REGINA v STEPHEN WRIGHT-HADLEY

A deprivation order under the Sentencing Act 2020 is available only where the prosecution satisfies the court to the criminal standard that property was used, or intended to be used, to commit or facilitate an offence. The court must then consider the property's value, the likely financial and other effects on the offender, and proportionality as part of the total penalty. The prosecution must provide a sufficient evidential basis, and the court must investigate the property's circumstances and make any necessary finding. Suspicion that unexamined devices may contain offending material is insufficient. Deprivation orders are ancillary but must not be made routinely.

The appellant pleaded guilty to voyeurism and affray. The Crown Court at Lewes imposed concurrent community orders and made a deprivation order under the Sentencing Act 2020 covering numerous digital devices. The appellant accepted forfeiture of most items but challenged the order in respect of unexamined external hard drives and SD cards containing allegedly innocent and sentimental material.

The prosecution had forensically examined only one of nearly 20 mass-storage devices. The judge refused to return the others because he could not exclude the possibility that they contained offending imagery, and rejected the appellant's offer to fund further examination. The central issue was whether the statutory conditions for deprivation and the proportionality requirements had been satisfied.

The appeal was allowed and the Deprivation Order was quashed.

1. Statutory availability. Under the Sentencing Act 2020, a deprivation order is available only if the prosecution satisfies the court to the criminal standard that the property was used, or was intended to be used, to commit or facilitate an offence. The burden lies on the prosecution.
2. Exercise of the power. Once the order is available in principle, the court must have regard to the property's value and the likely financial and other effects on the offender. Proportionality is an important consideration, and the order must be assessed as part of the total penalty. Deprivation orders should not be made unless they are simple and free from complicating factors.
3. Procedural safeguards. There must be a sufficient evidential basis for the application. The court must make a proper enquiry into the property and, where necessary, make a formal finding, potentially following a Newton hearing. The prosecution and defence should be invited to make submissions. These principles were cited with reference to R v Pemberton (1982) 4 Cr App R(S) 328, R v Jones [2017] EWCA Crim 2192, R v Thomas [2012] EWCA Crim 1159 and R v De Jesus [2015] EWCA Crim 1118.
4. Application. The judge had reversed the statutory approach by asking whether he could satisfy himself that the devices contained no offending imagery, rather than whether he was sure that they had been used or intended to be used for offending. Examination of one device did not justify a finding concerning the others. A wider probe was warranted, although examination of every device was not necessarily required. The prosecution had advanced no positive case on future intention, and the judge had not addressed that issue. Nor had he considered the statutory financial and other effects or proportionality, despite the possible loss of a lifetime's landscape photography and irreplaceable family imagery.
5. Conclusion. Existing restrictions on the appellant's use of image-capturing devices did not cure those defects. R v Julian Carr [2022] EWCA Crim 286 concerned devices whose possession itself breached a sexual harm prevention order and was materially different. Deprivation orders are subject to a specific statutory regime and should be made only after due investigation and process.

• Court of Appeal (Criminal Division) — allowed the appeal and quashed the Deprivation Order.
• Crown Court at Lewes — on 17 May 2021, imposed concurrent community orders and made the challenged deprivation order.