Thompson, R. v

A condition in a sexual offences prevention order must be necessary to protect the public from serious sexual harm and proportionate to the danger presented by the particular offender. A condition framed as a prohibition may include conditions enabling the monitoring of permitted internet use. Its lawfulness must nevertheless be assessed in the context of the related restrictions.

A term giving the police a continuing and repeatedly exercisable power to enter an offender’s home to inspect computer use is highly intrusive. It requires compelling, case-specific justification and should ordinarily be replaced by less intrusive monitoring. Proportionality must include regard to the right to private life under Article 8 of the European Convention on Human Rights.

The applicant pleaded guilty at the Crown Court at Aylesbury to two offences of taking indecent photographs of children and 16 offences of possessing such photographs. He received concurrent sentences of six months’ imprisonment.

The judge made a five-year sexual offences prevention order under the Sexual Offences Act 2003. The appeal concerned only clause 6, which required the applicant not to refuse police access to his home between 8 am and 8 pm to examine computer equipment and related material.

The applicant contended that the clause created an unjustified and disproportionate power of repeated entry. The central issue was whether that monitoring condition was necessary to protect the public from serious sexual harm and proportionate to that purpose.

1. Appeal allowed. The court granted leave to appeal and quashed clause 6 of the sexual offences prevention order.

2. Under section 107 of the Sexual Offences Act 2003, only prohibitions necessary to protect the public from serious sexual harm may be imposed. Although clause 6 was expressed negatively, it was in substance both mandatory and a general permission for police action. The statutory power was wide enough to permit a prohibition subject to conditions or exceptions, including monitoring conditions connected with a restriction on internet use.

3. Applying the approach in R v Collard [2005] 1 Cr App R(S) 34, necessity is a high threshold. The court must have material permitting a reasonable conclusion that the term is necessary. It must consider the offending, the offender’s circumstances and risk of reoffending, tailor the order to the danger presented, and ensure proportionality. The latter assessment requires particular regard to Article 8 of the European Convention on Human Rights.

4. The general order and its internet restriction were accepted as necessary. Clause 6 was not. It gave the police an extremely broad, continuing power to enter the applicant’s home repeatedly for five years without fresh justification. In substance it was a continuing search warrant. Given the level of offending, the applicant’s character and circumstances, and the absence of a sufficient basis for such intrusive monitoring, it could not be justified.

5. The court did not hold that a comparable term could never be imposed. It might be justified for a dangerous and recusant offender if supported by appropriate evidence, but less intrusive monitoring would normally be expected.

• Court of Appeal (Criminal Division): In [2008] EWCA Crim 3258, the court granted leave to appeal against sentence and quashed clause 6 of the sexual offences prevention order.

• Crown Court at Aylesbury: The applicant pleaded guilty on 1 May 2008 and was sentenced on 30 May 2008. On 13 June 2008, Judge Cripps made a five-year sexual offences prevention order under the Sexual Offences Act 2003.