Sexual harm

Unresolved motive for child abduction: SHPO justified?

Four months after incurring a suspended sentence (SSO) for witness intimidation, AB entered a family home and removed an infant girl (aged 17 months), taking her into his mother’s home next door. Having been told where her daughter had been taken the victim’s mother pursued and confronted him, struggling to remove the distressed child from his arms; he eventually let her go when the victim’s mother told him she was calling the police. The child had sustained a scratch to the face and bruising. Though he responded with ‘no comment’ in police interview, AB pleaded guilty to child abduction (an offence listed under the Sexual Offences Act 2003 Schedule 5).

In the course of extended sentencing proceedings, the Crown Court considered a psychiatric report which relayed AB’s explanation that he had found the young child crying outside his own mother’s home and had taken her inside for her own protection, an account also given to the PSR author. The psychiatrist reported that AB had athetoid-type cerebral palsy attributable to congenital subcortical brain injury, together with borderline impairment of intelligence. The judge was perplexed that, though AB conceded that his actions had been ‘completely and utterly inappropriate’, counsel were unable to throw light on his motive for committing this crime, coupled with the lack of expert advice on whether he posed ongoing risks to others, particularly to children. Further reports were ordered and an additional PSR disclosed that some two years prior to the abduction AB had been arrested for sexual assault, an allegation that he had been in bed with a seven-year-old girl and had placed his hand inside her pants. No prosecution had ensued. Further, it was understood that his SSO offence had involved him acting with others in threatening to rape the victim’s child. The report writer stated that ‘It may be fair to assume that the motivation [for the child abduction] could be sexual’ and concluded that AB posed a high risk of serious harm to children. AB had now admitted entering the child’s home and removing her, albeit maintaining that his motivation for doing so was because he heard the child crying and was concerned for her safety. A further psychiatric report concluded that ‘it is difficult to say that he does not pose a continuing risk to children or reoffend in future without understanding his motivation to commit the index offence’.

Having indicated that, as the suspected sexual assault had not resulted in prosecution, it would be ‘completely improper’ to assume any criminal offence had taken place, and having aired the possibility of providing AB with an opportunity of giving evidence through a Newton hearing, the judge ordered a further adjournment, bailing AB (who had been in custody for 16 months) to approved premises, for the Probation Service to consider whether AB could be offered ‘close supervision for three years by somebody who specialises in this type of case’. Ultimately, on imposing a 12-month community order with a supervision requirement for 12 months and a residence requirement for six months, with no action in respect of the breach of SSO, the judge made a sexual harm prevention order (SHPO) of indefinite duration with numerous child safeguarding conditions extending to those aged up to 18. In consequence of the SHPO, AB was liable to sex offender notification requirements indefinitely.

Before any appeal was pursued, AB had been convicted of failing to comply with notification, a breach attracting a fine, and then of failing to comply with the SHPO, arising from his relationship with and his unauthorised visits to a woman with two young children. The latter had incurred a three-year community order with a requirement to complete a sex offender treatment programme but had prompted belated attention to the lawfulness of the SHPO.

On out-of-time appeal against the SHPO, it was argued that it had been wrong in principle to make an order that was grounded on the premise that AB posed a risk of sexual harm; in the alternative, that the terms of the order were neither necessary nor proportionate – in respect of its duration and the extent of child safeguarding restrictions covering all minors up to age 18. The Court of Appeal made the preliminary observation that if AB had been convicted of an offence listed in SOA 2003 Schedule 3 (i.e. one that was ‘sexual per se’), the question whether to make an SHPO would have been a more straightforward task, in determining whether such an order is necessary for the purpose of ‘protecting the public or any particular members of the public from sexual harm from the defendant’ (SOA section 103A(2)(b)(i)). Though the Court had some sympathy for the judge’s predicament, report writers and counsel had shown ‘a lack of focus upon the question of the protection of the public from sexual harm by [AB], as opposed to the risk of harm in general’. The judge should have ‘grasped the nettle at a relatively early stage’ and made the necessary determination, conducting a Newton hearing if needs be. This would have allowed imposition of a custodial sentence (which the Court considered would have been appropriate) rather than a community order. As it had unfolded, no clear finding had been made on the central issue required for the purposes of enabling the court to impose an SHPO. On the contrary, the judge appeared not to have been satisfied that there was sufficient evidence of a sexual motive for the abduction.

In consequence, the Appeal Court could not be satisfied that the judge had been entitled to impose an SHPO. Further, this was not a case in which, without further detailed consideration, such an order should have been imposed either indefinitely or providing protection for those aged under 18, as opposed to those under 16. The order was quashed. (AB’s conviction for breach of SHPO was left to be pursued by a further appeal initiative.)

R v AB, [2020] 1 Cr App R(S) 67.

Risk of serious sexual harm insufficiently established for extended sentence

Purporting to be a woman (‘Amy’) with young daughters, A. pursued an Internet dating site link with X., telling him that ‘her’ girls liked to walk around their home naked and suggesting that X. should take photos of them unclothed. Though X. made clear that he was interested only in ‘Amy’, A. sent him pictures of what he claimed was ‘her’ daughter aged four in the bath and of images of a female child of that age and appearance being subjected to sexual abuse, repeatedly asking whether he (X.) would like to have sex with this child. Shocked by this invitation, X. informed the police. Now aged 31, A. had been convicted three years earlier of possessing and distributing indecent images of children, incurring a 26-month suspended sentence and being made subject of sexual offences prevention order (SOPO). On arrest for the new allegations, A. refused to supply the police with the PIN for his (unregistered) mobile phone, in breach of his SOPO, or to cooperate with their enquiries.

Following A.’s guilty pleas to distributing indecent images and breach of SOPO, the Crown Court considered a PSR and a psychiatric report. These demonstrated that he had given very different accounts to the two report writers. He told the probation officer that he had no recollection of his communications with X., claiming heavy alcohol consumption, whereas he informed the consultant psychiatrist that someone else had asked him or told him to send the images and that he had sought gratification through submitting to a more dominant person. Though the PSR recorded his denial of any sexual attraction towards children or any sexual motivation for his latest behaviour, the probation officer noted his earlier admission of an interest in paedophilia and his wish to participate in the dark web. The PSR assessed A. to pose a high risk of serious harm towards female children; while the nature of that risk was said to be linked primarily with further abusive images of children, his most recent offending indicated an increased likelihood of a contact sexual offence. However, the probation officer did not assess him to be ‘dangerous’ within the meaning of CJA 2003. Though finding no clear evidence to suggest that A. appeared interested in committing contact offences, the psychiatrist considered that the court might consider him to be ‘dangerous’, without explaining why, save for A.’s minimisation of his role in his current reoffending and the benefit he could derive from a sex offender treatment programme.

On A.’s appeal against a five-year extended sentence (a custodial term of three years and an extended licence period of two years), it was conceded that he might commit a further specified offence, but it was contended that there was no significant evidence upon which to base a finding that he posed a significant risk of causing serious physical or psychological harm to members of the public. It was argued that the risk of a contact offence involving a child was negligible and neither report had suggested that such an offence was likely. Although commission of a contact offence was not a necessary precursor to a finding of dangerousness, in this case no children had been contacted or sought to be contacted. Unlike those involved in the production of indecent material, a distributor like A. does not create the risk of causing serious harm but instead perpetuates the harm caused by others.

The Court of Appeal observed that where a sentencing judge, as in this instance, has applied the correct test and has taken into account all the relevant material, the Court will be ‘very slow to interfere’ with that assessment of dangerousness. However, the judge here had fallen short of establishing the requisite risk of serious harm. Despite the acknowledged risk of an escalation in A.’s behaviour, he had not sought to make contact with any child and there was no clear evidence that he would be likely to do so; all his offending communications having been with X. and other adults. Further, ‘this was only the second incident of distribution offending’. His attempts to minimise his behaviour and to conceal his activities, though matters of concern, were not enough in themselves to demonstrate the necessary risk of causing serious physical or psychological harm. The extended sentence was quashed, being substituted by a three-year term of imprisonment.

R v ANDREWS, [2020] 1 Cr App R(S) 52.