Constantine, R. v

A prohibition in a sexual offence prevention order must be necessary to protect the public from serious sexual harm. Its terms must be tailored to the offender’s actual risk and must be proportionate. A general restriction on internet use may be excessive where access is needed for employment and the risk of downloading indecent images at work is materially lower than at home.

An indefinite order may nevertheless be justified where the offending history and other evidence demonstrate continuing risk. A lengthy fixed term may improperly influence a later court considering whether changed circumstances justify discharge.

The appellant pleaded guilty at Kingston-upon-Thames Crown Court to two counts of making indecent photographs of children. He received a community order with supervision and a sex offender programme. The Crown Court later made an indefinite sexual offence prevention order under Sexual Offences Act 2003, restricting possession of computers, internet access and possession of an internet-capable mobile phone.

He appealed against the restriction which prevented internet use at work except for email, and against the order’s indefinite duration. The central issues were whether the work-related restriction was necessary and proportionate, and whether the duration should be fixed rather than indefinite.

1. Appeal allowed in part. The court varied the internet prohibition, but upheld the indefinite duration of the sexual offence prevention order.

2. Under sections 104(1)(b) and 107(2) of the Sexual Offences Act 2003, an order and each prohibition within it must be necessary to protect the public, or particular members of it, from serious sexual harm. The terms must be tailored to the danger presented and proportionate. The court applied the approach in Collard [2005] 1 Cr App R (S) 34.

3. Although the appellant’s previous conviction and use of software designed to overwrite computer material demonstrated a need for substantial restrictions, it was unnecessary to prevent him from using the internet for work at his place of employment. Internet and computer use is commonly needed in office work. The risk of downloading indecent images at work was materially lower than the risk at home. Paragraph 2 was therefore amended to prohibit internet access, including the World Wide Web, except for work purposes at the workplace.

4. The court declined to alter the indefinite duration. The previous conviction and use of the overwriting software justified an order of substantial length. A fixed period of 20 or 30 years could make a later discharge application harder, because a future court might treat that period as an assessment that the restriction remained necessary rather than assess the circumstances then prevailing. The indefinite order preserved the statutory route for a later application to set it aside.

• Court of Appeal (Criminal Division): Allowed the appeal in part and varied paragraph 2 of the sexual offence prevention order: [2009] EWCA Crim 2092.
• Crown Court at Kingston-upon-Thames: Following guilty pleas, imposed a community order on 6 March 2009 and made an indefinite sexual offence prevention order on 20 March 2009.