Hicks v R

An imprisonment for public protection sentence requires an evidential basis for finding a significant risk that further specified offences will occasion serious harm. Repeated downloading of indecent images may sustain a substantial risk of further offending, but its small, uncertain and indirect contribution to the market for such images does not alone establish that statutory threshold. A possibility that an offender may progress to contact offending is also insufficient without evidence supporting that assessment.

In assessing future risk, the court may take account of effective restrictions available under a sexual offences prevention order. Where such measures materially reduce risk, an indeterminate sentence under the Criminal Justice Act 2003 may be unjustified.

The appellant pleaded guilty at Stafford Crown Court to 12 counts of making and two counts of possessing indecent photographs of children. The sentencing judge imposed imprisonment for public protection with a six-month minimum term for the making offences, and concurrent extended sentences for the possession offences.

The appellant had repeatedly committed similar offences after earlier sentences. His past conduct included posing as a photographer and taking non-indecent photographs of teenage girls which he later altered into indecent images. The Court of Appeal had rejected his own grounds of challenge but reserved the question whether the imprisonment for public protection sentence could stand following R v Terrell [2007] EWCA Crim 3079.

The central issue was whether the evidence established a significant risk that the appellant would commit further specified offences causing serious harm, and whether a stringent sexual offences prevention order could adequately protect the public.

Appeal allowed. The court quashed the imprisonment for public protection sentence and substituted a determinate sentence of 12 months, less time spent on remand. It imposed an indefinite sexual offences prevention order.

1. Under section 225 of the Criminal Justice Act 2003, the relevant risk is a significant risk that the offender’s future specified offending will occasion serious harm. The appellant’s persistent offending and disregard of licence conditions established a substantial risk of further downloading offences. They did not, without more, establish the required risk of serious harm.

2. The court followed R v Terrell [2007] EWCA Crim 3079. Repeated downloading for personal use makes only a small and indirect contribution to a market which may lead to harm to children. That causal link is too remote to meet the statutory threshold. A significant risk could arise if there were evidence of likely progression to contact offending, production or commissioning of indecent images, or a substantial role in distribution.

3. The appellant’s earlier conduct gave real cause for concern, but did not show that he had committed contact offences, caused serious psychological injury, circulated the altered images, or was likely to progress to more serious offending. The psychologist’s assessment identified potential progression, not a high or immediate risk. By a narrow margin, the necessary factual foundation for imprisonment for public protection was absent.

4. The court took account of an effective sexual offences prevention order, consistently with R v Terrell. It held that stringent restrictions on contact with children, internet-capable devices, image-making equipment and related activities would materially assist deterrence and public protection. Applying the guidance in R v Edward Thompson [2009] EWCA Crim 3258, a term prohibiting refusal of police entry for compliance monitoring was necessary and proportionate on these facts, although such a term should not be imposed routinely.

• Court of Appeal (Criminal Division): Allowed the appeal in [2009] EWCA Crim 733. It quashed the imprisonment for public protection sentence, substituted a determinate sentence, and imposed an indefinite sexual offences prevention order.
• Stafford Crown Court: The appellant pleaded guilty and was sentenced by HHJ Glen to imprisonment for public protection for the making offences and concurrent extended sentences for the possession offences. No citation for that decision is stated in the judgment.