R v Owen Huw David

A positive requirement in a sexual harm prevention order must be necessary for the statutory protective purpose, proportionate, sufficiently clear, and capable of effective and realistic compliance. A sentencing judge should expressly address those matters and give short reasons, particularly where the proposed requirement is contested.

A requirement must identify the person or organisation responsible for supervising it. A lifelong obligation to submit to polygraph testing whenever any police officer or offender manager directs, without defined topics or limits, is impermissibly vague, disproportionate and oppressive. A general defence of “good reason” does not cure those defects.

Following guilty pleas in the magistrates’ court, the appellant was committed to Cardiff Crown Court for sentence for breaching a sexual harm prevention order and making an indecent photograph of a child. On 25 April 2023, he received a total sentence of three years and two months’ imprisonment and a further sexual harm prevention order until further order.

With limited permission, he appealed only against prohibition 13 of that order. The prohibition required him to comply with instructions from an offender manager or police officer to attend and participate in polygraph or integrity screening. The issue was whether that positive requirement was necessary, proportionate and sufficiently clear.

1. Appeal allowed in part. Prohibition 13 was deleted from the sexual harm prevention order. The custodial sentences and the remainder of the order were unaffected.

2. Under Sentencing Act 2020 section 343, a positive requirement in a sexual harm prevention order must be necessary for the specified protective purposes. It must also be proportionate and sufficiently clear. The guidance in R v Parsons (Hayden Graeme); Morgan (Stuart James) [2017] EWCA Crim 2163 remained applicable: terms must be effective, clear, realistic, non-oppressive and tailored to the case.

3. A sentencing judge should expressly address the section 343 requirements and explain why a contested requirement is necessary, proportionate and clear. The reasons need not be lengthy. They are required both to demonstrate that the statutory exercise has been performed and to assist proper assessment of the condition’s limits.

4. The judge had not undertaken that exercise. In any event, prohibition 13 did not comply with section 347A because it failed to specify the individual or organisation responsible for supervising compliance. The references to “your offender manager/police” could encompass any offender manager or police officer, whether or not connected with the appellant’s management.

5. The condition was also far too broad. It purported to require lifelong polygraph testing whenever directed, for any or no reason, without defining the permitted topics. The existing order already contained extensive protective restrictions. The purported “good reason” defence made matters worse by requiring the appellant to predict, at the risk of criminal breach, whether a court would later accept his reason for non-compliance.

6. Articles 6 and 8 of the Human Rights Act did not independently invalidate a properly drawn, necessary and proportionate safeguarding requirement. Article 6 was not engaged merely by the screening requirement, and a lawful requirement would be justified under Article 8.

• Court of Appeal (Criminal Division): Allowed the sentence appeal to the limited extent of deleting prohibition 13 from the sexual harm prevention order.

• Crown Court at Cardiff: On 25 April 2023, imposed concurrent and consecutive custodial terms totalling three years and two months, and made a sexual harm prevention order until further order.

• Magistrates’ court: Following guilty pleas, committed the appellant to the Crown Court for sentence.