Brown, R. v

A sentencing judge assessing dangerousness may rely on the underlying material in reports, including an offender’s attitudes, distorted perceptions and lack of insight. The judge is not required to accept a professional conclusion that risk is reduced where the material as a whole supports a contrary assessment.

A Sexual Offences Prevention Order must be framed with sufficient precision. A prohibition which can criminalise possession of innocuous images of children, such as an ordinary newspaper photograph, is impermissibly broad. Prosecutorial discretion cannot cure an overbroad condition.

The applicant pleaded guilty at Gloucester Crown Court to sexual offences against a child, indecent assault, and offences concerning indecent images of children. He received concurrent extended sentences for sexual assault under the Sexual Offences Act 2003, with a custodial term of six and a half years and an extension period of three years. A Sexual Offences Prevention Order was also made.

After the single judge refused leave, the applicant sought an extension of time and renewed his application to appeal sentence. He challenged the finding that he was dangerous and the resulting extended sentences. The court also considered the breadth of a condition in the Sexual Offences Prevention Order concerning images of children.

1. The appeal was allowed only to a limited extent. The court upheld the finding of dangerousness, the extended sentences, and the sentencing judge’s conclusion that an extended sentence, rather than imprisonment for public protection, was necessary and adequate to manage risk.
2. The sentencing judge was entitled to assess risk by reference to the substance of the available material. That material showed the applicant’s distorted view of his relationship with the principal victim, his failure to appreciate the harm caused by grooming and abuse, and his portrayal of the sexual activity as consensual and mutual. Such material could properly carry more weight than the precise form of a report’s ultimate conclusion.
3. The judge was not bound to accept the psychological assessment that risk was acceptably reduced because the offending had arisen in particular circumstances. The earlier report had not particularised the significance of the indecent images. The later report had been prepared for a different purpose and did not undermine the conclusion that risk would be difficult to manage in the community. Detailed supervision under an extended licence, combined with a Sexual Offences Prevention Order under the Sexual Offences Act 2003, was a proper risk-management response.
4. However, the final prohibition in the order, which prevented possession of any image of a child under 16 without parental or guardian permission, was far too wide. It could criminalise continued possession of an ordinary newspaper containing an inoffensive photograph of a child. The court rejected reliance on prosecutorial good sense as a safeguard against a broadly drafted criminal prohibition.
5. The court granted an extension of time and leave to appeal solely to delete that condition. The deletion was to take effect after seven days unless the appellant made written representations seeking a further hearing.

• Court of Appeal (Criminal Division) — In [2011] EWCA Crim 1223, the court granted an extension of time and leave to appeal on the limited point concerning an overbroad Sexual Offences Prevention Order condition. It deleted that condition but left the extended sentences undisturbed.
• Gloucester Crown Court — On 24 November 2008, following guilty pleas, the applicant received concurrent extended sentences and a Sexual Offences Prevention Order.