Smith & Ors, R. v (Rev 1)

A sexual offences prevention order must be necessary, clear and proportionate. It may be made only to protect the public from a real, rather than remote, risk of serious physical or psychological harm caused by further scheduled sexual offences. Its terms must be readily understood and must not create a real risk of unintentional breach.

A blanket prohibition on computer or internet use is ordinarily disproportionate. A tailored requirement to retain a readable history of internet use and to make devices available for police inspection will generally be more effective. Restrictions on contact with children require an identifiable risk of contact offending and must preserve inevitable incidental contact. A SOPO should not duplicate notification, barring or licence regimes. Ordinarily, an indeterminate sentence makes a SOPO unnecessary, absent an unusual feature.

Four offenders appealed against sexual offences prevention orders made following convictions involving indecent images of children. The appeals came from Crown Courts at Liverpool, Mold, Teesside and Birmingham.

Clarke, Hall and Dodd challenged the breadth and workability of restrictions concerning internet use, digital devices, contact with children and activities involving children. Smith, who had received imprisonment for public protection, challenged the need for any order.

The common issue was how a SOPO should be assessed and framed so that it protects against the offender’s identified risk without duplicating other statutory regimes or imposing unnecessary and disproportionate restraints.

1. The appeals were allowed to the extent stated. The court varied the SOPOs imposed on Clarke, Hall and Dodd. It quashed Smith’s SOPO because his indeterminate sentence made it unnecessary. It also quashed the unlawful IPP sentence imposed for Smith’s possession count and imposed no separate penalty for it.

2. Under section 104(1) of the Sexual Offences Act 2003, a SOPO requires a real risk of serious sexual harm caused by further Schedule 3 offending. The order must address necessity, oppression and overall proportionality. Its terms must be clear enough for the defendant, those dealing with him and those enforcing the order to know what conduct is prohibited. It must avoid a real risk of unintentional breach.

3. A SOPO is distinct from notification requirements, statutory barring and licence conditions. It must neither duplicate nor conflict with them. A prohibition may extend beyond the notification period where it addresses a distinct and necessary risk. Ordinarily, however, an offender serving an indeterminate sentence needs no SOPO, because the appropriate restrictions can be determined on release and imposed through indefinitely continuing licence conditions.

4. Blanket internet bans, including restrictions confined to a pre-defined list of supposedly legitimate uses, are disproportionate and unworkable. The preferred model, where justified by the risk, requires a device to retain and display internet history, prohibits deletion, and requires the device to be produced for police inspection on request. Further targeted restrictions may be justified where the identified risk includes grooming or internet communication with children.

5. Restrictions on contact with children require an identifiable risk of contact offending. They should ordinarily concern those under 16, unless position-of-trust or family offences justify a higher age. They must allow unavoidable incidental contact and should not override properly informed social-services or family-court safeguards. Restrictions on work or activities involving children need separate justification beyond the statutory barring regime.

• Court of Appeal (Criminal Division): Allowed the appeals to the extent of varying the SOPOs imposed on Clarke, Hall and Dodd, and quashed Smith’s SOPO and the IPP sentence imposed for his possession count: [2011] EWCA Crim 1772.
• Crown Courts at Liverpool, Mold, Teesside and Birmingham: Made the challenged SOPOs when sentencing the four appellants for offences involving indecent images of children.