Philip Cole [2019] EWCA Crim 1856
Summary
Philip Christopher Cole [2019] EWCA Crim 1856 concerned an appeal against the duration of a sexual harm prevention order imposed by the Crown Court at Wood Green following guilty pleas to offences of making indecent images of children.
Mr Cole pleaded guilty to three counts of making indecent images of a child contrary to section 1(1)(a) of the Protection of Children Act 1978. The offending involved 51 category A images, 14 category B images and 50 category C images. One category A image was a video showing a 4 or 5 year old child wearing a balaclava and displaying clear signs of distress whilst being restrained and subjected to oral, digital and penile rape. On 6 March 2019 Mr Cole was sentenced to 12 months’ imprisonment suspended for 24 months with a 150-hour unpaid work requirement, an accredited programme requirement and a rehabilitation activity requirement. He was made subject to the notification provisions in Part 2 of the Sexual Offences Act 2003 for 10 years and was to be included in the relevant list by the Independent Safeguarding Authority. The judge also made a sexual harm prevention order under section 103A of the Act until further order.
On 23 August 2018 police executed a search warrant at Mr Cole’s home address in Enfield and seized five devices. Mr Cole was at home with his partner and 22 month old daughter. He immediately acknowledged why the police were present, stating that he had been downloading images for years, knew it was wrong and had been waiting for this day. In interview he gave a full account of his activities, acknowledging that he had a problem. He described it as a compulsion and an addiction to downloading images. He explained that he would delete files once viewed and then download them again a few weeks later, so that the images seized likely did not represent the totality of the images he had accessed. Mr Cole was assessed as a low risk of immediate re-offending and medium risk of re-offending overall. He was of previous good character apart from one incident arising out of a troubled domestic relationship. The SHPO controlled and restricted his use of computers, storage facilities and access to the Internet and had a significant impact on his day to day life.
Mr Cole did not appeal the custodial sentence itself. The sole ground of appeal was that the indefinite SHPO was both disproportionate and unnecessary. Ms Nieto for Mr Cole submitted that by virtue of section 103G of the Act the indefinite order had the effect of extending the notification period indefinitely. She contended that an order of 10 years would have been sufficient to protect the public from serious sexual harm for the purpose of section 104 of the Act. The judge had made the SHPO in the terms and for the duration requested by the prosecution without giving reasons for the indefinite length.
The Court of Appeal agreed that the making of an indefinite order was not necessary for the purpose of public protection. Mrs Justice Carr, giving the judgment of the court, emphasised that Mr Cole was of effective good character, had immediately admitted his guilt and had subsequently taken voluntary steps to address his offending. He had been co-operative with the authorities and the order imposed required him to undergo extensive treatment and rehabilitation. The court noted that by reason of section 103G of the Act the imposition of an unlimited order carried with it the apparently unintended consequence of extending the notification requirement beyond the limited period of 10 years that the judge expressly had in mind.
The court set out the applicable principles governing the duration of sexual harm prevention orders. A SHPO should not be made for longer than is necessary and should not be made for an indefinite period unless the court is satisfied of the need to do so. An indefinite order should not be made without careful consideration, nor should it be a default option. Ordinarily as a matter of good practice a court should explain, however briefly, the justification for making an indefinite SHPO though there are cases where that justification will be obvious. There is no requirement in principle that the duration of a SHPO should not exceed the duration of the applicable notification requirements; it all depends on the circumstances. However, parties should be alert to the fact that the effect of a SHPO longer than the statutory notification requirements will be to extend the operation of those notification requirements, and an inadvertent extension is to be avoided. The court cited R v McLellan [2017] EWCA Crim 1464 at paragraph 25 and R v Nigel Wilkinson [2019] EWCA Crim 641 at paragraphs 7 and 8.
The court found that there appeared to have been just such an inadvertent extension in the present case. No reasons for the indefinite length of the SHPO had been given; the court had simply accepted the prosecution invitation to make the order sought. Justification for an indefinite order was not obvious. Mr Cole’s admissions and readiness to engage, his good character and the views expressed in the pre-sentence report material were all factors pointing to the suitability of a determinate order. The court held that a SHPO of 10 years was sufficient to protect the public from serious sexual harm from Mr Cole and that the judge should so have ordered. In short, the Court of Appeal reduced an indefinite SHPO to 10 years where the judge had given no reasons for the indefinite duration and the appellant’s circumstances pointed to a determinate order being sufficient for public protection.
Mr Cole pleaded guilty to three counts of making indecent images of a child contrary to section 1(1)(a) of the Protection of Children Act 1978. The offending involved 51 category A images, 14 category B images and 50 category C images. One category A image was a video showing a 4 or 5 year old child wearing a balaclava and displaying clear signs of distress whilst being restrained and subjected to oral, digital and penile rape. On 6 March 2019 Mr Cole was sentenced to 12 months’ imprisonment suspended for 24 months with a 150-hour unpaid work requirement, an accredited programme requirement and a rehabilitation activity requirement. He was made subject to the notification provisions in Part 2 of the Sexual Offences Act 2003 for 10 years and was to be included in the relevant list by the Independent Safeguarding Authority. The judge also made a sexual harm prevention order under section 103A of the Act until further order.
On 23 August 2018 police executed a search warrant at Mr Cole’s home address in Enfield and seized five devices. Mr Cole was at home with his partner and 22 month old daughter. He immediately acknowledged why the police were present, stating that he had been downloading images for years, knew it was wrong and had been waiting for this day. In interview he gave a full account of his activities, acknowledging that he had a problem. He described it as a compulsion and an addiction to downloading images. He explained that he would delete files once viewed and then download them again a few weeks later, so that the images seized likely did not represent the totality of the images he had accessed. Mr Cole was assessed as a low risk of immediate re-offending and medium risk of re-offending overall. He was of previous good character apart from one incident arising out of a troubled domestic relationship. The SHPO controlled and restricted his use of computers, storage facilities and access to the Internet and had a significant impact on his day to day life.
Mr Cole did not appeal the custodial sentence itself. The sole ground of appeal was that the indefinite SHPO was both disproportionate and unnecessary. Ms Nieto for Mr Cole submitted that by virtue of section 103G of the Act the indefinite order had the effect of extending the notification period indefinitely. She contended that an order of 10 years would have been sufficient to protect the public from serious sexual harm for the purpose of section 104 of the Act. The judge had made the SHPO in the terms and for the duration requested by the prosecution without giving reasons for the indefinite length.
The Court of Appeal agreed that the making of an indefinite order was not necessary for the purpose of public protection. Mrs Justice Carr, giving the judgment of the court, emphasised that Mr Cole was of effective good character, had immediately admitted his guilt and had subsequently taken voluntary steps to address his offending. He had been co-operative with the authorities and the order imposed required him to undergo extensive treatment and rehabilitation. The court noted that by reason of section 103G of the Act the imposition of an unlimited order carried with it the apparently unintended consequence of extending the notification requirement beyond the limited period of 10 years that the judge expressly had in mind.
The court set out the applicable principles governing the duration of sexual harm prevention orders. A SHPO should not be made for longer than is necessary and should not be made for an indefinite period unless the court is satisfied of the need to do so. An indefinite order should not be made without careful consideration, nor should it be a default option. Ordinarily as a matter of good practice a court should explain, however briefly, the justification for making an indefinite SHPO though there are cases where that justification will be obvious. There is no requirement in principle that the duration of a SHPO should not exceed the duration of the applicable notification requirements; it all depends on the circumstances. However, parties should be alert to the fact that the effect of a SHPO longer than the statutory notification requirements will be to extend the operation of those notification requirements, and an inadvertent extension is to be avoided. The court cited R v McLellan [2017] EWCA Crim 1464 at paragraph 25 and R v Nigel Wilkinson [2019] EWCA Crim 641 at paragraphs 7 and 8.
The court found that there appeared to have been just such an inadvertent extension in the present case. No reasons for the indefinite length of the SHPO had been given; the court had simply accepted the prosecution invitation to make the order sought. Justification for an indefinite order was not obvious. Mr Cole’s admissions and readiness to engage, his good character and the views expressed in the pre-sentence report material were all factors pointing to the suitability of a determinate order. The court held that a SHPO of 10 years was sufficient to protect the public from serious sexual harm from Mr Cole and that the judge should so have ordered. In short, the Court of Appeal reduced an indefinite SHPO to 10 years where the judge had given no reasons for the indefinite duration and the appellant’s circumstances pointed to a determinate order being sufficient for public protection.
The appellant pleaded guilty to three counts of making indecent images of a child, and a suspended sentence was imposed. He took no issue with the custodial element of the sentence. The target of the appeal was the sexual harm prevention order (SHPO), in particular, the indefinite length of the order.
When the police attended the appellant’s address, he acknowledged he had a problem and gave a full account. He was assessed as a low risk of immediate re-offending and a medium risk of re-offending overall.
Held: as serious as the offending was, it did not require an indefinite order for the purpose of public protection. An order of 10 years was sufficient.