Young Choung [2019] EWCA Crim 1650
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**R v Young Suk Choung** [2019] EWCA Crim 1650 concerned an appeal against a sexual harm prevention order made by the Crown Court at Reading following the appellant’s guilty pleas to possession of an extreme pornographic image and possession of a prohibited image of a child. The Court of Appeal (Lord Justice Simon, Mr Justice Lavender and His Honour Judge Edmunds QC) granted permission to appeal and allowed the appeal in part.
Mr Choung pleaded guilty in May 2018 to possessing one extreme pornographic image contrary to sections 63(1), 67(b) and 67(2) of the Criminal Justice and Immigration Act 2008, namely a photograph of a woman having sexual intercourse with a dog, and to possessing 2,335 prohibited images of a child contrary to sections 62(1) and 66(2) of the Coroners and Justice Act 2009. The second charge concerned Hentai images, which are computer-generated animated images of children being subjected to sexual abuse. Unlike photographs or videos, these images did not depict real children. In August 2018 the Crown Court imposed a two-year community order on each charge and made a sexual harm prevention order of five years’ duration. The appellant did not appeal the sentence but challenged the sexual harm prevention order.
The offences covered the period from December 2009, when Mr Choung was fifteen, to December 2015, when he was arrested aged twenty-one. Mr Choung, who had no previous convictions, had been sexually abused as a child and according to the pre-sentence report began watching pornography aged nine. He developed an interest in Hentai images. The report stated that after accessing such images he became more curious and this led him to search for more extreme pornography including bestiality. Following his arrest Mr Choung contacted the Lucy Faithfull Foundation and made efforts to manage his behaviour. The pre-sentence report of July 2018, over two and a half years after the arrest, nevertheless stated that it was likely his offending behaviour would recur unless there was a change in his sexual thinking, emotional management and coping skills. The report assessed him as presenting a medium risk of serious harm to children, emotional rather than physical in nature, and noted that there were no indications his behaviour had escalated beyond accessing images online. The report appeared to treat the prospective sexual harm prevention order as a significant external control in managing the appellant’s future behaviour. The draft order proposed by the prosecution contained no prohibition on contact with children.
The sexual harm prevention order prohibited the appellant from accessing the internet without risk management software installed by police, tampering with such software, using any device capable of accessing the internet unless it could retain and display browsing history, purchasing or using such devices without notifying his public protection officer within three days, possessing any device capable of storing digital images unless made available for inspection, using cloud storage unless access and passwords were provided on request, using false internet identities, using software to disguise browsing or location, and purchasing or using evidence elimination or encryption software.
The first ground of appeal was that the order was unnecessary in its entirety. The second ground was that paragraph 1, which concerned the requirement to have risk management software installed, went beyond what was necessary.
The court considered section 103A(2)(b) of the Sexual Offences Act 2003, which requires the court to be satisfied that a sexual harm prevention order is necessary for the purpose of protecting the public or any particular members of the public from sexual harm from the defendant, or protecting children or vulnerable adults generally or particularly from sexual harm from the defendant outside the United Kingdom. The court emphasised that the test is one of necessity and each case must be considered on its own facts. The type of sexual harm to which the section refers includes the harm caused to children who are the subject of pornographic photographs or videos, citing R v Beaney [2004] 2 Cr App R (S) 441, R v Collard [2005] 1 Cr App R (S) 34 and R v Terrell [2008] 2 Cr App R (S) 49.
The court held that if the thousands of images in the present case had been photographs of real children being subjected to sexual abuse, there would be no doubt that a sexual harm prevention order was necessary. However, the images to which the second charge related were all Hentai images which did not involve any actual sexual harm to any actual children. If Hentai images had been the only images which the appellant had possessed or was likely to possess in the future, there would have been no risk of sexual harm to anyone and therefore no need for a sexual harm prevention order. However, the appellant also possessed a photograph of a woman engaged in bestiality. Women photographed engaging in such acts for pornography are likely to be vulnerable and the harm to which they are subjected is sexual harm of a similar kind to that suffered by children who are the subjects of pornographic photographs or videos. Moreover, the appellant had stated that his possession of this image resulted from becoming more curious and searching for more extreme pornography than Hentai images, the pre-sentence report expressed the opinion that reoffending was likely without changes in his sexual thinking and coping skills, and the proposed order was presented in the report, seemingly by the appellant himself, as part of the means by which he intended to prevent recurrence of his offending behaviour. The court considered that these facts were such that the judge was entitled to be satisfied that a sexual harm prevention order was necessary for the purpose of protecting children or vulnerable adults from sexual harm. The first ground of appeal was therefore dismissed.
Turning to the second ground, the court noted that paragraph 1 of the order was in substantially the same terms as paragraph 3(3) of the order in R v Parsons [2017] EWCA Crim 2163. That paragraph had been quashed and replaced with an order in different terms, having regard to what was said about blanket bans on internet use in R v Smith [2011] EWCA Crim 1772 and in paragraphs 8 to 10 of Gross LJ’s judgment in Parsons, and to what Gross LJ said about risk management monitoring software in paragraphs 14 to 19 of his judgment in Parsons. For substantially the same reasons, the court agreed that paragraph 1 of the order in the present case went beyond what was necessary and quashed it. The court substituted for paragraph 1 a prohibition taken from a standard form used by the Crown Prosecution Service in London. The new prohibition prohibited Mr Choung from using any computer or device capable of accessing the internet unless he had notified the police ViSOR team within three days of acquisition, the device had the capacity to retain and display browsing history with automatic deletion set to not less than twelve months and he did not delete such history, he made the device immediately available for inspection and allowed installation of risk management monitoring software if chosen, with an exception for computers at his place of work, Job Centre Plus, public library or educational establishment provided he notified the police ViSOR team within three days of commencing use at his place of work. The court noted that this substitution rendered paragraphs 3 and 6 of the existing order unnecessary and deleted them.
In short, the appeal against the sexual harm prevention order was allowed in part, with the court upholding the necessity of the order itself but quashing and replacing paragraph 1 and deleting paragraphs 3 and 6 on the basis that they went beyond what was necessary.
R v Beaney [2004] 2 Cr App R (S) 441
R v Collard [2005] 1 Cr App R (S) 34
Terrell [2007] EWCA Crim 3079, [2008] 2 Cr App R (S) 49
Parsons and Morgan [2017] EWCA Crim 2163, [2018] 1 Cr App R (S) 43
Smith and Others [2011] EWCA Crim 1772, [2012] 1 Cr App R (S) 82, [2012] 1 WLR 1316