APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Brodie Lord Wheatley	[2014] HCJAC 57 HCA/2014/001101/XJ   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   NOTE OF APPEAL AGAINST SENTENCE FOLLOWING UPON A REFERENCE FROM THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION   by   STEVEN JAMES CONNAL Appellant;   against   PROCURATOR FISCAL, STIRLING Respondent: _____________

Appellant: J Keenan, Solicitor Advocate; Capital Defence Lawyers

Respondent: Fairley QC AD; the Crown Agent

 

4 July 2014
Introduction

[1]        This appeal, following upon a Reference from the Scottish Criminal Cases Review Commission, raises an issue concerning the proportionality of prohibitions in Sexual Offences Prevention Orders (SOPOs) which restrict a person’s access to the internet.  The decision in that regard may have some resonance in relation to conditions attached to other sentencing disposals, including community payback orders.

 

Background

[2]        On 20 April 2007, at Stirling Sheriff Court, the appellant pled guilty to a breach of the peace, which involved sending inappropriate text messages to a 14 year old boy, and contraventions of the Civic Government (Scotland) Act 1982, sections 52(1)(a) and (c), by taking and possessing indecent photographs of children.  In essence, the complainer’s mother had discovered the messages on her son’s mobile phone and reported the matter to the police.  When the police made enquiries, the appellant’s computer was examined and the images, some of which involved penetration of a child by an adult, were discovered.  At interview the appellant admitted that he had had sexual urges when looking at the images.  He described himself as being attracted to young boys. 

[3]        The sheriff obtained a Criminal Justice Social Enquiry Report, which stated that the appellant had admitted being sexually attracted to the complainer and that he might have progressed contact with him, had the opportunity arisen.  The appellant admitted accessing the images found on his computer because of his sexual attraction to children.  A multi-agency risk assessment concluded that the appellant posed a high risk of re-offending and the recommendation was that the appellant be made the subject of a 3 year probation order, with a requirement to attend a Community Sex Offender Group Work Programme.  It was also recommended that it should be a condition of the probation that the appellant should have no unsupervised access to the internet.  A psychology report, also obtained by the sheriff, stated that the appellant had a level of intellectual functioning within the borderline IQ range, although he did not meet the criteria for learning disability.  The psychologist concluded that the appellant presented a medium risk for future sexual violence and recommended that the appellant be considered for a Sex Offender Treatment Programme.

[4]        On 27 June 2007, the sheriff imposed a probation order for 3 years with the conditions that the appellant should attend the Community Sex Offenders Group Work Programme and that he should not have any unsupervised access to the internet.

[5]        On 20 November 2007, the appellant admitted to a breach of the conditions of the probation order.  In particular, on 7August 2007, he admitted to the police, who were visiting him, that he regularly accessed the internet unsupervised while visiting his maternal grandmother in Doune.  A search of his laptop revealed hundreds of images of children, including babies, all in nappies and in a state of undress.  There were also pornographic images of men and women, also wearing nappies.  The appellant accepted that he had accessed these images for the purposes of sexual gratification. 

[6]        Another CJSWR was requested.  This disclosed that, on the day when the appellant had been placed on probation, he had been interviewed by a social worker who had noticed that he had a mobile phone with internet access.  He was told that he was not permitted that access.  He agreed to change his phone and to terminate any contract with the relevant internet provider.  Apart from the admitted breach, it was said that the appellant’s general compliance with the probation order had been excellent.  He had undertaken pre-programme work.  The breach proceedings were therefore continued with a view to monitoring compliance with the probation order.

[7]        At a hearing on 30 December 2009, it was reported that an on-going police enquiry had found images of child abuse on a laptop owned by the appellant and used by both him and a cousin, to whom he was very close.  A further hearing on 14 April 2010 revealed the existence of allegations, and counter-allegations, in relation to the appellant and his cousin, concerning sexual activity.  Despite there having been an agreement that the appellant would not contact his cousin during certain periods of the probation, the appellant had ignored this.  He had also continued using a mobile phone which had internet access.  The appellant subsequently admitted accessing further images of child abuse on his laptop.  By this time the possibility of the court making a SOPO was under active consideration but what happened, at the next hearing on 24 June 2010, was that the sheriff imposed a new probation order for 18 months, again with the condition that the appellant should not have unsupervised access to the internet.

[8]        The appellant continued to fail to comply with directions from his supervising officer relative to contact with his cousin.  It also became apparent, in November 2010, that the appellant had purchased another mobile phone with internet access.  He was asked to produce this phone, but stated that he was unable to do so because it was being repaired at a shop in Stirling.  This was untrue.  A proof was held in relation to the alleged breach of the conditions of probation and, on 21 April 2011, the breach was found established. 

[9]        The sheriff obtained a further psychological assessment of the appellant.  This commented on the appellant’s lack of self-awareness and insight into his offending and risk.  He was described as a young man who was “superficially compliant”.  It was clear to the sheriff, following upon comments by those supervising the appellant, that there were strong reservations about the ability of the appellant to comply with the conditions of any further period of probation.  The appellant continued to pose a high risk of re-offending and of causing future harm.  The sheriff invited the various professionals involved in managing the risk posed by the appellant to give some consideration to the imposition of a SOPO. 

[10]      At a hearing on 14 September 2011, a number of conditions to be attached to the SOPO were discussed.  Whilst the appellant did question the requirement to have a SOPO at all, it was accepted that, if one were necessary, the appellant had no objection to a number of the conditions, including that (infra) prohibiting him from accessing the internet.  There was an objection taken to the proposed prohibition on the appellant from owning or possessing a mobile phone, unless he had notified the police, and to possessing any device capable of accessing the internet.  The sheriff modified the proposed conditions accordingly.

[11]      The SOPO reads that the court:

“being satisfied that it is necessary for the purposes of protecting the public … from serious sexual harm … orders that the offender shall for a period of 10 years from the date of this Order be prohibited from:

(1)        having any contact or communication with any male child or young person under the age of 16 years except for contact or communication that is inadvertent or unavoidable

(2)        owning or possessing a mobile phone, SIM card or other telecommunication device, or any device capable of accessing the internet, unless he has notified the Chief Constable of the area where he is residing of his possession of such a device within 3 days of him having purchased or taken possession of the device, and further prohibits the offender from refusing to allow police officers to examine said device on request

(3)        accessing the internet unless in the course of his employment, training or voluntary work, with the express permission of the Chief Constable of the area in which he is residing”.

 

The SOPO continues with prohibitions on being in areas frequented by children and other related matters with which this appeal is not concerned.

[12]      As already noted, the appellant had not resisted the prohibition on his accessing the internet other than in the specified situations.  He did not lodge a timeous appeal against the imposition of the SOPO.  However, about 18 months later, on 2 May 2013, the appellant applied for an extension of time in which to lodge a Note of Appeal, to be drafted in light of the decision of the Court of Appeal in England in R v Smith [2011] 1 WLR 1316, which suggested that a “blanket prohibition on computer use or internet access is impermissible (Hughes LJ at para 20).  On 10 May 2013, the court refused this application.  Regrettably no written reasons for that refusal were issued.  That is an error, for which the court accepts full responsibility.  Consequently, the appellant applied to the SCCRC.

[13]      On 12 February 2014 the SCCRC referred the case back to the High Court on the basis of R v Smith (supra) and the subsequent decisions in R v Jackson [2012] EWCA Crim 2602 and R v Jones [2013] All ER (D) 181.  The SCCRC noted that the SOPO had been imposed “at a time when perhaps the internet was not universally relied on to the same degree as it is at present”.  In addition, it observed that curtailing all internet access, other than in the course of employment, training or voluntary work “without (sic) the express permission of the” police may now be considered draconian and placed too great a restriction on the individual’s ability to conduct everyday tasks of information gathering, correspondence and personal business. 

 

The appeal and submissions

[14]      The appellant’s Note of Appeal reads as follows:

“That the conditions attached to the SOPO, preventing the appellant from owning a mobile phone or any other device capable of accessing the internet, and preventing him from accessing the internet were excessive and oppressive.  The use of the internet is an essential part of every day living and the restrictions placed upon the appellant were excessive and amounted to a miscarriage of justice.”

 

It was accepted that the SOPO conditions did not actually prevent the appellant from owning a phone or other internet accessing device.  However, it was nevertheless maintained that the terms of SOPO conditions (2) and (3) (supra) were disproportionate and that the court should replace them with a condition whereby the appellant could not access the internet other than by way of a device which had a capacity for recording the appellant’s browsing history and relative conditions prohibiting him from deleting that history and requiring that he make that history available to the police on request. 

[15]      The sheriff reports, in response to the ground of appeal, that he was satisfied that it was “necessary” in terms of the legislation to make a SOPO and to prohibit the appellant from accessing the internet except in certain specified circumstances.  He comments that at no point throughout the lengthy proceedings was it suggested to him that the appellant required access to the internet for any particular purpose.  The only use of the internet by the appellant that the sheriff had been made aware of was in the context of accessing pornographic images of children.  Although the use of the internet was undoubtedly an essential part of everyday living for a large proportion of the public, that did not necessarily hold true in the appellant’s situation.  Had the sheriff been asked to allow the appellant to use the internet subject to the preservation of his browsing history, he would not have been amenable to such a course of action.  For some 3 years prior to the making of the SOPO, the appellant had repeatedly breached the prohibition on him accessing the internet and, by his own admission, he had disposed of a mobile phone in circumstances which disabled the authorities from checking its contents.  The sheriff was of the view that monitoring the appellant’s use of the internet was not an appropriate substitute for a prohibition on internet access except for specified purposes or with the permission of the police.  The potential harm to the public from the appellant’s use of the internet was not confined to his taking and distributing indecent photographs of children.  There was a real danger that he would become aroused when viewing images of this type.  This could lead to the commission of further offences. 

[16]      Under reference again to R v Smith (supra) the appellant submitted that conditions (2) and (3) of the SOPO were oppressive and disproportionate.  The appellant was restricted from using what was an essential part of everyday living.  As was said in R v Jackson (supra), it was now entirely unreasonable to prohibit anyone from accessing the internet in their home (see also Thomson v HM Advocate [2014] HCJAC 1). 

[17]      The court requested the assistance of the Crown in relation to the form of appropriate conditions in circumstances such as that of the appellant.  The advocate depute advised that, with the development of Facebook and other social networking sites, the authorities were not always able to trace the history of someone’s use of the internet, especially given the introduction of instant messaging services.  Condition (2) was necessary in order to monitor the appellant’s conduct, so that the police would know where to look.  Nothing which had been said in R v Smith (supra) suggested that this type of condition was unduly onerous, even if it might not add very much.  Condition (3) had been imposed having regard to the appellant’s particular circumstances; notably his repeated breach of the prohibitions on access to the internet. 

 

Decision

[18]      Section 104 of the Sexual Offences Act 2003 provides that a court can make a SOPO if it is satisfied that it is “necessary” to do so for the purpose of protecting the public from serious harm.  The prohibitions that can be included are those “necessary” for that purpose (ibid s 107(2)).  The issue for this court must therefore be whether the prohibitions in conditions (2) and (3) of the SOPO are necessary, and thus not disproportionate. 

[19]      Condition (2) does not prohibit the appellant from owning or possessing devices capable of accessing the internet.  Quite the contrary, it allows him to have any number of such devices, providing he notifies the police of any purchase or possession of such a device.  It is not exactly clear what detail the appellant requires to provide to the police in terms of this prohibition.  On one view, if the appellant’s access to the internet is to be controlled or monitored, this type of prohibition should limit the number of devices capable of being used by the appellant, perhaps to one phone and one computer/laptop/tablet, and require that the appellant notify the police of the precise device owned (by serial number or otherwise).  He should also be limited in relation to telephone numbers and e-mail addresses used by him and be required to supply the police with details of both.

[20]      Condition (3) does not impose a “blanket” prohibition on the appellant’s use of the internet.  It restricts it to use in the course of employment or related activities.  It is not clear whether the use of the word “with” in the remaining element of the prohibition ought to read, as the SCCRC thought, as “without” or whether what was intended was that the appellant could access the internet other than in the course of employment “with” the express permission of the police.  On any view, some clarification is needed.  In that respect, the court agrees with the dictum of Hughes LJ in R v Smith [2011] 1 WLR 1316 (at paras 4 and 5), using the analogy of interdict in a civil process, on the need for any prohibition to be sufficiently clear in its terms as to leave the recipient and the enforcement agencies with no real difficulty in understanding what the person can and cannot do.

[21]      The court agrees with the general proposition that a “blanket” prohibition on a person from accessing the internet is, at least normally, “impermissible” (ibid at para 20(i)), although it does not entirely accept that this ought to be phrased in quite such absolute terms.  It is at least possible to envisage an individual with such dangerous traits as might require such a restriction especially where, as here, the person has repeatedly breached conditions of access.  For the reasons given by Hughes LJ (at para 20(ii)) the norm must be to permit a person to access the internet for ordinary legitimate purposes such as planning journeys, purchasing goods and simple communication.  However, there must be considerable reservation about the adequacy of a term which allows unlimited internet access provided only that the person uses a device which has the capacity to retain and display a browsing history and that he is prohibited from deleting that history.  Such a term could, it is suspected, be circumvented relatively easily by the use of appropriate software.

[22]      The court is concerned that it does not, as yet, have the requisite expertise to know exactly what terms of prohibition would be effective, so far as practicable, in preventing the appellant from accessing the indecent images, which he seems keen to download, and from using the internet to contact children.  It may come to the conclusion that the only appropriate term is a prohibition on “unsupervised” access, other than in the employment sphere, and that, if, as he says, he requires or desires to access the internet for everyday requirements, he should only be allowed to do so under the supervision of a named person.  He should certainly be expressly prohibited from using social networking sites, which might facilitate communication with children.

[23]      The court will accordingly continue this appeal pending submissions from the parties on what precise conditions are appropriate in the current state of technology.  If parties are unable to assist further, consideration will have to be given to enlisting the skills of an expert in this field.  Meantime, the court proffers the following draft replacement conditions for comment:

“(2)(i)   owning or possessing more than one mobile phone and more than one computer (whether desktop, laptop or otherwise); (ii) owning or possessing any such device without advising the police in the area in which he lives of the serial number of that device; (iii) owning or possessing any other device capable of allowing him personal access to the internet without the express written approval of the police; and (iv) using any telephone number or e-mail address without advising the police of that number or address;

(3)(i)     accessing or otherwise using in any way, any internet social networking site, including Facebook; or (ii) accessing any other internet site, unless in the course of his employment, training or voluntary work, except (a) under the supervision of a person approved in writing for that purpose by the police or the sheriff in the area in which he resides; and (b) by using a device which records a history of internet use; which history shall not be deleted except with the express written approval of the police and shall, along with any device described in paragraph (2), be made available to the police upon request.”