Wilkinson [2019] EWCA Crim 641
Summary
R v Nigel Wilkinson [2019] EWCA Crim 641 concerned an appeal by the Crown Court to the Court of Appeal (Criminal Division) against the length of a sexual harm prevention order imposed without limitation of time, the court substituting a determinate term of ten years.
The appellant had pleaded guilty to three counts of possessing indecent photographs of a child, one count of possessing a prohibited image of a child, and one count of possessing an extreme pornographic image. He was sentenced on 31 August 2018 to a total term of twenty weeks’ imprisonment, which triggered automatic notification requirements for ten years. A sexual harm prevention order without limitation of time was also imposed. The appellant did not challenge the custodial sentence or the terms of the order itself, but contended that its indefinite duration was disproportionate, arguing that a period coextensive with the notification requirements would have been sufficient.
Police had executed a search warrant at the appellant’s home. He was then aged fifty-six and of previous good character. Officers recovered computers and electronic storage devices containing a total of one thousand one hundred and sixty-three category A films and images, six hundred and ten at category B, and fourteen thousand three hundred and seventy-three at category C. Many of the images were described as particularly depraved and depicted children as young as two being subjected to penetrative abuse. Devices also contained images of bestiality. The appellant made immediate admissions upon challenge and entered guilty pleas.
A pre-sentence report assessed the appellant as presenting a low risk of re-offending and concluded that he was not eligible for a sex offender treatment programme. The terms of the sexual harm prevention order permitted the appellant to use computer equipment but imposed restrictions designed to prevent him committing similar offences and to allow police monitoring. The effect of an indefinite order was to extend the notification requirements automatically for its full duration under section 103G(1) of the Sexual Offences Act 2003.
Mr Waters, appearing for the appellant, submitted that the indefinite duration was disproportionate. He suggested that an order of ten years, matching the notification period, would have met the justice of the case. He relied on R v Smith [2011] EWCA Crim 1772, in which Hughes LJ held at paragraph 17 that a sexual offences prevention order must operate in tandem with statutory notification requirements and that it was not normally proper to extend notification requirements beyond the period prescribed by law by imposing an indefinite order, though duration need not always match. The principles were further developed in R v McLellan [2017] EWCA Crim 1464, where Gross LJ emphasised at paragraph 25 that there was no requirement that a sexual harm prevention order match notification requirements, that any order should be no longer than necessary, that an indefinite order should not be made as a default option without careful consideration, and that a court should ordinarily explain, however briefly, the justification for an indefinite order unless the need was obvious. Inadvertent extension of notification requirements was to be avoided given their practical consequences.
The court applied those principles and allowed the appeal. His Honour Judge Wall, giving the judgment of the court, noted first that the sentencing judge had given no explanation for imposing an indefinite order. The judge had initially announced a ten-year order, then immediately altered this, saying he saw no reason why it should not be without limitation of time until further order. The court held that this approach inverted the proper test: the judge appeared to have looked for a reason not to make an indefinite order, rather than identifying why such a draconian measure was necessary. Secondly, the court found that this was not a case in which the need for an indefinite order was obvious such that no explanation was required. Very few factors were present that were not present in many cases of this type. Thirdly, the appellant’s age, remorse, admissions, good character, and the pre-sentence report’s assessment that he was unlikely to re-offend were all factors pointing to the suitability of a determinate order. The court concluded that the indefinite duration was disproportionate to the criminal activity and the limited harm posed by the appellant in future. It therefore substituted a ten-year order to align with the notification period that followed automatically from the custodial sentence.
In short, an indefinite sexual harm prevention order imposed without explanation or reference to the principles in Smith and McLellan was held to be disproportionate where the appellant was of previous good character, assessed as low risk, and presented no features justifying departure from the automatic ten-year notification period.
The appellant had pleaded guilty to three counts of possessing indecent photographs of a child, one count of possessing a prohibited image of a child, and one count of possessing an extreme pornographic image. He was sentenced on 31 August 2018 to a total term of twenty weeks’ imprisonment, which triggered automatic notification requirements for ten years. A sexual harm prevention order without limitation of time was also imposed. The appellant did not challenge the custodial sentence or the terms of the order itself, but contended that its indefinite duration was disproportionate, arguing that a period coextensive with the notification requirements would have been sufficient.
Police had executed a search warrant at the appellant’s home. He was then aged fifty-six and of previous good character. Officers recovered computers and electronic storage devices containing a total of one thousand one hundred and sixty-three category A films and images, six hundred and ten at category B, and fourteen thousand three hundred and seventy-three at category C. Many of the images were described as particularly depraved and depicted children as young as two being subjected to penetrative abuse. Devices also contained images of bestiality. The appellant made immediate admissions upon challenge and entered guilty pleas.
A pre-sentence report assessed the appellant as presenting a low risk of re-offending and concluded that he was not eligible for a sex offender treatment programme. The terms of the sexual harm prevention order permitted the appellant to use computer equipment but imposed restrictions designed to prevent him committing similar offences and to allow police monitoring. The effect of an indefinite order was to extend the notification requirements automatically for its full duration under section 103G(1) of the Sexual Offences Act 2003.
Mr Waters, appearing for the appellant, submitted that the indefinite duration was disproportionate. He suggested that an order of ten years, matching the notification period, would have met the justice of the case. He relied on R v Smith [2011] EWCA Crim 1772, in which Hughes LJ held at paragraph 17 that a sexual offences prevention order must operate in tandem with statutory notification requirements and that it was not normally proper to extend notification requirements beyond the period prescribed by law by imposing an indefinite order, though duration need not always match. The principles were further developed in R v McLellan [2017] EWCA Crim 1464, where Gross LJ emphasised at paragraph 25 that there was no requirement that a sexual harm prevention order match notification requirements, that any order should be no longer than necessary, that an indefinite order should not be made as a default option without careful consideration, and that a court should ordinarily explain, however briefly, the justification for an indefinite order unless the need was obvious. Inadvertent extension of notification requirements was to be avoided given their practical consequences.
The court applied those principles and allowed the appeal. His Honour Judge Wall, giving the judgment of the court, noted first that the sentencing judge had given no explanation for imposing an indefinite order. The judge had initially announced a ten-year order, then immediately altered this, saying he saw no reason why it should not be without limitation of time until further order. The court held that this approach inverted the proper test: the judge appeared to have looked for a reason not to make an indefinite order, rather than identifying why such a draconian measure was necessary. Secondly, the court found that this was not a case in which the need for an indefinite order was obvious such that no explanation was required. Very few factors were present that were not present in many cases of this type. Thirdly, the appellant’s age, remorse, admissions, good character, and the pre-sentence report’s assessment that he was unlikely to re-offend were all factors pointing to the suitability of a determinate order. The court concluded that the indefinite duration was disproportionate to the criminal activity and the limited harm posed by the appellant in future. It therefore substituted a ten-year order to align with the notification period that followed automatically from the custodial sentence.
In short, an indefinite sexual harm prevention order imposed without explanation or reference to the principles in Smith and McLellan was held to be disproportionate where the appellant was of previous good character, assessed as low risk, and presented no features justifying departure from the automatic ten-year notification period.
The appellant pleaded guilty to possession of indecent photos, one of possessing a prohibited image of a child and one of possessing an extreme pornographic image and was sentenced to 20 weeks imprisonment resulting in notification requirements for 10 years. He was also made subject to an indefinite SHPO, and it is this he appealed against.
The indefinite nature of the SHPO had the effect of extending the period of time for which the notification provisions applied, and the defence submitted it was disproportionate to pass such an order.
Held: there was no explanation as to why the judge took the view that an order without limitation of time was necessary and the Court of Appeal did not find it was, having regard to the principles in Smith [2011] EWCA Crim 1772. The length was therefore limited to 10 years to tie in with the notification period.