Hamer, R. v

A court may impose a Sexual Harm Prevention Order only for an offence within the statutory qualifying scheme. A breach of a Sexual Offences Prevention Order is not such an offence.

An existing Sexual Offences Prevention Order may be varied only on a valid application by a person exhaustively identified in section 108 of the Sexual Offences Act 2003. Procedural rules cannot enlarge that statutory class. Additional prohibitions also require evidence that they are necessary to protect the public from serious sexual harm; they cannot be imposed merely as a precaution against a different type of offending.

The appellant had previously been convicted of offences involving indecent photographs of children. He was made subject to an indefinite Sexual Offences Prevention Order.

After later guilty pleas to failing to comply with notification requirements and to breaches of that order, police sought further restrictions. The application was neither served on the appellant nor made by a chief officer of police. At sentencing, the Crown Court added the restrictions and described the resulting order as a Sexual Harm Prevention Order.

The appellant appealed against that order. The central issues were whether the Crown Court could impose a Sexual Harm Prevention Order and whether there was a valid statutory application to vary the existing order.

1. Appeal allowed. The order dated 15 June 2016, headed a Sexual Harm Prevention Order, was set aside. The original Sexual Offences Prevention Order continued without amendment.
2. The Crown accepted, correctly, that the court had no power to impose a Sexual Harm Prevention Order. A breach of a Sexual Offences Prevention Order was not among the qualifying offences under section 103A(2) and Schedules 3 and 5 of the Sexual Offences Act 2003.
3. R v Pelletier [2012] EWCA Crim 1060 did not save the order. Unlike that case, the written order reflected the judge's announced terms. The defect was substantive: the court lacked power to impose an order bearing that character.
4. Nor could the additional prohibitions stand as a variation of the existing order. Section 108(2) exhaustively identifies those entitled to apply to vary a Sexual Offences Prevention Order. The identified police officers were not chief officers of police. CPR 31.5 could not enlarge the statutory class of applicants. There was therefore no valid application before the judge and no jurisdiction to vary the order.
5. Further, although unnecessary to the jurisdictional decision, the evidence did not establish that additional prohibitions were necessary to protect the public from serious sexual harm under section 108(5). Applying the guidance in R v Smith [2011] EWCA Crim 1772, restrictions directed at contact offending require an identifiable risk of such offending. The pre-sentence report found that the breaches had not increased the existing risk, and the late application prevented proper consideration of necessity.

• Court of Appeal (Criminal Division): Allowed the appeal and set aside the purported Sexual Harm Prevention Order: [2017] EWCA Crim 192.
• Crown Court at Southampton: On 15 June 2016, varied the existing Sexual Offences Prevention Order by adding prohibitions and described it as a Sexual Harm Prevention Order.