Love, R. v

A Sexual Harm Prevention Order must be necessary to protect the public from sexual harm, proportionate to the identified risk, and framed in terms that are clear, realistic and capable of simple enforcement. A restriction directed at isolated public footpaths may be justified where the offending, risk assessment and offender’s history show a risk of impulsive sexual offending in such locations.

A body-worn GPS-monitoring requirement may nevertheless be manifestly excessive where the statutory scheme permits no shorter period than five years and the facts do not justify that level of intrusion. The court must assess each condition separately; a justified protective restriction does not validate an excessive monitoring requirement.

The appellant pleaded guilty before magistrates to a serious sexual assault on a woman walking on a public footpath. He was committed to the Crown Court at Merthyr Tydfil for sentence. On 25 January 2019, HHJ Lloyd-Clarke imposed imprisonment and adjourned consideration of a Sexual Harm Prevention Order.

On 14 February 2019, the judge imposed an order for seven years. It prohibited the appellant from entering public footpaths other than those forming part of a public highway. It also required him, from release, to comply with a body-worn GPS-monitoring device.

The appellant appealed against the order, contending that both conditions were contrary to principle and manifestly excessive. The central issues were whether the conditions were necessary, proportionate, clear and realistically enforceable.

1. The appeal was allowed in part. The court quashed the body-worn GPS-monitoring condition. It upheld the seven-year restriction on entering public footpaths other than those forming part of a public highway.

2. The necessity requirement in section 103A(2)(b) of the Sexual Offences Act 2003 was met. The assault was serious and sexually motivated. The appellant had been assessed as presenting a high risk of further sexual offending. His history, the pre-sentence report and the psychological report indicated substantial problems with impulse control. His conduct in following the victim and waiting until she reached a quiet place justified a restriction focused on paths away from roads.

3. The first condition was proportionate and not oppressive. It did not prevent travel from one place to another, although it could restrict some leisure activity. Its terms drew an intelligible distinction between paths away from roads and those by roads. It was therefore clear, realistic, and capable of simple compliance and enforcement, consistently with R v Smith [2011] EWCA Crim 1772. Any future difficulty caused by a change of residence could be addressed by an application to the court.

4. The GPS condition was different. The court noted that the statutory scheme confined such a requirement to five years or a further order, and did not permit a shorter period. The Crown had originally sought only twelve months and had conceded that proposal was not available under the Act. The resulting concern about proportionality was not dispelled by the facts. Although GPS monitoring was not necessarily contrary to principle, the five-year condition, alongside the upheld footpath restriction, was manifestly excessive.

• Court of Appeal (Criminal Division): allowed the appeal in part and quashed the GPS-monitoring condition: [2019] EWCA Crim 1945.

• Crown Court at Merthyr Tydfil: HHJ Lloyd-Clarke imposed a Sexual Harm Prevention Order on 14 February 2019 following the appellant’s sentence on 25 January 2019.

• Magistrates’ Court: following a guilty plea, committed the appellant for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000.