R v Jonathan Richard Collard
| Jurisdiction | England & Wales |
| Judge | Mr Justice Grigson |
| Judgment Date | 20 May 2004 |
| Neutral Citation | [2004] EWCA Crim 1664 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 0306753 A1 |
| Date | 20 May 2004 |
[2004] EWCA Crim 1664
lord Justice Rose
Mr Justice Grigson
mr Justice Andrew Smith
Case No: 0306753 A1
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr S Throne appeared on behalf of the APPELLANT
Mr R Cherrill appeared on behalf of the CROWN
On the 10 th October 2003 at the Crown Court at Lewes this Appellant pleaded guilty to 7 counts of making indecent photographs or psuedo photographs of children (1 – 7) and to 16 counts of possession of indecent photographs or psuedo photographs of children (8 – 24).
On the 4 th November at the same Court H.H.J. Brown sentenced the Applicant on Counts 1 – 7 to one years imprisonment on each count. On counts 8 – 24 two years imprisonment on each count. All sentences to be served concurrently.
5284 similar offences were taken into consideration.
No appeal is made against those sentences.
The Judge also made a restraining order under Section 5A of the Sex Offenders Act 1997. The Appellant was ordered to register under the Sex Offenders Act 1997 and disqualified from working with children under Section 28 Criminal Justice and Court Services Act 2000.
It is against the restraining order that leave to appeal was granted. The Appeal came before the Full Court on the 27 th February 2004 and the hearing was adjourned as there was an apparent conflict between two decisions in this Court. R v Halloren [1004] EWCA Crim 233 and R v Beaney [2004] EWCA Crim 449.
The terms of the Restraining Order imposed by H.H.J. Brown were as follows:
"that you be prohibited from owning, using, possessing or having any access to any personal computer, laptop computer or any other equipment capable of downloading any material from the Internet. That prohibition does not apply to any such equipment which you have and use for the purpose of any lawful employment at and only at a place of such employment."
The Judge ordered that the Appellant register under the Sexual Offenders Act for a period of 10 years and that the disqualification from working with children last indefinitely.
These Orders were made in respect of each offence. In fact Section 5A only came into force on the 2 nd May 2001 and so was only available on counts 8 – 24. The Order made on counts 1 – 7 must therefore be quashed.
Section 5A of the Sex Offenders Act 1997 reads:
"(i) This section applies when –
a) the Crown Court or Court of Appeal imposes a sentence of imprisonment or makes a hospital or guardianship order, in respect of a person convicted of a sexual offence to which this Part applies.
b) The Crown Court or the Court of Appeal orders that a person who has been found not guilty of such an offence by reason of insanity, or to be under a disability and to have done the act charged against him in respect of such an offence, be admitted to hospital or make a guardianship order in respect of him.
c) a Youth Court makes a Detention and Training Order for a term of twelve months or more or a hospital or guardianship order in respect of a person convicted of such an offence.
d. a Youth Court makes a hospital or guardianship order in respect of a person who has been found not guilty of such an offence by reason of insanity, or to be under a disability and to have done the act charged against him in respect of such offences.
2) The Court may make an order under this Section in respect of the person ("the offender") if it is satisfied that it is necessary to do so in order to protect the public in general or any particular members of the public, from serious harm from him.
3) The order may prohibit the offender from doing anything described in the order.
4) The order shall have effect for the period specified in it or until further order; and the offender shall not cease to be subject to the notification requirements of this Part while the order has effect.
8) If without reasonable excuse the offender does anything which he is prohibited from doing by an order under this section, he is guilty of an offence.
9) A person guilty of an offence under this section is liable –
a) On conviction an indictment to imprisonment for a term not exceeding five years or a fine or both.
b) on summary conviction. To imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both."
The effect of Section 5A (4) is to make the requirement to register co-terminus with the period of prohibition when the period of prohibition is longer than the requirement to register. It also provides that the Court can specify the length of the period of prohibition. If the Court does not specify the period, then the order continues indefinitely unless and until the Court orders otherwise under subsection (7).
"On the application, the Court may, after hearing the Applicant and the other persons mentioned in subsection (6) above (if they so wish) make any order under this section varying or discharging the previous order which the Court considers appropriate."
Subsection 6 sets out who may make the application to the Court. In this case, no period was specified for the prohibition so that it continues unless discharged on application. The requirement to register would continue indefinitely unless the Court discharged the order of prohibition within the 10 year period. It can be seen immediately that this section gives the Court very wide powers indeed, and that breach of the order may result in substantial punishment.
In the R v Halloren(Ref) H.H.J. Broderick, giving the judgement of the Court, analysed the section in this way:
) that the Court had a discretion as to whether to exercise its power to make a restraining order.
) that before the Court can exercise its discretion it must be satisfied that it is necessary to do so in order to protect the public in general or any particular members of the public, from serious harm from him (the offender). The Court explained that 'necessary' was a higher qualifying test than, for example, 'desirable'.
) that there must be material upon which the Judge can reach the conclusion that such an order is necessary in order to protect the public from serious harm.
): that...
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