Dewey v R

A Sexual Harm Prevention Order must be limited to restrictions that are necessary and proportionate to protect the public from sexual harm in the individual case. Existing notification requirements and Disclosure and Barring Service controls are relevant. Restrictions must also be effective, clear, realistic and readily capable of compliance and enforcement. For internet-enabled devices, the appropriate approach will generally focus on notification, retaining browsing history, production for inspection and permitting monitoring software where required. Restrictions on contact, mobile phones, image-capturing devices, cloud storage and premises access must each be justified by the evidence.

The appellant pleaded guilty to offences involving indecent images of children and extreme pornographic images. The Crown Court at Wood Green imposed a suspended sentence and a ten-year Sexual Harm Prevention Order containing restrictions on contact with children, internet-enabled devices, mobile phones, image-capturing devices, cloud storage and access to devices and premises.

He appealed against specified terms of the order. The central issues were whether those restrictions were necessary and proportionate, and whether their wording was sufficiently practical and enforceable in light of Parsons and Morgan [2017] EWCA Crim 2163.

1. Appeal allowed in part. The sentence and other orders remained unchanged, but the ten-year Sexual Harm Prevention Order was replaced by a revised order.
2. The touchstone for the terms of an SHPO is necessity and proportionality. Under Sexual Offences Act 2003, s 103A and following, a restriction must be necessary to protect the public or particular members of the public from sexual harm. The court must weigh the proposed restriction against the facts of the individual case. Notification requirements and Disclosure and Barring Service involvement must be taken into account. Any additional restriction must be justified as necessary, not merely appropriate.
3. A non-contact restriction was not necessary or proportionate. There was no evidence from the analysis of the appellant’s devices of any attempt to contact children, and the risk of a contact offence was assessed as low. The case was distinguished from Morgan, where a non-contact provision had been upheld.
4. The court followed and applied the practical approach in Parsons and Morgan [2017] EWCA Crim 2163. Restrictions should be effective, clear, realistic and readily capable of compliance and enforcement. Routine installation of risk-management software, or police approval of such software, was administratively unworkable. A more practical scheme required notification of internet-capable devices, retention and production of internet history, inspection on request, and permission for monitoring software to be installed if required. A general cloud-storage restriction was too blunt.
5. Restrictions on mobile-phone use and image-capturing devices were unnecessary on the evidence. The necessary controls were achieved by notification, inspection and operating requirements. A power for police to enter any premises was unnecessarily wide and disproportionate; the other requirements were sufficient.
6. The court noted, as a future consideration, that technological development and the variety of SHPO wording in use might justify reconsideration of the precise wording of proportionate restrictions with contemporary expert evidence.

A Defence Costs Order of £145.69 was made under s 19(4) of the Prosecution of Offence Act 1985, limited by s 16A to transcript and travel costs.

• Crown Court at Wood Green: imposed a suspended sentence and a ten-year SHPO containing the challenged restrictions.
• Court of Appeal (Criminal Division): allowed the appeal to the extent of replacing the SHPO with revised terms; the sentence and other orders remained unchanged.