DAVID NOEL v CHIEF CONSTABLE OF DORSET POLICE

On an appeal by case stated concerning a sexual harm prevention order, the High Court may interfere only for an error of law or where the decision was one no reasonable court could reach on the evidence. An order may be necessary even where the qualifying offender has committed no sexual offence. The court must assess the whole evidential picture, including risks arising from mental health symptoms and precipitating factors such as substance misuse and an unstable environment. Restrictions must be necessary, clear, realistic, tailored to the identified risk and proportionate overall. Requirements may extend to children generally where the evidence supports that breadth, and may include monitored restrictions on devices and internet use where online sexual searching provides a sufficient evidential basis.

The appellant appealed by case stated against the dismissal by Bournemouth Crown Court of his appeal from Poole Magistrates’ Court’s decision to make a sexual harm prevention order. The order restricted his unsupervised contact and online communications with children under 16 and imposed conditions concerning computers and internet access.

The appellant had no convictions for sexual offences, but the evidence included sexualised thoughts, internet searches, mental-health difficulties, drug misuse and an unstable living situation. The case stated asked whether the necessity threshold had been crossed and whether the order was proportionate.

1. Appeal dismissed. The questions in the case stated wrongly invited the High Court to decide simply whether the Crown Court was right. On an appeal by case stated, intervention was permissible only for an error of law or where the decision was not open to the Crown Court on the evidence, namely a decision no reasonable court could reach.
2. Necessity. The statutory scheme permits an SHPO where the qualifying offender has committed no sexual offence. The court had to analyse all the available material and focus on whether the offender posed a risk of sexual harm. The Crown Court was entitled to place weight on the qualification in the psychiatric evidence that the risk was low unless symptoms changed or precipitating factors arose. Chronic drug misuse and the absence of a stable or supportive environment provided evidence of such factors. The Crown Court’s detailed assessment properly balanced the evidence indicating lower and higher risk and supported the conclusion that an order was necessary. That was the first question identified in R v NC [2016] EWCA Crim 1448.
3. Scope and proportionality. Requirements must be tailored to the evidence. Although cases may require restrictions limited to boys or girls, the evidence here referred to children generally, while the indications of interest in girls did not exclude a wider risk. The Crown Court could therefore find that restrictions concerning children as a whole were proportionate. The decision in R v Lui [2021] EWCA Crim 1125, where requirements were narrowed to reflect a risk to boys, did not require the same result on these facts.
4. Devices and internet. Although there was no evidence of attempted online contact with children, there was evidence of internet searches for sexual content relating to children. Restrictions requiring notification of relevant devices, retention of internet history and availability for police inspection were sufficiently justified and were not unduly onerous. The appeal was dismissed.

• High Court (Administrative Court): appeal by case stated dismissed.
• Bournemouth Crown Court: on 6 July 2021, dismissed the appeal from the SHPO made by Poole Magistrates’ Court.
• Poole Magistrates’ Court: on 12 March 2021, made a sexual harm prevention order.