R v Terrell (Alexander James)
| Jurisdiction | England & Wales |
| Judge | SIR RICHARD CURTIS,LORD JUSTICE TUCKEY |
| Judgment Date | 21 December 2007 |
| Neutral Citation | [2007] EWCA Crim 3079,[2007] EWCA Crim 2628 |
| Docket Number | Case No: 2007/04321 A8 No: S20070531,No: 2007/4321/A8 |
| Court | Court of Appeal (Criminal Division) |
| Date | 21 December 2007 |
[2007] EWCA Crim 2628
Lord Justice Tuckey
Mr Justice Foskett
Sir Richard Curtis
No: 2007/4321/A8
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr M Cobbe appeared on behalf of the Appellant
Alex James Terrell is 21. His date of birth is 13th March 1986. We are proposing to adjourn this appeal, which is with the leave of the single judge, to a date to be fixed in the light of the single judge's reasons for giving leave and in light of the importance of the question that is in issue in the appeal.
The point concerns a sentence of IPP where there is no worthwhile dispute that the offender posed a serious risk of committing further serious and specified offences, as we see things, but what is the proper approach in these cases of making indecent photographs to the evaluation of the serious harm that may or may not be characterised in a future offence.
With that in mind we feel it right to say a little bit about the facts and to draw attention specifically to one or two questions of law that have surfaced in the course of Mr Cobbe's helpful submissions to this court and have occurred to us in our researches prior to this actual hearing.
As we say, it is an appeal with leave of the single judge against a sentence of imprisonment for public protection with a minimum term of five months, less two days spent in custody on remand, concurrent on four offences of making indecent photographs of male children with 36 similar offences to be taken into account by the court. The court was Newport Crown Court. The judge was His Honour Judge Morris. Ancilliary orders were made, including one under section 28 of the Criminal Justice and Court Services Act 2000. They are not the subject matter of complaint.
The short facts are this appellant was a student at a University in the South of England and his parents lived in South Wales. The appellant kept his computer at his parents' home.
On 22nd August 2006 the police went to the parents' home and recovered the images referred to in the indictment and seized the computer, a hard drive and a compact disk. Some of the images had been duplicated. The analysed images on the Oliver scale were 12 images at Level 1, four images at Level 2, three images at Level 3 and one at Level 5.
In August 2006, following his arrest, the appellant admitted everything to the police and pleaded guilty at the first opportunity before the North East Gwent Magistrates. There he was committed to the Crown Court, as we have mentioned. This is because he had previous convictions for exactly the same offence. He had been dealt with on 19th February 2003 by magistrates for making 26 indecent photographs of male children in August 2002 and was sentenced to four months' detention and training. The case as a whole involved no less than 1200 images at Levels 1, 2 and 3 on the Oliver scale—see the prosecution opening at page 10A to D. The learned judge's conclusion on the question of likelihood of causing serious harm to children is to be found at page 3D of the sentencing remarks.
Obviously we have considered sections 224 to 229 of the Criminal Justice Act 2003, the case of Johnson [2006] EWCA Crim. 2486, Lang [2005] EWCA Crim. 2864, paragraph 11 in particular of the Vice President's judgment and the case of R v Collard [2004] Crim LR 757, also now fully reported at [2005] 1 Cr.App.R (S) 34. We believe in addition that it will be profitable for the court who deals with this matter to consider section 143(1). Mr Cobbe has also drawn our attention to the Sexual Offences Act 2003 and the provisions relating to prevention orders which are set out conveniently at paragraph 20 sub-paragraph 326 of the current edition of Archbold. Without commenting other than to say we are not entirely sure that those provisions are helpful to us since we have to, as we view things at the moment, deal with the Criminal Justice Act 2003 and everybody knows section 224(3) defines serious harm and we say no more about that.
Hopefully that short explanation will be helpful to those who have to research this matter in the future and we adjourn the case for a further hearing.
That is what we will do. We will not make any directions as to constitution, but if it is convenient for it to be adjourned to a constitution in which Sir Richard is sitting that I think would be helpful since he is very familiar with the case and his wisdom, if I may call it that, would be welcome on a difficult issue of this kind. Time estimate?
I would not argue with an hour.
Including judgment an hour-and-a-half?
That is probably sensible. No more than that though.
This court will notify the prosecution of what we have done and let them have a transcript of what has been said.
My Lord, thank you.
Mr Terrell, I am sorry we have not been able to deal with your appeal today but no doubt counsel will explain further to you if you need to know. I am sorry also to your parents who are sitting in the back.
[2007] EWCA Crim 3079
The Lord Chief Justice of England and Wales
Mr Justice Ouseley
Mr Justice Blake
Case No: 2007/04321 A8 No: S20070531
N THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM The Crown Court Newport
Indictment
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr M Cobbe (instructed by Twomlows) for the Appellant
Mr L Hughes (instructed by Crown Prosecution Service) for the Respondent
Hearing dates : 4 December 2007
Ouseley J:
The Appellant, aged 21, pleaded guilty before Magistrates to 4 offences of making indecent photographs of a child contrary to section 1 of the Protection of Children Act 1978. He was committed for sentence to Cardiff Crown Court under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000, where he asked for 36 similar offences to be taken into consideration. The 4 offences to which he pleaded guilty involved single images at Levels 1, 2, 3 and 5 on the scale in R v Oliver [2002] EWCA Crim 2766, [2003] 2 Cr. App. R(S)15. The 36 offences taken into consideration were at Levels 1, 2 and 3, mostly at Level 1. 20 indecent images, on video clips, had been duplicated and copied onto a CD.
On 25 July 2007 the Appellant was sentenced by HHJ Morris to imprisonment for public protection under section 225 of the Criminal Justice Act 2003 with a minimum term of 5 months concurrent on each count, less 2 days on remand.
Associated orders included one under section 28 of the Criminal Justice and Court Services Act 2000 disqualifying him from working with children and he was also required to register indefinitely as a sex offender.
In granting leave to appeal, Irwin J considered it arguable that although there obviously was a significant risk of re-offending in a similar fashion and although those who downloaded such images contributed to the market in them and to the harm done thereby to children, sections 224–229 of the CJA 2003 required a more direct link between the offence and serious harm than was present here. A previous constitution of the CACD then adjourned the hearing of the appeal to enable the prosecution to be represented for further argument on how repetition of the offence of making indecent photographs might occasion serious harm to members of the public. A related issue concerned whether the language of the public protection regime in this respect, similar to but not the same as section 104 of the Sexual Offences Act 2003 dealing with the Sexual Offences Prevention Order regime, should be interpreted by reference to decisions under the SOPO provisions.
A little more needs to be said about the facts. In August 2006 the Appellant was a student. His desktop computer was kept at his parent's home where he was based during the holidays. The computer and a CD were seized by the police and the indecent images found. The Appellant admitted the offences in interview, with an untruthful gloss which he later withdrew, and pleaded guilty at the first opportunity. He had searched the internet for video images of male children between the ages of about 7 and 13, and he had then downloaded them and copied them onto a CD. He viewed them, some more than once. He had used chat rooms in which he obtained user names and passwords to enable him to access the images.
There were in addition, although not giving rise to any offence, photographs of adults with children in swimwear on the beach in the background apparently, taken by the Appellant or his associates. He also had a laptop which contained a file bearing a similar name to that under which the indecent images on his desktop had been found. But he said that he could no longer remember its four line access code. The Appellant had already been convicted in February 2003 when he was 16, of 26 offences of making indecent photographs of children; over 1200 images were recovered, largely at Levels 1 and 2 with some at Levels 3 and 4. For this he was sentenced to a 4 month Detention and Training Order.
The Judge had a Pre-Sentence Report. The Appellant had tried to pursue a University career but with limited success and with obvious disruption more recently. He was living with his brother,...
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