Nicholas Blexmann [2019] EWCA Crim 698
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R v Nicholas Blexmann [2019] EWCA Crim 698 was an appeal to the Court of Appeal (Criminal Division) against sentence, heard by the Lord Chief Justice (Lord Burnett of Maldon), Mr Justice Spencer and Sir Brian Keith, which was allowed in part after the original sentencing had been carried out using the wrong guideline category and then irregularly amended.
On 4 January 2018, following a three-day trial in the Crown Court at Kingston upon Thames before a Recorder, Mr Blexmann, aged 37, was convicted of three counts of making indecent photographs of a child contrary to section 1(1)(a) of the Protection of Children Act 1978. The indictment covered all three categories of image ranked by seriousness. The offences related to 1,107 images in category A (including 96 moving images), 1,465 images in category B (including 14 moving images), and 8,393 images in category C (including 7 moving images). The Recorder imposed a sentence of five years’ imprisonment on count 1, three years’ imprisonment concurrent on count 2, and two years’ imprisonment concurrent on count 3, together with an indefinite Sexual Harm Prevention Order.
On 1 March 2016 officers from the Metropolitan Police Paedophile Unit had executed a search warrant at Mr Blexmann’s home and seized seven devices. The images were found on two of them. The appellant was charged on 17 February 2017, almost a year after the search. The images had been downloaded between 1 October 2015 and the date of seizure, a period of approximately six months. The children depicted ranged in age from 2 to 7 years. Mr Blexmann’s defence at trial, which the jury rejected, was that he was not responsible for downloading the images.
The Recorder had sentenced Mr Blexmann by reference to the Sexual Offences Definitive Guideline on the basis that this was a case of “production” of indecent photographs, a course urged by prosecuting counsel and not contradicted by defence counsel. The guideline states expressly that making an image by simple downloading should be treated as possession for the purposes of sentencing. The guideline covers possession, distribution, and production, with sentences escalating through that hierarchy. The 1978 Act criminalises the making of indecent photographs (which includes downloading), the distribution of such photographs, and possession with a view to distribution.
On 15 January 2018, prosecuting counsel realised the error and emailed the Recorder via the Crown Court office, explaining that he had been involved in a similar subsequent case where the judge had applied the guideline correctly to downloading. He indicated that the evidence showed Mr Blexmann had used file-sharing software called eMule and that files had been uploaded from his computer, so he should have been sentenced for distribution rather than production. Prosecuting counsel suggested revised sentences under the slip rule of three years on count 1, one year on count 2, and thirteen weeks on count 3. He forwarded the email to defence counsel a few minutes after sending it to the court office. On 19 January 2018 the Recorder replied by email accepting the suggested sentences and directing the Crown Court to amend the record and ensure the representatives were notified. He did not seek submissions from the appellant’s representatives, did not list the matter for a re-hearing, and the revised sentence was not passed in open court with reasons given as required by section 174 of the Criminal Justice Act 2003.
On behalf of Mr Blexmann, Mr Bajwa QC (who had not appeared below) submitted that the Recorder should have invited submissions before exercising the slip rule, should have obtained a pre-sentence report, and should have given reasons for the revised sentence in open court. He further submitted that this was not a case of distribution but one of possession from beginning to end, and that by reference to the guideline the starting point should have been one year’s imprisonment with a reduction for mitigation, including the appellant’s good character and absence of previous convictions. He also argued that the indefinite Sexual Harm Prevention Order was wrong in principle or manifestly excessive and that there was a technical error in one of the prohibitions. Prosecuting counsel accepted before the Court of Appeal that this was in truth a case of possession, conceding that although there was an admission at trial that the appellant had software on his computer that could facilitate distribution, there was never sufficient evidence to charge him with that offence.
The Court of Appeal held that the procedure adopted by the Recorder was irregular. A defendant in criminal proceedings cannot be sentenced for an offence of which he has not been convicted. It had been wrong to sentence Mr Blexmann for distributing indecent photographs when he was not charged with or convicted of distribution, an offence much more serious than possession. The prosecution could have charged distribution if there was proper evidence to support it but had not done so. The court considered that this was always a case of possession for the purposes of the guideline and that the stand taken by the prosecution before the Court of Appeal was correct.
The guideline suggested a starting point of one year’s custody for possession. The Court of Appeal rejected the submission that there were no aggravating features. The guideline included a non-exhaustive list of aggravating features, among them the age or vulnerability of the child depicted, which should be given significant weight. The children in this case ranged between 2 and 7 years. The period over which the images were downloaded, six months, was a potential aggravating feature. The high volume of images and the fact that the collection included moving images were also aggravating features. The number of moving images, particularly in category A, was not insignificant even if small as a proportion of the total. A further aggravating feature was that the images depicted a large number of different victims. The principal mitigating factor was Mr Blexmann’s good character and absence of previous convictions. There was also no further offending during the protracted time the legal process took to complete.
Having regard to all those factors, the Court of Appeal considered the appropriate sentence to be one of eighteen months’ imprisonment. It quashed the sentence on count 1 and substituted eighteen months’ imprisonment, quashed the sentence on count 2 and substituted six months’ imprisonment concurrent, and left the sentence on count 3 unaffected. The total sentence was eighteen months’ imprisonment. The appellant had in fact been released from custody under a scheme enabling the removal from the United Kingdom of foreign nationals.
As a result of the reduced overall sentence, the period during which Mr Blexmann was required to comply with the notification provisions found in the Sexual Offences Act 2003 was ten years. It was uncontroversial that the Sexual Harm Prevention Order should not extend beyond the notification period. The court substituted a period of ten years for the indefinite order made by the Recorder. Mr Bajwa also raised a technical argument on the wording of prohibition 6 in the order, which was not controversial before the court. The current wording provided that Mr Blexmann was prohibited from using any Apple manufactured device to access the internet unless he had made the device available to his Public Protection Unit officer and the officer had adjusted the settings to prevent future installation of prohibited software. The appellant submitted two amendments: first, changing “he has made” to “he makes” to bring it into line with other prohibitions, and secondly addressing the concern that the appellant might make the device available but the officer might for good or bad reason choose not to adjust the settings, leaving the appellant prohibited from using his device. The Court of Appeal accepted that was not an appropriate restriction and quashed prohibition 6, substituting wording that read: “Using any Apple manufactured device to access the internet unless he makes the device available to his PPU officer in order for the officer to adjust the settings on the device to prevent future installation of prohibited software.”
In short, the appeal was allowed to the extent that the sentence was reduced from five years to eighteen months’ imprisonment to reflect correct categorisation as possession rather than distribution or production, and the Sexual Harm Prevention Order was amended to last ten years rather than indefinitely and to correct a technical defect in prohibition 6.