R v Hemsley (Daniel)
| Jurisdiction | England & Wales |
| Judgment Date | 18 February 2010 |
| Neutral Citation | [2010] EWCA Crim 225 |
| Docket Number | Case No: 2010/00294 A6 |
| Court | Court of Appeal (Criminal Division) |
| Date | 18 February 2010 |
[2010] EWCA Crim 225
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BOURNEMOUTH
HHJ Harrow
Before: Lord Justice Hooper
Mr Justice Openshaw
and
HHJ Cooke QC, The Recorder of CARDIFF
(Sitting as a Judge of the Court of Appeal Criminal Division)
Case No: 2010/00294 A6
S20090229
Miss Anne Brown for the Appellant
Hearing date: 3 February 2010
HIS HONOUR JUDGE COOKE QC:
On the 11 th September, 2009 at the Bournemouth Crown Court this Applicant, having earlier pleaded guilty and been committed for sentence was sentenced by HHJ Harrow to 6 months imprisonment, concurrent on each of 23 counts of making an indecent photograph or pseudo-photograph of a child. In relation to that sentence of imprisonment there is no attempt to appeal. It is noteworthy that of the 6,592 images discovered on the Applicant's computer, 6,565 were at level 1, 20 at level 2, 2 at level 3, 5 at level 4 and none at level 5. There were also 71 moving images, 24 at level 1, 18 at level 2 and significantly 29 at level 4. The Applicant was of hitherto clean character and is now aged 27. No material tending to show that the applicant was progressing towards offending directly against children was discovered.
The Applicant was made subject to a Sexual Offences Prevention Order (“S.O.P.O.”) for an indefinite period and it is that order which is now sought to be challenged by Miss Brown for whose assistance we are very grateful. No doubt because there was no material tending to show that the Applicant was progressing towards offending directly against children there was no application for and no S.O.P.O. prohibiting the Applicant from being in the company, unsupervised of the children of friends or family. The terms of the order which was granted was as follows:
“a. Not to own or use any computer, electronic, magnetic or optical device which has the capability of storing, receiving or transmitting data without permitting any police constable to enter the premises upon which they are kept in order that they can examine and if necessary remove any such device for the purpose of carrying out such an examination.
b. Not to own or possess any image of a naked
child, under the age of 18, whether printed, digitally or electronically stored. This includes any image of a naked child under the age of 18 that has been published in any book or film that has been on general release within the UK. For the purpose of this prohibition naked child means any female under the age of 18 years who has their nipples, genitals or buttocks exposed or any male under the age of 18 years who has their genitals or buttocks exposed.
c. Not to work either paid, unpaid or voluntary where he may have access, directly or indirectly to any child under the age of 16.
d. Not to have any involvement with any club, team group or organisation that is likely to bring him into contact with children under 16.”
Section 104 of the Sexual Offences Act, 2003 confers a power to make a S.O.P.O. if the Court is satisfied that:
“it is necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant.”
(Section 107(2) of the Sexual Offences Act, 2003)
Key words or phrases in that statutory provision, often overlooked are “necessary”, “for the purpose of protecting” and “serious harm”. We also consider that it is essential, bearing in mind that a breach of a S.O.P.O. is a criminal...
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