Sexual Harm Prevention Orders (SHPO) must be necessary, proportionate and more precisely drafted
At the Magistrates’ Court, the appellant entered guilty pleas to one charge of possession of prohibited images of a child and to three charges of making indecent images of children. Summary jurisdiction was declined and the case committed to the Crown Court for sentence.
The appellant, aged 59 with no previous convictions at the time of sentence, was sentenced to 6 months’ custody, suspended for two years, with 150 hours of unpaid work and RAR days.
In addition, the appellant was also made the subject of a seven-year Sexual Harm Prevention Order (SHPO).
The appellant, with leave of the Single Judge, appealed against the making or alternatively the terms of the SHPO. No complaint was made against the imposition of the suspended sentence.
The offences involved a small number of indecent images of children found on two devices, with evidence of some sophistication in concealing activity (use of TOR browser) and also participation in online groups with a sexual interest in children.
The SHPO imposed by the Crown Court included relatively broad prohibitions and restrictions on the use of devices, internet access and police inspection powers.
The Order was based on a draft prepared by the police and contained prohibitions concerned with contact offences, when the appellant had not committed contact offences. The Order included inappropriate and unclear terms.
On appeal, it was submitted on behalf of the appellant that the SHPO was wholly unnecessary, disproportionate, and unworkable. It was further submitted that the judge had also failed to properly apply the statutory test of necessity.
Specific criticisms included contradictions in the order, impractical requirements for monitoring software, and excessive police powers.
Ruling:
Their Lordships considered the familiar case of R v Parsons and Morgan [2017] EWCA Crim 2163 and in doing so emphasised the following four points:
“i) First, … no order should be made by way of SHPO unless necessary to protect the public from sexual harm as set out in the statutory language. If an order is necessary, then the prohibitions imposed must be effective; if not, the statutory purpose will not be achieved.
ii) Secondly and equally, any SHPO prohibitions imposed must be clear and realistic. They must be readily capable of simple compliance and enforcement. It is to be remembered that breach of a prohibition constitutes a criminal offence punishable by imprisonment.
iii) Thirdly, none of the SHPO terms must be oppressive and, overall, the terms must be proportionate.
iv) Fourthly, any SHPO must be tailored to the facts. There is no one size that fits all factual circumstances.”
Reference was then made to the Crown Court Compendium, in considering whether a SHPO should ever be made. In doing so the court should address three questions:
- Is the making of an order necessary to protect from sexual harm through the commission of further schedule offences?
- If some order is necessary, are the terms proposed nevertheless oppressive?
- Overall, are the terms proportionate?
Their Lordships confirmed that the judge was perfectly entitled to make a SHPO, finding the risk of further offending justified that course. Their Lordships were also satisfied that the statutory test had been correctly applied. However, it was agreed that some of the terms of the original SHPO were unclear and disproportionate.
The Court substituted a revised SHPO with clearer, more proportionate terms, focusing on notification of device acquisition, retention of internet history, police inspection, and restrictions on encryption and cloud storage, while removing the most problematic and oppressive elements.
To that extent, the appeal was allowed.
The case of Walker exposed a failure to comply with the Criminal Procedure Rules, the poor drafting of a proposed SHPO (by the police when it should have been by the CPS) and the complete lack of thought regarding appropriate prohibitions or restrictions.
Such carelessness is only too common in practice and something defence lawyers need to be alive to, ensuring that SHPOs are necessary, proportionate and clearly drafted.
For further details: