AB, R v

A sexual harm prevention order imposed following conviction for a Schedule 5 offence requires a distinct finding that the order is necessary to protect the public from sexual harm. A risk of non-sexual harm does not satisfy that condition. Where the offence is not sexual per se, the court must focus on whether the evidence establishes the statutory risk and, if necessary, determine disputed facts through a Newton-type hearing. An indefinite order, or one extending protection to 16- and 17-year-olds, also requires specific and careful justification.

The applicant pleaded guilty in the Crown Court at Manchester to child abduction contrary to section 2(1)(b) of the Child Abduction Act 1984. During adjourned sentencing proceedings, the Crown Court imposed an indefinite sexual harm prevention order under section 103A of the Sexual Offences Act 2003, followed by a community order.

More than 1,000 days later, the applicant sought permission to appeal the order. He contended that the statutory necessity condition had not been established and, alternatively, that the duration and age-based restrictions were disproportionate. The central issue was whether the evidence justified an order to protect the public from sexual harm, rather than from harm generally.

1. Appeal allowed. Time was extended, permission to appeal was granted, and the sexual harm prevention order was quashed.

2. A Schedule 5 offence supplies only the gateway to an order under section 103A of the Sexual Offences Act 2003. The court must additionally be satisfied that the order is necessary to protect the public, or particular members of it, from sexual harm. Under section 103B(1)(a), that harm is physical or psychological harm caused by the commission of one or more Schedule 3 offences.

3. The sentencing judge had not made the necessary finding. The proceedings had instead lacked focus on the difference between a general risk of harm and a risk of sexual harm. The evidence did not establish a sexual motive for the child abduction, and the Court of Appeal could not itself be satisfied that the statutory criterion was met. If disputed motivation required resolution, a Newton-type hearing should have been conducted.

4. The court added that, even if the order had been lawful, its indefinite duration and its protection of all persons under 18 required detailed consideration. The guidance in R v Smith [2011] EWCA Crim 1772 indicated that restrictions ordinarily concern those under 16 unless there is a particular need to protect older children. The guidance in R v McLellan [2017] EWCA Crim 1464 required an indefinite order to be justified rather than adopted as a default.

• Court of Appeal (Criminal Division) — allowed the appeal and quashed the sexual harm prevention order: [2019] EWCA Crim 2480.
• Crown Court at Manchester (Minshull Street) — imposed an indefinite sexual harm prevention order during sentencing proceedings for child abduction.