Alison, R. v

A criminal trial should be stayed for abuse of process on mental-health or suicide-risk grounds only in exceptional circumstances. The decisive questions are whether a fair trial can be achieved through appropriate adaptations and whether prosecution remains in the public interest; suicide risk alone does not require a stay. Search terms and related material showing how indecent images were accessed are evidence relating to the offence itself under section 98 of the Criminal Justice Act 2003 and do not require a bad-character application under section 101(d). Exact linkage between each search term and each image is unnecessary. SHPO restrictions must be necessary, non-oppressive and proportionate. A child-contact prohibition is disproportionate for viewing offences where there is no identifiable risk of contact offending.

The appellant was convicted at Durham Crown Court of three offences involving indecent images of children and received a suspended sentence together with a Sexual Harm Prevention Order. He renewed his application for permission to appeal against conviction, alleging that his mental-health condition and suicide risk required a stay and that evidence of search terms was inadmissible bad-character evidence.

With permission, he also appealed against one SHPO prohibition preventing unsupervised contact with children under 16. The central issues were whether the trial should have been stayed, whether the search evidence was admissible under the Criminal Justice Act 2003, and whether the contact prohibition was proportionate.

Disposition. The renewed application for permission to appeal against conviction was refused. The appeal against sentence was allowed in part, and the first prohibition in the SHPO was deleted.

1. Stay of proceedings. A stay on abuse-of-process grounds requires exceptional circumstances. The court considered whether a fair trial was possible and whether it was in the public interest for the prosecution to proceed. The trial judge had accommodated the appellant’s condition, including by making arrangements to assist his participation. The appellant was fit to plead, there was no medical evidence that a fair trial was impossible, and his decision not to give evidence was his own. The trial was fair, and the public interest favoured its continuation. Suicide risk alone did not justify a stay.
2. Search evidence. Evidence of search terms, website use and download activity found on the same computer was evidence relating to the indecent-image offences. It therefore fell within section 98 of the Criminal Justice Act 2003, rather than requiring an application under section 101(d). The terms were relevant because they explained how the images may have been accessed and undermined the claim of inadvertent downloading. It was unnecessary to link each term to a particular image where the terms formed part of a habitual downloading exercise.
3. SHPO prohibition. The court applied the approach in R v Mortimer [2010] EWCA Crim 1303: whether an SHPO is necessary to protect others from serious sexual harm, whether necessary terms are oppressive, and whether the terms are proportionate overall. The guidance in R v Smith [2011] EWCA Crim 1772 required an identifiable risk of contact offences before a child-contact prohibition could be justified. Preventive restrictions could not be imposed merely in case a different type of offence might be committed.
4. The appellant’s offending involved viewing images, not contact with children. Psychiatric evidence and the sentencing judge’s remarks identified a very low risk of contact offending. No other factor justified the prohibition. It was therefore disproportionate. The court distinguished R v Inches [2020] EWCA Crim. 373 and held that the issue was properly before it because the objection was based on the circumstances existing at sentence, not a later change of circumstances.

• Court of Appeal (Criminal Division) — [2021] EWCA Crim 324: renewed permission application against conviction refused; sentence appeal allowed in part and the first SHPO prohibition deleted.
• Durham Crown Court: the appellant was convicted on 18 March 2020 and sentenced on 24 April 2020 to a suspended term of imprisonment with requirements and an SHPO.