Ian Leslie Bates [2019] EWCA Crim 1084

Ian Leslie Bates v Regina [2019] EWCA Crim 1084 was an appeal by Mr Bates against sentence and a sexual harm prevention order imposed by the Crown Court at Sheffield following his conviction for attempting sexual communication with a child and attempting to meet a child following sexual grooming.

Mr Bates pleaded guilty on 13 March 2019 to both offences. On 3 April 2019 he was sentenced to one year for each offence, to run consecutively, making a total of two years imprisonment. A sexual harm prevention order under section 103A of the Sexual Offences Act 2003 was also imposed for a period of fifteen years. Leave to appeal both sentence and order was granted by the single judge.

The facts of the offending were that in October 2017 Mr Bates communicated over the internet with what he believed was a thirteen-year-old girl named Lara on an application called Nearby. The profile was in fact a decoy set up by a paedophile hunter group. After a brief discussion Mr Bates suggested they move to a more anonymous application called KIK. He suggested that Lara visit his house and go for a meal with him, offered to put credit on her mobile telephone and described her as a lovely young woman. He gave her his correct mobile number, told her he had had a vasectomy, and said that if they had sex it meant she would never have a baby. He said he would kiss her vagina and nothing more. He offered her money and asked whether she had deleted her messages because he did not want to get her into any bother. When police later examined his devices he had removed some applications from them. He sent Lara eleven photographs of himself, though they were not indecent. A meeting was arranged for 18 October 2017 at an address in Leeds. Members of the decoy group attended but Mr Bates did not arrive. They then used the postcode he had provided and confronted him at his home address. The police were contacted and Mr Bates was arrested. An officer searched his home and seized a number of items. He was released on bail and attended the police station on 23 October 2017, where he answered no comment in interview. The police received the Nearby and KIK chat logs from the decoy group, but Mr Bates had removed the KIK and WhatsApp applications from his devices, although police managed to retrieve eight of the eleven photographs he had sent.

After this first incident, between 12 March 2018 and 13 April 2018 Mr Bates was in contact with another decoy profile on a different social media application, this time a fourteen-year-old girl called Lacey. He sent a number of images to Lacey including one of his car. The chat continued on WhatsApp. He told Lacey that he would give her amazing cuddles and said he would meet her any time but they would have to keep it quiet. He told her he had to put his life on this and could go to prison. He said Lacey could come and stay at his house and they could go out. He said he would let her have wine but she might get drunk. He said he trusted her and hoped to see her on Friday and would not get her drunk. He asked whether she would drink some wine, saying she would like it. He told her he would not go to bed with her and, echoing what he had said in the first contact, said she could not have babies with him. He said he would give Lacey twenty pounds for baby-sitting and supplied her with further images. A meeting was arranged for 13 April 2018 at an address in Hoyland. He said he would be driving a Volvo. The decoy group were in attendance and when he arrived they detained him in his car and live streamed the encounter on Facebook. The police attended soon after and he was arrested. There was a bottle of wine on the rear seat of the car. When interviewed he gave a prepared statement accepting that he was responsible for the communication. He said that he knew he was communicating with paedophile hunters and wanted to confront them. Further devices were seized.

In sentencing, the judge described Mr Bates, who was aged fifty-five, as a predatory paedophile. The judge observed that even after arrest and bail for the first offence he had continued to attempt to contact underage girls over the internet and to meet them. The judge observed there were no guidelines for the offence of attempting sexual communication with a child. These were charged as attempts because the children contacted were decoys, but the maximum sentence was one of two years. He referred to the guideline for attempting to meet a child following sexual grooming and placed this offending between categories two and three. The probation service had found Mr Bates to be a high risk of serious harm to children and the pre-sentence report proposed, if immediate custody could be avoided, a two-year suspended sentence or a three-year community order with a condition of attendance on a sex offending course. The judge considered whether he could suspend the sentence but decided the offending was so serious that he could not. Giving full credit for the guilty pleas and taking account of totality resulted in the total sentence of two years.

Mr Aspinall, appearing for Mr Bates, advanced two grounds of appeal. First, that a sentence of immediate custody was wrong in principle and that the judge should have suspended the sentence. Second, that the sexual harm prevention order of fifteen years was disproportionate and wrong in principle. In his written grounds he relied on the decision in R v Jackson [2012] EWCA Crim 2602. Mr Aspinall rightly took no issue with the length of sentence passed. His case was that Mr Bates, who had no previous sexual offences recorded against him, could and should have been given the opportunity of attending a course to address his offending. The risk to the public might thereby have been reduced in a way that a relatively short time in prison with other sex offenders could not do.

The Court of Appeal rejected the first ground. Mrs Justice May, giving the judgment of the court, noted that these matters were plainly in the judge’s mind. It was apparent from his remarks that he weighed all this up. He had the pre-sentence report and mitigation from Mr Aspinall at the time, yet he took the view, as it was open to him to do, that the persistence of the offending, repeated as it was when Mr Bates was on bail, was so serious that appropriate punishment could only be achieved by a sentence of immediate imprisonment. The court could detect no error of principle in the judge’s approach.

As to the length of the sexual harm prevention order, the court was not assisted by the case to which Mr Aspinall referred in his written grounds. In that case the court observed that it would only be in an exceptional case that a sexual offences prevention order would be ordered to run longer than the notification period, the reasoning being that after the end of the notification period the police would not necessarily know where the offender was living and could not check that the restrictions of the order were still being complied with. Since 2012, however, the law had changed. Section 103G of the Sexual Offences Act 2003, introduced by schedule 5 of the Anti-social Behaviour, Crime and Policing Act 2014, provides that a notification period is to be extended to last as long as the term of a sexual harm prevention order if longer than the ordinary notification period under sections 80 to 84 of the 2003 Act. The fifteen-year sexual harm prevention order made in this case had the effect under section 103G of extending the notification period from ten years to one of fifteen years. The rationale for the observations of the court in Jackson no longer existed. Having said that, the court took the view that a fifteen-year sexual harm prevention order for this offending was disproportionate and thus wrong in principle. The court reduced it to one of ten years.

In short, the appeal against sentence was dismissed but the sexual harm prevention order was reduced from fifteen to ten years.

Jackson [2012] EWCA Crim 2602; 177 JP 147