REGINA v LEE (ALSO KNOWN AS MANDY) DAVIDOFF

A Sexual Harm Prevention Order may not include a prohibition which merely duplicates an existing criminal offence or increases the penalty for it. A prohibition may nevertheless be valid where it covers additional conduct and is necessary to prevent sexual harm.

A conviction for an offence in Schedule 5 is a gateway to making an order, but each prohibition must protect against sexual harm as defined by Sentencing Act 2020. That harm must arise from offences in Schedule 3 to the Sexual Offences Act 2003. On the facts, restrictions on internet-enabled devices and sending genital images lacked that required connection and were outside the court’s power.

The appellant had repeatedly committed offences involving public exposure, offensive communications and breaches of earlier Sexual Harm Prevention Orders. After pleading guilty to two further breaches of an order and being committed for sentence for sending offensive WhatsApp messages containing photographs of his penis, he was sentenced at Lewes Crown Court on 17 February 2022.

The sentencing judge imposed a fresh Sexual Harm Prevention Order. The appellant challenged three of its terms: a public-exposure restriction, controls on internet-enabled devices, and a prohibition on sending images of genitalia. He contended that the first and fifth terms duplicated existing offences and that the latter two were not authorised by the statutory definition of sexual harm.

The central issue was whether the challenged prohibitions were necessary and within the statutory power to make a Sexual Harm Prevention Order.

1. The appeal was allowed in part. Prohibitions 4 and 5 of the Sexual Harm Prevention Order were quashed. The public-exposure prohibition remained in force.

2. It was accepted that an order must not simply reproduce an existing criminal offence or be used to increase the available penalty for conduct already criminal. That principle did not invalidate Prohibitions 1 and 5 on the ground advanced. Each extended to situations which might not themselves constitute another offence, and could therefore operate preventively where necessary to avoid sexual harm.

3. Under section 345 of the Sentencing Act 2020, conviction for an offence in either Schedule 3 or Schedule 5 to the Sexual Offences Act 2003 permits the making of a Sexual Harm Prevention Order. Section 343 limits its terms to prohibitions necessary to protect the public from sexual harm. Section 344 defines that harm by reference to offences in Schedule 3.

4. Accordingly, a conviction only for a Schedule 5 offence did not itself prevent an order being made. It did, however, require close attention to whether each proposed term protected against sexual harm within section 344. There was clear evidence supporting Prohibition 1 because it addressed the risk of exposure, a Schedule 3 offence, and conduct preliminary to it.

5. There was no such sufficient connection for Prohibitions 4 and 5. The suggested possibility of relevant offending in Scotland was too remote. No relevant offence in England and Wales listed in Schedule 3 was identified. The statutory criteria were therefore unmet and the court had no power to impose those prohibitions.

• Court of Appeal (Criminal Division) — allowed the appeal only to the extent of quashing Prohibitions 4 and 5 of the Sexual Harm Prevention Order: [2022] EWCA Crim 1253.
• Crown Court at Lewes — on 17 February 2022, imposed a total sentence of three years’ imprisonment and a fresh Sexual Harm Prevention Order, including the challenged prohibitions. No citation was stated.