Howarth, R. v

The statutory test for a sexual harm prevention order requires necessity and proportionality, both when deciding whether to make an order and when fixing its terms. An indefinite order is not a default option. It requires a demonstrated need and must not last longer than necessary. A fixed order may exceed the statutory minimum where the circumstances justify a longer period. The relevant assessment includes the nature and duration of offending, assessed risk and continuing minimisation. Where several disposals are imposed, the surcharge is the highest applicable amount. An appellate increase is permissible if, viewed overall, the sentence is no more severe after a compensating reduction. The appeal was allowed in part.

After pleading guilty to three offences under the Protection of Children Act 1978, the appellant was sentenced by the Crown Court at Salisbury to a fine, a community order and an indefinite sexual harm prevention order under the Sexual Offences Act 2003. He appealed only against the order’s unlimited duration, proposing five years. The respondent accepted that an indefinite order was unjustified and proposed seven years. The Court also considered the surcharge after the Registrar identified that the higher amount was payable on the financial penalty. The central issues were the necessity and proportionality of the order’s duration and whether the surcharge could be increased without making the overall sentence more severe.

The appeal was allowed in part. The sexual harm prevention order was reduced from an indefinite period to seven years, and the surcharge was increased from £90 to £100.

1. The statutory test under section 103A(2)(b) of the Sexual Offences Act 2003 required the court to address both necessity and proportionality when deciding whether to impose a sexual harm prevention order and when determining its terms. The guidance in R v Smith [2011] EWCA Crim 1772 was applied. Despite the appellant’s lack of previous convictions, the nature and extent of the offending and the pre-sentence report made an order concerning Internet use necessary. The restrictions imposed were necessary and proportionate.
2. The Court followed the duration guidance in R v McLellan [2017] EWCA Crim 1464. A sexual harm prevention order should not last longer than necessary. An indefinite order requires a specific justification and must not be imposed as a default. The sentencing court should ordinarily explain, however briefly, why an indefinite period is required. The Recorder had given no such justification, so the Court had to determine the duration itself.
3. Absent the indefinite order, the notification period under section 82(1) would have been five years, which also supplied the minimum duration under section 103C(2)(a). The Court considered whether the circumstances justified a longer period. The four-year duration of the offending, use of TOR and the dark web, and continuing minimisation despite therapy made seven years necessary and proportionate. That period also matched the notification period required by section 103G(2)(a).
4. Under R v Abbott [2020] EWCA Crim 516, where more than one type of disposal is imposed, the higher applicable surcharge is payable. Section 11(3) of the Criminal Appeal Act 1968 did not prevent the increase because the substantial reduction in the order’s duration meant that the appellant was not dealt with more severely overall.

• Court of Appeal (Criminal Division) — On 17 March 2021, the appeal against sentence was allowed in part. The sexual harm prevention order was reduced to seven years and the surcharge was increased to £100: [2021] EWCA Crim 445.
• Crown Court at Salisbury — On 24 September 2020, the appellant pleaded guilty and received a fine, a two-year community order, an indefinite sexual harm prevention order and related orders.