Halloren, R. v

Under section 5A(2) of the Sexual Offences Act 1997, a restraining order may be made only where the court is satisfied, on material before it, that the order is necessary to protect the public or a particular person from serious harm. It is insufficient that the order would be desirable.

The sentencing judge must consider each statutory requirement and state the basis on which it is met. The Crown should present material capable of establishing those requirements. In this context, serious harm means death or serious physical or psychological injury caused by further sexual offending.

The appellant pleaded guilty at the Crown Court at Lewes to making indecent photographs or pseudo-photographs of children by downloading images from the internet. He received concurrent sentences of eight months’ imprisonment on thirteen counts.

The sentencing judge also made an indefinite restraining order under section 5A of the Sexual Offences Act 1997. The order broadly restricted the appellant’s access to computers, equipment capable of downloading or viewing images, and storage media, subject to an employment exception.

Leave to appeal the length of sentence was refused, but leave was granted to challenge the restraining order. The central issue was whether the statutory conditions for making that order had been established.

1. The appeal was allowed to the extent that the indefinite restraining order was quashed. The initial gateway in section 5A(1)(a) of the Sexual Offences Act 1997 was satisfied because a sentence of imprisonment had been imposed.

2. Section 5A(2), however, imposed a separate and restrictive condition. The court could make an order only if satisfied that it was necessary to protect the public generally, or a particular member of it, from serious harm caused by the offender. Necessity required material demonstrating the need for the order; desirability was insufficient.

3. The material before the sentencing judge did not show how the statutory protective purpose was met. Nor did it show that the judge had considered the statutory criteria or identified a basis for being satisfied that the order was necessary.

4. The court considered that “serious harm” in section 5A(2) should have the same meaning as the identical expression in section 161(4) of the Powers of Criminal Courts (Sentencing) Act 2000: death or serious physical or psychological personal injury caused by further relevant offending. Nothing on the papers established that risk in this case.

5. The notification consequences under section 5A(4), and the potential penalty for breach, underlined the seriousness of the order. Where the Crown seeks such an order, it must present the relevant material. Before making it, the judge must consider and express conclusions on each statutory requirement. There was no proper basis for the order, which was therefore quashed.

• Court of Appeal (Criminal Division): In [2004] EWCA Crim 233, allowed the appeal against the restraining order and quashed it. The challenge to sentence was not before the court because leave to appeal sentence had been refused.
• Crown Court at Lewes: The appellant pleaded guilty and received concurrent eight-month sentences. The court made an indefinite restraining order under section 5A of the Sexual Offences Act 1997.