Smith, R. v

A sexual offences prevention order under Sexual Offences Act 2003 may last indefinitely only where that duration is necessary to protect the public or a particular person from serious sexual harm. The statutory minimum period does not itself justify an indefinite order.

In assessing necessity, the court may consider the offender’s history, insight into the offending, the practical effect of the restrictions, and the availability of variation or extension. It may be appropriate to align the order’s duration with the notification requirements. An indefinite order should be replaced where a fixed period adequately supplies the necessary protection.

The appellant pleaded guilty to nine offences of possessing indecent photographs of children. He received nine months’ imprisonment concurrently, and was subject to ten-year notification requirements under the Sexual Offences Act 2003.

At Inner London Crown Court, the judge made an indefinite sexual offences prevention order. Its agreed terms restricted the appellant’s use of internet-enabled and image-storage devices, subject to stated exceptions. The appellant did not challenge the sentence, the making of the order, or its terms. He appealed only its indefinite duration.

The central issue was whether an order of indeterminate length was necessary for protection from serious sexual harm.

1. Appeal allowed. The court quashed the indefinite sexual offences prevention order and substituted an order in identical terms lasting ten years.

2. Under section 107 of the Sexual Offences Act 2003, an order may be made only where necessary to protect the public or a particular person from serious sexual harm. That necessity requirement also governed whether the order should be indeterminate.

3. The appellant had no previous sexual conviction, although he had limited insight into the offending. He had accepted that an order was necessary. Its restrictions had a limited practical impact because they contained broad exceptions for lawful employment, study, leisure and adult social interaction. The order could also be varied, renewed or discharged under the statutory scheme, and could be extended if he reoffended or breached it.

4. It could be sensible, where appropriate, to align an order’s period with the duration of notification requirements. On these facts, protection did not require an indefinite order. A ten-year order, corresponding to the notification period, was sufficient.

• Court of Appeal (Criminal Division): Allowed the appeal against the duration of the sexual offences prevention order and substituted a ten-year order.

• Inner London Crown Court: On 16 February 2009, imposed concurrent nine-month sentences for nine counts of possessing indecent photographs of children and made an indefinite sexual offences prevention order.