Sexual Harm Prevention Orders – Case Law Update

Sexual Harm Prevention orders known as SHPOs are often made against a Defendant as part of sentence following a conviction for a sexual offence. They contain restrictions on a defendant often in relation to use of electronic devices and in relation to contact with children. In order to make an order, the court must be satisfied that the offender presents a risk of sexual harm to the public (or particular members of the public) and that an order is necessary to protect against such risk.

Recent Case Law on SHPOs

The recent case of Dewey [2024] EWCA Crim 409 provides an update in relation to the correct approach to take when drafting restrictions to be contained within a Sexual Harm Prevention Order (SHPO).

Such case related to guilty pleas in relation to various offences of making indecent images of children. The appellant received a suspended sentence together with being made the subject of notification requirements and a Sexual Harm Prevention Order was also made against him. The appeal itself was purely restricted to certain terms of the final SHPO itself.

The judgement indicates that the sentencing judge heard submissions prior to sentence on the need for a non-contact provision in the SHPO deciding during the sentencing exercise that one should be included relying on a ‘medium risk’ assessment of harm in the pre-sentence report.  He then left the remaining terms to be agreed between counsel.

Restrictions contained within the original SHPO in the case of Dewy

The final SHPO made at sentence in the Crown Court contained the following provisions;

• (1) Having any contact or communication of any kind with any child under the aged of 18, other than

(i) Such as is inadvertent and not reasonably avoidable in the course of lawful daily life (such as being served by a young person in a shop,) or

(ii) With the consent of the child’s parent or guardian who has been made aware of his convictions by Police and/or Social Services and this person has been approved by Police of Social Services.

• (2) Possessing or using any computer or other internet enabled device (including mobile phone and tablet PC), without Risk Management software approved by Police Visor Officers for the area which he lives, being installed. With the exceptions of:

(i) A business/educational environment or Library, or an internet enabled device that does not have a search facility (such as some digital TV boxes), which must have been deemed suitable in writing by the managing Police Visor Officers,

(ii) Any internet enabled device which has been approved in writing by the managing Police Visor Officers not to have monitoring software installed.

• (3) Possessing, owning or using a mobile phone other than a mobile phone that you have provided the telephone number and IMEI number of to your managing Police Visor Officer.
• (4) Downloading or using any password protected, hidden or disguised apps/programs that provide secret or secure storage for digital images on any Internet enabled device.
• (5) Possessing any device capable of capturing an image (moving, still, digital or otherwise) unless he makes his Police Visor Officer aware of the device and provides access to it on request for inspection.
• (6) Using any ‘cloud’ or similar remote storage media capable of storing digital images (other than that which is intrinsic to the operation of the device) unless you have prior written permission from your Police Visor Officer, and provides access to such storage on request for inspection by a police officer or police staff employee.
• (7) Refusing or hindering access to any device in the possession of the defendant or in premises where he is present, resides or otherwise controls on request by a police officer seeking to check his compliance with the terms of this order.

What restrictions are necessary and proportionate in a SHPO?

The appeal itself centred around the following issues;

1. That the contact provision ought to be removed altogether, there being no evidence of the appellant having committed any contact offence or even having prepared to do so and that the pre-sentence report concluded he was ‘low risk’ in relation to committing that type of offence.
2. The term covering risk management software sought to be replaced with a term of the kind preferred by the court in ‘Parsons’….. this being a more manageable and proportionate way of affording the required level of protection.
3. The restriction in relation to possessing, owning or using a mobile phone was not required given use of electronic devices would be covered by the requirements of paragraph 2 in relation to internet usage. The specific provisions within that paragraph were unnecessary as there was no evidence the appellant had ever sought to contact a child.
4. The restriction relating to use of any password protected applications or programmes was unnecessarily restrictive given that many regular programmes and applications now have password protected secure storage.
5. That the absolute prohibition on possessing any image capturing device was unnecessary having regard to the absence of any evidence that the appellant had ever taken any indecent images. The case centred around images which had been downloaded from the internet from content uploaded by others.
6. The drafting of the term relating to ‘cloud’ and remote storage was subject to difficulties identified by the court in the earlier case of Parsons.
7. A term which appeared to give police powers of entry to any premises was too wide.

Serving a draft order prior to the hearing

The court considered the rules regarding service of the draft order prior to the sentencing hearing. The criminal procedure rules state that a draft order should be served not less than two business days in advance of the hearing.  The production of the same is the responsibility of the prosecution.  The court stated that the terms of restrictive orders will always require careful consideration which is why the rules require a draft to be produced in advance. The court went on to state that the last minute rush in this case prevent prevented a sensible discussion between prosecution and defence counsel prior to the hearing in relation to the need for certain terms (in particular non-contact) but also the proper wording of terms to ensure that restrictions were manageable and proportionate. 

Terms of a SHPO need to be necessary and proportionate

The court went on to consider the suggested amendments and commented as follows;

The touchstone when considering the precise terms of a restrictive order such as a SHPO is always necessity and proportionality. A SHPO may be imposed where it is necessary to protect “the public or any particular members of the public from sexual harm” – see section 346 of the Sentencing Act 2000s 103A and following of the Sexual Offences act 2003. The terms which are necessary in an individual case must be carefully considered and weighed against the facts of that case. Further, when considering what is necessary, it will be important to bear in mind the protection afforded to the public by the offender being on the Sexual Offences Register and subject also to the Disclosure and Barring Service. Any restriction beyond those necessarily involved in notification and disclosure/barring must be justified, not just as “appropriate” but as necessary. As was pointed out recently by this court in Hanna [2023] EWCA Crim 33 there will be cases, for instance where an offender has actively sought out contact opportunities with children, where a wide-ranging order will be necessary.

Non-Contact Provision

The court doubted whether a non-contact provision was necessary in this case and concluded that ‘it is not necessary or proportionate for a non-contact provision be imposed in the circumstances of this case’.

The court came to this conclusion as despite extensive analysis of all devices taken from the appellant police found no evidence of any attempt of contact with children. They were therefore able to distinguish this case from the facts of ‘Morgan’ where the court did uphold a non-contact provision in the case involving indecent images.

Other restrictions contained in the SHPO

The court felt that a term which restricted and controlled the appellant’s continuing use of internet enable devices was always going to be necessary, however, defence counsel had concerns in relation to the scope and wording of the restrictions.  The court in this case referred to the case of Parsons which updated the form of restrictions and emphasised that any necessary image of restrictions must be in a form that is effective, clear and realistic, ‘readily capable of simple compliance and enforcement’.

In that case the court sought and obtained expert evidence in relation to internet access and business software.  The concern of the court was what restrictions where necessary in relation to the use of internet and enabled devices but also how they could reasonably and practicably be achieved bearing in mind the ‘realities of police time and resource constraints’.   The court in Parsons concluded that routine installation of risk management software and/or approval of such software by police would be administratively unworkable.   In Parsons the court found a more practical solution would be to require notification to the police that any device would indicate a level of accessing the internet as well as a ban on deleting internet history, a requirement to produce devices for inspection and to allow installation of risk management software if required. The court went on to conclude that a general restriction on cloud storage was too blunt as the specific advice to be protected against was the deliberate installation of a remote storage facility without notice to the police. The court reminded itself that the terms of the SHPO which the court in Parsons determined as appropriate are set out in the current Crown Court Compendium Volume 2 (Sentencing).  The court stated that no evidence had been produced to them to suggest that technology had moved on so as to require further updating. Accordingly, they saw no reason to depart from the form of restrictions which the court in Parsons decided afforded the necessary protection in both practical and effective terms.

Police power to enter premises

The court also regarded a term giving police power to enter any premises as unnecessarily wide and disproportionate.  They concluded that the other requirements in relation to notification production and inspection of devices were sufficient. They found this particularly so with regard to the appellant in this case who was instantly and entirely compliant with police requests regarding his devices.

Appeal allowed

Accordingly, the court in Dewey considered that the SHPO required amendment and allowed the appeal amending the order.

Should wording of SHPOs be updated?

Finally, the court commented that prosecution counsel informed them that in her recent experience she had come across at least 50 different forms of wording covering restrictions on internet enable devices in Sexual Harm Prevention Orders. The court considered that these variations are likely to reflect changes in technology as devices and programmes advance and become more sophisticated.  They commented they had no expert evidence put before them in relation to this appeal but having regard to the time which has passed since Parsons (which was decided in 2016) the time may be approaching where the precise wording of proportionate and realistic restrictions should be addressed once more with appropriate up to date expert evidence.

Olliers Solicitors – specialist indecent image offences and SHPO lawyers

If you require advice in relation to an indecent images allegation or the terms of Sexual Harm Prevention Order please contact our new enquiry team either by email to info@olliers.com, or by telephone on 020 3883 6790 (London) or 0161 834 1515 (Manchester) or by completing the form below and our new enquiry team will contact you.