The Court of Appeal has had cause (again) to intervene in Sexual Harm Prevention Orders (SHPOs) imposed in the Crown Court. Each of the cases discussed below shows that there continue to be difficulties with practice and procedure where these orders are concerned.
McLellan  EWCA Crim 1464;  1 Cr.App.R. (S.) 18
In McLellan the Court grappled with the question of when a SHPO can be made for an indefinite period and, in so doing, re-stated a number of the fundamental principles articulated in the Court’s guidance judgment in Smith  EWCA Crim 1772. The appellant McLellan had pleaded guilty to making indecent photographs of a child and was sentenced to 12 months' imprisonment, suspended for 24 months. A SHPO was made "until further order". By virtue of s.103G(1) SOA 2003, McLellan was subject to the notification requirements (which otherwise stood at 10 years) while the SHPO had effect. Thus, the effect of the SHPO was to render him subject to the notification requirements indefinitely. In substituting the indefinite term with one of five years, the Court made the following observations:
- There is no requirement that the duration of a SHPO cannot exceed the duration of the applicable notification requirements.
- A SHPO should not be made for an indefinite period without careful consideration or as a default option.
- Ordinarily, the court should explain the justification for making an indefinite SHPO, though there would be cases where that justification would be obvious.
- All concerned should be alert to the fact that the effect of a SHPO of longer duration than the statutory notification requirements had the effect of extending the operation of those requirements.
- Inadvertent extension of the requirements was to be avoided.
Parsons  EWCA Crim 2163
The Court of Appeal revisited the topic of SHPOs in Parsons, where the Court grappled with the question of whether the guidance set out in Smith regarding blanket bans on internet use required adaptation, specifically regarding cloud storage, monitoring software and encryption. The Court gave guidance on terms/prohibitions regarding those issues. The Court also considered the proper scope of a prohibition of contact with under 18s.
Blanket bans on internet use
Whilst the Court was unwilling to hold that a blanket ban on internet access and use could "never" be justified, it was observed that such a prohibition would be inappropriate “in anything other than the most exceptional cases” and that “in all other cases, a blanket ban would be unrealistic, oppressive and disproportionate – cutting off the offender from too much of everyday, legitimate living”.
In respect of the age threshold for prohibited contact with children, the Court observed what some may consider to be an anomalous situation that arises in respect of offences which criminalise certain activity relating to under 18s (i.e making indecent images contrary to s.1(1) PoCA 1978) despite the age of consent. The Court reiterated that, for the purposes of the SHPO regime, a child is defined as someone under the age of 18; as such, there is no difficulty in principle with a prohibition of contact with under 18s. However, the Court “readily” understood that the facts of an individual case may point towards confining prohibitions to children under 16 for the reasons given in Smith, at paragraph 21.
Risk management monitoring software
- The trigger for installing monitoring software should be notification by the offender to the police of their acquisition of a computer or device capable of accessing the internet.
- The device should have the capacity to retain and display the internet use history and the offender should be prohibited from deleting it.
- The device should be made available immediately on request for inspection by the police and the offender should be required to allow any such person to install risk management software if they chose to do so.
- The offender should be prohibited from interfering with or bypassing the normal running of any such software.
- Access to cloud storage was often a built-in feature on electronic devices.
- The vice against which a prohibition should be targeted was not the default use of cloud storage but the deliberate installation of a remote storage facility, specifically installed by an offender without notice to the police and which would not be apparent from the device and not intrinsic to the operation of any such device
- Any prohibition on encryption software fell to be considered against the realities of the devices available for everyday legitimate use.
- A prohibition had to be targeted and aimed at the installation of encryption or wiping software on any device other than that which was intrinsic to its operation.
Young offenders and grooming
The case of Ahmed  EWCA Crim 1464 demonstrates the severity of approach towards ‘grooming’ offences. The appellant pleaded guilty to four counts of inciting a child to engage in sexual activity. He was 19 years old at the time of the offence, which was committed over a three-week period. He had contacted the 15 year-old complainant through Facebook, believing initially that she was 19. The contact developed into sexualised messaging. The appellant threatened to kill himself if she did not respond. The appellant never met the complainant. In reducing the starting point from 60 to 45 months’ detention in a YOI, the Court held that the absence of any sexual contact or meeting between the parties was relevant, but that the finding of grooming was substantially aggravating.