Sentencing

Sexual offences - principles of sentencing

R v Smith and others: Court of Appeal, Criminal Division: 19 July 2011

Four cases were heard together because they all raised questions relating to Sexual Offences Prevention Orders (SOPOs), under s 104(1) of the Criminal Justice Act 2003 (the 2003 Act). In all the cases, the offences were, or included, the viewing child pornography, although some defendants presented a risk beyond a repetition of that kind of offence. The offences charged did not involve physical sexual contact. SOPOs were imposed in relation to the four defendants. They appealed against sentence.

The Court of Appeal gave consideration to the circumstances in which SOPOs ought to be imposed, the proper structure and formulation of SOPOs and to other related issues. The defendants variously argued that the imposition of, and the terms of the SOPOs were manifestly excessive or that the terms of the orders were too restrictive.

The appeal of S would be allowed. The appeals of B, J and W would be allowed in part.

(i) A SOPO may be a valuable tool in the control of sexual offending and its associated harm. The SOPO offers a flexibility in drafting which is in one sense welcome because it enables the order to be tailored to the exact requirements of the case. That flexibility, however, must not lead draftsmen to an inventiveness which stores up trouble for the future. It will do this if it creates a provision which is, or will become, unworkable. That may be because it is too vague or because it potentially conflicts with other rules applicable to the defendant, or simply because it imposes an impermissible level of restriction on the ordinary activities of life. The terms of a SOPO must be sufficiently clear on their face for the defendant, those who have to deal with him in ordinary daily life, and those who have to consider enforcement, to understand without real difficulty or the need for expert legal advice exactly what he can and cannot do. Real risk of unintentional breach must be avoided.

The SOPO must meet the twin tests of necessity and clarity. The test of necessity, which was the starting point under s 104 of the 2003 Act, brings with it the subtest of proportionality. The expression ‘serious sexual harm’ differs from the concept of ‘serious harm’ as used for the purposes of indefinite or extended sentences passed under Pt 12, Chapter 5 of the Criminal Justice Act 2003 (dangerous offenders). ‘Serious sexual harm’, pursuant to s 104 of the 2003 Act means 'serious physical or psychological harm caused by the defendant committing one or more offences listed in Sch 3: s 106(3).'

Thus it is to the prevention of the commission of such offences that the reach of a SOPO must be tailored; it may not prohibit unusual, or socially disapproved, sexual behaviour unless such is likely to lead to the commission of scheduled offences.

Further, there must be a real, not remote, risk of harm at this level occurring in consequence (see [2], [4]-[7] of the judgment).

(ii) Consideration had to be given to the fact that a defendant convicted of sexual offences is likely to be subject to at least three other relevant regimes. No SOPO is needed if it merely duplicates such a regime. Nor must a SOPO interfere with such a regime. The following regimes have to be considered: the sex offender notification rules, pursuant to the Sex Offenders Act 1997 and ss 80-102 Sexual Offences Act 2003 and in regulations made there under; disqualification from working with children; and licence. It is settled law that generally a SOPO would not be appropriate, because it is unnecessary, if an indefinite sentence is being imposed. Rather, it is said, the court should leave the prevention of further offences to the fixing of licence conditions.

There is a difference between the sanction of recall for breach of licence and the sanction of conviction for breach of the requirement of a SOPO. But they will not generally outweigh the case against making any SOPO if an indeterminate term is imposed. An indeterminate sentence needs no SOPO, at least unless there is some very unusual feature which means that such an order could add something useful and did not run the risk of undesirably tying the hands of the offender managers later. By contrast, a SOPO may plainly be necessary if the sentence is a determinate term or an extended term. In each of those cases, whilst conditions may be attached to the licence, that licence will have a defined and limited life. The SOPO by contrast can extend beyond it and this may be necessary to protect the public from further offences and serious sexual harm as a result (see [2], [4], [9]-[14] of the judgment).

(iii) A SOPO has to operate in tandem with the statutory notification requirements. Therefore, it has to not conflict with any of those requirements. Secondly, 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 requires positive action by the defendant, who has to report his movements to the police. The second prohibited him from doing specified things. Ordinarily there ought to be little or no overlap between them. If the circumstances require it, there is 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 (see [17] of the judgment).

(iv) A blanket prohibition on computer use or internet access is impermissible. It is disproportionate because it restricts the defendant in the use of what is nowadays an essential part of everyday living for a large proportion of the public, as well as a requirement of much employment. Before the creation of the internet, if a defendant kept books of pictures of child pornography it would not have occurred to anyone to ban him from possession of all printed material. The internet is a modern equivalent. Some courts have been attracted to a prohibition upon the possession of any computer or other device giving access to the internet without notification to the local police. It may be that this might occasionally be the only way of preventing offending, but the vast increase in the number and type of such devices makes it onerous both for defendants and the police. Its effect is, inter alia, to require the defendant to tell the police when he buys a new mobile telephone, or a play station for his children. In most cases, the police will need to work on the basis that most defendants, like most people generally, will have some devices with internet access, and that a requirement that they be notified of it adds little of any value. There are fewer difficulties about a prohibition on internet access without filtering software, but there is a clear risk that there may be uncertainty about exactly what is required and the policing of such a provision seems likely to be attended by some difficulty (see [20] of the judgment).

(v) Of the formulations thus far devised and reported, the one which seems most likely to be effective is the one requiring the preservation of readable internet history coupled with submission to inspection on request. There is no need for the SOPO to invest the police with powers of forcible entry into private premises beyond the statutory ones which they already have. It is sufficient to prohibit use of the internet without submitting to inspection on request. If the defendant were to deny the officers sight of his computer, either in his home or by surrendering it to them, he would be in breach.

One suitable form of such an order appears in Smith. Where the risk is not simply of downloading pornography but consists of or includes the use of chatlines or similar networks to groom young people for sexual purposes, it may well be appropriate to include a prohibition on communicating via the internet with any young person known or believed to be under the age of 16, coupled no doubt with a provision. In some such cases, it may be necessary to prohibit altogether the use of social networking sites or other forms of chatline or chatroom.

Any provision in a SOPO has to be tailored to the necessity to prevent sexual offending which causes serious harm to others. The majority of offences relating to children are committed only when the child is under the age of 16. The exceptions are offences committed under ss 16-19 Sexual Offences Act 2003 against those in respect of whom the defendant stands in a position of trust, as defined in s 21, together with family offences under ss 25 and 26. If the risk is genuinely of these latter offences, prohibitions on contact with children under 18 may be justified. Otherwise, if contact with children needs to be restricted, it should relate to those under 16, not under 18.

Care has to be taken in considering whether prohibitions on contact with children are really necessary. It is not legitimate to impose multiple prohibitions on a defendant just in case he commits a different kind of offence. There has to be an identifiable risk of contact offences before this kind of prohibition can be justified (see [20-[22] of the judgment).

(vi) Prohibitions on contact with children may however be necessary in some cases of predatory paedophiles who seek out children for sexual purposes. Even then, care must be taken with their terms. The defendant may have children of his own, or within his extended family. If his offences are within the family, or there is a risk that offences of that kind may be committed, then those children may need protection.

But if they are not, and there is no sign of a risk that he may abuse his own family, it is both unnecessary and an infringement of the children's entitlement to family life to impose restrictions which extend to them. Even if there is a history of abuse within the family, any order ought ordinarily to be subject to any order made in family proceedings for the very good reason that part of the family court process may, if it is justified, involve carefully supervised rehabilitation of parent and child. In those cases where it really is necessary to impose a prohibition on contact with children (of whichever age) it is essential to include a saving for incidental contact such as is inherent in everyday life.

Otherwise the defendant commits a criminal offence if he is dealt with by a 15 year old at a shop checkout, or has dealings with a child in other similarly inevitable circumstances. The inevitably imprecise nature of this essential saving is a further reason for exercising considerable caution before imposing a prohibition of this kind (see [23]-[24] of the judgment).

(vi) Terms commonly included in SOPOs which prohibit the defendant from activities which are likely to bring him into contact with children have to be justified as required beyond the restrictions placed upon the defendant by the Independent Safeguarding Authority (ISA) under the Safeguarding Vulnerable Groups Act 2006 (SVGA). If there is a real risk that he may undertake some activity outside the ISA prohibitions, then such a term may be justified. Otherwise it is not. What is covered by the SVGA needs examination in each case. The key provisions are to be found in s 5 and Sch 4 Pt 1, which defines regulated activities relating to children. Generally speaking, para 2 prevents the defendant from engaging in any form of teaching, training or instruction of children, any form of care, advice, guidance or therapy, and from acting as a driver for children's activities.

That will cover most unpaid as well as formal paid occupations which carry a risk of contact offences. It will for example cover football or other sports clubs and youth groups. Judges should ordinarily require the Crown to justify an application for a SOPO term relating to activity with children by demonstrating what the risk is which is not already catered for by the SVGA. The age ought ordinarily to be under 16; free association with 16 and 17 year olds is not an offence. It is otherwise if the defendant would be in a position of trust, as defined by s  21 of the Sexual Offences Act 2003, but in the ordinary way no such position will be permitted by the SVGA restrictions (see [25] of the judgment).

(vii) Arrangements for the provision of a draft order will necessarily vary from court to court. We say no more than that it is essential that there is a written draft, properly considered in advance of the sentencing hearing. The normal requirement should be that it is served on the court and the defendant before the sentencing hearing – we suggest not less than two clear days before but in any event not at the hearing.

This will usually be possible because sentencing in such cases only occasionally follows immediately on conviction. Because the draft is likely to require amendment before it is issued by the court staff, it is sensible for it to be available in electronic as well as paper form. If a judge finds that insufficient time for consideration has been given, he has ample power to put the issue back to another hearing, but this is wasteful and the occasion for it ought to be avoided by prior service of the draft (see [26] of the judgment).

The SOPO would be quashed in the case of S. The SOPO would be varied in the cases of W, B, and J (see [33], [34], [45], [53] of the judgment).

R v Richards [2006] All ER (D) 338 (Oct) considered; R v Hammond [2008] All ER (D) 94 (Aug) considered; R v Bolton [2010] EWCA Crim 1177 considered; R v L [2010] EWCA Crim 2046 considered; R v Hemsley [2010] 3 All ER 965 considered; R v Lea [2010] EWCA Crim 487 considered; R v Mortimer [2010] EWCA Crim 1303 considered; R v TO [2010] EWCA Crim 2511 considered.

Tom Gent (instructed by Chivers Solicitors) for S. Gwyn Jones (instructed by Gamlins Solicitors, Rhyl) for W. Jonathan Walker (instructed by Freeman Johnson) for B. Raglan Ashton (instructed by Tuckers Solicitors) for J. Iain Wicks (instructed by the Crown Prosecution Service, Special Crime Division) for the Crown.