Godwin, R v

A Sexual Harm Prevention Order under section 103A(2)(b) of the Sexual Offences Act 2003 requires a real risk of future sexual harm. Its protective purpose means that historic offending alone, however serious, does not establish necessity. The court must assess present and future risk on the evidence.

The prosecution bears the responsibility of justifying the order. It is not for a defendant to disprove a standard form application or to object before the statutory necessity condition must be addressed.

The appellant pleaded guilty at Manchester Crown Court to five historic offences of indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960. He received a total of 20 months’ imprisonment and a ten-year Sexual Harm Prevention Order.

The offences had occurred about 35 years earlier. The appellant had no later similar conviction and was assessed as stable in the community, although presenting a medium risk of serious harm because of the seriousness and impact of the offences. He appealed only against the order. The prosecution did not oppose the appeal. The issue was whether the statutory condition of necessity was satisfied.

1. Appeal allowed. The Sexual Harm Prevention Order was quashed. The custodial sentence was not challenged.
2. Under section 103A(2)(b) of the Sexual Offences Act 2003, an order may be made only if necessary to protect the public, or particular members of it, from sexual harm by the defendant. Following R v O(AJ) [2016] EWCA Crim 2200, necessity requires a real risk of future harm. The court must focus on future risk, though an order may in principle be justified after a conviction for historic sexual offending.
3. The evidence did not establish that risk. The offending was about 35 years old, there had been no indication of later offending, and the sentencing judge had recorded the appellant’s subsequent positive good character. The statutory necessity condition was therefore not met.
4. The court also observed that the prosecution must justify an order. The absence of an objection to a proposed order would not itself establish necessity. In any event, counsel had objected at sentence on the grounds advanced on appeal.

• Court of Appeal (Criminal Division) — allowed the appeal in part and quashed the Sexual Harm Prevention Order: [2017] EWCA Crim 2497.
• Manchester Crown Court — following guilty pleas, imposed 20 months’ imprisonment and a ten-year Sexual Harm Prevention Order.