In court

Photographer's assault of naked model: Assessing harm

Aged in his early 40s, without previous convictions and an amateur photographer, V. arranged to take pictures of C., a professional model, in her underwear and naked, at her home. While there he sought her permission to remove his trousers on the pretext of feeling very hot and having a medical condition, subsequently making comments about her breasts and asking about her sex life, then cupping one of her breasts with his hand. Though she slapped his hand away and reminding him that this was totally inappropriate, he subjected her to a prolonged embrace at the conclusion of the session while she was still naked.

On V.'s conviction of sexual assault following contested trial the Crown Court considered victim statements from C. and her husband, indicating that some 30 months later she continued to be badly affected by the experience, experiencing depression and other features of impaired mental health such as paranoia. She had tried to change her appearance so she looked ‘as least feminine as possible’. She continued to work as a model at her home but had lost work because she would do so only when her husband was present. A PSR (pre-sentence report) assessed V.as a low risk of further offending, likely to benefit from a programme addressing sexual offending and suitable for a community order.

The judge placed the offence into category 1A of the relevant definitive guideline (Sexual Offences, 2013): category 1 harm because C had suffered severe psychological harm (SPH) and category A culpability because it involved abuse of trust. The starting point was therefore 4 years’ custody, with a range between three and 7 years. V. appealed against 3 years’ imprisonment, arguing that neither of those factors applied and thus the offence merited a significantly shorter sentence and should have been suspended.

Addressing first the question of harm, the Court of Appeal reiterated that expert evidence is not a necessary pre-requisite of making a finding of SPH; that is not a medical or clinical decision but a factual assessment whether the victim had sustained psychological harm and the extent of any such harm. The judge had seen and heard C give evidence and was entitled to accept and act upon the contents of the victim personal statements and the information from C.'s counsellor. Though there were indications of some comparatively recent improvement in C's condition, the evidence overall showed that the offence had had a severe and lasting impact upon her. The fact that she was continuing to work as a model was not inconsistent with her evidence of a reduced income because of her fear of further sexual assault if alone in her home with a photographer.

As regards the breach of trust point, C. had trusted V. to behave in the manner appropriate for a professional or serious amateur photographer but the circumstances fell short of an abuse of trust of the kind contemplated by the guideline. ‘The relationship between V. and C did not involve an inequality of power’ and it was not such that V. had the requisite ‘significant level of responsibility’ towards C. The offence thus fell into category 1B, with a starting point of 30 months’ custody and a range from 24 to 48 months. That said, the offender:

took advantage of C when she was obviously vulnerable, being alone, naked and frightened. He did so in her own home, and in the circumstances of a professional engagement where she was entitled to feel safe. Having persuaded C to permit him to remove his trousers, he persisted in unwelcome comments and questions. He was not dissuaded when she rebuked him for touching her breast but went on to hold her tightly before she could dress.

Those aggravating features merited an increase well above the category 1B starting point and towards the top of the category range, before consideration of any available mitigation. V.'s sentence was unarguably within the range properly open to the judge. His appeal was dismissed.

R v VALLEY, [2023] 1 Cr App R(S) 13.

Victim entitled to trust off-duty police officer

In 2016, when aged 30, L. had spent an evening socialising in a bar and then a club, with others including V., a young woman aged 20 he knew slightly. The night ended at the home of two of their number, where V. had stayed overnight previously. By now heavily intoxicated, V. had fallen asleep on a sofa. After the others had dispersed L. returned and pulled V. to the floor, digitally penetrating her vagina and then raping her as she drifted in and out of consciousness. The following day she phoned one of those whose home she had been at, upset whether she might have had sex with L. He later contacted her to ask if she was okay and when she asked if he had had sex with her, he replied that they had had oral sex. A month later she realised that she was pregnant and that the only person responsible would have been L. She did not report this to the police until 2020. In her Victim Statement, she expressed her complex feelings towards her daughter, a constant reminder of what L. did to her. She grieved the loss of her previous best friend as a consequence of what had happened and she continued to experience depression and anxiety.

On L.'s conviction after contested trial of rape and assault by penetration, the Crown Court received references from his colleagues in the Police and others, describing his exemplary character and his good service as a police officer, at the time of the rape and up to the present. In passing sentence, the judge observed that though L. had not exploited his police powers or role, his work status ‘brought a degree of trust, whether he was on or off duty, for those who knew him and who had an expectation as to how he would conduct himself’. V. had been entitled to feel safe but he had taken advantage of her vulnerability, subjecting her to unprotected sex, with severely adverse consequences, then lying to her in the immediate aftermath. His previous good character attracted ‘little or no credit’.

On L.'s appeal against 10 years’ imprisonment (a term above the range for a Category 2B rape, as set out in the relevant Guideline, specifying a starting point of 8 years with a range between 7 and 9 years), the Court of Appeal reiterated that weighing the gravity of the aggravating factors in any particular case is not an arithmetical exercise. The extreme nature of a single factor may lead to a move up to the higher category of harm. Further, the argument that ‘there will be worse cases’ than the present, as a basis for criticising the imposition of a term above the range, was wholly unpersuasive, particularly where the ‘range’ is narrow, as in this category of sexual crime (2 years). It is well-established that it will aggravate the offence of rape to commit it somewhere where the victim has no expectation of any sexual activity. In this instance, V. had been entitled to have a proper expectation of how L. as a police officer would behave. He had then lied so that he would ‘get away with it’ and that counted as a further aggravating factor. As regards his claim that his positive police record should have mitigated sentence, the Court noted the Guideline's specific indication that ‘previous good character/exemplary conduct should not normally be given any significant weight and will not normally justify a reduction in what would otherwise be the appropriate sentence’. There was no basis in L.'s case for treating him as an exception to that principle. The argument that 10 years had been manifestly excessive had no merit and the appeal was dismissed.

R v LISTER, [2023] 1 Cr App R(S) 40.

Prolonged abuse of trust by uncle with learning disability

When aged in his mid-30s GJ initiated sexual molestation of his niece, also being his goddaughter, taking advantage of his role as babysitter for her and her younger brother. The offending began in 2007 when she was aged 7 and continued until 2014 when she was 12. From the outset, his abuse extended to penetrating her vagina with his tongue, lasting about 20 min. He told her it was their ‘little secret’ and not to tell anyone what had happened. He later subjected her to digital anal penetration, causing her pain and tried to place her hand on his exposed penis. In 2020, she finally disclosed what he had done. He had no prior criminal history and was now aged 47. When interviewed he denied any sexual offending against his niece, also stating that he had learning difficulties and that his mother did everything for him,

Following GJ's ensuing guilty pleas to 15 offences, including six of assault by penetration (Sexual Offences Act (SOA) 2003 s6), the Crown Court heard a Victim Statement attesting to the enduring and significant effect of this abuse on her mental health, her general well-being and her sense of security. A psychiatric report indicated his mild learning disability (IQ 50–70) and assessed him to function intellectually at a level of someone around 12–13 years of age. He lived with his parents on whom he was reliant to help him manage his finances and offer him extra support because he had developed a serious alcohol problem. He was otherwise independent although he struggled with some tasks, for example, being unable to read a map or use a Satnav. GJ had been clear in interview that he had known that what he was doing to the victim amounted to a sexual offence.

A PSR relayed that he appeared to be resiling from his admissions of guilt (though he later confirmed in court that he accepted responsibility) and concluded that his offending did not appear to be the result of poor thinking but rather a calculated cycle of sexual conduct which had involved persuading himself that it was acceptable behaviour. He had denied experiencing any form of sexual arousal, which the reporting probation officer considered improbable. She also expressed concerns of possible collusion within the family to protect GJ. He still had contact with another sister's two daughters, aged 9 and 11, but their mother has been assessed by Children's Services as protective and able to supervise any contact. He was assessed to hold distorted attitudes in relation to entitlement and consent and to present a high risk of serious harm to female children, reoffending being likely to occur if and when he manoeuvred himself into a position of authority and trust within a family environment, enabling him to groom another victim to gain their silence and compliance, also grooming adults responsible for protecting the child and supervising his behaviour.

Applying the Guideline (Sexual Offences, 2013) the judge had identified the ‘harm’ element as falling within Category 2 because of the victim's particular vulnerability due to her ‘extreme youth’ and the SPH caused her. ‘Culpability’ was assessed as level A because of the breach of trust involved. Accordingly, the starting point under the guideline for s6 was 11 years, with a range between 7 and 15 years for a single offence. GJ received an extended sentence of 12 years’ imprisonment, comprising a custodial term of 10 years and an extension period of 2 years. He appealed, arguing that the judge had: (a) misapplied Guideline criteria (in identifying ‘extreme’ psychological harm, in treating the victim's age as ‘extreme youth’ and finding ‘abuse of trust’); (b) given insufficient weight to his learning disability; and (c) had wrongly deemed him to be a dangerous offender for whom an extended sentence was necessary. In that respect, he asserted that he had offended only against a single victim and only when he had the opportunity to do so. He submitted that no similar opportunity was ever likely to arise again so there was not a significant risk, as opposed to a mere possibility, of further offending.

In summary, the Court of Appeal concluded:

It was clear that having suffered 6 years of abuse that had had a particularly profound effect on her, the victim had experienced seriously debilitating psychological trauma, well beyond the degree of psychological harm which might be expected to result from a single episode of such abuse as a young child. This unquestionably counted as SPH.

Repeat on-line incitement

In August 2020, H. had been convicted of two offences of attempting to cause or incite a female child under 16 to engage in sexual activity and had incurred a three-year community order with rehabilitation activity and curfew requirements. He had attempted to communicate on-line with a 13-year-old girl, in fact an undercover police officer. He was also made subject to a 5-year a SHPO (sexual harm prevention order). In April 2022, he communicated on-line with ‘Kat’ (again a police officer) in the belief that ‘she’ was aged 13, being frank that he was a ‘dirty old man’, ‘old enough to be your dad’ and asking ‘her’ to engage in sexual activity with him, extending to a plan to travel from Birmingham to meet her in Kent.

He pleaded guilty to attempting to cause or incite a girl under 16 to engage in penetrative sexual activity (SOA s10) (Count One), attempted sexual communication with a child and breach of SHPO. Applying the Guideline (Sexual Offences, 2013) the judge identified the ‘harm’ element as falling within Category 1, given the penetrative activity which H, had tried to incite, coupled with culpability A, in view of the grooming behaviour, the significant disparity in age, and the attempt to solicit sexual images. Accordingly, the starting point under the guideline for s10 was 5 years, with a range between four and 10 years. The judge noted the correct approach in cases where a child victim does not exist but the offender would otherwise have carried out the offence, is to sentence by reference to the completed offence, making only a very small reduction to reflect that there was not a real child victim, and making no additional reduction for the fact that the offending was an attempt.

H. was sentenced to 4 years’ imprisonment for the s10 offence, with nine months’ and 2 years’ concurrent imprisonment on the other two counts. The 2020 community order was revoked and H. was re-sentenced to 2 years’ imprisonment, to run consecutively, making an aggregate of 6 years. He appealed on grounds that this total term was manifestly excessive.

Noting the judge's uplift from the starting point of 5 years’ custody, the Court of Appeal identified that the sole basis for applying an uplift would have been H.'s previous convictions for essentially identical offending 2 years previously, including the fact that the present offences had put him in breach of his community order and the SHPO. That must have led the judge to a sentence somewhere in excess of 6 years’ custody, before giving credit for the guilty plea and the fact that the child victim did not exist. Though the judge had been right to pass a consecutive sentence for the 2020 offending he ought to have reflected the fact that he had already given considerable weight to the 2020 offending in arriving at his sentence for the 2022 offences, and should also have taken account of the fact that, even though H. had re-offended and thereby shown himself not to have benefited from the rehabilitation requirement, he had at least completed a curfew requirement, which was a punitive element of the 2020 sentence. The judge's approach indicated an element of ‘double counting’. The additional 2 years had been excessive, and a consecutive term of 12 months was substituted.

R v HERRICK, [2023] 2 Cr App R(S) 6.

Seeking to protect animals from bestiality

When the police seized K.'s computer extreme pornography was found featuring sexual activity with animals. Following his late guilty plea to an offence of possessing an extreme pornographic image, he incurred six months’ imprisonment, suspended for 24 months, with requirements including participation in the Horizon programme, and he was made subject to a SHPO for 5 years.

K.'s appeal was restricted to terms of the SHPO that prohibited him (here outlined in précis) from having any unsupervised contact or communication of any kind with any animal, from residing, entering or remaining in any property where an animal was present and pursuing any employment or organised activity involving contact with animals (in effect a replication of conditions familiar in the context of child safeguarding). It was argued on his behalf that those terms were wrong in principle because SHPOs may only be imposed to prevent sexual harm to people. Further, the conditions extended to all animals of any sort but there was nothing to suggest that insects or other small animals commonly encountered in daily life would be harmed by him in the absence of the prohibitions in the SHPO and thus were disproportionate, unrealistic and oppressive.

Having considered the statutory provisions governing SHPOs (Sentencing Act 2020 s343–346) the Court of Appeal was satisfied that Parliament intended, by the clear and precise wording, that the power to impose a SHPO may only be exercised for the purpose of protecting people from the harm caused by criminal sexual acts. ‘It would strain the language beyond what we regard as the legislative intention to include animals as the beneficiaries of of SHPOs.’ Though owners of animals will doubtless experience distress if their animals are subjected to cruelty caused by sexual exploitation, this is an aggravating factor in determining sentence, but this cannot be regarded as giving rise to sexual harm to the owner. In light of that determination, the Court did not need to address the further over-generalisation point. The disputed terms were deleted.

R v KISH, [2023] 1 Cr App R(S) 23.

Limits of SHPO to contain exhibitionist

Aged in his early 50s and identifying as female (referred to below by male pronouns in line with the judicial exposition), D. had accumulated numerous convictions for offences including indecent exposure and sending indecent messages. That kind of uninhibited behaviour was becoming more frequent, varied and more serious. D. had not heeded a suspended sentence order (SSO) and five-year SHPO imposed in January 2019, incurring immediate imprisonment and a 10-year SHPO in February 2020, the SHPO having a single prohibition: ‘from being unclothed from the waist down or exposing his genitals in any area to which the public has access, except a male only toilet facility’. Within two months of release on licence D. indecently exposed himself to women taking their young children to school and to passing traffic. He had begun to leave his telephone number on pieces of paper which he had put on random car windows asking for a relationship and a place to live. In September 2021, D. incurred a further SSO and a SHPO, the latter adding a clause: ‘not to leave contact details on pieces of paper, asking for relationships, on any area the public can see.’

Two weeks later, D. sent two photographs of his erect penis, via WhatsApp, to the phone of a female probation officer who had previously supervised him. When arrested, the appellant denied the offence. However, he was identified via a small tattoo that can be seen in both photographs. Shortly thereafter, he left a relationship-seeking note on a bus and exposed himself to a woman aged 70 riding her mobility scooter.

The Crown Court considered psychiatric and psychological reports indicating that D. was not suffering from any mental illness, but had low intellectual functioning – with an IQ in the bottom 1% of the population. A PSR noted D.'s high level of sexual preoccupation, with a pattern of offending which involved a level of planning. D. found exposure to women thrilling and believed that on seeing his penis women would want a sexual relationship with him. The judge imposed an aggregate term of 36 months’ imprisonment, making a further SHPO of indefinite duration, now including conditions pertaining to the possession of internet-enabled devices (number 4) and prohibiting D. from ‘sending by any means, including but not limited to, electronic messaging, internet-based messaging service, postal service or by hand delivery, any image whether digital or otherwise, of any genitalia including his own’ (number 5).

D.'s appeal was limited to terms in the SHPO. In respect of condition 4, it was argued that none of D.'s offences had involved the internet; there was no identifiable risk, and the terms sought appeared to indicate a ‘safety first’ or’ just in case’ approach. In respect of condition 5, it was submitted that this simply echoed the offence of sending an offensive message (under Communications Act 2003 s127).

The Court of Appeal referred to the somewhat complex and technical terms of the relevant legislation (SA 2020 ss343–344), reiterating that it is not permissible to include in a SHPO prohibitions which simply ‘mimic an existing offence’, or are simply intended to increase the maximum penalty for such an offence on breach (breach of SHPO carrying a maximum of 5 years; imprisonment). Though it was argued that some of the terms simply sought to prevent conduct already unlawful, for example exposure, the Court was satisfied that they covered a number of situations which do not amount to an offence in the circumstances but are necessary to prevent sexual harm resulting. The Court had in mind that the offence of exposure requires proof of intentional exposure and an intention to cause alarm and distress; the prosecution might meet a defence claim that the defendant was urinating or defecating, or did not know what anyone could see.

However, in respect of conditions 4 and 5, it had not been established that either of these were necessary to protect members of the public from sexual harm arising from an offence listed in Schedule 3 of the 2020 Act. There had thus been no power to impose them and those terms of the SHPO were quashed.

R v DAVIDOFF, [2023] 1 Cr App R(S) 22.

Exploiting guest's intoxication: Guideline misapplied

On a night out with friends in August 2019 V. drank heavily, kissed an acquaintance and accepted his invitation back to the home of his friend W., a man then in his mid-20s she did not know. He had been drinking and had taken cocaine. Once there she was sick several times before falling asleep on a sofa. She woke face down on the sofa with W. on top of her. She later alleged that he had penetrated her anus with his penis while penetrating her vagina with his fingers. W. told her to leave and she called a taxi. Arrested on suspicion of rape, W. admitted sexual touching but not penetration. He claimed that V. had insisted on staying overnight and had wanted to continue partying, whereas he had needed to make an early start in the morning. He said that V. had come to his bedroom and had rubbed his groin and he had misread this. A DNA profile matching his was present on a high vaginal swab taken from the victim.

Prosecuted for anal rape, W. was acquitted in July 2022 of that allegation but found guilty of assault by penetration (maximum term: life). He had previous convictions not involving sexual offending. In the period of nearly 3 years since the offence episode, he had formed a committed relationship with a partner who had given birth to their infant daughter. The judge received evidence of his positive qualities, including from a former Crown Court recorder who had known him for most of his life and spoke of him having a strong moral code about family and women. V.'s victim statement addressed the negative impact on her of the crime episode, the investigation, the hostile reaction from peers, the trial experience in which she was accused of lying and being obsessed with W. and the overall impact on her circumstances, well-being and mental health.

A PSR assessed W. as having behaved opportunistically, disinhibited by his use of cocaine that night, and with a sense of entitlement. He had not reoffended in the period of 30 months before his remand into custody and had stopped taking drugs in that time. He was assessed as posing a medium risk of harm which could be reduced through a better understanding of his own motivation and his abstinence from alcohol and drugs,

The judge considered that the harm suffered by the victim was serious, but insufficiently severe to place the case in Category 2 of the Guideline (Sexual Offences, 2013) on the basis of severe psychological or physical harm. He said that it was not easy to place the case into either Category 2 or 3 as neither category ‘exactly’ fitted the events and there was a large gap between the applicable sentencing ranges (Category 2B indicating a starting point of 6 years with a range between 4 and 9 years; Category 3B indicating a starting point of 2 years with a range between a community order and 4 years). He regarded the testimonial evidence with considerable caution, given W.'s ‘complete and utter disregard and disrespect for women and in particular this victim’ (who he had referred to in interview as a ‘stupid bitch’, ‘acting like a dog’ and ‘that thing’, stating that he did not ‘need to’ have anything to do with ‘someone like her’). He also stated that he could not ignore the fact that W. had been to prison for a reasonably lengthy period in the past.

On reference to the Court of Appeal of the three-year term imposed on grounds of undue lenience, the Court observed that while ‘it may be overstating it to say that the victim was unconscious at the time through drink, … there can nevertheless be no doubt that the victim here was particularly vulnerable due to her personal circumstances’. At the time of the assault she was, ‘if not unconscious, then heavily intoxicated and … asleep’. The crime thus fell fully within Category 2B and 3 years’ imprisonment was below the range for that category of offence. The crime was aggravated by the fact that W. was intoxicated with alcohol and had also taken cocaine and smoked cannabis. He had previous convictions, albeit none for similar offences. Though he had expressed remorse he nevertheless maintained that he had was a misread the victim's ‘signals’ and the Court noted a post-sentence prison report that he had since maintained innocence. In mitigation, he had a young family with a new-born child. The Court concluded that the least custodial sentence that could have been imposed in all the circumstances was one of 6 years, the term substituted.

R v WISDOM (ATTORNEY GENERAL's Reference), [2023] 1 Cr App R(S) 20.

Harassment over child contact issues

Aged in his late 20s, C. had a daughter by V. and usually saw her overnight every Wednesday and Friday. A disagreement between them about contact had prevented his expected access going ahead and he had become frustrated and upset. Over a four-day period he had sent V. five text messages and two voice notes of an insulting, threatening and ‘thoroughly unpleasant’ nature that had caused her to feel harassed and fearful. Having spent 101 days on remand in custody he admitted (with an accepted basis of plea) an offence of putting a person in fear of violence by harassment (maximum sentence 10 years’ imprisonment). C. had seven previous convictions for 11 offences, including in 2019 for an offence of using threatening, abusive or insulting words or behaviour with intent to cause fear or provocation of violence, for which he had received a SSO for 12 months.

A PSR asserted that C. minimised his actions and level of culpability and was disinclined to work with the Probation Service but that he would benefit from completing a programme of work focusing on relationships and helping him to deal with his anger and frustration if he experienced further relationship-based problems. In mitigation, his counsel submitted that he did wish to work with the Probation Service in order that he and V. could find a way through their parenting issues, that Social Services had no concerns about his contact with his daughter, that he had successfully run his self-employed business as a motor trader for 3 years; that he had successfully completed his 2019 SSO and that he had already served the equivalent of a six and a half month custodial sentence.

The judge considered his offence to come under category 2C of the relevant guideline (Intimidatory Offences, 2018), thus indicating a starting point of 12 weeks’ custody, with a range between a community order and 36 weeks’ custody. She did not regard any of C.'s previous convictions as aggravating. C. was sentenced to a community order for 2 years, with an unpaid work requirement of 150 hours and a rehabilitation activity requirement for 40 days, together with a restraining order for 5 years.

On appeal, he argued that the judge had failed to take sufficient account of the time he had spent in custody prior to sentence, and that in consequence the community order should be reduced to one of 12 months in length, with no unpaid work requirement, and a shorter number of days of rehabilitation activity requirement.

Accepting the judge's interpretation of the Guideline, the Court of Appeal noted that as a remand prisoner C. had in effect already served a custodial term substantially in excess of one warranted by the offence. That said

the punishment of offenders is not the only purpose of sentence … the rehabilitation of offenders and the protection of the public are other purposes … The fact that an offender has been remanded in custody for a period equal to, or in excess of, the time that he would have served under the term of imprisonment warranted for his offence does not, in itself, prevent the court exercising its discretion to impose a community order with both punitive and rehabilitative requirements, as the value of such an order in terms of the rehabilitation of the offender, or the protection of the public, might make such an order an appropriate sentence, particularly where there are great potential benefits for the offender himself and the public, if the offender obtains the support, training or courses that might form part of a community order.

Whilst legislation requires that a community order must include at least one requirement imposed for the purpose of punishment, that does not apply when there are exceptional circumstances Where the offender has been remanded in custody for a period equal to, or in excess of, the time that he would have served under the term of imprisonment warranted for his offence, that counts as ‘exceptional’ unless the relevant ‘punishment’ requirement or requirements would also assist the offender's rehabilitation or public protection.

In this instance, though the length of the community order and the number of days of rehabilitation activity requirement were both rightly imposed public protection and the defendant's rehabilitation in mind, the Court agreed that unpaid work served neither purpose and that requirement was quashed.

R v COATES, [2023] 2 Cr App R(S) 4.

Large exclusion area in restraining order

Aged in his mid-20s, C. had been in a three-year relationship with V, and they had a daughter aged two. He had been abusive, coercive and violent to V. over the course of their relationship, culminating in a sequence of episodes in which he accused her of infidelity, assaulted a man he saw speaking to her, attacked her, inflicting facial injuries, threatened staff at the hotel where they were staying and assaulted a police officer called to arrest him.

On his conviction of controlling and coercive behaviour, two offences of common assault, one of assault occasioning actual bodily harm and one of assaulting an emergency worker, C. was sentenced to concurrent terms of 28 months’ imprisonment for the ABH and controlling and coercive behaviour, with shorter concurrent terms for the other offences. A restraining order was also made not to contact V. by any means, directly or indirectly, save through solicitors or the Family Court permitting him to do so, and not to enter Sunbury-on-Thames until further order.

C. appealed only against the Sunbury restriction, as disproportionate to the danger he posed. He accepted that he has no direct connection with that town, other than through the victim. He had a number of friends who lived there whom he accepted he could meet elsewhere but he argued that an order to keep him away from the town was a ‘disproportionate interference with his rights as a citizen of this country to go where he pleased’.

The Court of Appeal noted that it is very unusual for a court to prohibit someone from entering a town in any circumstance for the rest of his life. ‘It is no answer to say that should he have need to enter the town in the future he can apply to the Crown Court to have the terms of the restraining order amended to allow him to do so.’ The court must consider at the time of sentence whether there is a need for such an indefinite term in an order to fulfil the permissible statutory aims set out (SA 2020 ss359–60). Usually in relationship violence cases the terms of a restraining order prohibit contact with the victim and can sometimes prohibit the offender from entering the road in which she lives, or an area covering a few streets surrounding her address. A prohibition on entering a wider geographically area might properly be prohibited if there are particular circumstances in the case which justify it.

In this instance, C. was about to be released from his custodial sentence and it was likely that on his release ‘there will be pressures on him whilst attempts are made to re-establish contact between him and his daughter’, so that the likelihood of harm or repeated criminal behaviour by C. towards the victim would be at its highest in the relatively near future. For that reason and bearing in mind the seriousness of his criminal behaviour in this case, a ban on entering Sunbury-on-Thames was proportionate as a means of protecting the victim, but limited to 5 years, the period when the risk would be most acute. Thereafter, ‘adequate protection will be provided to the victim by the non-contact part of the order alone’.

R v COLEY, [2023] 1 Cr App R(S) 25.