R v H  EWCA Crim 127
A young person (16 years old at the time of the offence but 20 years old when sentenced) pleaded guilty to three offences of making indecent photographs of children, contrary to section 1 of the Protection of Children Act 1978.
He received a 12 month community order on each offence, with conditions that he do 80 hours of unpaid work and attend for up to 15 days on a rehabilitation activity requirement. He was also made subject to a Sexual Harm Prevention Order ('SHPO') for a period of five years. By virtue of the SHPO, he also became subject to Notification Requirements under s.80 of the Sexual Offences Act 2003 for the length of the Order.
On appeal the SHPO was quashed on the basis that there was insufficient evidence to justify its imposition. In his Judgment, Mr Justice Wall stated ‘…it was wrong for the judge to conclude that such an order was necessary. Orders of this sort are often necessary for offences of this nature, but not invariably so. Each case must be looked at on its merits.’ [Para. 17]
In reaching their decision, the Court of Appeal took the following factors into consideration:
- The delay of four years between offending and sentence during which time there was no repeat offending;
- Evidence that the Appellant had matured in that period and had a clear plan for the future (to join the army);
- The pre-sentence report did not identify a high risk of re-offending;
- The relatively low number of indecent images involved.
It was also noted that the draft SHPO was only uploaded to the DCS by the prosecution an hour before the sentencing hearing, limiting the opportunity for defence counsel to take instructions and the Judge proper time to consider necessity [Para. 17].
The fundamental purpose of a SHPO is to protect the public from sexual harm; it is not to be used as a punitive measure. The only prohibitions which can be imposed by an SHPO are those which are necessary, proportionate and not oppressive. The decision of the Court of Appeal in R v Smith and Others  EWCA Crim 1772 reinforces the need for the terms of an SHPO to be tailored to the exact requirements of the case.
It is a requirement of the Criminal Procedure Rules that applications are uploaded in good time for them to be considered by all parties before a hearing [Rule 31.3(1) and (5) of the Criminal Procedure Rules 2020] and the Court emphasised this point in R v Jackson  EWCA Crim 2602. However, this is rarely done and rather than delay proceedings, most courts impose the order just to be on the safe side.
When representing a child or young person being sentenced for a sexual offence, despite the responsibility lying with the prosecution, it is important to pre-empt a potential application for a SHPO and, if necessary, request a draft from the prosecution in plenty of time before the hearing to allow discussion between the parties to agree suitable prohibitions – or whether it is necessary at all.
Although rare, SHPOs can be made when sentencing youths. The Home Office Guidance on Part 2 of the Sexual Offences Act 2003 sets out the principles which should be applied when applying for an SHPO in relation to youths. These are:
- Early consultation and participation of the Youth Offending Team in the application process;
- That 14-17 year olds made subject to civil injunctions in relation to harmful sexual behaviour are offered appropriate interventions to reduce their harmful behaviour;
- That the nature and extent of that support is based on a structured assessment that takes into account the needs of the young person and the imminent risk; and
- That the welfare of the child or young person is the paramount consideration, in line with local safeguarding procedures.
All the more reason to engage with the prosecution, ensure that these principles are followed and, should an Order be made, that it is necessary, proportionate and not oppressive. Especially as, if an Order is made, the police will consider disclosure of the fact of the Order to other agencies, such as the head teacher of a school, and the wider community. As such, the impact it could have on a youth’s day-to-day life, rehabilitation and future prospects is profound.
Written by Laura Kruczynska, Legal Assistant, Kingsley Napley LLP