TBG v A Chief Constable of Police

A sexual harm protection order may be necessary alongside life-licence conditions where the licence regime does not sufficiently address the offender’s demonstrated risks. The court must compare the proposed order with the existing licence conditions and determine whether the order adds necessary protection rather than duplicating those conditions.

The guidance in R v Smith and R v GD concerns orders imposed at the time of sentencing, when future licence conditions cannot be known and may be fettered. It does not create a blanket prohibition on a later order. The court may consider relevant conduct beyond the offence of conviction, including admissions and disclosures, when assessing the risk of sexual harm.

The appellant, released on life licence after conviction for murder, appealed by way of case stated against a sexual harm protection order imposed by the Ipswich Magistrates’ Court. The order followed evidence of earlier sexual offending, later conduct while on licence, internet searches involving sexualised images of young females, failures to disclose relevant matters and continuing difficulty in recognising risk.

The magistrates concluded that the licence conditions were insufficient and that a sexual harm protection order was necessary. They distinguished R v Smith and R v GD, which concerned orders imposed at the time of an indefinite sentence. The questions were whether there was sufficient evidence and whether, in light of those decisions, the order was necessary.

1. Evidence. There was sufficient evidence to justify the order. The appellant was a qualifying offender, and his conduct since conviction demonstrated a risk of sexual harm. The magistrates were entitled to rely on convictions, admissions, internet searches, breaches of licence conditions, lack of cooperation, lack of insight and dishonesty.
2. Effect of Smith and GD. Those decisions establish that it is rarely appropriate to impose a sexual harm protection order at the time of sentencing for an indefinite sentence. At that stage the court cannot ordinarily know the future licence conditions, and an order may fetter the later decisions of the Parole Board and Secretary of State. They do not establish a blanket rule against a later order.
3. Licence conditions and necessity. The order was imposed after release, when the licence conditions were known and had proved insufficient. The case involved the unusual feature that, despite serious admitted sexual offending, the appellant had no sexual-offence conviction and was not otherwise subject to the Part 2 notification regime under the Sexual Offences Act 2003. The seriousness and nature of the offending, the appellant’s deviousness, and the demonstrated inadequacy of the licence conditions justified a comprehensive protective package.
4. The magistrates carefully compared the order and the licence conditions. The order was complementary rather than duplicative, extending protection to young women aged 16 to 18 and imposing more detailed controls concerning relationships, alcohol, internet use and social media. Each condition was justified by the findings and was not disproportionate interference with privacy.
5. The court did not need to decide whether police involvement in MAPPA could independently justify an order. No relevant finding had been made on that issue. The appeal was dismissed, and both questions in the case stated were answered yes.

• High Court (King’s Bench Division), Divisional Court: The case was initially listed before Stuart-Smith LJ and Sweeney J, who adjourned it because the case stated did not comply with Criminal Procedure Rule 35.3(4)(d). An amended case was then stated and the matter relisted. The Divisional Court dismissed the appeal in the present judgment.
• Ipswich Magistrates’ Court: A sexual harm protection order was imposed on 5 July 2021. The magistrates answered the case-stated questions in favour of the order.