Court of Appeal, Criminal Division
Published January 14, 2008

Regina v Terrell

Before Lord Phillips of Worth Matravers, Lord Chief Justice, Mr Justice Ouseley and Mr Justice Blake
Reasons December 21, 2007

A judge should not have imposed a sentence of imprisonment for public protection on an offender who downloaded indecent photographs of children on to his computer where a small, uncertain and indirect contribution to harm might be made by a repeat of his offence.

If a sexual offences prevention order could be imposed, the restrictions which it would contain would be relevant to the decision whether the statutory criteria for the imposition of a sentence of imprisonment for public protection were satisfied.

The Court of Appeal, Criminal Division, so held in a reserved judgment, giving reasons for allowing, on December 4, an appeal by Alexander Terrell, aged 21, against a sentence of imprisonment for public protection, with a minimum term of five months, under section 225 of the Criminal Justice Act 2003, imposed by Judge Morris at Cardiff Crown Court on July 25, 2007, following his guilty plea to four counts of making an indecent photograph of a child. A prison sentence of 10 months was substituted.
Mr Matthew Cobbe, assigned by the Registrar of Criminal Appeals, for the appellant;
Mr Leighton Hughes for the Crown.

MR JUSTICE OUSELEY, giving the judgment of the court, said that the indecent images were found on the appellant’s computer and a compact disk. He had been convicted of 26 counts for the same offence when he was 16.

The judge rightly concluded that the offences were serious specified sexual offences within section 224 of the 2003 Act and because of the previous conviction he was obliged to consider the application of section 225.

He concluded that he was duty bound to impose a sentence of imprisonment for public protection because there was a significant risk that the appellant would commit such offences in the future and it was a reasonable inference that that was likely to cause serious harm of a psychological nature to the victims of the abuse which resulted in those images.

The judge concluded that, but for the sentence for public protection, he would have imposed a 10-month prison sentence.

He made no sexual offences prevention order, under section 104 of the Sexual Offences Act 2003, because he thought that a prevention order could only be imposed where a determinate sentence of 12 months or greater had been imposed.

On the assumption the judge made, that a prevention order was not available to him, he was clearly entitled to conclude that the appellant posed a significant risk of reoffending.

However, the judge did not find that the offences which might be committed in the future were different from or graver than those which the appellant had already committed. The risk was of repetition of the same offence committed in the same way, albeit that that was a serious sexual offence.

It could not reasonably be said, in the context of the particular statutory provisions, that there was a significant risk of the appellant’s reoffending occasioning harm to a child or children whether through perpetuating the market, or through further indecent images being taken, or through a child becoming aware of the indecent purposes to which photographs might be put.

The link between the offending act of downloading the indecent images and the possible harm which might be done to children was too remote to satisfy the requirement that it be the appellant’s reoffending which caused the serious harm. At worst there would be an indirect and small contribution to a harm which might or might not occur, depending on whether further photographs were taken in part as a result of the appellant’s contribution to the market, or depending on whether a child found out about the uses to which they were put as a result.

The imprisonment for public protection provisions of the Criminal Justice Act did not apply where, simply as a matter of generalisation, a small, uncertain and indirect contribution to harm might be made by a repeat of the offence.

No significant risk of serious harm of the requisite gravity, occasioned by a repetition of the offending in this case by this offender could reasonably be said to exist. In so saying, their Lordships did not underestimate the unpleasantness of this offence, nor the problems created by the participation of many individuals in the market for such images.

The question was whether the quite severe provisions of this part of the Criminal Justice Act were apt here; they were not.

Further, the judge was wrong to suppose that a prevention order was not available in the absence of a 12-month minimum determinate sentence or possibly notional determinate sentence.

In addition, if a prevention order could be imposed, the restrictions which it would contain would be relevant to the decision as to whether the statutory criteria for the imposition of a sentence of imprisonment for public protection were satisfied.

If apt and effective restrictions could be imposed through a prevention order which would address the degree of risk and the seriousness of harm, the statutory criteria might not be satisfied. The same effect would be true of other penalties or orders.

An indeterminate sentence was not required by the Criminal Justice Act where other available sentences meant that the criteria were not met.

Solicitors: Crown Prosecution Service, Newport.

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