Mahmood [2019] EWCA Crim 788
Summary
In Abdullah Al Mahmood [2019] EWCA Crim 788, the Court of Appeal dismissed an appeal against the imposition of an indefinite Sexual Harm Prevention Order, notwithstanding procedural shortcomings below and the extension of notification requirements beyond the statutory period.
Mr Mahmood, aged 43, pleaded guilty on 18th January 2018 at Lewes Crown Court to three offences of possession of indecent photographs of a child (category A, B and C) and one offence of possessing an extreme pornographic image. On 22nd February 2018 His Honour Judge Tain imposed concurrent terms of twelve months’ imprisonment suspended for eighteen months, together with a rehabilitation activity requirement and 100 hours of unpaid work. Critically, the judge also made a Sexual Harm Prevention Order under section 103 of the Sexual Offences Act 2003 until further order.
Police had seized Mr Mahmood’s phone during an investigation of an unrelated matter which was not proceeded with. He initially gave an incorrect PIN before providing the correct one through his solicitor. Examination revealed 16 category A indecent photographs, five category B images, 22 category C images, and one extreme pornographic image depicting a boy aged three to five performing oral sex on an animal’s penis. The images depicted both male and female children. Mr Mahmood made no comment in interview.
In sentencing, Judge Tain expressed concern that Mr Mahmood’s inability to acknowledge his interest in child pornography was troubling. The judge noted the probation officer’s assessment that there was a risk of further offending, though it was hoped his shame and those around him would keep him out of the court system. The judge gave credit for the guilty plea. No explicit reasons were given for the Sexual Harm Prevention Order in the sentencing remarks, though the transcript of the prosecution opening showed that the draft order had been discussed briefly and counsel for Mr Mahmood confirmed there was no objection to it being made until further order. It appeared no submissions were made on the terms or duration of the order.
Mr Mahmood appealed by leave against the indefinite duration of the Sexual Harm Prevention Order. He did not challenge the custodial sentence. Miss Knight submitted that an indefinite order was neither necessary nor proportionate. Mr Mahmood was of previous good character and had eight character references. The judge had failed to give explicit reasons for such an order when he should have done.
The court considered in detail the pre-sentence report prepared by Miss Catherine Mahoney dated 22nd February 2018. During interview Mr Mahmood claimed that images depicting male genitalia had been sent to him by parents seeking his advice on post-circumcision medical issues, as he was an Imam who referred community members to doctors for the procedure. He said he could not recall the names of the parents or children and denied gaining sexual gratification. He claimed other images, including the extreme pornographic image, had been posted on Facebook and “just came onto” his phone, though when challenged he accepted saving them. He said he was disgusted and intended to bring them to the police but when asked why he had not done so replied “I don’t know”. He denied seeking the images and vehemently denied any capacity to be aroused by children or extreme pornography, claiming the offences were “just a true and honest mistake”.
Miss Mahoney stated she had been unable fully to explore the factors underpinning his offending because of the account he provided, which in her submission lacked credibility. When asked about his sexual interests Mr Mahmood responded that he had no sexual feelings or dirty thoughts. He repeatedly asserted that he had never had any sexual desires or interests, which raised concerns about his genuine engagement. He reported working at a local restaurant and spending time at his mosque, teaching Arabic to children in his community. He stated his community knew of his arrest but still regarded and trusted him, and he hoped to continue working with children. Miss Mahoney noted that his unaddressed offending behaviour combined with his access to children raised serious concerns, though there was no evidence he had sought or had sexual contact with a child.
Miss Mahoney further reported that Mr Mahmood had told her he resided alone in rented accommodation, but liaison with Sussex Police confirmed that at the time of interview he was living in shared accommodation with a family including two children. His failure to disclose this pertinent information raised serious concerns about his genuine engagement. He was no longer authorised to reside at that address but Miss Mahoney had been unable to contact him since the interview to establish his current circumstances. On risk of serious harm, Miss Mahoney stated that extensive consideration had been given to the risk Mr Mahmood posed. Although the index offences were his first conviction, his apparent lack of genuine motivation to engage with probation, his access to children, his trusted status and unaddressed offending behaviour suggested the risk of serious harm to children might currently be imminent. However, over five months had passed since the offences with no evidence of breach of bail conditions. Miss Mahoney assessed that should a Sexual Harm Prevention Order be imposed, restrictive measures were critical. With such an order the risk would be medium, but in its absence the risk would be high, meaning identifiable indicators of serious harm with the potential event able to happen at any time with serious impact.
The court reviewed the applicable law. Section 103G(1) of the 2003 Act provides that where a Sexual Harm Prevention Order is made, the defendant remains subject to notification requirements while the order has effect. The indefinite order therefore meant indefinite notification requirements, rather than the ten years that would otherwise have applied to a suspended sentence of this length.
In R v Steven Smith [2011] EWCA Crim 1772, the Vice-President held at paragraphs 16 and 17 that a Sexual Harm Prevention Order must operate in tandem with statutory notification requirements and must not conflict with them. It is not normally a proper use of the power to extend notification requirements beyond the statutory period. However, it does not follow that the duration of an order ought generally to match the duration of notification requirements. Notification requirements and the conditions of an order are generally two different things. If circumstances require it, there is no objection to the prohibitory provisions of an order extending beyond notification requirements, and an order for less than an indefinite period might be appropriate even where notification requirements endure indefinitely.
In R v McLellan and Bingley [2017] EWCA Crim 1464, Gross LJ stated at paragraphs 25 and 26 that there is no requirement of principle that the duration of an order should not exceed notification requirements; it depends on the circumstances. An order may be made when the court is satisfied it is necessary for protecting the public from sexual harm from the defendant. An order should not be made for longer than necessary. An indefinite order should not be made without careful consideration or as a default option. Ordinarily a court should explain the justification for an indefinite order, though there are cases where that justification will be obvious. All concerned should be alert to the fact that an indefinite order results in indefinite notification requirements, and inadvertent extension is to be avoided. The court was not persuaded of the need for a specific warning merely because an order of longer duration than applicable notification requirements is contemplated, but Criminal Procedure Rules part 31.3(5) already requires service of a draft order not less than two business days before the hearing, and the draft should indicate the proposed duration or flag the question of duration for consideration. Defence representatives should be alert to questions of duration as part of ordinary preparation.
Drawing these principles together, Sir Kenneth Parker stated that where the custodial term was less than 30 months a clear case would be required to justify an indefinite order, bearing in mind that such an order would automatically extend the statutory notification period of ten years, a not inconsiderable burden. No rule of law prohibits an indefinite order in those circumstances, and there will be clear cases where it is necessary and proportionate notwithstanding the knock-on effect on notification requirements. However, caution and consideration are required and the court must look critically at the particular circumstances to determine whether such an order is justified.
The court held that on the material before it, in the particular circumstances of this case, where the risk would be continuing, the Sexual Harm Prevention Order was necessary and proportionate for an indefinite duration to achieve the statutory purpose of protecting the public from sexual harm. The pre-sentence report evidenced that Mr Mahmood totally refused to acknowledge his offending behaviour or its causes. He had told a material lie to the probation officer and gave no indication he would address his offending behaviour. This was of very great concern given his status and connections meant he had access to children and was generally trusted to behave lawfully and responsibly towards them.
Miss Knight submitted that the burden should be on the State to justify at the end of a putative ten year period that the risk continued to be real and concerning. The court rejected that analysis. In a case of this kind where the very serious risk had been so explicitly explained and identified, the evidential burden was fairly put upon Mr Mahmood to demonstrate during the ten year period that things had materially changed. In the absence of material change, there was no good reason to believe that the risk would recede to an acceptable level.
The court acknowledged that the procedure below had been far from satisfactory and was not in accordance with the clear mandate of the Criminal Procedure Rules, but nonetheless upheld the order for the reasons given. The court added that with the passage of time Mr Mahmood might come to realise he had a serious problem which he needed to address honestly and constructively, engaging with those who could help reduce and manage the risk to an acceptable level. He would then be in a position at an appropriate moment to apply for variation of the order.
The court also corrected an error under the slip rule. The judge had made an order for confiscation under section 1 of the Obscene Publications Act 1964, which was manifestly wrong as that Act had no application. The order should have been made under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000, and the record was amended accordingly.
In short, the appeal was dismissed, the court holding that the indefinite Sexual Harm Prevention Order was necessary and proportionate in circumstances where Mr Mahmood wholly denied his offending and its causes, lied about his living arrangements, and had continuing access to children in a position of trust.
Mr Mahmood, aged 43, pleaded guilty on 18th January 2018 at Lewes Crown Court to three offences of possession of indecent photographs of a child (category A, B and C) and one offence of possessing an extreme pornographic image. On 22nd February 2018 His Honour Judge Tain imposed concurrent terms of twelve months’ imprisonment suspended for eighteen months, together with a rehabilitation activity requirement and 100 hours of unpaid work. Critically, the judge also made a Sexual Harm Prevention Order under section 103 of the Sexual Offences Act 2003 until further order.
Police had seized Mr Mahmood’s phone during an investigation of an unrelated matter which was not proceeded with. He initially gave an incorrect PIN before providing the correct one through his solicitor. Examination revealed 16 category A indecent photographs, five category B images, 22 category C images, and one extreme pornographic image depicting a boy aged three to five performing oral sex on an animal’s penis. The images depicted both male and female children. Mr Mahmood made no comment in interview.
In sentencing, Judge Tain expressed concern that Mr Mahmood’s inability to acknowledge his interest in child pornography was troubling. The judge noted the probation officer’s assessment that there was a risk of further offending, though it was hoped his shame and those around him would keep him out of the court system. The judge gave credit for the guilty plea. No explicit reasons were given for the Sexual Harm Prevention Order in the sentencing remarks, though the transcript of the prosecution opening showed that the draft order had been discussed briefly and counsel for Mr Mahmood confirmed there was no objection to it being made until further order. It appeared no submissions were made on the terms or duration of the order.
Mr Mahmood appealed by leave against the indefinite duration of the Sexual Harm Prevention Order. He did not challenge the custodial sentence. Miss Knight submitted that an indefinite order was neither necessary nor proportionate. Mr Mahmood was of previous good character and had eight character references. The judge had failed to give explicit reasons for such an order when he should have done.
The court considered in detail the pre-sentence report prepared by Miss Catherine Mahoney dated 22nd February 2018. During interview Mr Mahmood claimed that images depicting male genitalia had been sent to him by parents seeking his advice on post-circumcision medical issues, as he was an Imam who referred community members to doctors for the procedure. He said he could not recall the names of the parents or children and denied gaining sexual gratification. He claimed other images, including the extreme pornographic image, had been posted on Facebook and “just came onto” his phone, though when challenged he accepted saving them. He said he was disgusted and intended to bring them to the police but when asked why he had not done so replied “I don’t know”. He denied seeking the images and vehemently denied any capacity to be aroused by children or extreme pornography, claiming the offences were “just a true and honest mistake”.
Miss Mahoney stated she had been unable fully to explore the factors underpinning his offending because of the account he provided, which in her submission lacked credibility. When asked about his sexual interests Mr Mahmood responded that he had no sexual feelings or dirty thoughts. He repeatedly asserted that he had never had any sexual desires or interests, which raised concerns about his genuine engagement. He reported working at a local restaurant and spending time at his mosque, teaching Arabic to children in his community. He stated his community knew of his arrest but still regarded and trusted him, and he hoped to continue working with children. Miss Mahoney noted that his unaddressed offending behaviour combined with his access to children raised serious concerns, though there was no evidence he had sought or had sexual contact with a child.
Miss Mahoney further reported that Mr Mahmood had told her he resided alone in rented accommodation, but liaison with Sussex Police confirmed that at the time of interview he was living in shared accommodation with a family including two children. His failure to disclose this pertinent information raised serious concerns about his genuine engagement. He was no longer authorised to reside at that address but Miss Mahoney had been unable to contact him since the interview to establish his current circumstances. On risk of serious harm, Miss Mahoney stated that extensive consideration had been given to the risk Mr Mahmood posed. Although the index offences were his first conviction, his apparent lack of genuine motivation to engage with probation, his access to children, his trusted status and unaddressed offending behaviour suggested the risk of serious harm to children might currently be imminent. However, over five months had passed since the offences with no evidence of breach of bail conditions. Miss Mahoney assessed that should a Sexual Harm Prevention Order be imposed, restrictive measures were critical. With such an order the risk would be medium, but in its absence the risk would be high, meaning identifiable indicators of serious harm with the potential event able to happen at any time with serious impact.
The court reviewed the applicable law. Section 103G(1) of the 2003 Act provides that where a Sexual Harm Prevention Order is made, the defendant remains subject to notification requirements while the order has effect. The indefinite order therefore meant indefinite notification requirements, rather than the ten years that would otherwise have applied to a suspended sentence of this length.
In R v Steven Smith [2011] EWCA Crim 1772, the Vice-President held at paragraphs 16 and 17 that a Sexual Harm Prevention Order must operate in tandem with statutory notification requirements and must not conflict with them. It is not normally a proper use of the power to extend notification requirements beyond the statutory period. However, it does not follow that the duration of an order ought generally to match the duration of notification requirements. Notification requirements and the conditions of an order are generally two different things. If circumstances require it, there is no objection to the prohibitory provisions of an order extending beyond notification requirements, and an order for less than an indefinite period might be appropriate even where notification requirements endure indefinitely.
In R v McLellan and Bingley [2017] EWCA Crim 1464, Gross LJ stated at paragraphs 25 and 26 that there is no requirement of principle that the duration of an order should not exceed notification requirements; it depends on the circumstances. An order may be made when the court is satisfied it is necessary for protecting the public from sexual harm from the defendant. An order should not be made for longer than necessary. An indefinite order should not be made without careful consideration or as a default option. Ordinarily a court should explain the justification for an indefinite order, though there are cases where that justification will be obvious. All concerned should be alert to the fact that an indefinite order results in indefinite notification requirements, and inadvertent extension is to be avoided. The court was not persuaded of the need for a specific warning merely because an order of longer duration than applicable notification requirements is contemplated, but Criminal Procedure Rules part 31.3(5) already requires service of a draft order not less than two business days before the hearing, and the draft should indicate the proposed duration or flag the question of duration for consideration. Defence representatives should be alert to questions of duration as part of ordinary preparation.
Drawing these principles together, Sir Kenneth Parker stated that where the custodial term was less than 30 months a clear case would be required to justify an indefinite order, bearing in mind that such an order would automatically extend the statutory notification period of ten years, a not inconsiderable burden. No rule of law prohibits an indefinite order in those circumstances, and there will be clear cases where it is necessary and proportionate notwithstanding the knock-on effect on notification requirements. However, caution and consideration are required and the court must look critically at the particular circumstances to determine whether such an order is justified.
The court held that on the material before it, in the particular circumstances of this case, where the risk would be continuing, the Sexual Harm Prevention Order was necessary and proportionate for an indefinite duration to achieve the statutory purpose of protecting the public from sexual harm. The pre-sentence report evidenced that Mr Mahmood totally refused to acknowledge his offending behaviour or its causes. He had told a material lie to the probation officer and gave no indication he would address his offending behaviour. This was of very great concern given his status and connections meant he had access to children and was generally trusted to behave lawfully and responsibly towards them.
Miss Knight submitted that the burden should be on the State to justify at the end of a putative ten year period that the risk continued to be real and concerning. The court rejected that analysis. In a case of this kind where the very serious risk had been so explicitly explained and identified, the evidential burden was fairly put upon Mr Mahmood to demonstrate during the ten year period that things had materially changed. In the absence of material change, there was no good reason to believe that the risk would recede to an acceptable level.
The court acknowledged that the procedure below had been far from satisfactory and was not in accordance with the clear mandate of the Criminal Procedure Rules, but nonetheless upheld the order for the reasons given. The court added that with the passage of time Mr Mahmood might come to realise he had a serious problem which he needed to address honestly and constructively, engaging with those who could help reduce and manage the risk to an acceptable level. He would then be in a position at an appropriate moment to apply for variation of the order.
The court also corrected an error under the slip rule. The judge had made an order for confiscation under section 1 of the Obscene Publications Act 1964, which was manifestly wrong as that Act had no application. The order should have been made under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000, and the record was amended accordingly.
In short, the appeal was dismissed, the court holding that the indefinite Sexual Harm Prevention Order was necessary and proportionate in circumstances where Mr Mahmood wholly denied his offending and its causes, lied about his living arrangements, and had continuing access to children in a position of trust.
The appellant pleaded guilty to three offences of possession of indecent photos of a child and one of possessing an extreme pornographic image, He was sentenced to 12 months imprisonment suspended for 18 months on each count with community requirements, along with an indefinite SHPO.
The only ground of appeal was in respect of the indefinite nature of the SHPO. It appeared that defence counsel did not make any submissions as to the terms or length of the order and the judge did not give explicit reasons for the making of it.
The appellant was an Imam and said that members of the community had sent him pictures with requests to check whether recent circumcisions of their children required medical attention. Images depicting a young child in a sex act with an animal and a naked child in a degrading act he said had just come onto his phone. He denied any sexual gratification and that he had made a “true and honest mistake”.
The PSR reported that he continued as an Imam and hoped to continue his work with children which caused concern, he also failed to disclose that he lived in shared accommodation with a family including two children. As to the question of a SHPO it was said that the risk of serious harm was medium but in the absence of appropriate restrictions the risk of serious harm would be imminent and high.
Held: caution and consideration are required before imposing an indefinite SHPO and the court must look critically at the particular circumstances of the case to determine whether it is justified. The PSR evidences that the appellant totally refused to acknowledge his offending behaviour or its causes, this is of concern due to his status, connections and access to children. The risk is therefore a continuing one and an indefinite order justified. While the sentencing judge did not impose the order in accordance with the clear mandate of the CPR it should still be upheld.