Choung, R. v

A sexual harm prevention order under Sexual Offences Act 2003 requires necessity, assessed on the facts of the individual case. Possession of wholly computer-generated sexual images of children does not itself expose an actual child to sexual harm. It cannot, without more, establish the risk required for such an order.

Other offending material, the development of the offender’s behaviour and a reliable assessment of future risk may nevertheless make an order necessary to protect children or vulnerable adults. Each restriction in the order must also be necessary. Internet conditions must be tailored to the risk and should not impose a broader restriction than is justified.

The appellant pleaded guilty in the Berkshire Magistrates’ Court to possessing one extreme pornographic image involving bestiality and 2,335 prohibited computer-generated Hentai images depicting children being sexually abused. The Hentai images involved no real children.

He was committed to the Crown Court at Reading and received concurrent two-year community orders. The sentencing judge also imposed a five-year sexual harm prevention order containing extensive internet and device restrictions.

The appellant appealed against the order. He contended, first, that no order was necessary and, secondly, that the requirement for risk-management software before any internet access was excessively broad. The central issues were whether the statutory necessity test was met and whether the internet restrictions went beyond what was necessary.

1. Permission to appeal was granted. The appeal succeeded in part. The court dismissed the challenge to the making of a sexual harm prevention order, but quashed and replaced its first condition. Paragraphs 3 and 6 were also to be deleted because the replacement condition made them unnecessary.

2. Under section 103A(2)(b) of the Sexual Offences Act 2003, the governing question is necessity. The court must decide on the particular facts whether the order is necessary to protect the public, children or vulnerable adults from sexual harm.

3. The Hentai images did not depict real children. If they had been the only material possessed, their possession would not have created a risk of sexual harm to any person and would not have justified an order. That conclusion did not determine this case. The appellant also possessed an image involving bestiality, which was capable of involving sexual harm to a vulnerable adult. His progression from Hentai material to more extreme pornography, together with the pre-sentence assessment that offending was likely to recur without changes to his thinking and coping skills, entitled the judge to find the order necessary.

4. The original first condition required risk-management software to be installed before the appellant could access the internet. Following R v Parsons [2017] EWCA Crim 2163, and the approach to blanket internet restrictions in R v Smith [2011] EWCA Crim 1772, that condition went beyond what was necessary.

5. The court substituted a tailored condition. It required notification of internet-capable devices, preservation of internet history for at least 12 months, production of devices for inspection and permission for the police to install monitoring software if chosen. It preserved specified workplace, library, Jobcentre and educational-use exceptions subject to notification requirements.

• Court of Appeal (Criminal Division): Permission was granted. The appeal against the necessity of the sexual harm prevention order was dismissed, but the appeal against its first internet condition was allowed. The order was varied.

• Crown Court at Reading: On 17 August 2018, the appellant received concurrent two-year community orders and a five-year sexual harm prevention order.

• Berkshire Magistrates’ Court: The appellant pleaded guilty to possessing an extreme pornographic image and possessing prohibited images of a child, then was committed for sentence.