TH, appealed against the imposition of a Sexual Harm Prevention Order (‘SHPO’), following his guilty plea to three offences of making indecent photographs of children, contrary to section 1 of the Protection of Children Act 1978. The Court of Appeal agreed that, on the facts of his case, an SHPO was not necessary and so quashed the Crown Court’s order.
In this case, TH was 16 when the images (ranging from category A-C) were downloaded and 17 when the police seized his devices for examination. He was not charged until nearly 3 years later, by which time he was over 18.
He initially stated that the images had been automatically downloaded onto his devices without his knowledge, he later pleaded guilty on the day of his trial. He had no previous convictions. The judge sentenced TH to a community order with an unpaid work requirement of 80 hours and a rehabilitation activity requirement of 15 days.
The judge concluded it was necessary to impose an SHPO for two reasons:
- Because of TH’s attitude towards images of children aged between 16 and 18 as expressed in the PSR. The judge concluded that this revealed a lack of understanding of the issues surrounding the sexual abuse and exploitation of children and adolescents
- Because of the negative views TH had expressed about his treatment at the hands of the police.
The Court of Appeal considered the judge’s reasons for imposing the SHPO: in respect of TH’s attitude towards images of children aged between 16 and 18, the court found that this view had to be looked at against the background that TH only 16 years old when he downloaded these images and was to be contrasted with his description in the PSR of indecent images of children under 16 as being 'disgusting'.
The Court also found that although TH could have been more understanding of the police’s role, his criticism of the police should have carried very little weight, not least because TH blamed the police for their lengthy investigation, and the determinantal effect it had had on TH and his family.
In addition, the court found that there were other factors which suggested making an order was not necessary:
- An extreme delay of four years, during which there was no repeat offending. TH had spent almost three years on bail and had been a boy of 16 when he downloaded the images.
- There was evidence he had matured, demonstrated by his fixed plan to join the army.
- The PSR did not identify a high risk of reoffending which may have been averted by the imposition on an SHPO.
- The case concerned a relatively small number of images, compared with other cases that came before the court.
For those reasons, the Court concluded that there was not sufficient evidence to conclude that an SHPO was necessary. Although the court accepted that such orders ‘are often necessary for offences of this nature’, it emphasised that ‘each case must be looked at on its merits’.
The Court criticised the late service of the draft SHPO in this case, which had been uploaded to the Digital Case System an hour before the sentencing hearing. The Court emphasised the need for compliance with the Criminal Procedure Rules 2020, in particular r. 31(3)(5) which requires a draft SHPO to be served ‘not less than 2 business days before the hearing at which the order may be made’.
This case is a useful aide memoire for practitioners who wish to challenge an application for an SHPO, providing four factors that practitioners may wish to focus on: (1) delay, (2) change in maturity levels, (3) risk of reoffending, (4) level of harm occasioned by the underlying offence. While the Court of Appeal was at pains to point out that ‘each case must be looked at on its merits’, and that SHPOs are ‘often necessary for offences of this nature’, it is a helpful reminder to practitioners that such orders should not be routinely given.
Written by Nick Murphy, Barrister, 25 Bedford Row