Thursday, 22 January 2015

On Proximity, Harm, Culpability and Potentially-Dangerous Offenders


(Dangerous provision changes -

R v Terrell [2007] EWCA Crim 3079

"26. The serious harm [sic] thus relied on here is the harm to children through the perpetuation of the market [sic] or distribution networks for indecent images. This puts children at risk of being forced to participate in the activities leading to such images [sic], or causes psychological harm to a child who realises either at the time or later that images of him or her are being used as objects of perverted sexual gratification [do we have some verifiable, peer-reviewed, research, on this claim?]. There is no suggestion here however that the Appellant has any contact with children whom he might seek to photograph or to commission others to photograph, for himself, for sharing or for using as a means of gaining access to a network.

27. In all these circumstances, the re-offending which is at risk would make a direct [sic] but small contribution to the market or distribution of such indecent images [and if one makes none, as most do?]; that in turn would make an indirect but small contribution to the risk that indecent images of children would be taken [no risk then]. A child groomed or made to participate in sexual acts for those purposes may suffer serious harm of one sort or another, depending on the activity [fine, they are offences, perhaps worth having [and exist], in the puritanical regime we have, presently]. A child who becomes aware that he or she has been photographed for the sexual gratification of an adult, who may not even be known to them, may suffer serious psychological harm [see above].

28. In our judgment it cannot reasonably be said, in the context of these particular statutory provisions, that there is a significant risk of this Appellant's re-offending occasioning harm to a child or children whether through perpetuating the market, or through further indecent images being taken, or through a child becoming aware of the indecent purposes to which photographs might be put. The link between the offending act of downloading these indecent images and the possible harm which might be done to children is too remote to satisfy the requirement that it be this Appellant's re-offending which causes the serious harm. At worst there would be an indirect and small contribution to a harm which might or might not occur, depending on whether further photographs were taken in part as a result of the Appellant's contribution to the market [and if none?], or depending on whether a child found out about the uses to which they were put as a result [proximity to/culpability of, the non-contributory, unknown, offender?]. The imprisonment for public protection provisions of the CJA do not apply in the circumstances here, where simply as a matter of generalisation, a small, uncertain and indirect contribution to harm may be made by a repeat of this offender's offending. No significant risk of serious harm of the requisite gravity, occasioned by a repetition of the offending in this case by this offender can reasonably be said to exist."

"34. The potential utility of a SOPO in a case such as this does not mean that the tests of section 104 are necessarily satisfied. A sentencing judge however, could have been satisfied in these circumstances that a SOPO was necessary, but would not have been driven to such a conclusion.

Perpetuating the market [sic; the trouble is, that is not what we have, in the main] or distribution network for indecent images encourages [sic] others to commission, take or create indecent images [fine, they are offences, perhaps worth having [and exist], in the puritanical regime we have, presently] of a level which may [?] be capable of causing "serious" harm to children [see above], and the child or children who might be photographed could well become aware of the use to which those photographs would be put [and?].

The indirect and uncertain harm arising from the contribution to the harm which any downloading of indecent images may have does not necessarily fall outside the scope of the SOA provisions, as discussed in Beaney and Collard." [legal logic, stretched to its farcical and failing limits]

(R v Beaney [2004] EWCA Crim 449

 R v Collard [2004] EWCA Crim 1664


March 1st, 2015 


103B Section 103A: supplemental

"“sexual harm” from a person means physical or psychological harm caused—

(a) by the person committing one or more offences listed in Schedule 3, or

(b) (in the context of harm outside the United Kingdom) by the person doing, outside the United Kingdom, anything which would constitute an offence listed in Schedule 3 if done in any part of the United Kingdom;"


More to follow.

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