R v David Mark Valentine

A sentencing court must not base an ancillary order on offences of which the offender was acquitted. Under the Sentencing Act 2020, property may be deprived only where it was intended for committing or facilitating an offence; a general preoccupation with offending is insufficient. SHPO prohibitions require necessity, and an indefinite SHPO requires sufficient justification. A restraining order requires the statutory protective purpose in section 360, rather than a separate test of necessity. Its making remains a matter of judicial discretion.

The appellant was convicted at Portsmouth Crown Court of sexual offences against two girls and received an extended determinate sentence. The sentencing judge also imposed a Sexual Harm Prevention Order, a Restraining Order and a Deprivation Order concerning electronic devices. The appeal challenged only those ancillary orders. The central issues were whether the judge had relied impermissibly on offences carrying acquittals, whether the SHPO terms and indefinite duration were justified, and whether the Restraining Order required necessity and remained proportionate.

The appeal was allowed in part.

1. Deprivation Order. The court held that the judge could not proceed on a basis which was, in substance, contrary to the appellant’s acquittals on the image-related counts. Nor was there sufficient evidence that the devices were intended to be used to commit or facilitate an offence under section 153(3)(b) of the Sentencing Act 2020. The suggestion that the devices reinforced the appellant’s preoccupation with sexual offending did not establish the required intent. The order was set aside. This applied the principle in R v Ayensu (1982) 4 Cr. App. R.(S.) 248.
2. Sexual Harm Prevention Order. The same objection applied to paragraphs 5 and 6, which were founded on the acquitted counts. The statutory necessity test was therefore not established. The judge had also failed to provide sufficient justification for an indefinite order. The court substituted a period of 15 years, deleting paragraphs 5 and 6.
3. Restraining Order. Section 360 of the Sentencing Act 2020 did not impose a separate test of necessity. The order could be made only for the identified statutory protective purpose, after which its making involved judicial discretion. The court upheld the orders protecting both complainants, despite the lapse of time and absence of recent contact. However, there was insufficient reason for an indefinite duration, so the period was substituted with 15 years.
4. The Deprivation Order was set aside. The specified SHPO prohibitions were deleted and its duration varied to 15 years. The Restraining Order was varied to 15 years. The court confirmed that the statutory surcharge provisions did not apply.

• Court of Appeal (Criminal Division): In [2025] EWCA Crim 1546, the appeal was allowed in part. The Deprivation Order was set aside, specified SHPO terms were deleted, and the SHPO and Restraining Order were each limited to 15 years.
• Crown Court at Portsmouth: The appellant was convicted on 2 December 2024 and sentenced on 7 February 2025 by HHJ Ashworth. Ancillary orders included an indefinite SHPO, an indefinite Restraining Order and a Deprivation Order.