Terrell, R. v

For imprisonment for public protection under the Criminal Justice Act 2003, the court must identify a significant risk that the offender’s further specified offences will occasion death or serious physical or psychological injury. The regime’s indeterminate consequences require a high threshold. Repetition of relatively low-level offending does not suffice without a sufficiently direct, significant and probable connection between that offender’s reoffending and serious harm.

Repeat downloading of indecent images, where it makes only a small and indirect contribution to the market for such images, does not meet that threshold. A Sexual Offences Prevention Order is a distinct protective regime. Its availability and effective restrictions may nevertheless be relevant when assessing whether imprisonment for public protection is required.

The appellant pleaded guilty before magistrates to four offences of making indecent photographs of a child contrary to section 1 of the Protection of Children Act 1978. Thirty-six further similar offences were taken into consideration. He had a previous conviction for similar offending.

He was committed to Newport Crown Court for sentence. The judge imposed imprisonment for public protection under section 225 of the Criminal Justice Act 2003, with a five-month minimum term, after finding a significant risk of serious psychological harm to children through the production and use of indecent images.

On appeal, the central issue was whether a risk of repeating this downloading conduct had the direct and sufficiently grave causal connection with serious harm required by the public-protection regime. A subsidiary issue concerned the availability and relevance of a Sexual Offences Prevention Order.

1. Appeal allowed. The sentence of imprisonment for public protection was quashed and replaced with a determinate sentence of 10 months’ imprisonment, less two days spent on remand.

2. Under sections 224 to 229 of the Criminal Justice Act 2003, the court must focus on the serious harm occasioned by this offender’s further specified offending. A serious specified sexual offence does not inevitably cause serious harm. The indeterminate character and potentially lengthy consequences of imprisonment for public protection require a purposive and restrained construction of the dangerousness threshold. The court applied the guidance in R v Lang and Others [2005] EWCA Crim 2864.

3. The risk here was only that the appellant would repeat downloading conduct of the same character. There was no identified risk of contact offending, commissioning or taking images, a greater role in a distribution network, more serious images, or more frequent offending. His further downloading would make no more than a small and indirect contribution to the market for indecent images. The resulting possibility of serious harm to an unidentified child was uncertain and too remote. It could not reasonably be characterised as a significant risk of serious harm occasioned by his reoffending.

4. The court explained that neither R v Collard [2004] EWCA Crim 1664 nor R v Howe [2006] EWCA Crim 3147 established a general rule that downloading indecent images alone satisfies the dangerousness provisions through market perpetuation. That issue had not arisen for argument in those cases.

5. A Sexual Offences Prevention Order under the Sexual Offences Act 2003 is governed by a distinct regime and has a lower protective threshold than imprisonment for public protection. The sentencing judge was wrong to assume that such an order required a 12-month determinate sentence. Where an apt and effective order could control relevant risk, its terms may be relevant to whether the statutory criteria for imprisonment for public protection are met. On these facts, a Sexual Offences Prevention Order could have been made, but was not inevitable.

• Court of Appeal (Criminal Division): Allowed the appeal in [2007] EWCA Crim 3079. It quashed the sentence of imprisonment for public protection and imposed a determinate sentence.
• Newport Crown Court: Following committal for sentence from the magistrates’ court, imposed imprisonment for public protection with a five-month minimum term on 25 July 2007.
• Magistrates’ court: The appellant pleaded guilty and was committed to the Crown Court for sentence.