R v Simon Dalziel Garnett

A sexual harm prevention order must be necessary and proportionate in relation to the particular sexual offending and the risk of further sexual harm. The prosecution must address the court on the necessity and proportionality of each proposed prohibition. Standard or broad terms cannot be imposed without that examination. The terms must also be clear, realistic, capable of compliance and enforcement, and tailored to the facts. Restrictions directed at internet use or social media were not justified where voyeurism involved private recording and no sharing or uploading of images. Restrictions concerning the possession of devices capable of storing digital images and remote electronic storage were justified by the number and duration of the recordings.

The appellant pleaded guilty to eight counts of voyeurism and was sentenced at Warwick Crown Court to 15 months’ imprisonment. The sentencing judge also imposed a five-year sexual harm prevention order containing restrictions on internet use, social media, storage of digital images and remote electronic storage.

The appeal, brought with leave of the Single Judge, challenged the order as unnecessary and disproportionate. The central issue was whether each prohibition was necessary and proportionate having regard to the particular offending and the risk presented by the appellant.

1. Appeal allowed in part. The sexual harm prevention order was quashed and replaced for the same five-year period with only the restrictions concerning storage of digital images and remote electronic storage.
2. Under sections 345 and 346 of the Sentencing Act 2020, the court may make a sexual harm prevention order only where it is necessary to protect the public, or children or vulnerable adults, from sexual harm from the offender. Each proposed prohibition must separately be shown to be both necessary and proportionate in the circumstances of the particular case.
3. The prosecution must address the sentencing court on the necessity and proportionality of every term sought. A standard-form order risks imposing terms which have not been properly related to the particular offending and the risk of further sexual harm. The terms must be clear, realistic, readily capable of compliance and enforcement, non-oppressive and tailored to the facts, as stated in R v Parsons & Morgan [2017] EWCA Crim 2163.
4. The appellant’s voyeurism involved private recordings and there was no evidence that images had been uploaded or shared. Restrictions on internet use and social media were therefore unnecessary and disproportionate. Paragraphs 1 to 6 and 9 to 13 of the order were quashed.
5. The restrictions on possessing devices capable of storing digital images and using remote electronic storage were necessary and proportionate, given the number of recordings and the period over which they had been taken and stored. Those restrictions remained in force.

• Crown Court at Warwick: On 30 September 2024, the appellant was sentenced to 15 months’ imprisonment and made subject to a five-year sexual harm prevention order.
• Court of Appeal (Criminal Division): The appeal was allowed in part. The order was quashed and replaced with a five-year order containing two storage-related restrictions.