R v Barry Philip Halloren
| Jurisdiction | England & Wales |
| Judge | JUDGE BRODRICK |
| Judgment Date | 27 January 2004 |
| Neutral Citation | [2004] EWCA Crim 233 |
| Date | 27 January 2004 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 03/6842/A8 |
[2004] EWCA Crim 233
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Mr Justice David Clarke and
His Honour Judge Brodrick
(sitting as a Judge of the Court of Appeal Criminal Division)
No: 03/6842/A8
MR STEPHEN WILSON appeared on behalf of the APPELLANT
On 3rd October 2003 at the Crown Court at Lewes the appellant pleaded guilty to a number of offences of making indecent photographs or pseudo-photographs of a child. In effect this is a case of downloading such images from the internet. On 13th November he appeared again at the same court before His Honour Judge Kemp and he was sentenced to eight months' imprisonment on each of thirteen counts concurrent and a restraining order was made under section 5A of the Sexual Offences Act 1997 for an indefinite period and he was ordered to register under the Sex Offenders Act of 1997 for the appropriate period ten years and an order was made for the forfeiture of the computer and the disks under section 1 of the Obscene Publications Act 1964. He sought leave to appeal both against the length of the sentence and against the making of the restraining order. Leave was refused in relation to the length of his sentence but granted in connection with the making of the restraint order. Today, it is that latter point, on which leave has been given, which is advanced before us.
The facts are these. On 16th December 2002 police officers executed a search warrant at the appellant's home address in Hove. They seized his computer. When it was subsequently examined, it was found to contain a number of indecent images of children. Adopting the grading which is to be found in the guideline case of Oliver [2003] 1 Cr App R 28: there were seven images at level 1, one at level 2, two at level 3, and, much more importantly, three at level 4, those three being moving images and one of them showing a prepubescent girl giving oral sex to an adult male. A number of other offences were taken into consideration: 205 images at level 1, thirteen at level 2 and seven at level 3.
When interviewed, the appellant admitted downloading and storing the images. He said that it had started out of curiosity. He maintained that he had not shown or distributed the images to anyone else, and he had not intended to do so, and he had ensured that the files on the computer were stored in such a way that no one else could have access to them.
He is 32 years of age and at the time of this conviction was of previous good character. There was a pre-sentence report, recommending a community rehabilitation order, but recognising that, in the light of Oliver, a custodial sentence was likely. It went on to indicate that he was full of remorse and there appeared to be a low risk of reoffending. If a custodial sentence was imposed, the report suggested that consideration should be given to extending the length of the licence period to enable him to complete a sex offender programme.
A psychiatric report concluded that he was suffering from an adjustment disorder; that that was a reaction to the stressful events, the main cause of the stress being the proceedings to which he was then subject. That confirmed that he was deeply remorseful about his behaviour and wished to try to understand why he had collected the images. It confirmed that he would make good use of a sex offender programme if provided or offered it.
There were six character references, and it was of some considerable importance that his wife was standing by him.
In passing sentence, the learned judge gave him full credit for a timely plea, accepted that the downloaded images were purely for his own use and gratification, but pointed out, of course, that by downloading them in the first place he was effectively a customer in a trade which resulted in the creation of those images and the abuse therefore, in the case of many of the images, of prepubescent girls. He went on to deal with other considerations, effectively more important as to the length of sentence.
The ground of appeal, which is now advanced with leave, is to the effect that the restraint order ought not to have been made in the circumstances of the present case. What appears to have happened is this -and we express our gratitude to Mr Wilson, who appears on behalf of the appellant today. In the period which we gave him, he has very helpfully obtained from the Crown Court at Lewes some documentation which was missing and he has endeavoured to establish whether there is any general practice in relation to requests for these orders. We deduce from the material before us that what must have happened was this. Prosecuting counsel was furnished with a bundle of documents by the police. Page 2 of that indicates:
"The offence the subject of this case is one to which the court on conviction can make a restraining order against the defendant providing any sentence of imprisonment is imposed."
It goes on to request that, should there be a prison sentence, an application for a restraint order should be made.
Page 1 of the bundle sets out the proposed terms of the restraint order. It has a very wide effect in relation to the owning, using, possessing or having access to any personal computer, laptop computer or other equipment capable of downloading any material from the internet. At the foot of the document it says this:
"The defendant shall not cease to be subject to the notification requirements of Part I of the Sex Offender Act...
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