R v Thompson
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LLOYD JONES |
| Judgment Date | 18 September 2008 |
| Neutral Citation | [2008] EWCA Crim 3258,[2009] EWCA Crim 3258 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No:200803640/A4 |
| Date | 18 September 2008 |
[2009] EWCA Crim 3258
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Rix
Mrs Justice Cox DBE
Mr Justice Lloyd Jones
No:200803640/A4
Mr W Aleeson appeared on behalf of the Applicant
Mr K West appeared on behalf of the Crown
: On 1st May 2008 in the Crown Court at Aylesbury before His Honour Judge Cripps, the appellant pleaded guilty and on 30th May 2008 was sentenced as follows: on two counts of taking an indecent photograph of a child, he was sentenced to 6 months' imprisonment on each count concurrent; on 16 further counts of having an indecent photograph of a child, he was sentenced on each to a term of 6 months' imprisonment on each count concurrent and concurrent to the sentences on counts 1 and 2. The total sentence was one of 6 months' imprisonment. Not guilty verdicts were entered on three further counts, under section 17 of the Criminal Justice Act 1967. He was disqualified from working with children, under section 28 of the Criminal Justice and Court Services Act 2000. Having been convicted of an offence listed in Schedule 3 of the Sexual Offences Act 2003, he was required to comply which the provisions of Part 2 of that Act. On 13th June 2008 His Honour Judge Cripps imposed a sexual offences prevention order pursuant to sections 104 and following of the Sexual Offences Act 2003 for a term of 5 years. The applicant now seeks leave to appeal against sentence limited to one paragraph of the sexual offences prevention order, a paragraph relating to the access to be afforded to the police to his home. His application has been referred by the Registrar of Criminal Appeals to the Full Court. We have had the benefit of submissions by counsel for the applicant and the Crown.
The applicant was arrested on 30th October 2006 following a complaint by a customs officer. A package addressed to him was intercepted. It contained a catalogue and DVD images of naked prepubescent children. This led to a search of the appellant's property, seizure of his computer and various items from within his house.
Among the items seized were several home video recordings of two girls who had previously lived next door to him. The recordings had been made between 1993 and 1995. The age of the girls at the time of the videos varied as the videos were taken over a couple of years, but they were between 7 and 4 years of age at the beginning and 9 and 6 years of age at the end. The videos were, for the most part, innocent and showed the girls playing in a paddling pool or in the lounge. Their mother knew that her daughters played at the applicant's home but she was unaware of the videos that he took of them in the paddling pool. Some of videos, however, showed the girls naked and showed that the applicant had zoomed in on the genitalia of the elder girl. Videos were also seized showing recordings of the girls using the toilet in his home. These were covert recordings. Those matters gave rise to counts 1 and 2 on the indictment.
The remaining counts related to indecent images of children that were found on the temporary internet cache of his computer when the police searched his house. There were a total of 2562 images found on the cache, 2357 at level 1, 54 at level 2, 68 at level 3, 95 at level 4 and 3 at level 5.
There was a basis of plea which was as follows:
“The defendant accepts that he had visited web sites that contained type 1 pornography. His interest in such pornography was restricted to type 1 material. This accounts for the fact that 95 per cent of the images found on his computer were type 1.
Whilst visiting these sites the defendant was aware that type 2 to 4 images were also available on the site.
Whilst he did not deliberately view this material, he accepts that by going onto sites that contained these images, the images were up loaded to his temporary Internet cache. In this way he accepts responsibility for the images being on his temporary cache notwithstanding the fact that he did not go to the site to view them.”
On behalf of the Crown Mr West, tells us the basis of plea was not specifically accepted. The Crown did not and could not gainsay the basis of plea but it was not signed or formally accepted as the contents fell outside the knowledge of the prosecution.
Mr West also draws to our attention that there was before the judge an exhibit, served by the Crown, containing extracts from the applicant's diary which showed that the applicant was expressing a sexual interest in his neighbour's children, the subject of the images in counts 1 and 2, over a lengthy period and there was a clear implication in the diary of the applicant going to Trafalgar Square to look at children.
The applicant is a retired school teacher. He is 62 years of age and was of previous good character. A pre–sentence report before the court recommended a suspended sentence order with a requirement that he attend a sex offender programme. It appeared to the author that there was a medium risk of his re–offending in a similar way given the fact that some high level images had been downloaded and his minimisation of his culpability. However, he was considered to be genuinely motivated to address his offending behaviour.
We are concerned solely with the sexual offences prevention order. That had been considered by counsel in advance of the hearing. When the matter came before Judge Cripps he was aware that all of the clauses proposed were not objected to by the defence except the clause prohibiting the appellant from refusing access to the police to his place of abode (Clause 6 of the final order).
The judge expressed his concern about the wording of some of the other clauses and as a result two clauses were deleted and two were amended. The judge heard full argument about the contested clause. He was referred to the decision of this court in R v Robin Martin Lewis [2007] EWCA Crim 3393. Reference was made to the proportionality of the clause in question, although not expressly to the terms of the Human Rights Act. On behalf of the defence it was contended that it was unduly intrusive and unjustified in the circumstances of the case. What was proposed, it was said, was an open search warrant which could not be justified. The judge then made an order which included the clause sought by the Crown but reducing the hours of access to the period from 8.00 am to 8.00 pm.
In making that order the judge observed that it was clear that the applicant was sexually attracted to young females. It was agreed that it was necessary to make a sexual offences prevention order for the purposes of protecting members of the public, namely young females, from serious sexual harm. The intention of Clause 6 was to enable the people charged with overseeing the order unannounced access to the applicant's home to ensure that he was not breaching conditions of the order. That was sensible and was not over intrusive or unjustified or contrary to the applicant's human rights. It was an entirely sensible condition appropriate to his case. The judge said:
“I realise it is intrusive but I take the view that in general and in this particular case it is justified by the background, by the defendant's previous procedure and by the practicality that without it, it seems to me, the order becomes virtually valueless.”
Although this appeal relates to only one clause of that order it is necessary to refer to all its terms so that Clause 6 can be seen in context. The order reads as follows:
“The defendant is prohibited from:
1. Not to own or possess any computer or electronic device without first notifying the Police Protection Unit and allowing...
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