Hemsley v R

A sexual offences prevention order must be necessary to protect the public, or particular members of it, from serious sexual harm. Its restrictions must address an identifiable risk arising from the offender’s conduct. Conditions which are unduly broad, bear no sufficient relation to that risk, create a real risk of accidental breach, or require another person’s assistance to comply are not justified.

An order made under the Sexual Offences Act 2003 cannot extend police search and seizure powers. In indecent-image cases, a narrowly tailored order may be necessary to prevent conduct supporting the market for such images. Its duration will generally correspond with the notification period where that is appropriate.

The applicant pleaded guilty to 23 offences of making indecent photographs or pseudo-photographs of children. He received concurrent sentences of six months’ imprisonment at Bournemouth Crown Court before HHJ Harrow. The custodial sentence was not challenged.

The judge also imposed an indefinite sexual offences prevention order containing wide restrictions on devices, images, work, and involvement with organisations likely to bring the applicant into contact with children. The applicant appealed against that order. The central issue was whether its terms and indefinite duration were necessary and lawful under the Sexual Offences Act 2003.

1. Appeal allowed. The court quashed the existing sexual offences prevention order and substituted a seven-year order with two confined internet and computer conditions.

2. The statutory condition, stated by reference to section 107(2) of the Sexual Offences Act 2003, required necessity for the purpose of protecting the public from serious sexual harm. The words necessary, for the purpose of protecting, and serious harm were controlling. Each condition had to address an identifiable risk and be justified by evidence.

3. Because breach is itself an offence under section 113(2), an order must be clear, capable of compliance without unreasonable difficulty or another person’s assistance, and free from a real risk of inadvertent breach. Its drafting should be careful and simple.

4. The first condition was neither necessary nor lawful. It depended on the co-operation of owners or occupiers and purported to confer broad police search and seizure powers. The statutory power permitted prohibitions on conduct, not an enlargement of those powers.

5. The remaining conditions were also excessively wide. They could criminalise possession of ordinary media and prevent harmless work, communication, religious attendance or attendance at sporting events. They did not sufficiently relate to the only identified risk. Restrictions concerning access to children were better addressed through the Safeguarding Vulnerable Groups Act 2006.

6. Following the approach in R v Terrell [2008] 2 Cr. App. R. (S.) 49, the court accepted that an order could be necessary in an indecent-image case because participation in the market may encourage the creation of images involving serious sexual harm to children. The evidence did not, however, justify this order’s breadth.

7. Applying the approach in R v Hammond [2008] EWCA Crim.1358, the appropriate duration was seven years from conviction, matching the notification period.

• Court of Appeal (Criminal Division): allowed the appeal against the sexual offences prevention order, quashed it, and substituted a seven-year order.

• Crown Court at Bournemouth: HHJ Harrow sentenced the applicant to six months’ imprisonment concurrently on 23 counts and imposed an indefinite sexual offences prevention order. The custodial sentence was not challenged.