Hewitt [2018] EWCA Crim 2309
Summary
In Hewitt [2018] EWCA Crim 2309 the Court of Appeal allowed the appeal against the terms of a Sexual Harm Prevention Order imposed following conviction for sexual offences against children, quashing three of its prohibitions as oppressive, disproportionate and unworkable.
Mr Richard Hewitt had pleaded guilty on 26 July 2017 at Chester Crown Court to five counts comprising three offences of inciting a child to engage in sexual activity, one offence of making an indecent photograph of a child, and one offence of breaching a Sexual Offences Prevention Order. He was sentenced on 28 July 2017 to a total of four years and three months imprisonment, to be served consecutively to a two year term he was already serving. The Judge imposed a Sexual Harm Prevention Order to remain in force until further order.
The offending spanned early 2016 to August 2016. Count 1 concerned the appellant exchanging messages via Skype with CS, a girl he believed to be nine years old. He asked what she was wearing, whether she felt horny, requested naked pictures and asked whether she was digitally penetrating herself. Count 2 involved messaging HC, a person he believed to be a twelve year old girl, on a site called Chat Avenue and later Skype. HC was in fact an undercover police officer. The appellant told HC he wanted to meet and have sexual intercourse with her, asked for pictures, described in explicit terms how he would teach her about sexual activity, and asked her to penetrate herself with a hairbrush handle. Count 4 related to exchanges on Skype with TM, aged fourteen. The appellant asked about her underwear, asked her to digitally penetrate herself, asked her to write his name near her vagina, and discussed meeting her at his address. Count 6 related to a Category A indecent image of a female child aged seven to nine years found on a laptop. Count 7 was a breach of various prohibitions of his Sexual Offences Prevention Order imposed on 18 January 2007, including by communicating with the girls, failing to make his devices available on request, deleting his internet history and failing to notify his supervising officer of his user names.
On arrest following an earlier offence in Newcastle, police had searched the appellant’s home address in Ellesmere Port and seized devices capable of accessing the internet. The appellant admitted in interview that he had the devices and knew he was in breach of his order. He stated that he had regularly used software to clear the contents of his hard drive. He said that his father had died recently and he was struggling to cope, that evil voices in his head made him do it, that he was lonely and had made a huge mistake.
The appellant, aged forty at sentence, had seven convictions spanning 2007 to 2016, all relevant. These included a two and a half year sentence in 2010 for failing to comply with notification requirements and sexual assault, and a two year sentence in 2016 for attempting to meet a girl under sixteen following grooming and breaching a Sexual Offences Prevention Order.
The sentencing Judge observed that the appellant had a very bad record for offences of this type, persistently using the internet to seek out illegal photographs of children and persistently failing to comply with orders. The Judge approached sentence on the basis that he would put himself in the position of the Judge in Newcastle had he been sentencing for all offending, then reduce that by the sentence already received, bearing in mind totality. The Judge would have considered the appellant dangerous and made an extended sentence had he been dealing with all matters, but as the Newcastle offence was the most serious and had not resulted in such a finding, no extended sentence was imposed. The Judge treated the incitement offences as falling within Category 2A, with a post-trial sentence of three years, reduced to two years with full credit for guilty plea. The single photograph attracted three months concurrent. The breach of the Sexual Offences Prevention Order resulted in sixteen months imprisonment, all sentences consecutive to the two year term being served.
The Judge imposed the Sexual Harm Prevention Order indefinitely. He considered the decision in Smith [2012] 1 All ER 451 but concluded that Smith did not deal with an offender like the appellant who persistently breached orders and ignored them. Although the appellant’s licence had similar conditions to those proposed for the order, the Judge was persuaded that as the licence was for a shorter term the order should be imposed indefinitely, with the possibility of review if the appellant had not offended for five years or more. The order included eleven prohibitions. Prohibition 1 stated that the appellant was not to own, possess or use any computer other than a public computer in a library. Prohibition 5 stated that he was not to subscribe to or utilise any cloud or similar remote storage media. Prohibition 6 stated that he was not to own, possess or use any mobile phone capable of accessing the internet. The other terms included requirements not to delete internet history, not to use concealment software, to register all email addresses and user names with police, to make devices available for inspection on request, not to have contact with children under sixteen, and not to refuse entry to police.
Leave to appeal was granted by the single Judge limited to the imposition of the Sexual Harm Prevention Order on the grounds that it was wrong to find such a term necessary to protect children from further sexual harm, that it was disproportionate, that insufficient regard was given to the appellant’s legitimate need for internet access, and that no sufficient regard was given to the inherent difficulty in policing the order as constructed.
Ms Justice Russell, giving the judgment of the court, stated that while it was understandable that the sentencing Judge was concerned by the appellant’s record and breaches of previous orders, the court considered that he had failed properly to apply the principles in Smith. The court cited the decision in Parsons & Morgan [2017] EWCA Crim 2013, which underlined that no order should be made unless necessary to protect the public from sexual harm, that any prohibitions must be effective, clear, realistic and capable of simple compliance and enforcement, that none of the terms must be oppressive and overall the terms must be proportionate, and that any order must be tailored to the facts. The court observed that the need to use and the importance of the internet in everyday living had increased since Smith and was continuing to increase. There might be a case where a blanket ban was proportionate even though oppressive, but the court did not consider that the appellant’s offending, repugnant as it was, would justify such a ban. The use of the internet was an essential and integral part of everyone’s life and essential to transactions between individuals, statutory bodies and other entities.
The court also considered that the order was not effective and therefore the statutory purpose would be defeated as it could not be enforced. The police did not have the time or resources effectively to monitor the appellant’s use of any computer or handheld device, to install monitoring software or to oversee and check on its use even if installed. As to cloud storage, its use was practically ubiquitous as it was built in to most operating systems; any device used by the appellant, including those in public libraries, would utilise the cloud and fall foul of prohibition 5. Those terms were unworkable and not capable of enforcement. They amounted to a blanket ban and as such were oppressive and disproportionate. The court quashed terms 1, 5 and 6 of the Sexual Harm Prevention Order.
The Registrar had drawn to the court’s attention that the victim surcharge order appeared to be unlawful. A surcharge order under the Criminal Justice Act 2003 (Surcharge) Order 2012 applied only where all offending before the court was committed on or after 1 October 2012. Count 6 spanned the coming into force of the current surcharge provisions. In accordance with the authorities in Bailey & Ors [2014] 1 Cr App R (S) 59 and Poole [2015] 1 Cr App R (S) 2, where an offence straddles a commencement date the provisions least punitive to the offender should apply. No surcharge order might be made in respect of any offence committed before 1 April 2007. Count 6 spanned 1 January 2006 to 9 August 2016, so it appeared that no surcharge order should have been imposed. The court quashed that order.
In short, the appeal was allowed to the extent that three prohibitions of the Sexual Harm Prevention Order and the victim surcharge order were quashed.
Mr Richard Hewitt had pleaded guilty on 26 July 2017 at Chester Crown Court to five counts comprising three offences of inciting a child to engage in sexual activity, one offence of making an indecent photograph of a child, and one offence of breaching a Sexual Offences Prevention Order. He was sentenced on 28 July 2017 to a total of four years and three months imprisonment, to be served consecutively to a two year term he was already serving. The Judge imposed a Sexual Harm Prevention Order to remain in force until further order.
The offending spanned early 2016 to August 2016. Count 1 concerned the appellant exchanging messages via Skype with CS, a girl he believed to be nine years old. He asked what she was wearing, whether she felt horny, requested naked pictures and asked whether she was digitally penetrating herself. Count 2 involved messaging HC, a person he believed to be a twelve year old girl, on a site called Chat Avenue and later Skype. HC was in fact an undercover police officer. The appellant told HC he wanted to meet and have sexual intercourse with her, asked for pictures, described in explicit terms how he would teach her about sexual activity, and asked her to penetrate herself with a hairbrush handle. Count 4 related to exchanges on Skype with TM, aged fourteen. The appellant asked about her underwear, asked her to digitally penetrate herself, asked her to write his name near her vagina, and discussed meeting her at his address. Count 6 related to a Category A indecent image of a female child aged seven to nine years found on a laptop. Count 7 was a breach of various prohibitions of his Sexual Offences Prevention Order imposed on 18 January 2007, including by communicating with the girls, failing to make his devices available on request, deleting his internet history and failing to notify his supervising officer of his user names.
On arrest following an earlier offence in Newcastle, police had searched the appellant’s home address in Ellesmere Port and seized devices capable of accessing the internet. The appellant admitted in interview that he had the devices and knew he was in breach of his order. He stated that he had regularly used software to clear the contents of his hard drive. He said that his father had died recently and he was struggling to cope, that evil voices in his head made him do it, that he was lonely and had made a huge mistake.
The appellant, aged forty at sentence, had seven convictions spanning 2007 to 2016, all relevant. These included a two and a half year sentence in 2010 for failing to comply with notification requirements and sexual assault, and a two year sentence in 2016 for attempting to meet a girl under sixteen following grooming and breaching a Sexual Offences Prevention Order.
The sentencing Judge observed that the appellant had a very bad record for offences of this type, persistently using the internet to seek out illegal photographs of children and persistently failing to comply with orders. The Judge approached sentence on the basis that he would put himself in the position of the Judge in Newcastle had he been sentencing for all offending, then reduce that by the sentence already received, bearing in mind totality. The Judge would have considered the appellant dangerous and made an extended sentence had he been dealing with all matters, but as the Newcastle offence was the most serious and had not resulted in such a finding, no extended sentence was imposed. The Judge treated the incitement offences as falling within Category 2A, with a post-trial sentence of three years, reduced to two years with full credit for guilty plea. The single photograph attracted three months concurrent. The breach of the Sexual Offences Prevention Order resulted in sixteen months imprisonment, all sentences consecutive to the two year term being served.
The Judge imposed the Sexual Harm Prevention Order indefinitely. He considered the decision in Smith [2012] 1 All ER 451 but concluded that Smith did not deal with an offender like the appellant who persistently breached orders and ignored them. Although the appellant’s licence had similar conditions to those proposed for the order, the Judge was persuaded that as the licence was for a shorter term the order should be imposed indefinitely, with the possibility of review if the appellant had not offended for five years or more. The order included eleven prohibitions. Prohibition 1 stated that the appellant was not to own, possess or use any computer other than a public computer in a library. Prohibition 5 stated that he was not to subscribe to or utilise any cloud or similar remote storage media. Prohibition 6 stated that he was not to own, possess or use any mobile phone capable of accessing the internet. The other terms included requirements not to delete internet history, not to use concealment software, to register all email addresses and user names with police, to make devices available for inspection on request, not to have contact with children under sixteen, and not to refuse entry to police.
Leave to appeal was granted by the single Judge limited to the imposition of the Sexual Harm Prevention Order on the grounds that it was wrong to find such a term necessary to protect children from further sexual harm, that it was disproportionate, that insufficient regard was given to the appellant’s legitimate need for internet access, and that no sufficient regard was given to the inherent difficulty in policing the order as constructed.
Ms Justice Russell, giving the judgment of the court, stated that while it was understandable that the sentencing Judge was concerned by the appellant’s record and breaches of previous orders, the court considered that he had failed properly to apply the principles in Smith. The court cited the decision in Parsons & Morgan [2017] EWCA Crim 2013, which underlined that no order should be made unless necessary to protect the public from sexual harm, that any prohibitions must be effective, clear, realistic and capable of simple compliance and enforcement, that none of the terms must be oppressive and overall the terms must be proportionate, and that any order must be tailored to the facts. The court observed that the need to use and the importance of the internet in everyday living had increased since Smith and was continuing to increase. There might be a case where a blanket ban was proportionate even though oppressive, but the court did not consider that the appellant’s offending, repugnant as it was, would justify such a ban. The use of the internet was an essential and integral part of everyone’s life and essential to transactions between individuals, statutory bodies and other entities.
The court also considered that the order was not effective and therefore the statutory purpose would be defeated as it could not be enforced. The police did not have the time or resources effectively to monitor the appellant’s use of any computer or handheld device, to install monitoring software or to oversee and check on its use even if installed. As to cloud storage, its use was practically ubiquitous as it was built in to most operating systems; any device used by the appellant, including those in public libraries, would utilise the cloud and fall foul of prohibition 5. Those terms were unworkable and not capable of enforcement. They amounted to a blanket ban and as such were oppressive and disproportionate. The court quashed terms 1, 5 and 6 of the Sexual Harm Prevention Order.
The Registrar had drawn to the court’s attention that the victim surcharge order appeared to be unlawful. A surcharge order under the Criminal Justice Act 2003 (Surcharge) Order 2012 applied only where all offending before the court was committed on or after 1 October 2012. Count 6 spanned the coming into force of the current surcharge provisions. In accordance with the authorities in Bailey & Ors [2014] 1 Cr App R (S) 59 and Poole [2015] 1 Cr App R (S) 2, where an offence straddles a commencement date the provisions least punitive to the offender should apply. No surcharge order might be made in respect of any offence committed before 1 April 2007. Count 6 spanned 1 January 2006 to 9 August 2016, so it appeared that no surcharge order should have been imposed. The court quashed that order.
In short, the appeal was allowed to the extent that three prohibitions of the Sexual Harm Prevention Order and the victim surcharge order were quashed.
The appellant was made subject to a Sexual Harm Prevention Order, made until further notice. The Court of Appeal quashed terms that imposed a blanket ban on internet use and cloud storage, and ownership of a computer or mobile phone with internet access. “There may be a case where a blanket ban such has been imposed in this case is proportionate even though oppressive, but do not consider that the appellant’s offending, repugnant as it is, would justify such a ban.”