Beaney, R. v

A restraining order under section 5A(2) of the Sex Offenders Act 1997 requires material showing that the order is necessary, rather than merely desirable, to protect the public or particular members of it from serious harm.

A person who knowingly downloads and views indecent images of children may contribute to the serious psychological harm suffered by the children depicted. The risk arises from the children’s awareness that others are viewing their forced sexualisation. Conditions imposed by a restraining order must also go no further than is really necessary. A prohibition on access to all image-viewing equipment was too wide where it could criminalise ordinary presence near equipment used by others.

The applicant pleaded guilty at Maidstone Crown Court to 17 offences of making an indecent photograph of a child by deliberately downloading and viewing images on the internet. He received concurrent sentences of six months’ imprisonment. The judge also ordered forfeiture of his computer and made a restraining order under section 5A of the Sex Offenders Act 1997.

The applicant renewed his application for leave to appeal against the restraining order after refusal by a single judge. He challenged both the necessity of the order and the width of its restrictions, which prevented ownership, use, possession or access to a wide range of computer and image-viewing equipment. The central issue was whether the risk arising from further viewing of indecent images justified the order and, if so, whether its terms were no wider than necessary.

1. The court treated the renewed application as the appeal and allowed it to a limited extent. The restraining order was justified in principle, but its terms required variation.

2. Section 5A(2) of the Sex Offenders Act 1997 required material capable of satisfying the sentencing judge that an order was necessary to protect the public, or particular members of it, from serious harm. The court applied the approach in Halloren [2004] EWCA Crim 233. Guidance on serious harm was available from section 161(4) of the Powers of Criminal Courts (Sentencing) Act 2000.

3. Children depicted in indecent images faced a real risk of serious psychological injury not only through their exploitation in producing the images, but through knowledge that others would view them. A person who deliberately downloaded and viewed such material could therefore contribute to that harm, even without paying for, saving or distributing it. The material before the judge sufficiently indicated a continuing risk of further viewing offences. It entitled the judge to conclude that the order was necessary for the time being.

4. The original restrictions went further than necessary. Prohibiting the applicant from having access to relevant equipment could criminalise his presence where equipment was publicly available or used by his family. A prohibition on equipment capable of viewing any images was also overbroad. The court removed the access restrictions, confined the relevant equipment to that capable of downloading indecent images of children from the internet, and correspondingly narrowed the restriction on storage media.

5. A future application under section 5A(6) could invite the Crown Court to decide whether the risk had reduced sufficiently for discharge of the order.

• Court of Appeal (Criminal Division) — In [2004] EWCA Crim 449, the court treated the renewed leave application as the appeal, allowed it to a limited extent, and varied the restraining order.
• Maidstone Crown Court — On 19 September 2003, Judge Patience QC sentenced the applicant for 17 offences and made the restraining order challenged on appeal.