Sexual Harm Prevention Orders (SHPO) must be ‘tailor-made’
The starting point for any proposed SHPO is the familiar case of R v Smith & Others [2011] EWCA Crim 1772.
In order to make a SHPO, the court must be satisfied that the offender:
- Presents a risk of sexual harm to the public or to particular members of the public AND
- An order is necessary to protect against the risk(s) identified
In making a SHPO, the court will consider:
- Would an order minimise the risk of harm to the public or to particular members of the public?
- Is the order proportionate?
- Can the order be policed effectively?
As defence practitioners, we need to ensure that SHPOs are not simply ‘copied and pasted’. SHPOs must be tailored to the specific facts and target the offending in question. In doing so, it’s our role to ensure that proposed prohibitions / restrictions are not oppressive but necessary and proportionate.
The recent case of R v Pearl [2025] EWCA Crim 994 saw the Court of Appeal reviewing the principles governing the imposition of SHPOs, with reference to R v Smith & Others [2011] EWCA Crim 1772 and R v Parsons and Morgan [2017] EWCA Crim 2163.
The appellant (a schoolteacher) pleaded guilty to two offences of abuse of trust by sexual activity, contrary to section 16 of the Sexual Offences Act 2003.
The victim was a vulnerable pupil at the school where the Appellant had been a teacher, and an indefinite restraining order was imposed to protect the victim, in addition to a SHPO with three restrictions for a term of 10years.
An appeal against sentence was lodged but only in respect of the SHPO which the appellant submitted was:
- Wrong in principle as it was unnecessary and/or disproportionate, &
- Its prohibitions/restrictions were too wide
Observations:
The court was required to consider the SHPOs three specific restrictions and observed as follows:
The restriction on the use of devices capable of accessing the internet was both unnecessary and disproportionate, as the appellant’s offending did not involve the internet, the accessing of indecent images and/or unlawful pornography
The restriction on the appellant having contact and residence with children under 18 was again considered both unnecessary and disproportionate, as there was no evidence that the appellant posed a risk to children generally. The admitted offending concerned an intense relationship between the appellant and a pupil, now protected by an indefinite Restraining Order
The restriction not to seek or hold any voluntary or paid employment which would result in the appellant working or having any position of authority or care of children under the age of 18 was clearly relevant and appropriate, so remained unchanged
Ruling:
After careful scrutiny, the court upheld the appeal, quashing the original SHPO but substituting it with a revised SHPO with just the above said employment restriction to remain.
The case of Peal is a reminder to us all to ensure that SHPO are ‘tailor made’ to fit the facts and the offending behaviour.
It’s our task to safeguard against the ‘copying and pasting’ of generic prohibitions / restrictions for obvious reasons.
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