Mortimer, R. v

A Sexual Offences Prevention Order must be tailored to the particular danger posed by the offender. Under the Sexual Offences Act 2003, each prohibition must be necessary to protect the public or particular persons from serious sexual harm. It must also be clear, non-oppressive and proportionate.

Blanket restrictions on photographs, computers, internet use and mobile telephones will not satisfy those requirements where they are vague, draconian, disproportionate or incapable of effective policing. Restrictions on internet-enabled devices may instead require notification, retention of browsing history and production of that history when requested.

The appellant was convicted of three counts of sexual assault on a child under 13 and one count of causing or inciting a child to engage in sexual activity. He received imprisonment for public protection with a minimum term of three years.

At sentencing on 4 April 2008, His Honour Judge Stokes also imposed an indefinite Sexual Offences Prevention Order containing 16 prohibitions. The appeal challenged paragraphs 10 to 16, which imposed wide restrictions on photographs of children, computers, internet use and mobile telephones.

The central issue was whether those prohibitions were necessary, clear, non-oppressive and proportionate safeguards against serious sexual harm.

1. Appeal allowed to the extent indicated. The court replaced paragraphs 10 to 16 of the Sexual Offences Prevention Order.

2. The statutory power under the Sexual Offences Act 2003 permits an order only where it is necessary to protect the public, or particular members of it, from sexual harm. The permissible prohibitions are likewise confined to those necessary to protect against serious sexual harm.

3. The court followed the principles stated in R v Collard [2004] EWCA Crim 1664, whose application to the 2003 Act had also been noted in R v Terrell 2007 EWCA Crim 3079. A prohibition must be tailored to the offender’s particular risks, must not be oppressive, and must be proportionate. The court therefore asked whether each disputed term was necessary for protection, oppressive, and proportionate.

4. The blanket ban on possessing photographs of any child under 16 was unjustified, vague and indefinite. A complete prohibition on possessing a computer was draconian, unnecessary, oppressive and disproportionate. The restriction on internet use other than for work, study or seeking employment was neither necessary nor proportionate and was effectively incapable of policing. The ban on internet subscriptions had the same policing defect. The mobile-phone restriction would in practice prevent possession of a mobile phone because of technological development.

5. The substituted provisions prohibited possession of photographs of children under 16, other than family members and then only with the relevant parent’s or guardian’s written permission. They required notification within three days of acquiring a computer, iPhone or mobile phone. They also required internet-capable devices to retain and display internet history, prohibited deletion attempts, and required production of the history to a police officer on request.

• Court of Appeal (Criminal Division) — in [2010] EWCA Crim 1303, allowed the appeal to the extent indicated and substituted paragraphs 10 to 16 of the order.
• Sentencing court (His Honour Judge Stokes) — following conviction, imposed imprisonment for public protection and an indefinite Sexual Offences Prevention Order on 4 April 2008.