Welcome
Welcome to the Sexual Offences edition of the Crime Team Bulletin
 
Sarah Elliott QC
Sarah Elliott QC

Dear Colleague,

Welcome to the latest Sexual Offences Bulletin from the Doughty Street Chambers crime team.  Aimed at defence practitioners working in this fast-moving but complex and sensitive area of law, this edition highlights some of the developments over the summer which you may not yet have had a chance to catch up on, as well as some of the latest “need to know” case law.

 

Earlier in the summer an important judgment was handed down on the ever-increasing number of prosecutions based on so-called “paedophile hunter” evidence.  Paul Mason looks at the arguments for and against entrapment.  Elsewhere I write about two other recent Court of Appeal cases dealing with the sentencing of offenders who are convicted by such means, and the ever-growing related offences of blackmail of such defendants.

 

Emma Goodall also looks at some key recent sentencing decisions, providing not only a general round-up of recent cases, but also looking at the sentencing of offenders of particular concern, and Ben Newton looks at yet more guidance from the Court of Appeal on SHPOs.  Also, Sarah Vine considers the position of defendants acquitted at trial, but who then find allegations may continue to pose problems for them as a result of their inclusion in Disclosure and Barring Service records. 

 

Looking at first instance issues, Kate O’Raghallaigh examines the growing use of extra-jurisdictional video links in sexual cases, and points out some of the pitfalls which can arise for courts that are all too prepared to wave through such applications.

 

We hope you had a good summer.  As ever, if you would like to discuss any of the issues raised by the authors, or are interested in knowing more about our work in defending allegations of sexual offences, please don't hesitate to contact our practice managers on our dedicated crime team number, 020 7400 9088.  We also run regular training on sexual offences law and procedure. Current topics include s.28 and challenging Disclosure and Barring Service decisions. If you're interested to know more, please contact Maurice MacSweeney our Business Development Director.


Best regards,


Sarah Elliott QC


Feature Articles
The Vigilante, The Chat Room and Entrapment
 
Paul Mason
Paul Mason

Earlier in the summer an important judgment was handed down on the ever-increasing number of prosecutions based on so-called “paedophile hunter” evidence. Paul Mason assesses the use of entrapment arguments to challenge such evidence.


By

Paul Mason

Last week, the Court of Appeal held that reliance on the evidence gathered by an internet vigilante group did not amount to an abuse of process.  In R v TL [2018] EWCA Crim 1821, the Court drew a distinction between the conduct of state actors and that of private citizens when assessing what may amount to entrapment. 

 

Many of us may find vigilante internet groups unpalatable.  Their stated motive to assist the police in child sex cases is undermined by the macho triumphalism which accompanies their unregulated activity.  The National Guidance on Responding to Online CSA Vigilante Groups describes these groups as “high risk” (at 2.2) undermining public confidence in the police. As the CPS notes in its guidance, vigilante activity “has the potential to disrupt legitimate covert law enforcement activities … The police also have concerns about the risks posed to individuals targeted by this activity, which may give rise to violence being perpetrated against suspects or suspects engaging in self-harm because of the online publicity generated by the vigilantes”.

 

Yet the evidence gathered by self-styled “paedophile hunters” leads, regularly to prosecutions for grooming offences, attempts to meet and communication with, a child under ss. 14-15A of the Sexual Offences Act 2003.

Defence challenges to such evidence often focus upon abuse of process arguments.  It is contended that the deploying of “decoys” by vigilantes posing as children in internet chat rooms and dating websites amounts to entrapment. Consequently, prosecutions based on such entrapment are an abuse of process and should be stayed. 

 

The Case of TL

 

This was the argument submitted successfully in a half-time submission in the trial of TL at Nottingham Crown Court on 8th May this year. The Judge found that the common law principle of entrapment as set out in the leading case of R v Loosely [2001] UKHL 53 should apply to the actions of a private citizen in the same way it applied to a police operation.  

 

In TL, that private citizen was “Mr U“, a member of the vigilante group “Predator Hunters”. His actions were posing as “Bexie”, a 14 year old girl in a legitimate adult chat room.  Bexie had sent a photograph of herself after a request by the defendant.  Mr U had described the photograph in evidence at trial as “an innocent looking 14 year old”, a description the judge considered disingenuous. Following further exchanges, the defendant arranged for the fictional Bexie to meet him and his girlfriend for sex.  The vigilante group then turned up at the defendant’s house with the police.

 

The central question for the Court of Appeal was whether the trial judge was correct to extend the doctrine of entrapment to non-state actors, in this case Mr U and his "Predator Hunters".  The Court found that the Judge had erred in that decision.  It repeated the basis for judicial power to stay cases of entrapment as an abuse of process, as set out by the House of Lords in Loosely.  That power, the House of Lords had explained was to ensure that the rule of law was upheld and, as Lord Nicholls said, “to refuse to sanction the prosecution of state-created crime” (at [19]).

 

As previous authorities have noted, the overall consideration for the court in questions of entrapment was whether the conduct of the police or other law enforcement agencies brought the administration of justice into disrepute.  Other phrases from the case law, equally applicable were conduct which was "deeply offensive to ordinary notions of fairness" (Nottingham City Council v Amin [2000] 1 WLR 1071 at p.1076) or "was an affront to the public conscience" (R v Latif  [1996] 1 WLR 104 at p.112).

 

As the Lord Chief Justice put it in TL, the principles explained in Loosely apply to the conduct of state agents:

 

Involvement of agents of the state in unacceptable behaviour is at the heart of the reasoning. It is the court’s unwillingness to approbate seriously wrongful conduct by the state, by entertaining a prosecution, that is the foundation of this aspect of the abuse jurisdiction”  [31].

 

The Doctor and the Journalist

 

However, TL does recognise that the conduct of a private citizen can amount to entrapment. Where evidence was the product of gross misconduct by a private citizen, then it would be an abuse of process to rely upon that evidence.  The issue arose in Council for the Regulation of Health Care Professionals v The General Medical Council and Saluja[2006] EWHC 2784 (Admin).  In that case, an undercover journalist posed as a patient and asked a doctor for a sickness certificate, so she could have time off work for a holiday.  She made it clear that she was not ill.  He agreed to provide the certificate.  The consequent disciplinary proceedings were stayed for entrapment as an abuse of process.  

 

The High Court overturned the decision.  It relied upon the same reasoning as TL: that misconduct by non-state agents (in that case a journalist) was wholly different in principle when it came to the question of abuse of process.  However, Goldring J did note the following (at [81]):

 

However, the authorities leave open the possibility of a successful application of a stay on the basis of entrapment by non-state agents … given sufficiently gross misconduct by the non-state agent, it would be an abuse of the court’s process (and a breach of Article 6) for the state to seek to rely on the resulting evidence. In other words, so serious would the conduct of the non-state agent have to be that reliance upon it in the court’s proceedings would compromise the court’s integrity. There has been no reported case of the higher courts, domestic or European, in which such “commercial lawlessness” has founded a successful application for a stay. That is not surprising. The situations in which that might arise must be very rare indeed. 

 

The Court of Appeal in TL reiterates Goldring J’s final comment. It too suggests that the situations in which a successful stay application for entrapment by non-state actors would be rare.  But, like the GMC case, it does not speculate about what those rare circumstances might be.

 

Gross Misconduct

 

Previously, arguments have been raised that internet vigilante groups amounted to covert intelligence sources and should be regulated by the provisions of Regulation of Investigatory Powers Act 2000.  These have failed (see for example R v Walters; R v Ali, Newcastle Crown Court, 6th April 2017, unreported).  They were raised but not renewed in TL.

 

Entrapment-based challenges to prosecutions of child sex offences such as those in ss.14-15A of the SOA 2003 based on evidence gathered by internet vigilante groups will fail, following the reasoning in TL.  What might amount to gross misconduct of non-state actors in internet vigilante cases remains undefined (but see the discussion of X Factor's Tulisa and the Fake Sheik as non-state agent entrapment in a different context).

 

The Court of Appeal in TL considered the actions of Predator Hunters, and groups like them fell short of gross misconduct.  But as the Lord Chief Justice added, “the zeal of some “vigilantes” may lead them to seriously improper conduct”  [39].  

 

While their actions may not amount to an abuse of process, they remain abusive. The shaky mobile phone footage of the public confrontation livestreamed on Facebook and distributed on Twitter has more in common with mob justice and the prescient warnings of Black Mirror than it does with due process.

 

http://www.bailii.org/ew/cases/EWCA/Crim

Beyond the court’s reach – pitfalls of video link for witnesses out of the jurisdiction
 
Kate O’Raghallaigh
Kate O’Raghallaigh

Looking at first instance issues, Kate O’Raghallaigh examines the growing use of extra-jurisdictional video links in sexual cases, and points out some of the pitfalls which can arise for courts that are all too prepared to waive through such applications.


by

Kate O'Raghallaigh

 

Even in very serious single principle witness cases such as rape, trials involving witnesses who reside out of the jurisdiction seem to be on the rise. Often, the default position adopted by the CPS is that such witnesses should be permitted to give evidence via video link if travelling to the UK would be inconvenient. These applications are often ‘waved through’, even if the witness is the central witness of fact and the true inconvenience is relatively minor. The most troubling aspect of these cases, however, is that witnesses are now being permitted to give evidence from the comfort of their own home.

 

Convenience to the witness, however, is not the end of the matter. In these cases, the CPS often dispenses with the notion that the relevant foreign police force (or the British police) should play any role in making sure that the witness will actually give evidence from a secure environment. In this context, it is important to remember the terms of s.51(7) CJA 2003, which lists the criteria which the court is obliged to take into account when determining an application for a video link:

 

(7)Those circumstances include in particular—

 

(a)the availability of the witness,

 

(b)the need for the witness to attend in person,

 

(c)the importance of the witness’s evidence to the proceedings,

 

(d)the views of the witness,

 

(e)the suitability of the facilities at the place where the witness would give evidence through a live link,

 

(f)whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness’s evidence.

 

It is clear that, in enacting the video link scheme under s.51, Parliament envisaged that some facilities would be available in the witness’s location. Where those facilities consist of no more than the witness’s own laptop and a wifi connection, is it right that applications of this type should be waved through for fear of causing a witness to be inconvenienced?

 

In these cases, a legitimate question arises as to how the court is to protect the integrity of the proceedings. For example, what measures should the police or the court take to ensure that the witness is alone in the room from which they are giving evidence, such that the risk of outside influences is eliminated? How can the court prevent the witness from having access to electronic material whilst giving evidence? If the court simply accepts that a witness can dial in from their house and the environment does not need to be checked by a police or local court officer, the witness could – quite unbeknownst to anyone in the UK courtroom – have unfettered access to their phone or some other device whilst they are sitting in front of their computer screen. The (all too often) poor quality of video links means that a witness glancing down at their phone or across to another computer may not be obvious to the lawyers and the judge in the UK. What about a witness making notes? It may be that a well-meaning witness assumes that they can make notes and use them, without even thinking to as the court for permission. If no officer is present with them before they give their evidence and the witness has notes in front of their computer, this will simply go unnoticed.

 

These are not trivial concerns – if they occur, they may prejudice the efficient running of the trial and in extreme examples may cause a trial to collapse altogether. An obvious example is where a complainant or witness accesses their phone while giving their evidence – perhaps to look at social media, for example – and introduces inadmissible or prejudicial evidence. In those circumstances, a defendant will be forced into seeking discharge of the jury because of something which would never have arisen, had the police or court ensured that the witness was giving evidence from a secure environment.  

 

 

Sentencing Law Update
 
Emma Goodall
Emma Goodall

Emma Goodall provides an interesting round-up of recent sentencing authorities, including those dealing with sentences for public protection.

 


by

Emma Goodall

Sentences for Public Protection

 

In 2016 the Court of Appeal provided much needed guidance in the context of sexual offending upon sentences for offenders of particular concern; R v LF [2016] EWCA Crim 561 [2016] 1 WLR 4432 [2016] 2 Cr App R (S) 30. However, in this complex area of sentencing the appeals, including those involving the imposition of unlawful sentences, have continued.

 

R v Thompson; R v Cummings; R v Fitzgerald; R v Ford [2018] EWCA Crim 639 [2018] 2 Cr App R (S) 19 [2018] Crim LR 593

 

This conjoined appeal concerned the application of section 11(3) of the Criminal Appeal Act 1968, which provides that an appellant should not be more severely dealt with on appeal. The Court examined whether the statutory provision prohibited the court replacing an unlawful determinate sentence with a restructured sentence for offenders of particular concern or an extended sentence.  The Court held that it had to be satisfied that, taking the case as a whole, an appellant was not being dealt with more severely on appeal. That required a detailed assessment of the impact of the proposed substitute sentence, which would include consideration of entitlement to automatic release, parole eligibility and licence regime. If a custodial sentence was reduced, the addition of non-custodial orders (such as a Sexual Harm Prevention Order) might be considered but, in every case, save for where the substituted sentence was “ameliorative and remedial”, that sentence had to be tested for its severity (or potential punitive effect) when compared to the original sentence.

 

Further, it was held that a court may, in appropriate (albeit exceptional) circumstances, impose consecutive extended determinative sentences where the total extended licence period was in excess of the maximum licence period for the single offence.

 

R v Thornton [2018] EWCA crim 862

 

An appeal against the imposition of extended sentences for multiple historic sexual offences was allowed. The Court concluded that the threshold of dangerousness had not been met due to the passage of time, the failure of the sentencing judge to obtain a relevant risk assessment and the ill health of the appellant. Applying R v Thompson (ibid), sentences for offenders of particular concern were substituted in respect of the Schedule 18A Criminal Justice Act 2003 offences.

 

R v Powell [2018] EWCA Crim 1074 [2018] Crim LR 775

 

This authority serves as a reminder that sentencing courts may not impose sentences for offenders of particular concern, pursuant to section 236A of the Criminal Justice Act 2003 at the same time as imposing an extended sentence, pursuant to section 226A of the same Act.

 

R v ARD [2017] EWCA Crim 1882 [2018] Cr App R (S) 23 [2018] Crim LR 345

 

The Court of Appeal dismissed an appeal against the imposition of a twelve-year extended sentence with a custodial period of seven and a half years and an extended licence of four and a half years for an offence of penetrative assault of a child under thirteen. The Court held that the appropriate length of the extended licence was a matter of judicial assessment of the future danger posed by the appellant. The length of the extension was not to be determined by the age of the appellant, or lack of antecedent history, save for where these factors served as indictors as to the degree and length of future harm that the appellant posed. The Court would not interfere unless the Judge reached a wholly unreasonable conclusion.

 

Appeal – Deteriorating health of the Appellant

 

R v Stevenson; R v Minhas [2018] EWCA Crim 318 [2018] 2 Cr App R (S) 6

 

The Court considered the impact upon appeal of fresh medical evidence demonstrating an appellant’s deteriorating health from a condition known at the time of the sentencing hearing. It was held that the Court of Appeal may in rare circumstances have regard to such evidence in cases of serious ill health. Firstly, the principles set out in R v Bernard [1997] 1 Cr App (S) 135 would have to be engaged. These include the requirement that the medical condition is such that it will affect, either life expectancy, or the prison’s ability to treat the appellant, which could trigger the Home Secretary’s powers of early release. This might permit the court, in exceptional circumstances, to impose a lesser sentence as an act of mercy. Secondly, the medical evidence establishing the deterioration has be to be received by the court as fresh evidence, pursuant to section 23 of the Criminal Appeals Act 1968. The Court took the view that these requirements combined would present a substantial obstacle in all but the most compelling of cases.   

This authority also provides a useful review of the principles applicable to advanced age and ill health of an offender relevant to mitigating in historic sexual offences at first instance.

 

Sentencing Guideline - Disclosing private sexual photographs and films with intent to cause distress

 

This offence, more colloquially referred to as ‘revenge porn’, has generated much discussion since being brought into force on 13th April 2015 by section 33 of the Criminal Justice and Courts Act 2015. The maximum sentence for the offence is one of two years imprisonment and consequently the Court of Appeal has seen examples of sentencing Judges’ grappling with the imposition of immediate custodial sentences: Regina v Carter [2018] EWCA Crim 1429; Regina v Bostan [2018] EWCA Crim 494 [2018] 2 Cr App R (S) 15.

 

The Sentencing Counsel have now published a definitive guideline for ‘Intimidatory Offences’ which will be effective from the 1st October 2018. It contains guidance upon twelve different offences, which in addition to the offence of disclosing private sexual images, includes harassment, coercive and controlling behaviour and threats to kill.

 

 

Emma Goodall has considerable experience in defending serious sexual offences.

 

Acquittals and the Disclosure and Barring Service
 
Sarah Vine
Sarah Vine

Sarah Vine considers the position of defendants acquitted at trial, but who then find allegations may continue to pose problems for them as a result of their inclusion in Disclosure and Barring Service records. 


by

Sarah Vine 

 

The recent decision of the Supreme Court in AR v CC of Greater Manchester Police is a source of little comfort to those who, having successfully contested criminal allegations, then receive notice of the fact that the police are considering disclosing the mere fact of the allegations to the Disclosure & Barring Service (‘DBS’) for inclusion in any Enhanced Criminal Records Check (‘ECRC’), or that the DBS are considering placing that person on a Barred List, preventing them from working with certain vulnerable groups.

 

The purpose of an ECRC is to provide information that might be relevant for the purposes of employment or licences, often where the person in question will come into contact with children or other vulnerable groups. The measures were put in place in response to the high profile case of Ian Huntley who, despite having been the subject of a series of allegations of serious sexual offending (including against children), was given a job as a caretaker by the unwitting Soham Village College; it was here that he met the two children whom he went on to murder. Few would argue that the creation of a body to prevent the recurrence of such a case was anything other than a laudable objective, but the balance to be struck between the interference with an individual’s right to privacy and the most effective protection of the public raises thorny questions of both principle and practice.

 

In the course of his judgment in AR, Lord Carnwath opined on the desirability of clear guidance for those considering the information provided by an ECRC – what weight, for example, should be placed by a prospective employer on a single acquittal? His remarks are certainly worthy of discussion, but may be optimistic in the extreme. The chances that anyone in a position of safeguarding a vulnerable group would approach such information with anything but a very high degree of risk aversion are, in reality, vanishingly small.

 

What then, if anything, is to be done?

 

Whilst the case of AR makes clear that it is not necessary for the police to make the same kind of assessment of the evidence that a jury is expected to, this is not the end of the matter. One of the issues for anyone who has received a notice relating to unproven allegations is whether the DBS has all of the relevant information. Most people in this position are able to point out what is already on the public record – that they have been cleared of any criminal wrongdoing. But, in order to displace the somewhat mechanistic assumption that the previous making of an allegation (in particular an allegation of sexual misconduct) indicates that an individual should be treated with caution, the notified person will want to ensure that the DBS have all the relevant information. A response to a Minded To Bar notice from the DBS can include not only written argument about the allegations but all information relating to the respondent, irrespective of whether it would have been admissible evidence in a criminal trial. If the DBS have nothing but the information provided by an overstretched and beleaguered police force (information that may not be entirely accurate, fair or up to date), then they are unlikely to have the whole picture. A Minded To Bar notice provides an opportunity to enable the DBS to make a decision more likely to reflect all the facts.

 

Recent negative publicity surrounding a decision by the Metropolitan police in the last half of 2016 to exclude unproven allegations from the information available to prospective employers (so that they could only access records of cautions, convictions, warnings and reprimands) has involved suggestions that the integrity of up to 20,000 DBS certificates has been compromised.    Whether the attention on this issue creates an impetus to visibly ‘toughen up’ on the processing of certificates remains to be seen, but it is crucial that those acquitted of criminal allegations who subsequently receive Minded To Bar notices consider all their options, rather than regarding their inclusion on a barred list as a fait accompli.

 

Sarah Vine is a leading junior who specialises in dealing with allegations of serious sexual offending.

 

 

 

 

 

 

Sentencing the hunted and the hunter
 
Sarah Elliott QC
Sarah Elliott QC

Sarah Elliott QC writes about two recent Court of Appeal cases, one dealing with the sentencing of offenders convicted through the evidence of “paedophile hunters” and the other looking at the appropriate sentence for hunter turned blackmailer.


by

Sarah Elliott QC

 

Hot on the heels of TL [2018] EWCA Crim 1821, (see Paul Mason’s article), two recent cases of interest out of the Court of Appeal looking at sentencing those caught in the sting, and those for whom the sting is really just vehicle for blackmail.

 

In Cassell [2018] EWCA Crim 1983, the Court of Appeal usefully reviewed several recent authorities sentencing appellants who had all attempted, in varying degrees, to engage in sexual activity with underage girls online but were really communicating with members of “paedophile hunter” groups.

 

Cassell was sentenced to 3 years in custody after a trial for conduct which involved,

 

Sexual chat including suggesting penetrative sex with a “13 year old girl”;

 

Sending pictures of his penis and requesting indecent pictures;

 

Arranging to meet;

 

Attending a meeting (obviously not with an actual child!).

 

The appellant had a bad record but nothing for sexual offences. The Court of Appeal described this as “severe” but not manifestly excessive.

 

The Court cited determining factors in other cases including the obvious - an attempt is obviously less serious than the full offence - but (perhaps surprisingly) concluded that failing to attend an arranged meeting does not make a substantial difference to sentence compared with cases where a defendant did attend.

 

The Court did not explore the apparent discrepancy between the approach in Hartfield [2017] EWCA 1499, an attempted s15 offence (meeting a child following sexual grooming), and a similar offence in Aaron Jones, [2017] EWCA Crim 1753. In Hartfield the Attorney-General, the defence and the Court all agreed that, notwithstanding the intention to meet for penetrative sexual activity, the fact that these were attempts put them into category 3 of the sentencing guideline.

 

In Aaron Jones the Court said the judge could have placed the offences into category 1 (irrespective of the fact that they were attempts). The defendant was also sentenced for an attempt to commit a section 10 offence (incitement) but the judge elected to sentence on the basis of the attempted s15 offence, which carries a lower sentence, a decision described as ‘generous’. That may have influenced the Court’s approach. They did not appear to consider the case of Baker [2016] 4 W.L.R 121 where the Attorney-General conceded that in incitement cases, the fact that a more serious activity was incited than took place does not put it in the higher bracket.

 

These are clearly difficult sentencing exercises for the courts. Is the defendant who attempted to incite or to meet with something less than penetration in mind entitled to a greater distinction from someone with penetration in mind, than simply being at the lower end of the same category 3 bracket?  Is there a qualitive difference between the defendant who engages in the chat, who even arranges a meeting but doesn’t attend, and the defendant who turns up at the meeting with a duvet in the back of the car?

 

So much for the hunted what of those who hunt but for the purpose of blackmailing potential offenders rather than prosecuting them. In Ashmore [2018] EWCA Crim 1966 the defendant and his co accused set up the sting in the usual fashion posing as underage girls online but when individuals came to meet the ‘child’ and were confronted by the defendants instead, they were met with demands for money rather than the police. In the appellant’s case he pleaded guilty to blackmailing 3 separate victims in these circumstances the starting point for the appellant of 4 and half years before discount for pleas was said to be robust but not manifestly excessive.

 

Sarah Elliott QC specialises in defending all types of sexual allegations

A Contradiction in Terms
 
Ben Newton
Ben Newton

Benjamin Newton discusses the most recent Court of Appeal guidance on Sexual Harm Prevention Orders. 


by

Ben Newton 

 

The imposition of Sexual Harm Prevention Orders has become routine, but it is very important that practitioners do not become complacent. The Court of Appeal have not been short on guidance, with an undisguised motivation to stem the tide of appeals being brought!

 

In R v Sokolowski [2018] 1 Cr App R (S) 30 the Court reiterated the core principles derived from earlier authorities:

 

  1. It is essential that a written draft of the proposed SHPO is served on the defence and lodged with the court so that it can be considered before the hearing (CrPR ; it is not acceptable for a draft to be produced at the hearing itself.
  2. The judge must actively consider the proposed order (even when the terms are agreed between the parties) and must be satisfied that, in respect of the particular facts and circumstances of the case before him, the order is necessary to protect the public or any particular members of the public from sexual harm from the defendant, is not oppressive, and is proportionate.
  3. Particular care must be taken when considering whether prohibitions on contact with children are necessary, for example in an indecent images case only where there is a real risk that the offending will progress to contact offences. If provisions are necessary they must be proportionate in their scope.
  4. A SHPO should operate in tandem with the statutory notification scheme and should not conflict with it or be used simply to extend it. A SHPO does not, however, have to be the same length as the notification requirements [although in both substantive appeals the Court did in fact make the length the same as the notification requirements – see paragraphs 21 and 34].
  5. A SHPO should not be made for an indefinite period unless the court is satisfied of the need to do so after careful consideration, and reasons must be given if it is.
  6. Parties must be sensitive to their obligations in relation to this form of order and properly advise the court of the relevant statutory provisions and the court’s role so as to avoid the need for appeals.

In R v Parsons [2018] 1 WLR 2409 the Court considered the issues of whether the guidance in R v Smith and R v McLellan applied to SHPOs – they do. The Court had furthermore invited the parties to instruct a computer expert to assist, and gave detailed guidance on such issues in particular.

 

Key principles were emphasised at the outset: i) no order should be made unless necessary and any prohibitions must be effective; ii) any prohibitions must be clear, realistic, and capable of simply compliance and enforcement; iii) the terms must be proportionate and not oppressive; and iv) any SHPO must be tailored to the facts.

 

The Court then gave the following guidance:

 

  1. A blanket ban on internet access would only be appropriate in exceptional cases.
  2. There is no objection in principle as to a prohibition geared to those under 18, but the facts of a particular case might point towards confining prohibitions to those under 16.
  3. A prohibition should not be made that assumes that a police force would wish to insist on the installation of risk management monitoring software, such as to make the use of the device contingent upon it. The trigger should be notification by the offender to the police of his acquisition of a computer or device capable of accessing the internet. The device should have the capacity to retain and display the history of internet use and the offender should be prohibited from deleting such history. The device should be made available immediately on request for inspection by a police officer (or employee and the offender should be required to allow the installation of risk management software if the police so choose. The offender should be prohibited from interfering with or bypassing the normal running of the software.
  4. A prohibition against cloud storage should not be targeted to the default or automatic use of cloud storage, but to 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 he is using.
  5. Similarly a prohibition against encryption software should be aimed at the installation of encryption or wiping software on any device other than that which is intrinsic to its operation.

 

The full terms of the orders in relation to both appellants were set out by the Court (at paragraphs 62 and 76), and the order imposed in relation to Parsons provides a useful illustration and template (subject to tailoring to the facts of any particular case) in relation to the guidance above.

 

The defendant is prohibited from:

 

(1) Living in the same household as any female child under the age of 18 or entering or remaining in any household where a female child under 18 is present unless with the express approval of Social Services for the area in which he resides.

 

(2) Having any unsupervised contact or communication of any kind with any female child under the age of 18 other than: (i) such as is inadvertent and not reasonably avoidable in the course of daily life, or (ii) with the consent of the child’s parent or guardian (who has knowledge of his convictions) and with the express approval of Social Services for the area.

 

(3) Using any computer or device capable of accessing the internet unless: (a) he has notified the police VISOR team within three days of the acquisition of any such device; (b) it has the capacity to retain and display the history of internet use, and he does not delete such history; (c) he makes the device immediately available on request for inspection by a police officer, or police staff employee, and he allows such person to install risk management monitoring software if they so choose. This prohibition shall not apply to a computer at his place of work, Job Centre Plus, Public Library, educational establishment or other such place, provided that in relation to his place of work, within three days of him commencing use of such a computer, he notifies the police VISOR team of this use.

 

(4) Interfering with or bypassing the normal running of any such computer monitoring software.

 

(5) Using or activating any function of any software which prevents a computer or device from retaining and/or displaying the history of internet use, for example using incognito mode or private browsing.

 

(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, within three days of the creation of an account for such storage, he notifies the police of that activity, and provides access to such storage on request for inspection by a police officer or police staff employee.

 

(7) Possessing any device capable of storing digital images (moving or still) unless he provides access to such storage on request for inspection by a police officer or police staff employee.

 

(8) Installing any encryption or wiping software on any device other than that which is intrinsic to the operation of the device.

 

Benjamin Newton defends in the most serious, complex and high-profile cases.