R v Gary Brown

A deprivation order requires proof to the criminal standard that the property was used to commit or facilitate an offence, or was intended for that purpose. A strong or likely inference is insufficient. The order cannot be used merely to preserve a device while further investigation remains possible.

When deciding whether to make an available order, the court must consider the property’s value and the likely financial and other effects on the offender. It must also assess proportionality as part of the total penalty. Deprivation orders are not routine. They require proper investigation, a sufficient evidential basis, and justification in principle and in proportion.

The appellant was convicted after trial in the Crown Court at Newcastle Upon Tyne of making indecent photographs of children, contrary to section 1(1)(a) of the Protection of Children Act 1978. A laptop and an inaccessible computer server were seized. Images forming the indictment were found on the laptop, but the server was not examined.

On sentencing, the judge made a deprivation order for both devices under section 152 of the Sentencing Act 2020. The appellant challenged only the inclusion of the server. The central issue was whether the evidence established to the criminal standard that the server had been used for, or was intended to be used for, offending and whether its deprivation was proportionate.

1. The appeal was allowed in part. The deprivation order was quashed insofar as it related to the computer server, AD/15. It remained in force in relation to the laptop, AD/10.

2. Under sections 152 and 153(3) of the Sentencing Act 2020, deprivation is available only where the court is satisfied to the criminal standard that property was used to commit or facilitate an offence, or was intended by the offender for that purpose. The prosecution bears that burden. The court applied the principles stated in R v Stephen Wright-Hadley [2022] EWCA Crim 446.

3. The sentencing judge’s inference that the server probably contained further indecent material was understandable. However, both the expert and the judge were unable to reach a sure conclusion that it did so, or that it would be used for that purpose in future. The statutory threshold was therefore not met. An amended order preserving the devices pending possible further investigation could not cure that absence of proof.

4. The court also held that section 155 required consideration of the server’s value and the likely financial and other effects of deprivation. The claimed loss of personal and family material, combined with the stringent restrictions imposed by the sexual harm prevention order, meant that destruction of the server was not proportionate.

5. The court reiterated that deprivation orders are ancillary but governed by a specific statutory regime. They should be made only after proper investigation establishes both their availability and their proportionality.

• Court of Appeal (Criminal Division) Allowed the appeal only to the extent of quashing the deprivation order relating to the server, AD/15: [2024] EWCA Crim 518.
• Crown Court at Newcastle Upon Tyne Convicted the appellant on 27 July 2023 and, on 11 September 2023, imposed imprisonment, a sexual harm prevention order and a deprivation order covering the laptop and server. The deprivation order was later amended to prevent destruction or disposal pending a further court decision.