Waller, R. v

An imprisonment for public protection under Criminal Justice Act 2003 requires a significant risk that the offender’s further specified offending will occasion serious harm. In a case involving repeated downloading or making of indecent images, a general risk of indirect harm through the market for images is insufficient where the offender’s contribution to that harm is small, uncertain and remote. A history of similar offending and a risk of reoffending do not alone establish the required causal risk. The assessment remains fact-sensitive: the judgment does not preclude an imprisonment for public protection in every child-pornography or downloading case.

The appellant pleaded guilty to 12 offences of making indecent photographs of children. He had previous convictions for similar offending and committed the offences while subject to a suspended sentence and a Sexual Offences Prevention Order.

At Maidstone Crown Court, he received an imprisonment for public protection with a minimum term of 18 months, under the dangerous-offender provisions of the Criminal Justice Act 2003. The sentencing judge found a significant risk of serious harm because of the appellant’s repeated offending and perceived inability to control his addiction.

After an extension of time and leave to appeal, the Court of Appeal considered whether the statutory causal requirement for an imprisonment for public protection was met.

1. Appeal allowed. The court quashed the imprisonment for public protection and substituted a determinate term of three years’ imprisonment.

2. Under section 225 of the Criminal Justice Act 2003, the relevant question was whether there was a significant risk that the appellant’s further specified offending would occasion serious harm. The court held that repeated downloading or making of indecent images could not satisfy that requirement merely because it might make an indirect contribution to a market which could cause harm to children.

3. The court followed R v Terrell [2007] EWCA Crim 3079 and R v Hicks [2009] EWCA Crim 733. The causal connection between the appellant’s reoffending and possible harm was too remote, uncertain and indirect. There was no evidential basis for finding that serious harm caused in the past would be repeated, or that he would progress to more serious offending creating a significant risk of such harm.

4. The case was no stronger for the prosecution than those authorities and lacked potentially aggravating features considered in R v Cheshire [2009] EWCA Crim 447 and R v Sackman [2010] EWCA Crim 19. The court stressed that this conclusion did not make imprisonment for public protection unavailable in every case involving child pornography or downloading, and did not diminish the seriousness of repeat offending.

5. The substituted three-year sentence reflected the sentencing judge’s calculation: nine months for the activated suspended sentence, 18 months for breach of the Sexual Offences Prevention Order, and nine months for the image-making offences. The appellant remained subject to notification requirements and the earlier Sexual Offences Prevention Order. The court also directed that his proposed address be obtained and notified to the relevant chief constable promptly.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the imprisonment for public protection: [2010] EWCA Crim 728.

• Maidstone Crown Court: On 22 November 2006, imposed an imprisonment for public protection with a minimum term of 18 months.

• Channel Magistrates’ Court: On 9 October 2006, the appellant pleaded guilty and was committed for sentence under the Powers of Criminal Courts (Sentencing) Act 2000.