indecent and the doctored images had not been circulated on the internet for use by others. Disgust caused by the images was not the same as serious psychological injury. Furthermore, there had been no charge of sexual grooming or assault brought against H, and his conduct had not worsened in the short time that he had been at liberty since the second group of offences. The nature of the images that he had collected since his release was overwhelmingly at level one and there were no level five images. Moreover, there was no evidence of attempted contact with children or of circulation of images to other offenders interested in such images. In the circumstances, a sentence of imprisonment for public protection for H’s offences could not be upheld as there was insufficient information from which an assessment of significant risk of future harm by the future commission of specified offences could be sustained.

(3) However, the risk of future offending was a substantial one. The potential danger that H presented to young people in general was a real one and certainly the test under section 104 of the Sexual Offences Act 2003 was satisfied. Therefore, a sexual offences prevention order with specified terms was imposed on H.

Appeal allowed.

J Josephs (instructed by Millerchip Murray) for the appellant; S Rippon (instructed by the CPS) for the ­respondent.