Collard, R v

A restraining order under Sex Offenders Act 1997, section 5A, requires material showing that it is necessary to protect the public from serious harm. The court must be satisfied both that there is a real risk of further offending and that the further offences will cause serious harm to children. Downloading indecent images may contribute to such harm, but it does not make an order necessary in every case.

The court should assess the offending and the offender, including the scale, duration and nature of the material, personal circumstances and risk of reoffending. Any prohibition must be tailored to the danger, proportionate and not oppressive. An indefinite order may be appropriate where it remains subject to discharge or variation.

The appellant pleaded guilty at the Crown Court at Lewes to seven counts of making, and 16 counts of possessing, indecent photographs or pseudo-photographs of children. A further 5,284 similar offences were taken into consideration. On 4 November 2003 he received concurrent sentences of one and two years’ imprisonment; those sentences were not challenged.

The judge also made an indefinite restraining order under Sex Offenders Act 1997, section 5A. It prohibited the appellant from possessing or accessing computers or other equipment capable of downloading internet material, subject to an employment exception. The appeal concerned whether an order was justified, whether it could be indefinite, and whether its terms were too wide.

1. The appeal was allowed in part. The restraining orders made on counts 1–7 were quashed because section 5A of the Sex Offenders Act 1997 had not come into force when those offences were committed. The orders on counts 8–24 were available in law.

2. The court followed the statutory approach explained in R v Halloren [1004] EWCA Crim 233. An order is discretionary, but it may only be made where the court is satisfied that it is necessary, rather than merely desirable, to protect the public or particular persons from serious harm. The court also accepted the reasoning in R v Beaney [2004] EWCA Crim 449 that the downloading and viewing of such images can contribute to the psychological harm suffered by the children depicted.

3. That latter proposition did not make an order necessary in every case. The court had to consider both the offending and the offender. Relevant matters included the number and duration of the offences, the nature and dissemination of the material, the offender’s antecedents and circumstances, and the risk of reoffending. A restraining order becomes necessary where there is a real risk of further offences and those offences will cause serious harm to children. The nature, extent and duration of this appellant’s conduct, together with his occupation, justified an order.

4. An indefinite duration was appropriate. The appellant could apply to discharge the order, and there was no material identifying when his offending proclivities might cease. However, the original prohibition was draconian and disproportionate. It was varied to prohibit downloading internet material, except where downloading was for lawful employment or lawful study.

• Court of Appeal (Criminal Division) — allowed the appeal in part in [2004] EWCA Crim 1664; quashed the orders on counts 1–7 and varied the orders on counts 8–24.
• Crown Court at Lewes — on 4 November 2003 imposed concurrent imprisonment and made restraining orders under the Sex Offenders Act 1997, section 5A.