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  1 Cr App R (S) 30 the Court reiterated the core principles derived from earlier authorities:
- 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.
- 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.
- 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.
- 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].
- 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.
- 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  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:
- A blanket ban on internet access would only be appropriate in exceptional cases.
- 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.
- 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.
- 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.
- 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.